iminal Appeal No 22 of 1953
Appeal by special leave from the Judgment and Order dated the 19th November 1952 of the High Court of Judicature of Punjab at Simla in Criminal Appeal No 102 of 1952 and Criminal Revision Nos
423 146 and 499 of 1952 of the Court of the Sessions Judge Jullundur in Sessions Case No 30 of 1951 and Sessions Trial No 5 of 1951
Jai Gopal Sethi R L Kohli and Deva Singh with him for the appellants
Gopal Singh for the respondent
May 15
The Judgment of the Court was delivered by BosE J
Four persons appeal against sentences of death passed upon them in convictions for a double murder the victims being two brothers Rattan Singh and Bawa Singh
The learned Sessions Judge convicted three others also but sentenced all including the four appellants to transportation for life
The High Court acquitted three of the seven but sustained the convictions of the four appellants and enhanced their sentences in each case to death
The prosecution story is simple
All seven accused belong to the same village and belong to the same faction or party as Mst
Punnan PW 2 calls it
Of the seven the appellants Dalip Singh and Battan Singh are brothers
Jarnail Singh who was acquitted is a son of Battan Singh
The remaining four including the appellants Sadhu Singh and Kundan Singh are not related to the other three and except for the evidence that they belong to the same party are not shown to have any common interest with the other three
The appellants Dalip Singh and Battan Singh are said to have assaulted the two dead men Rattan and Bawa about twenty years before the occurrence
They were prosecuted and convicted and served short terms of imprisonment
Dalip Singh and Battan Singh are also said to be dacoits and it is said that they believed that the two dead men used to furnish information against them to the police
This is said to be the motive for the murders
Why the others should have joined in except on the basis that they belong to the same Party is not disclosed
147 The prosecution case is as follows On 16th June 1951 Rattan Singh was taking some food out to a well a short distance from his house for himself and his son
This was about 2 pm
Just as he left the house his wife Mst
Punnan PW 2 heard cries of alarm and on rushing out with her daughter Mst
Charni PW 11 saw all seven accused assaulting her husband
They beat him up till he fell to the ground
As soon as Rattan Singh fell down they left him and rushed to his Rattan Singh s Haveli where the other brother Bawa Singh was lying on a cot shouting that they would also make short work of him
All seven belaboured him on the cot then they dragged him out and beat him up some more
After this they returned to where Rattan Singh was still lying on the ground and gave him some more blows
Then they ran away
Bawa Singh died very shortly after the assault
The other brother survived a little longer but he also died not long after
According to Mst
Punnan PW 2 the accused were armed as follows The appellants Dalip Singh and Sadhu Singh with barchhas the appellant Battan Singh and two of the accused who have been acquitted with lathis the appellant Kundan Singh had a takwa a hatchet with along handle and the accused Kehar Singh who has been acquitted had a khunda a hefty stick with a curved iron end
The medical evidence discloses that Rattan Singh had nineteen injuries on his person
Of these only two on the head would have been fatal in themselves
The rest were on non vital parts like the foot ankle leg knee thigh buttock forearm and wrist but of these six were grievous
The doctor says death was caused by shook produced by the multiple injuries aided by haemorrhage in the brain due to injury No 14
The other brother Bawa had sixteen injuries but except for two the rest were on non vital parts
One of the two was on the head and the other ruptured the 148 spleen
The rest were on the ankle leg knee thigh elbow thumb and wrist but eleven of them were grievous
In his case the doctor put the death down to rupture of the spleen
In Rattan Singh s case only one of the injuries was inflicted by a sharp edged pointed weapon and all the rest by blunt weapons
The two on the head were inflicted by blunt weapons
In Bawa Singh s case four wounds were caused by a sharp edged or pointed sharp edged weapon
The others were all inflicted by blunt weapons
Here again the fatal injury which ruptured the spleen was caused by a blunt weapon
This analysis would appear to indicate that neither of the appellants Dalip Singh and Sadhu Singh who carried spears nor the appellant Kundan Singh who carried a hatchet aimed at any vital part and of those who had blunt weapons the appellant Battan Singh who had a lathi has alone been convicted while Indar Singh and Jarnail Singh who also had lathis and kehar Singh who had a khunda have all been acquitted and yet Battan Singh alone could hardly have been responsible for eighteen injuries on Rattan Singh and nine on Bawa Singh
The appellant Dalip Singh was arrested on the 17th June and the other three on the 18th
Each was wearing blood stained clothes
The learned Sessions Judge did not attach much importance to the bloodstained clothes nor did he regard the recovery of certain weapons some of which were blood stained as of much consequence
But he was impressed with the evidence of the two eyewitnesses Mst
Punnan PW 2 and Mst
Charni P W 11 and believing them convicted each of the seven accused under section 302 read with section 149 Indian Penal Code
He said that as the fatal injuries could not be attributed to any one of the accused he refrained from passing the sentence of death
All the assessors considered all seven accused guilty
The learned High Court Judges did not attach any importance to the recovery of the weapons because 149 for one thing they were not recovered till the 30th that is to say not until fourteen days after the murders and when found one set pointed out by Jarnail Singh who has been acquitted was found in Dalip Singh s field and another set pointed out by Sadhu Singh was found in Kehar Singh s field
But they considered the blood stained clothes an important factor
They were not prepared to believe the two eye witnesses all the way partly because they were of opinion that a part of their story was doubtful and seemed to have been introduced at the instance of the police and partly because they considered that when the fate of seven men hangs on the testimony of two women ordinary prudence requires corroboration
They found corroboration in the case of the four appellants because of the blood stained clothes and none in the case of the others
Accordingly they convicted the four appellants and acquitted the others
Now this has led the learned Judges into an inconsistency and it is that which led to the granting of special leave to appeal
The learned Judges say that their conclusion is that 1 generally the story related by Mst
Punnan and Mst
Charni is true 2 that certainly not less than five persons took part in the beating of the two deceased and 3 that the corroboration required by prudence is afforded by the presence of the blood stained clothes found on the persons of the four appellants who have been convicted
 As regards the three accused whom they acquitted the learned Judges say The other three accused may or may not have taken part in the affair
 Now it is clear from the above that it is impossible to ascribe any particular injury to any particular person
Therefore  it is impossible to convict any one of the accused of murder simpliciter under section 302 21 150 nor do the learned Judges attempt to do that
They convict under section 302 read with section 149
But section 149 requires the presence of five persons who share the common object
It is true that in one place the learned Judges say that there were certainly not less than five present but in the very next breath they say that the three whom they acquit may or may not have taken part in the affair
If those three are eliminated then we are left with only four and that militates against their previous finding that they were at least five
Before section 149 can be called in aid the court must find with certainty that there were at least five persons sharing the common object
A finding that three of them may or may not have been there betrays uncertainty on this vital point and it consequently becomes impossible to allow the conviction to rest on this uncertain foundation
This is not to say that five persons must always be convicted before section 149 can be applied
There are cases and cases
It is possible in some eases for Judges to conclude that though five were unquestionably there the identity of one or more is in doubt
In that case a conviction of the rest with the aid of section 149 would be good
But if that is the conclusion it behoves a court particularly in a murder case where sentences of transportation in no less than four cases have been enhanced to death to say so with unerring certainty
Men cannot be hanged on vacillating and vaguely uncertain conclusions
In fairness to the learned Judges we have examined the evidence with care to see whether if that was in their minds such a conclusion could be reached in this particular case on the evidence here
That it might be reached in other cases on other facts is undoubted but we are concerned here with the evidence in this case
Now mistaken identity has never been suggested
The accused are all men of the same village and the eye witnesses know them by name
The murder took 151 place in daylight and within a few feet of the two eye witnesses
If the witnesses had said I know there were five assailants and I am certain of A P and C
I am not certain of the other two but think they were D and E a conviction of A B and C provided the witnesses are believed would be proper But when the witnesses are in no doubt either about the number or the identity and there is no suggestion about mistaken identity and when further the circumstances shut out any reasonable possibility of that then hesitation on the part of the Judge can only be ascribed not to any doubt about identity but to doubt about the number taking part
The doubt is not whether D and E have been mistaken for somebody else but whether D and E have been wrongly included to swell the number to five
Again it is possible for a witness to say that A B C D E and others some ten or fifteen in number were the assailants
In that event assuming always that the evidence is otherwise accepted it is possible to drop out D and E and still convict A B and C with the aid of section 149
But that again is not the case here
No one suggests that there were more than seven no one suggests that the seven or any of them were or could be other than the seven named
Nor is it possible in this case to have recourse to section 34 because the appellants have not been charged with that even in the alternative and the common intention required by section 34 and the common object required by section 149 are far from being the same thing
In the circumstances we find ourselves unable to allow the conviction to rest on the insecure foundations laid by the High Court
We have accordingly reviewed the evidence for ourselves
Mr Sethi took us elaborately through it
In our opinion the learned Sessions Judge s conclusions are right
We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration
If the foundation 152 for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony we know of no such rule
If it is grounded on the reason that they are closely related to the deceased we are unable to concur
This is a fallacy common to many criminal cases and one which another Bench of this court endeavoured to dispel in Rameshwar vs The State of Rajasthan1
We find however that it unfortunately still persists if not in the judgments of the courts at any rate in the arguments of counsel
A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause such as enmity against the accused to wish to implicate him falsely
Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person
It is true when feelings run high and there is personal cause  for enmity that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth
However we are not attempting any sweeping generalisation
Each case must be judged on its own facts
Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence
There is no such general rule
Each case must be limited to and be governed by its own facts
This is not to say that in a given case a Judge for reasons special to that case and to that witness cannot say that he is not prepared to believe the witness because of his general unreliability or for other reasons unless he is corroborated
Of course that can be done
But the basis for such a conclusion must rest on facts special to the particular instance and cannot be grounded on a supposedly general rule of prudence enjoined by law as in the case of accomplices
1  at 390
153 Now what is the ground for suspecting the testimony of these two witnesses The only other reason given by the learned High Court Judges is that they have introduced a false element into their story at the instigation of the police in order to save the face of the lambardars
But if that is so it throws a cloak of unreliability over the whole of their testimony and therefore though it may be safe to accept their story where the corroborative element of the blood stained clothes is to be found it would be as unsafe to believe on the strength of their testimony that at least five persons were present as it would be to accept that the ones who have been acquitted were present and once we reach that conclusion section 149 drops out of the case
We have carefully weighed the evidence of these women in the light of the criticisms advanced against them by Mr Sethi most of which are to be found in the judgments of the lower courts and we are impressed by the fact that the learned Sessions Judge who saw them in the witness box was impressed with their demeanour and by the way they stood up to the crossexamination and also by the fact that the learned High Court Judges appear to believe them to the extent that at least five persons were concerned
Some of the accused have made general and sweeping statements to the effect that the prosecution witnesses are inimical to them but no one has suggested why
In the long cross examination of these witnesses not a single question has been addressed to them to indicate any cause of enmity against any of the accused other than the appellants Dalip Singh and Battan Singh
A general question was asked and it was suggested that there was some boundary dispute between Mst
Punnan s husband and the accused Indar Singh and Kundan Singh but that was not followed up by other evidence and neither Kundan Singh nor Indar Singh suggests that there was any such dispute in their examinations under section 342 Criminal Procedure Code
Kehar Singh says vaguely that he has inherited land which will pass to the line 154 of Rattan and Bawa if he dies without heirs but lie has made no effort to substantiate this
The questions put in cross examination therefore remain just shots in the dark and leave the testimony of the two women unimpaired
The first information report was made by Mst
Pullnan PW 2 herself
It was made very promptly though this was attacked by Mr Sethi
It was made at 8 30 pm within 6 12 hours of the occurrence at a place 12 miles from the police station
The victims did not die at once and it was only natural that Mst
Punnan s first thoughts should have been to tend them Next she had to walk part of the distance and the rest she covered in a lorry and above all she has not been cross examined regarding delay
We consider that a report made within 61 hours in such circumstances is prompt
Now the important thing about this report is that it names the seven accused no less and no more and from start to finish Mst
Punnan has adhered to that story without breaking down in cross examination and without any attempt to embellish it by adding more names and in this she is supported by Mst
Charni PW 11
Next the bloodstained clothes found on the persons of the four appellants afford strong corroboration as against them and as two courts have believed the witnesses to that extent all we need do is to concentrate on the other three accused who have been acquitted in order to see whether there were seven persons as Mst
Punnan says and to see whether the conclusion of the High Court that there were at least five present is sound
We do not think the discovery of tile weapons can be lightly excluded
One set was pointed out by Jarnail Singh
In itself that might not mean much but it is unquestionable corroboration as against Jarnail Singh unless the fact of discovery is disbelieved or is considered to be a fraud
But that is not the finding of either court
The first court believes the evidence and the High Court does not disbelieve it but 155 considers the incident as of small probative value
It may be in itself but it is a corroborative element in the case of two witnesses who do not require corroboration and that makes it all the more safe to accept their testimony
Next comes the discovery of another set of weapons by Sadhu Singh
He was already implicated by reason of some blood stained clothes but the importance of the discovery in his case lies in the fact that the weapons were found in the field of Kehar Singh
It is certainly a circumstance to be taken into consideration that these weapons should be found in the field of a man who was named from the start
Then comes the fact that Mst
Punnan PW 2 not only named the various assailants in her first information report but stated exactly what sort of weapon each was carrying
Here again she is consistent from start to finish except for an unessential difference in the case of Jarnail
In the first information report she said he had a dang while in her evidence she says he had a lathi but as a dang is a big lathi that is not a real discrepancy
This in our opinion is impressive consistency especially as it tallies in general with the postmortem findings
Now the fact that weapons of this description four stained with human blood are discovered at the instance of two persons she has named from the beginning in the fields of others whom she has also named from the start certainly does not tend to weaken her testimony
The only accused who is not in some way independently linked up with the testimony of these two women is Indar
But when their stories find corroboration on so many important particulars we see no reason why they should be disbelieved as regards Indar always remembering that these are not witnesses who require corroboration under the law
In our opinion the High Court was unnecessarily cautious in acquitting the other three accused when the learned Judges were convinced that at least five persons were concerned 156 We have taken into consideration the fact that the High Court considers that the portion of Mst
Punnan s story regarding the lambardars has been falsely introduced by the police also that both courts have rejected the evidence about the dying declaration
Despite that we agree with the learned Sessions Judge that Mst
Punnan and Mst
Charni are to be believed regarding the main facts and that they correctly named all seven accused as the assailants
On that finding the conviction under section 302 read with section 149 can be sustained
We accordingly uphold these convictions
The acquittals in the other the cases will of course stand but the mere fact that these persons have in our opinion been wrongly acquitted cannot affect the conviction in the other cases
On the question of sentence it would have been necessary for us to interfere in any event because a question of principle is involved
In a case of murder the death sentence should ordinarily be imposed unless the trying Judge for reasons which should normally be recorded considers it proper to award the lesser penalty
But the discretion is his and if he gives reasons on which a judicial mind could properly found an appellate court should not interfere
The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest possible reasons
It is not enough for an appellate court to say or think that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate court but to the trial Judge and the only ground on which an appellate court can interfere is that the discretion has been improperly exercised as for example where no reasons are given and none can be inferred from the circumstances of the case or where the facts are so gross that no normal judicial mind would have awarded the lesser penalty
None of these elements is present here
This is a case in which no one has been convicted for his own act but is being held vicariously responsible for the act of another or others
In cases where the facts are more 157 fully known and it is possible to determine who inflicted blows which were fatal and who took a lesser part it is a sound exercise of judicial discretion to discriminate in the matter of punishment
It is an equally sound exercise of judicial discretion to refrain from sentencing all to death when it is evident that some would not have been if the facts had been more fully known and it had been possible to determine for example who hit on the head or who only on a thumb or an ankle and when there are no means of deter mining who dealt the fatal blow a judicial mind can legitimately decide to award the lesser penalty in all the cases
We make it plain that a Judge is not bound to do so for he has as much right to exercise his discretion one way as the other
It is impossible to lay down a hard and fast rule for each case must depend on its own facts
But if a Judge does do so for reasons such as those indicated above then it is impossible to hold that there has not been a proper exercise of judicial discretion
Now the High Court do not consider these facts at all
They give no reasons and dispose of the matter in one sentence as follows I would dismiss the appeals of the other four and accepting the revision petitions change their sentences from transportation to death
 That in our opinion is not a proper way to interfere with a judicial discretion when a question of enhancement is concerned
We are unable to hold that the discretion was improperly exercised by the learned Sessions Judge
Whether we ourselves would have acted differently had we been the trial court is not the proper criterion
We accordingly accept the appeals on the question of sentence and reduce the sentence in each case to that of transportation for life
Except for that the appeal is dismissed
Sentence reduced
Appeal dismissed


Summary:
Before section 149 of the Indian Penal Code can be applied the court must find with certainty that there were at least live persons sharing the common object
This does not however mean that five persons must always be convicted before section 149 can be applied
If the judge concludes that five persons were unquestionably present and shared the common object though the identity of some of them is in doubt the conviction of the rest would be good but if this is his conclusion it behoves him particularly in a murder case where heavy sentences have been imposed to say so with certainty
Rameshwar vs The State of Rajasthan 1952 SCR 377 referred to
The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest reasons
It is not enough for the appellate court to say or think that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate court but to the trial judge and the only ground on which the appellate court can interfere is that the discretion has been improperly exercised as for instance where no reasons have been given and none can be inferred from the circumstances of the case or where the facts are so gross that no normal judicial mind would have awarded the lesser penalty