Criminal Appeal No 98 of 1987
From the Judgment and Order dated 9101986 of the Punjab and Haryana High Court in Crl
A No 437 of 1986
AN Mulla and SK Sabharwal for the Appellants
MR Sharma RS Suri HS Phoolta Meera Agarwal and RC Mishra for the Respondent
846 The Judgment of the Court was delivered by OZA J
This is an appeal on grant of special leave against the judgment of the High Court of Punjab and Haryana in Criminal Appeal No 43786 and Reference No 486 wherein the learned Judgess of the High Court maintained the conviction and sentence passed against the appellants by the learned Additional Sessions Judge Faridkot
The conviction and sentences passed against the appellants are CHARGES  SENTENCES Darshan Singh us 302 IPC for Sentenced to death and to the murder of pay a fine of Rs200 or Mukand Singh in default RI for three months
Pala Singh uss 30234 IPC Sentenced to undergo Buggar Singh for the murder imprisonment for life and alias Bagga of Mukand Singh to pay a fine of Rs200 Singh and or in default RI for Roop Singh three months each
Darshan Singh us 302 IPC Sentenced to death and to for the murder pay a fine of Rs200 or of Harbans Kaur in default to undergo RI for three months
Pala Singh uss 30234 IPC Sentenced to undergo Buggar Singh for the murder imprisonment for life alias Bagga of Harbans Kaur and to pay a fine of Singh and Rs200 or in default Roop Singh RI for three months each Buggar Singh us 302 IPC Sentenced to death and to Bagga Singh for the murder pay a fine of Rs200 or of Pritam Kaur in default to undergo for RI three months
Darshan Singh uss 30234 IPC Sentenced to undergo Pala Singh and for the murder imprisonment for life and Roop Singh of Pritam Kaur to pay a fine of Rs200 or in default to undergo RI for three months each
847 Accused Pala Singh and Roop Singh are also convicted as mentioned above but they have not come up before this Court
This appeal has been filed by Darshan Singh and Buggar Singh  Bagga Singh therefore we are concerned with their cases only
The prosecution case at the trial was that on 24th June 1985 at about 730 pm Dalip Singh brother of Pritam Kaur and his son Sarbjit Singh were present outside the house of Mukand Singh alongwith Gurnam Singh son of Babu Singh
Mukand Singh was returning to his house
At that time Darshan Singh and Roop Singh accused armed with a Gandasa each Pala Singh and Buggar Singh accused armed with Kapa each came on a tractor from the village side
They stopped the tractor near Mukand Singh
All the four accused got down from the tractor
Pala Singh and Roop Singh accused caught hold of Mukand Singh deceased and threw him on the ground
A blow on the neck of Mukand Singh was inflicted by Darshan Singh as a result of which the neck was chopped off except that it remained suspended with the body by skin
Then Harbans Kaur the daughter of Mukand Singh came out of the house and she was given three gandasa blows on her head by Darshan Singh
It is thereafter that Pritam Kaur the wife of Mukand Singh came out of the house and Bugger Singh gave kapa blows on her person
As a result all the three victims died on the spot
Dalip Singh Sarbjit Singh and Gurnam Singh who had witnessed the incident raised an alarm and also threw brick bats towards the assailants
Thereupon all the appellants made good their escape
It is significant that Mukand Singh had only one daughter Harbans Kaur and had no male issue
The appellant Darshan Singh is the son of Pala Singh whereas Bugger Singh is said to be an agricultural labourer working with Pala Singh and Roop Singh also belonging to the group of appellant
It is alleged by the prosecution that the two brothers had inherited some land from their father and there were disputes about it
Apparently Pala Singh and Darshan Singh by eradicating the family of his brother Mukand Singh removed one of the successors claiming half share in the property
It was also alleged that as Mukand Singh had no male issue and Harbans Kaur was of marriageable age it appears from evidence that negotiations for marriage were in the offing Pala Singh apprehended the entrance of some stranger in the family as son in law of Mukand Singh to succeed to the property falling in the share of Mukand Singh
848 Dalip Singh accompained with Gurnam Singh son of Babu Singh went immediately to the Police Station Baghapurana and lodged the First Information Report exhibit PH which was recorded by Inspector Darshan Singh
This report was recorded at 830 pm and it was alleged that the incident had taken place sometimes in the evening about 730 pm
Inspector Darshan Singh went on the spot prepared the visual plan
He also held inquest of the three dead bodies of Mukand Singh Harbans Kaur and Pritam Kaur respectively and sent the dead bodies for autopsy
He also took blood stained earth from the place where the bodies were found and recovered 20 brick bats from the spot
The accused persons were searched and it is alleged that they were not traceable
They however were arrested subsequently on 27th June 1985 and 1st July 1985
After arrest the Investigation officer interrogated Darshan Singh accused in the presence of Gurnam Singh son of Kartar Singh and Kalkiat Singh PW and he disclosed in his statement giving information where the gandasa is and on his information from the specified place the gandasa was recovered
After investigaton a charge sheet was filed and on trial the appellants have been convicted and sentenced as mentioned above
As it involved a sentence of death to the two appellants apart from the appeal preferred by the appellants there was also a reference to the High Court and by the impugned judgment the High Court dismissed the appeal filed by the appellants and confirmed the sentence of death awarded by the learned trial court and it is against this judgment that the present appeal by Darshan Singh and Bugger Singh is before us
Learned counsel appearing for the appellants mainly contended that the motive alleged that the appellants did not like the idea of a stranger inheriting the property and coming into the family after the marriage of Harbans Kaur appears to be not a very plaussible reason
It was also contended that there is a will executed by Mukand Singh in favour of Sarbjit Singh son of Dalip Singh and therefore if the motive was to eliminate all possible successors to the half share of Mukand Singh the accused appellants would not have spared Sarbjit Singh
So far as this contention of the learned counsel is concerned when he referred to the relevant evidence it is discovered that this will was filed by Sarbjit Singh after this incident in some civil proceedings when he claimed to be brought on record in place of Mukand Singh on the basis of the will
This apparently could not indicate that this will in favour of Sarbjit Singh was in the knowledge of the appellants on the date of incident
Learned counsel could not point out to any other material to 849 suggest that this will was known to the appellants on the date of incident and therefore this contention raised by the learned counsel for the appellant is without any substance
Learned counsel also attempted to contend that Dalip Singh who is the brother of Pritam Kaur the wife of Mukand Singh has given an explanation for having come to the house of Mukand Singh but it does not appear to be justified
As according to the witness he is the maternal uncle of Harbans Kaur and there was some negotiations about her marriage and for that purpose he alongwith his son had come to the house of Mukand Singh
It is apparent that a maternal uncle of the daughter bride is generally consulted when negotiations for marriage of the daughter are in progress and apart from it both the courts below had accepted the testimony of this witness which also is fully corroborated by the First Information Report lodged immediately after the incident
In fact in this case as the report is lodged immediately the contention advanced by the learned counsel for the appellants is not that there is delay but it was seriously contended that if the incident has taken place at 730 pm as mentioned in the First Information Report the report could not have been lodged at 830 pm within one hour as in the First Information Report itself the distance of the police station from the scene of occurrence is recorded as 1212 kilometres and on this basis an argument was raised by learned counsel for the appellants that the report appears to have been prepared later on and a false time has been mentioned in the report
Instances of this filed that no relevant evidence was brought on record and not a single question was put to any witness or to Dalip Singh who made the First Information Report that he had noted the time of incident after seeing the watch and this was recorded in the first information report as 730 pm
It is also clear that there is nothing in his evidence to indicate that he and Gurnam Singh who went to the police station walked on foot and covered a distance of 1212 kilometres because it is not in their testimony as to whether they went through the normal route or they went across the fields by short cut nor there is anything in the evidence that they did not take a lift in any vehicles
Learned counsel when confronted with this situation contended that the burden lay on the prosecution but it could not be disputed that if this was the contention of the defence that the report could not have been recorded at 830 pm if the incident was at 730 pm question to establish this should have been put in corss examination
It is apparent that there is no material to indicate that the time of incident when noted was 730 pm it is precise time nor it is there in 850 evidence as to whether the persons who lodged the first information report walked through 12 12 kilometres
In abssence of any material the only thing that appears is that immediately after the incident the report is recorded and this report contains a clear description of the incident corroborating the testimony of the eye witnesses
The courts below therefore on consideration of the testimony of the eye witnesses accepted their version and convicted the appellants as mentioned above
Learned counsel could not from the evidence of the eye witnesses refer to any part of their evidence to indicate that the evidence is such on which reliance could not be placed except for the fact according to the learned counsel that there were disputes between the two parties ie the groups of the two brothers and all the prosecution witnesses apparently were belonging to the group of the deceased
It was also contended that in the locality independent witnesses could be available but they have not been examined
The Courts below have considered this aspect of the matter
It appears from the evidence that the nearby area was not so inhabitated and by that time in the evening no one else was available
Those who were present have been examined and in this view of the matter the contention that independent witnesses were not examined is of no consequence
It is also significant that the testimony of the eye witnesses has been fully corroborated by the medical evidence and the injuries on the particular parts of the body of the three deceased persons
In this view of the matter therefore learned counsel for the appellants mainly emphasised on the aspect of motive and the first information report
It was also contended that appellant Bugger Singh had submitted an application somtimes before this incident in which he had made allegations against the police officers of the police station and in view of that the police officers must have been prejudiced against him
The application for contempt against the police moved by Bugger Singh was also relied upon in support of the contention
We do not find any substance in this contention too
In the complaint made it is apparent that none of the police officers in charge of the investigations of the present case has been referred to therein
It was however contended that the brotherhood of the uniform created a prejudice against the appellant Buggar Singh and it is why he has been falsely implicated
This appears to be too tall a proposition
There is no material to indicate that there was any prejudice in the mind of the investigating officer
The report of the incident was lodged immediately and in the 851 report the part played by the accused has been clearly stated
Under these circumstances therefore merely because Buggar Singh chose to make some application and also mentioned the names of some police officers in it it could not be held that all police officers will be interested in falsely implicating this appellant in a murder case
There is no other material on the basis of which it could be contended that there was any prejudice against him
The evidence of the eye witnesses have been considered by both the courts in detail and especially the Sessions Court before whom the witnesses were examined accepted their testimony and we have no reason to discard their testimony
The names of the eye witnesses have been mentioned in the first information report which was lodged immediately after the incident and the statements of eye witnesses have been fully corroborated by medical evidence
No doubt could therefore be raised about the reliability of such evidence
Learned counsel realising the situation ultimately contended that so far as Darshan Singh is concerned he could not make submissions about the sentence as he has done away with first Mukand Singh his uncle and then Harbans Kaur Mukand Singh  daughter ie her own cousin
But he contended that so far as Buggar Singh is concerned he is a stranger and he is not in any way connected with the family and so there could be no motive attributed to him
Pala Singh and Darshan Singh may have the interest of getting the property falling into the share of Mukand Singh but Buggar Singh has no such motive and therefore the sentence of death awarded to him does not appear to be justified
The learned counsel appearing for the respondent State contended that the courts below have considered the question of sentence in a reasonable manner and those who are personally responsible for killing in such a brutal manner three persons one after another have been sentenced to death and those who have been convicted with the aid of Section 34 have been treated leniently and sentence of life imprisonment alone is awarded
In the light of the discussions above therefore so far as merits are concerned there is no substance in the contention advanced by learned counsel for the appellants
The conviction of the appellants could not be assailed on any ground
The only question that remains to be considered is the question of sentence
Learned counsel referred to the decision of this Court in Dalbir Singh  Ors
vs State of Punjab 852  wherein the plausible reasons which may weigh with a court while awarding a sentence of death have been enunciated
So far as the present case is concerned we must consider the facts of the case
It is clear and not disputed also that father of Mukand Singh and Pala Singh left behind some agricultural land
It is not in dispute that the two brothers Pala Singh and Mukand Singh were the only heirs entitled to the share in the property of their father
It is also not disputed that so far as Mukand Singh is concerned he had only one daughter Harbans Kaur and had no male issue
It is also disputed that the property disputes have been going on
There have been cases and complaints against each other
It appears that Pala Singh and his son Darshan Singh were keen to grab that property and it is in pursuit of this motive that they attacked Mukand Singh and his family and killed all the members of the family Mukand Singh his wife Pritam Kaur and his only daughter Harbans Kaur and thereby eliminated everyone who could claim any share in the property
The attack was brutal
The medical evidence indicates that Mukand Singh s neck was chopped off repeated blows by Gandasa were inflicted on the body of Harbans Kaur
Therefore it is clear that Darshan Singh first chopped off the neck of Mukand Singh and even after doing this he inflicted number of blows on Harbans Kaur a young girl his own Uncle s daughter and the repeated blows go to show that he inflicted injuries with determination that she may not escape
In this view of the matter and the manner in which brutally these two were done to death we see no reason to alter the sentence awarded to Darshan Singh
So far as Buggar Singh is concerned it is no doubt true that he inflicted three blows on Pritam Kaur by Kapa which he was carrying
So far as infliction of injuries are concerned it could be described as nothing but cruel but it is true that he had no motive
He appears to have been dragged into the killing
In our opinion so far as he is concerned both the courts below were not right in awarding sentence of death
Consequently the appeal is partly allowed
The conviction of all the appellants is maintained
The sentences of all the appellants except Buggar Singh are maintained and so far as Buggar Singh is concerned sentence of death awarded to him is altered to a sentence of imprisonment for life
GN Appeal allowed


Summary:
 The appellant filed an application under Section 125 Cr
PC before the Judicial Magistrate claiming maintenance for herself and her son alleging lawful marriage with the respondent and that the son was born out of the wedlock
Respondent however denied the marriage and paternity of her son
He claimed that he was already married twice and both his wives were alive
The Judicial Magistrate accepted the appellant s case and granted maintenance at the rate of 100 per month in her favour and Rs50 per month for her minor son
The Judicial Magistrate held that appellant No t and respondent lived together in the same house as husband and wife for a considerable period and appellant No 2 was born out of this union
He did not record a categorical finding as to whether the respondent was already married and his wife or wives were alive on the date of his marriage with appellant No t A revision application was filed by the appellant for enhancement of the rate of maintenance
The respondent also moved the Sessions Judge in revision
The Sessions Judge reversed the findings of the judicial Magistrate
The appellant challenged the order by way of a revision application before the Bombay High Court which rejected the same holding that since it was the second revision application it was not maintainable being barred by the provisions of section 3973 Cr
The High Court also examined the merits of the case and concurred with the view of the Sessions Judge
This appeal is by Special Leave
788 Allowing the appeal this Court  HELD t
The plea that respondent could not have lawfully married a third time in view of the provisions of the was rejected by the Judicial Magistrate by saying that even according to the respondent his second marriage was null and void as his first wife was then alive
As regards the first marriage he held that it was not as a fact proved
He got rid of the effect of both the marriages by adopting a queer logic
If the story of the first marriage was to be rejected the second marriage could not have been held to be void on that ground
It appears that the respondent has satisfactorily provide his case about his earlier marriage by production of good evidence
Either the respondent s first marriage was subsisting so as to nullify his second marriage in which case the appellant s marriage also was rendered null and void on that ground or if the respondent s case of his first marriage is disbelieved the second marriage will have to be held to be legal and effective so as to lead to the same conclusion of the appellant s marriage being void
On either hypothesis the appellant s claim is not covered by Section 125 Cr
The appellant cannot therefore be granted any relief in the present proceedings
791D H 792A B Smt
Yamunabhai v Anantrao Shivram Adhav and another  followed
Besides holding that the respondent had married the appellant the Magistrate categorically said that the appellant and the respondent lived together as husband and wife for a number of years and that appellant No 2 was their child
If as a matter of fact a marriage although ineffective in the eye of law took place between the appellant and the respondent the status of the boy must be held to be that of a legitimate son on account of Section 161 of the 
Even if the factum of marriage of his mother is ignored he must be treated as an illegitimate child of the respondent on the basis of the findings of the Judicial Magistrate and is entitled to relief by reason of clauses b and c of Section 125t Cr
PC specifically referring to an illegitimate child
The order of the Judicial Magistrate allowing the maintenance to appellant No 2 was correctly passed
But the amount of Rs50 per month was allowed as the maintenance of the child four years back
In view of the fact that money value has gone down due to inflation and the child has grown in age the rate of maintenance is increased to Rs150791B C 793B 3
Since the claim for maintenance was granted in favour of the 789 appellant by the Judicial Magistrate there was no question of her challenging the same
Her challenge before the Sessions Judge was confined to that part of the order assessing the amount of maintenance
and this issue could not have been raised again by her
Subject to this limitation she was certainly entitled to invoke the revisional jurisdiction of the High Court
The decision on the merits of her claim went against her for the first time before the Sessions Judge and this was the subject matter of her revision before the High Court
She could not therefore be said to be making a second attempt when she challenged the order before the High Court
The fact that she had moved the Sessions Court against the quantum of maintenance could not be used against her in respect of her right of revision against the Sessions Judge s order
790F H791A 4
No error of law appears to have been discovered in the judgment of the Magistrate and so the revisional courts were not justified in making a reassessment of the evidence and substitute their own views for those of the Magistrate
792C Pathumma vs Mohammad   followed