N Criminal Appeal No 32075
Appeal by special leave from the Judgment and Order dated 241975 of the Punjab and Haryana High Court in Criminal Appeal No 104474 and Murder Reference No 5074
3 KG Bhagat and RN Poddar for the Appellant
Mrs Urmila Sirur for the Respondents
The Judgment of the Court was delivered by BAHARUL ISLAM J
This appeal by special leave by the State of Haryana is directed against the judgment and order of the Punjab and Haryana High Court setting aside the conviction and and sentence passed by the Session Judge Karnal
Respondents Balkar Singh and Dalel Singh are the sons of respondent Sher Singh
The Session Judge convicted all the three under Section 30234 of the Penal Code and sentenced Sher Singh to death and the other two to imprisonment for life
On a reference by the Sessions Judge for the confirmation of the sentence of death inflicted on Sher Singh and appeal filed by the respondents the High Court set aside the order of conviction and sentence and acquitted the respondents
The material facts may be stated thus On 17th of October 1973 at about 12 AM Mst
Narman widow of Danna deceased submitted the first information report to ASI Ram Sarup PW 12 at village Pai
Her material allegations in the first information report were that the previous day respondent Sher Singh and his two younger half brothers namely Danna her husband and Hukmi had effected a family partition amongst themselves and they started living separately
That day namely 17th of October at about 600 AM her husband Danna along with his brothers Hukmi and respondents Sher Singh came to their bagichi nearby from the house in order to milk cattle
She followed them in order to fetch milk
Respondent Sher Singh then along with his sons Dalel Balkar Keni Prem and Parwana surrounded her husband and her husband s younger brother Hukmi in the courtyard
Sher Singh had a Gandasi in his hand Dalel a lathi shoded with iron blade the other three had lathis in their hands
Sher Singh dealt a Gandasa blow on the head of her husband Danna who immediately fell down on the ground
Dalel then dealt a blow with iron shoded lathi on the head of Hukmi who also fell down on the ground
The other accused then inflicted blows with lathis on the persons after they had already fallen down
Respondent Sher Singh dealt another Gandasi blow on her husband
She has further stated in the first information report that Mst
Danni sister of respondent Sher Singh was also with her and witnessed the occurrence
They screamed seeing the assaults whereupon they were directed on pain of death to sit in the corner of the court yard
4 Out of fear they obliged
Thereafter it has further been alleged the accused persons dragged the dead bodies to their nearby heap of cow dung cakes
Sher Singh spread kerosene on the heap of the cakes and Dalel set fire to it lighting a match stick
As a result the two bodies were charred
PW 12 sent the FIR to the police station where the case was registered
Police after investigation submitted charge sheet and arrested the accused persons
Eventually the accused persons were charged under Section 30234 of the Penal Code and tried in the court of Sessions
The accused persons pleaded not guilty to the charges
According to them the three brothers were joint in residence mess and cultivation till the date of the occurrence
The defence of respondent Sher Singh was that his two sons Dalel and Balkar and the deceased brothers Danna and Hukmi used to sleep in the Bagichi during the night to keep watch over their cattle tethered there
On October 16 1973 he and his two deceased brothers were in their fields during the day and in the evening he went to their field where cotton was ripe and he remained there to keep watch over the cotton till next morning
That field was at a distance of about 1 12 miles from their Bagichi
About 1 12 hours after sun rise on October 17 1973 he returned to the Bagichi where he found the heap of cow dung cakes in the enclosure of Bagichi burning
Police then arrested him
The defence of respondent Dalel was that two days before the date of occurrence he went to his maternal uncle Lalji at Narwara to borrow a tractor
He returned home on the 17th of October 1973 at about sun set
He found the heap of cow dung burning and police inside the Bagichi where he was arrested by the police
The defence of respondent Balkar was that he was a student of 9th class and on 16th of October 1973 he had been to school to witness some sports
He passed the following night in village Diwali where his sister was married
He returned home on October 17 1973 and when he reached the Bagichi he found the heap of cow dung burning and he was arrested by the police there
Thus the defence of all the respondents was alibi
When an accused pleads alibi the burden is on him to prove it under Section 103 of the Evidence Act which provides 103
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person
5 Illustrations a A prosecutes B for theft and wishes the court to believe that B admitted the theft to C A must prove the admission
B wishes the court to believe that at the time in question he was elsewhere
He must prove it
 In this case defence did not adduce any evidence to prove the alibi
On the contrary the evidence of PW 11 Lila is that on 21st October 1973 all the accused were produced by Lalji the brother of the wife of respondent Sher Singh in village Nand Karan Majra around 8 am when they were arrested
This was in presence of PW 11 and several others
Police had been there the witness says from October 17 to 20 1973
This evidence of PW 11 remains unrebutted
The plea of the respondents that they had been elsewhere at the time of the occurrence and returned to the place of occurrence by themselves on October 17 when they were arrested by police is untrue
Let us now turn to and examine the prosecution case and see whether the prosecution has proved the guilt of the accused beyond reasonable doubt
The death of Danna and Hukmi is not in dispute
That the dead bodies were burnt on the cow dung heap by the side of the Bagichi is also not in dispute
The only question for decision is whether Danna and Hukmi were murdered and their dead bodies were burnt by the respondents as alleged by the prosecution
The prosecution relies on the following piece of evidence i Motive of the murder ii Direct evidence of the alleged eye witnesses PW 3 and 4 iii Extra Judicial Confession alleged to have been made by respondent Sher Singh before PW 10 and iv Recoveries of incriminating articles on disclosure statements alleged to have been made by the respondents
i Motive PW 3 Mst
Narman has deposed that two days before the day of occurrence deceased Danna Hukmi and respondent Sher Singh made an amicable partition of their property
They divided their land except Shamlat land house cattle utensils and grains
Respondent Sher Singh however refused to part with joint 6 cash and jewellery
Danna refused to part with any share of the Shamlat land unless the cash and jewellery were divided
PW 4 Mst
Danni and Jhanda PW 10 support PW 3 It therefore appears that there was some sort of hitch between respondent Sher Singh on the one hand and his half brothers Danna and Hukmi on the other
The High Court declined to accept the evidence of PW 10 in as much as he had not mentioned the fact of partition in his statement before the police
The prosecution is not bound to prove motive of any offence in a criminal case in as much as motive is known only to the perpetrator of the crime and may not be known to others
If the motive is proved by prosecution the Court has to consider it and see whether it is adequate
In the instant case the motive proved was apparently inadequate although it might be possible
ii Direct Evidence PW 3 Mst
Narman has deposed that 15 days before the date of occurrence PW 4 Danni who was at her husband s house to help her as she was expecting a child one of these days
In fact she delivered a child 12 days after the occurrence
She has supported the prosecution case in its entirety
She says that in the morning about the time of sun rise on the date of occurrence deceased Danna and Hukmi went to the Panchayat land where their cattle had been tethered in order to milk them
She followed them to bring milk home
Danna also accompanied her to make cow dung cakes
At that time she found that the respondents had been standing in the Panchayat land armed with dangerous weapons
Respondent Sher Singh gave Gandasi blow on the head of Danna who immediately fell down on the ground
Dalel also gave a blow on the head Hukmi who also fell down
All of them thereafter indiscriminately assaulted the two injured persons
Both of them died as a result
She and Danna began to scream whereupon the culprits asked her and Danna to keep quiet on pain of death and they asked them to sit on one side of the place
Both of them out of fear did as directed
She has further deposed that the respondents including the other miscreants dragged the two dead bodies to the nearby heap of cow dung cakes and placed the dead bodies on it
Respondent Sher Singh then brought a tin of kerosene oil and sprinkled it on the heap of the cow dung cakes
Respondent Dalel put fire to the cow dung cakes
When the heap of the cow dung cakes was burning they set weeping there while the respondents were scrapping the blood stains on the earth and throwing them to the burning cow dung cakes
After some time PW 10 Jhanda and 7 one Bhagtu came to the place of occurrence after the dead bodies were put to fire
They inquired of Sher Singh as to why they were burning the cow dung cakes
Sher Singh replied that he had murdered his two brothers and was burning their dead bodies
He however threatened them to mind their own business and said that if they raised any alarm they would be similarly murdered and put to fire
PW 10 Jhandu and Bhagtu then left the place
The process of burning took about three hours
All this time the culprits were at the place of occurrence scraping the blood stained spots
They then changed their blood stained clothes threw them to the fire and put on new clothes and left the place with weapons in hands towards village Bhana
After the departure of the culprits the witness along with PW 4 left for the nearby village
They narrated the occurrence to the villagers and told them as to how her husband and brother in law had been murdered and their dead bodies burnt
But they remarked that that was a dispute between brothers and they could not do anything
The witness then left the village for police station at Pundri to lodge an offence report
On the way falls village Pai at the distance of about 4 5 miles from the place of occurrence she met at village Pai a police officer and two constables to whom she narrated the occurrence
Her statement was recorded by PW 12 Ram Sarup an Assistant Sub inspector of Pundri Police Station who was at Pai
She was then accompanied home by two constables
While PW 12 sent the FIR to the police station for registering a case
They reached the place of occurrence after some time
A short while after the arrival of the witness and the two constables at the place of occurrence a senior police officer arrived at the place of occurrence
They with the help of some other persons who had gathered there in the mean time started to extinguish the fire by putting buckets of water on it
PW 4 Danni corroborates PW 3 on the commission of murder of the two deceased by the respondents and a few others
PW10 who came to the place of occurrence on seeing smoke from the heap of cow dung cakes inquired of Sher Singh as to what was happening
He has deposed that he was told by Sher Singh that he had killed his two brothers and was burning their dead bodies and that he was asked on pain of murder to mind his own business and not to raise alarm
He and Bhagtu then left the place
PWs 3 and 4 were cross examined at great length by the defence counsel but nothing significant could be brought out in order to demolish their basic and substantial evidence given in examination 8 in chief
Only some minor discrepancies with regard to omissions of details in their statements to the police were brought out
These omissions in our opinion were not contradictions and insignificant
The High Court has rejected the evidence of PWs 3 and 4 on the ground a that they were close relations of the two deceased b that PW 3 had omitted to mention in the FIR that she had informed any person of the village before leaving for the police station c that it was highly improbable and unnatural  that PW 3 would go to the place of occurrence from her home when she was in advance pregnancy d that she was not accompanied to the police station by anybody e that none of the villagers came to the place of occurrence and f that she and PW 4 did not physically attempt to save the two deceased who were respectively their husband and brother
Ultimately the High Court found that most probably both Smt
Nariman and Danni were not present on the spot and had not witnessed the occurrence
 In our opinion the conclusion arrived at by the learned High Court is untenable
The learned High Court has taken a very unrealistic view of the situation and of the facts and circumstances of the case
There is no evidence that PWs 3 and 4 could or did raise any alarm
When they were about to scream they were threatened on pain of murder to keep quiet and sit
There is evidence that both the deceased as well as PWs 3 and 4 were unarmed whereas the respondents were armed with dangerous weapons
In such a situation it will be too much to expect of PWs 3 and 4 to try to physically intervene and save the two deceased
Although it is true that PWs 3 and 4 were close relations of the two deceased their evidence could not be rejected on that ground
They were also related to the respondents and there is nothing on record to show that they were inimically disposed to the respondents to falsely implicate the respondent in a murder case like this
They were the most natural witnesses
Although it was not the case of defence that some of the people of the Panchayat conspired with PWs 3 and 4 to implicate the respondents in this murder case the High Court made out its own theory to that effect
There is no evidence or circumstances from which that inference could be drawn
It was a pure conjecture that it was best opportunity for the Panchas and Sarpanch and other respectables of the village to take special interest in bringing the culprits to book by contacting the police at the earliest if the culprits were not other persons than the appellants
 The High Court has also based its finding on conjecture that the two deceased were murdered by unknown culprits and they were falsely implicated by the village 9 respectables on suspicion
This hypothesis does not stand any scrutiny
Respondent Sher Singh in his statement says It was routine for me and my two elder sons and two step brothers to sleep in the Bagichi during night where we used to tie our cattle Even the High Court has found   that they deceased like Sher Singh or Sher Singh s sons used to sleep in the Bagichi in the night to keep watch over them cattle
 If that be so had the murder been perpetrated by unknown culprits there was no reason as to why the the respondents did not intervene and inform any of the neighbours
The learned High Court as stated above has rejected the evidence of PW 3 on the ground that she did not mention in the FIR that she had informed any person of the village before she lodged the FIR The FIR need not contain the details of the occurrence
The omission referred to by the High Court is an omission of details and not really a contradiction
The High Court also was not right in observing that it was surprising that as stated by Mst
Narman nobody in the village listened to her story nor did anybody go to her help when she went to Abadi land of the village after the departure of the appellants from the place of occurrence In fact PW 10 had come to the place of occurrence before PWs 3 and 4 left the place of occurrence for the village
The way PW 10 was treated by respondent Sher Singh was sufficient to deter any other villager to come to the place of occurrence
The High Court has also found it a mystery  that none of the villagers came to the place of occurrence and intervened in the matter
There is no evidence on record to show that when the assaults on the deceased were in progress or the dead bodies were being burnt any of the villagers in fact knew about the occurrence
In fact PW 10 and Bhagtu had seen the smokes from the cow dung cakes and came to the place of occurrence
The High Court has also observed that it was unlikely that PW 3 would go to the Bagichi in such an advance stage of pregnancy in order to bring milk from there at sun rise in as much as PW 4 had already come there to help her in domestic work
It is common experience that in villages women who regularly attend to their domestic chore and work in the field work some time till the very moment of actual child birth
PW 4 was brought to help her as in her advance stage of pregnancy she could not work as briskly as before
The learned High Court has also observed that presence of PW 4 Danni at the place of occurrence was not natural because had she been present there she would have out of love for her real brothers physically intervened and tried to save them from the clutches of assaults
 It has been observed before that they were asked to keep 10 quiet and sit on pain of murder
It cannot be forgotten that Danni was also an unarmed village women and the first instinct of a being is the instinct of self preservation
In our opinion therefore it was not unnatural that she would not as she could not attempt to save the two deceased from murder
The High Court has also observed that in any case PW 4 would have raised hue and cry
She could not raise an outcry as she was told by Sher Singh that she would be murdered and burnt if she did so
It was therefore but natural that she did not raise any hue and cry
iii Extra Judicial Confession The evidence of PW 10 has also been referred to above
He has deposed that when seeing the smoke he went to the place of occurrence and inquired of Sher Singh as to why they were burning the heap of cow dung cakes he replied that he had murdered his two brothers and was burning their dead bodies
This is an extrajudicial confession so far as Sher Singh is concerned
The High Court has not accepted the evidence of PW 10 on the ground that this was not mentioned by PW 3 in the first information report
This was an omission
That apart it must be remembered that PW 4 who saw with her own eyes such a brutal murder of her husband and brother in law must have been dazed and at her wits end
In such a situation it could not be expected of her to give all the details in the first information report
And on account of the omission PW 10 could not be disbelieved
iv Recoveries of incriminating articles  The last piece of evidence on which reliance has been taken by the prosecution is the recoveries of incriminating weapons
The evidence of PW 13 the Investigating Officer is that respondent Sher Singh on 23rd of October 1973 made a disclosure statement which is Exhibit PL
The disclosure was that Sher Singh had kept concealed a Gandasi in the bundle of sugar cane in his field and he could get the same recovered
In pursuance of his disclosure the Gandasi exhibit P 26 was recovered from that place
The Gandasi was stained with blood and was seized under seizure memo exhibit PL1
On the same day respondent Dalel Singh made a disclosure statement exhibit PM and disclosed that he had kept concealed a lathi to which an iron piece was attached in his Gowar field and he could get the same recovered
In pursuance of his disclosure lathi exhibit P 27 which was stained with blood was recovered
It was seized under seizure memo exhibit PM1
On the same day respondent Balkar Singh made a disclosure statement exhibit PN that he had kept concealed a lathi in his kikar branches fence and he could get the same recovered
In pursuance of his disclosure 11 statement lathi exhibit P 28 which was stained with blood was recovered
It was seized under seizure memo exhibit PN1
These discoveries were made in presence of PW 11 Lila who was Sarpanch of the local panchayat
The High Court declined to put any importance to the recoveries as the respondents were not interrogated by Police from October 20 to 24
In our opinion that cannot be a sufficient justification to hold that the recoveries were fake 
The weapons were recovered at the pointing of the respondents
In addition the Investigating Officer seized an empty kerosenetin lying at the place of occurrence The tin was emitting smell of kerosene oil and it was seized under seizure memo exhibit PJ which was attested by PW 11
In addition another circumstance tends to support the complicity of the respondents in the offence
It is the conduct of the respondents
The two deceased who had been murdered by whomsoever it might be were near blood relations of the respondents
If the murder had been committed by some others as supposed by the High Court they would not have kept quiet
Of course they have stated in their defence that they were away from home in some other places and returned to the place of occurrence on 17th October 1973 which has been found by us to be untrue
This conduct of the respondents is incriminating
As a result of the above discussions we hold agreeing with the learned Sessions Judge that the guilt of the respondents has been established by the prosecution beyond all reasonable doubt
In the result we allow the appeal set aside the judgment and order of acquittal of the High Court and convict the respondents under Section 30234 of the Penal Code
Now comes the question of sentence
The murder is ghastly and brutal
Respondent Sher Singh deserved the extreme penalty provided by law The learned Sessions Judge was right in imposing death sentence on him
But in view of the fact that the learned Sessions Judge passed the order of conviction and sentence as early as 27th July 1974 and the High Court passed the order of acquittal as early as 2nd of April 1975 we refrain from visiting respondent Sher Singh with the extreme penalty provided by law for murder
We sentence all the respondents to imprisonment for life
We are told that respondents Balkar Singh and Dalel Singh are on bail
Their bail bonds are cancelled
They shall surrender forthwith to serve out their sentences
NVK Appeal allowed


Summary:
The two deceased were the two younger half brothers of the first respondent
A day before the day of the murder of the two deceased the brothers had divided the family properties and started living separately
PW 3 the wife of one of the deceased in the FIR given to the police stated that on the day of the occurrence when the two deceased and she went to the bagichi for milking the cattle the first respondent and his sons surrounded the two deceased in the court yard the first respondent dealt a blow on the head of her husband with a gandasi while the others gave lathi blow on the second deceased
Both of them succumbed to the injuries
It was also stated in the FIR that PW 4 the sister of the deceased was with her at the time of the occurrence and that when they screamed the assailants asked them to keep quiet on pain of death to them
The assailants it was alleged thereafter dragged the two dead bodies and burnt them in the nearby heap of cow dung cakes after pouring kerosene on the heap
The defence of the two accused was alibi
All the accused who were charged of offences under section 302 read with section 34 of the Penal Code were sentenced the first respondent to death and the others to imprisonment for life
On appeal the High Court set aside the conviction and sentences and acquitted all of them
Allowing the State s appeal  HELD  1
When an accused pleads alibi the burden of proof under section 103 of the Evidence Act is on the accused
The plea of all the accused that they were elsewhere at the time of the offence is not true
4 G 5 C 2
The guilt of the two respondents had been established beyond all reasonable doubt
The High Court rejected the evidence of PW 10 on the ground that he had not stated in the statement before the police that in the partition of the family properties among the brothers there was a hitch
The prosecution is not bound to prove motive of any offence in a criminal case for motive is known only to the perpetrators of the crime and may not be known to others
If the motive is proved by the prosecution the Court has to consider it and see whether it is adequate
11E 6 B C 2 In the instant case the motive proved is apparently inadequate although it might be possible
6 C 3
The High Court had taken a wrong view in rejecting the evidence of PWs 3 and 4 on the ground that they were close relations of the deceased that it was highly improbable that PW 3 who was in advance stage of pregnancy would go to the place of occurrence
8F 9F G 4
Although both the witnesses PWs 3 and 4 were close relations of the deceased their evidence could not be rejected solely on that ground
They were also related to the respondents and there is nothing on record to show that they were inimically disposed towards the respondents to falsely implicate them in the murder
Secondly it was a pure conjecture of the High Court when it said that panchas and sarpanchas and other respectables of the village took an opportunity to implicate the respondents
It was also a conjecture on the part of the High Court to say that the deceased were murdered by unknown culprits and that the respondents were falsely implicated by the village respectables
The High Court found as a fact that the respondents and the deceased slept in the bagichi during nights to keep watch over the cattle
Had the murder been perpetrated by unknown persons the respondents would have intervened and informed the neighbours
8F 9B 5
The fact that PW 3 did not mention in the FIR that she had informed some persons of the village before the lodging of the FIR and that for this reason her statement could not be relied on is not correct
The FIR need not contain all details of the occurrence nor does the omission to mention the name of persons whom she informed in the village detract from the credibility of the report
The omission is a mere omission of details and not a contradiction
9 C 6
The High Court was not right in disbelieving the evidence of PW 4 on the ground that had she been present at the scene of occurrence she would have out of love for her real brothers intervened and tried to save them
There is nothing unnatural if she had out of a sense of self preservation at the threat of the assailant refrained from attempting to save the two deceased from the murder
PW 3 must have been dazed at the brutal murder of her husband and brother in law
In such a situation she could not be expected to mention all the details in the FIR and therefore the High Court was not right in rejecting the evidence of PW 10 solely on the ground that no mention of the extra judicial confession of Respondent No 1 had been made in the FIR 9H 10B 10D E 7
In view of the fact that the conviction and sentence were passed by the Session Judge in July 1974 and the High Court passed the order of acquittal in 1975 the extreme penalty of death given to the first respondent is not called for now ends of justice will be met if all the respondents are sentenced to imprisonment for life
11 G