Pa/akdha-ri Sint.h

v, The State of Uttar Pradesh

Kapur J.

. Ji.nuo')' lfl.

Q54 SUPREME COUR'tREPORTS [1!56~) SUPP.

revision does not, unless specifically ordered, arrest the operation cif the order of passing of the sentence of conviction.

In the present case the limitation started from the date of conviction by the Panchavati Adalat and not from 'the date of dismissa1 of i{evision by the High Court.

We.therfore allow this appeal, set aside the order of the High Court aJJ, d restore that of the learned Sub-Divisional Magistrate dated February u, 1958.

Appeal Allowed.

ONDER SINGH AND OTHERS

THE STATE OF PUNJAB (P. B. GAJENDRAGADKAR, K. C. DAS GUPTA and

RAGHUBAR DAYAL, JJ.) Criminal 'I'rial~Acquittal of one acc1ued-No appeal against acquittal--Appeal to High Oaurt by other convicted

accued-Power of High Court-Whether can con8ider correctness of th' acquittal-Code of Criminal Procedure 1898 (Act jj of 1898), s. 423.

Four. persons S, G, L and R were tried for offences under s. ?.02 read with 34 ln.dian P<;_nal Code. The Sessions

Judge gave the benefit of doubt to I) and acquitted him but he convicted the other three of the' offences charged and sentence them to death.

No appeal was preferred against the acquittal o( R. but the three convicted persons appealed ro the High Court .. •The High Court was of the view, that the

sesions Judge was wr0ng in giving the benefit of doub.t, to R, th::it R was present at the scene of offence and all the four accused had the common intention alleged by the prosecution, Relying upon the evidence of the eye witness it dismissed the appeal, but reduced the sentence of G.to life imprisonr:ient.

The appellants contened that the High Court ha.d .. 110 Jurisdiction or authority to embark upoh an enquiry Into 'the propriety or validity of the acquittal of Rand that its.finding that R had ta.ken part in te offene .as . allege~\ b¥ the prosecution had introduced a serious 1nf!rm1ty in the Jµdgment of the High Court. 1

field, that it was open to the High Court, when considering the whole of the evidence in resprct of the accused persons, to consider it so far as it related to the acquitted accused also. One of the grounds on which the appellants had attacked the prosecution evidence was that it had not been accepted by the Trial Court against R.

In dealing with this question the High Court had necessarily to deal with the case against R and there was no legal bar ag,1inst it doing so.

Besides, the Trial Court had not held that the evidence against R was false ; it had merely found that the case against his was not free from reasonable doubt.

The King v. Plumber (1902) 2 K. B. D. 339; Pritam Singh v. State of Punjab, A. I. R. 1956 S. C. 415 and Bimbadhar Pradhan v. The State of Ori8sa, ( 1956) S. C.R. 206

referred to.

CRIMINAL APPELLATE JuRISDICTIO"'° : Criminal Appeal No. 100 of 196l.

Appeal by special leave. from the Judgment and Order dated February 24, 1961, of the Punjab High Court in Criminal Appeal No. 11 of 1961 and Murder Reference No. 9 of 196l.

Jai Gopal Seth1:, C.. L. Sareen and R. L. Kohli, for the appellants.

A. S. R. Chari, Gopal Singh and P. D .. Menon, for the respondent.

1962. January 19.-The Judgment of the Court was delivered by

Su11tfer Singh

Thi Stale of Punjab

GAJENDRAGADKAR, J. The three appellants, o,/md,.gadka• J.

Sunder Singh and his sons Lal Singh and Gurmukh Singh along with one Rachhpal Singh were tried before the learned Additional Sesions Judge, Karna! with having committed the offence of murdering Malook Singh, Anup Singh and Darbara

ingh on January 13, 1960, at about 11 A.M. in the Abadi of village Hahri. The prosecution case, was that these three murders were committed by the four accused persons in furtherance of their common intention; at the time when the offence was committed, Sunder Singh and Gurmukh Singh were armed with •Lathis' and Lal Singh and

SutUkr Sf,, g!r

Tiu Stalt of />un.jnl1

Gaitndragadlutr .J.

656 SUPREME COURT REPORTS [1962] SUPP.

Rachhpal Singh wero armed with guns. According to tho charge farmed against tho accused persons, LR! Singh firoo upon Malook Singh and Darbara Sinizh and thereby killed them, while Raohhpal Singh fired upon Anup Singh and killed him. This firing took plaoe in pursuance of the <'ommon intRntion of All tho accusl"d per8ons. That is how Lal Singh and Rachhpal Sinizh were charged under s. 302 rPad with s. 34 of the Indian Penal Code.

The l!'a rnPd trial Judge took the view that the rvidence adducPd against Rachhpal Singh left room for doubt and so, giving Rachhpal Singh the benefit of doubt, he acquitted him. The remaining three accnsed persons wne, however, convicted by him nnder s. 302 read with s. 34 because he held that the prosecution caae had been proved against th Pm bevond a reasonable doubt. The three convicts w<>re ordered by him to suffiPr the sentence of death.

This ordn waa submitted for <'Onfirmation to the Punjab High Court and it waa also challenged by th<' three convi!'ts b; v their separate appeal. The two mattP!'e were heard t0gether by the Punjab Hiizh Court and in the result, the conviction of the thr1•r appellants was confirmPd; in regard to the scntenc<-, however, the High Court took the view th.'\t the rods nf justice would be met if the sentence of death impo81"d on Sunder Singh and Lal Singh

wa.~ c•mrirmed bt1t that imposed on Gurmukh Singh

was re<lnced to one of liff' imprisonment. In the rl'sult, the appeals perferred by the three accused

p<'rons substantially failed and the order of

~•mtenr!' was confirmed in reiiard to two of them.

I• is azainst the order of oonviction and sentence

~ ,.11, pasilf>d by the High Court that Sander Singh, L11l Singh and Gurmukh Singh have eome to this f'nurt by 11pecial leave.

Befqre dealing wit~ the pomtR t!'\s ~~ before us hy Mr. Sethi on bt-hnlf of the appellants, 1t would l1P rnvenient to Ad out broadly the materi&t facts ),.ading to the prosecution. I>nrbra Singh and the

deceased Ma.look Singh were the sons of one Phula.

It appears that prior to the partition of India, these brothers lived in a village Butra.n which is no'w a pa.rt of West Pakistan. .The appellants also resided in the same village, Sunder Singh, a brother of Phula Singh ha~ mortgaged 20 kilias of agricultural land with possession for Rs. 2,500/- with the appellant Sunder Singh and his brothers, in about

1943. In lieu of this mortgage, the appellant Sunder Singh and his co-mortgagees, had been allotted 40 killas of land in the village Habri in the District of Karna.I. The mortgagor Sunder Singh later died without leaving an issue or a widow.

Phula Singh, his brother, claimed to be the heir of the said mortgagor a.nu as such, he asked for redemption of the land on payment of Rs. 2,500/-.

The appellant Sunder Singh did not recognise Phula Singh as the heir of the mortgagor and so, Phula Singh had to make an application in that behalf on November 29, 1959. By this application made to the Assi11tant Collector, Kaithal, Phula Singh claimed to redeem the mortgage. '.!; his claim was strongly resisted by the appellant Sunder Singh and his co-mortgaees. They disputed the title of Phula Singh and in the alternative, they alleged that they eould not be deprived of the possession of the land expect on payment of Rs. 25,000/·. The proceeding continued for some time but it appears that Phu la Singh was not able to place satisfactory evidence about his title before the Assistant Collector. In the result, his application was dismissed for default.

Thereafter, the deceased Ma.look Singh applied for a

passport to Pakistan; the prosecution case is that he wanted to go to Pakistan to obtain copies of the original mortgage deed and a pedigree-table from the revenue records kept in Pakistan which would have supported the claim of Phula Singh to the heirship of the mortgagor Sunder Singh. An enquiry was made into the antecedents of the deceased Malook Singh by the authorities concerned

1~62

SuoJ.,. SW, h

•• Till St•t• •f PUl!id

"• Ti, .: lot1 .,,_, Piinjab

658 SUPREME C'OUR'l' HEPORTS [ 1962) SUPP.

and on January 11, 1000, his application for paBBport was recommended by tho S.D.O., Kaithal, tO the Punjab UovPrmnent. On January 13, 1960, however, tho incident giving rise to tho present

prosecution occurred and Malook Singh along with his brother Darbara Singh and his relation, Anup Singh were murdered. The prosecution case is that the@e murders were committed by the appellants in furtherance of the common intention because they wanted to thwart Malook Singh'~ efforts to bring satisfactory evidence about the heirship of his father, Phula Singh to the mortgagor Sunder Singh. That, in substance, is the motive alleged by tho prosecution for the eommission of the three murders.

The actual incidents leading to the triple murder lie within a narrow compass. January 13, l!J60, was 'Lohri' day. A couple of days earlier Malook Singh had arranged for an 'Akhandpath' (Non-stop recitation of the holy Granth Sahib). Tho Path came to a close on the forenoon of January 12, 1960, and tho closin~ function was attended by several persons, including Shahbeg Singh who is a relation of Malook Singh. Between IO and 11 A.M. on January 13, l!J60, Malook Singh, accompanied by his wife Amar Kaur, her brother An up Singll and Shahbeg Singh went to the local Gurdwara to pay

their homage on the auspicious day. Darbara Singh, Balkar Singh and Mohinder Singh had preceded them. All of them halted in the Gurdwara for a few minutes and then came out. Malook Singh was carrying a spear because he intended to go to his fields after visiting tho Gurdwara.. As the party reached tho 'ba.ithak' of Tara Singh whfoh was a few paces away from the Gurdwara, Malook Singh and his companions saw the three appellants coming towards

them accompanied by Racbhpal Singh. They also noticed that all of them were armed. The appellant Sunder Singh immcdiat.ely railed a shout at Malook

••,.

Singh and said that he would despatch him to Pakistan where he intended ta go in order to collect proof for the mortgage and heirship of his father to the mortgagor. So saying, he aimed a lathi blow at Malook Singh, but Anup Singh intervened and entreated Sunder Singh not to assault Malook Singh.

As a result, Anup Singh was hit on the head by the lathi of Sunder Singh. The three companions of the appellant Sunder Singh then rushed forward.

Gurmukh Singh gave a lathi blow on one of the

hands of Anup Singh. Malook Singh then stepped forward to save Anup Singh's life and gave a spear below to Sunder Singh. .This blow caused injuries on his chest. Thereupon, Sunder Singh shouted to his companions not to allow Malook Singh and his friends to escape. At that stage, Lal Singh and Rachhpal Singh .used their di:Juble-barrelled guns and fired ; Lal Singh hit Malook Singh and Rachhpal Singh injured one of the knees of Anup Singh Rachhpal Singh then shot at Anup Singh again and Anup Singh fell down. All the companions of Malook Singh, except for his wife Amar Kaur, were frightened and ran for their lives. Lal Ringh then gave a chase to Darbara Singh, overtook him at a short distance and shot him dead. Mohinder Singh and Shahbeg Singh, however, managed to . find the shelter and thus protected themselves. After shooting Darbara Singh dead, Lal Singh returned to the spot and shot at Malook Singh and. Anup Singh again when he found that they were still alive.

Having thus committed three murders, the assailants ran away with their respective weaptins. That, in brief, is the prosecution case.

As we have already pointed out, the learned trial Judge gave the benefit of doubt to Rachhpal Singh and convicted the three appellants of the offence of murder. Before the High Court, it was urged on behalf of the appellants that Gurmukh Singh and Rachhpal Singh had been falsely implicated

196%

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T1ie 8t•ll of I'..; 1b

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660 SUPREME COURT REPORTS [l 962] SUPP.

by the prosecution witnesses and it was argued that the appellant, Sunder Singh himself was a victim of aggression at the hands of the dOOQased Malook Singh and his comp11nioDR <ind Lal "3?ngh had

8hut at the assailants in ord"r tu sa \ e hio father.

In other words, the contention was t.hat Sundor Singh and Gurmukh Singh were not guilty of any offence at all and that Lal Singh would at the worst be guilty of having exceeded the right of private defence. The case for the defence being based on the assumption that Malook Singh and his friends assaulted Sunder Singh and were themselves the aggressors, the High Court considered the oral evidence given by the four eye-witn<'SS<s, Shahbeg Singh, Balkar Singh, Mohinder Singh and Amar Kaur, the injuries inflicted on the three dect'ased persons, and examined the several points raised before it by tho defence and came to the conclusion that tho appellants and Rachhpal :::>ingh were actuat .. d by the common intention as alleged by the

prosl.'1•11tion.

In its opinion, Sunder 8ingh and his companions were the aggrl'ssurs and Miilook Singh ; end his friends were the victims and so, the learned trial J udgo was right in holdiug the appellants guilty of murder under soction 302 read with section 34, I.P.C. It appears that the High Court

was in<' lined to take thP. view that the trial Judge wa8 not right in giving the Lenefit of doubt to Raehhpal Singh. In the alternativl', tlw High Court came to the conclusion that even if the meeting between the two parties was in the nature of a chanc<' meeting, the circumstances of the ease clearly indieat1 that the common intention to kill tho throe dceeas1il persons developed in the minds of the appcllnuts and R<\chhpal Singh on the apot.

Their conduct leading to the three murders, thought the High Court, irresistibly led to the inft:rence that even if they did not start with the l'ommon intention of killing tho three , idims, that intention developed in t.hcir minds as HOUll :is thPy nut the

opposite party by chance. On these findings, the High Court confirIUed the conviction of the three appellants, upheld the sentence of death aga.inst Sunder Singh and Lal Singh and reduced the eentencil of dath passrd on Gurmukh Singh to one of imprisonment for life. It is the correctness of the findings recorded by the High Court that is challenged before us by Mr. Sethi op behalf of the appellants.

The first point which Mr. Sethi has strenuously urged l>eforn us is that the High Court was in error in wcurding a finding that Rachhpal Singh was present at the scene of the offence, shared the common intention of the three other appellants and, in fact, fired at Anup Singh as alleged by the prosecution.

Mr. Sethi contends that the trial Court had acquitted Rachhpal Singh of the offence charged and thne was no appeal by the State against the said order of acquittal.

Under s. 423 ( l)(a) of the Code of Criminal Procedure, it is only where an appeal from an order of acquittal bas been preferred that the High Court can reverse the said order ii it is sati8fi<'!l that the acquit:al was not justified on the evidence adduced in the case. He, therefore, contends that the High Court should not have considered the propriety or the validity of the order of acquittal in favour of Rachhpal Singh.

Indeed, according to him, the High Court had no authority or jurisdiction to embark upon that enquiry and since the High Court has, in terms, recorded the conoluRion that Rachhpal Singh had taken part in the offence as alleged by the prosecution, that has introduced a serious infirmity in the judgment of the High Court.

In support of his argument, Mr. Sethi has placed strong reliance on the decision in The King

v. Plummer('). In that case, three persons were jointly tried with conspiring togethet. One of them

(I)

(i902) 2 K, B.D, 339,

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Thi 81#14 of l'wJob --- Gojend..-.. J.

IHI a..- B;., A ... '1'111 ,,.. •I IVli•b

G ....... ~~1rJ.

662 SUPREME OOURT REPORTS [1962) SUPP.

pleaded guilty and judgment was passed ag"inst him on his plea. The other two pleaded i1ot guilty.

They were tried and acquitted. It was held that the judgment passed against the one who had pleaded guilty was bad and could not stand.

It would he noticed that the indictment in that caso contained five counts charging the obtaining of money by false pretences and also a sixth count alleging a conspiracy betwP.en the three accused tu defraud the prosecutors. The sixth count did not allege that there wore any other or unknown parties to the conspiracy and all the three defendants \ere included in one arraignment. All of thorn pleaded not guilty to tho five counts. Only one pleaded guilty to the sixth count, the others pleaded not guilty even to that count. It was on these factl! that the conviction of the one who had pleaded guilty to one charge was set aside and the decision setting aside the BA.id conviction was based on two grounds. It appears. that at a later stage bf the trail the defendant who had pleaded guilty to the sixth chargo wanted to withdraw his plea and the Court did not. allow him to withdraw that plea on tho ground that it had no jurisdiction to do so.

Tho King's Bench Division for whose opinion the relevant questions were referred held that the trial Court had no doubt a discretion in the matter, but since it had acted upon the erroneous opinion that it had no power to allow the withdrawal of the plea, it had, in fac~, not exercised any discretion. Therefore, if the discretion had been properly exercised and the ploa of guilty had been allmved to bo withdrawn, then clearly the defendant pleading .<?uilty would have bee1! acquitted. That is one r<>ason for the order of acquittal passed by the King's Bench Division. The other r<>ason was that whcrn the indictment charges that A, B and C combined, confederated and agreed together to <lo a certain thing, and A and B are acquitted by the vordiot of the jury from the charge, it is inconsistent with

that finding that there could have been any combination, confederation, and a.greement between them and C ; and unless they combined, confederated, and agreed together with C, C could not be found guilty of the charge. It is on these two grounds tha.t the conviction recorded against one defendant for the sixth count to which he had pleaded guilty was set aside.

It is difficult to see how this decision can asRist Mr. Sethi in the present case. It is not sng-gested by him that the order passed by the trial Court convicting thll three appellants even after acquitting Rachhpal Singh was itself invalid.

Logically, if the decision in the case of Plummer was applicable to the present.case, Mr. Sethi would have been able to attack the validity of the conviction of the three appellants in the trial Court itself. His argument is that the Appeal Court should uot have considered the propriety and the

validit.y of the acquittal of Rachhpal Singh. That is a question with which wa will presently deal; but in deciding that question, the case of Plummer does not appear to afford any material assistance.

Cases sometimes arise where persons are charged with being members of an unlawful assembly and other charges are framed against them in respect of offence committed by such an unlawful assembly. In suc:h ca.sea, if the names of persons constituting the unlawful assembly are specifically and clearly recited in the charge and it is not suggested that any other persons known or unknown also were members of the unlawful assembly, it may be that if one or more persons specifically charged are acquitted, that may introduce a serious infirmity in tiie charge in respect of the others against whom the prose1JUtion ca.ae may be proved.

It is in this class of cases, for instance, that the principle laid down itJ the case of Plummer may have

some relovirnoe. If out of the six persons charge<l

SUlltltiSingA n, s,.,. f Pw!Jd

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1H2

B-'n Bia16

•• n. 1J1111 of P!/14/oi

(J ej,,,.., ... J.

664 SUPREME COURT REPORTS (1962] SUPP.

under sootion 149 of the Indian Penal Code along

with other offencea, two persons are acquitted, the remaining four may not be convicted because the essential requirement of an unlawful assembly might be lacking. In the present case, however, the failure of the prosecution to prove that Raohhpal Singh took part in the commission of t.he offence does not introduce an infirmity in its oas<i against the appellant at a.II.

Even ifRachhpa.l Singh is held not to be presont at the scene of the offence, that, in law, cannot prevent the proseeution from presenting its case against the three appellants if the evidence adduced by it is otherwise satisfactory and cogent. Therefore, we are satisfied that

t.he case of Plummer does not make the conviction of the appellants either unreasonable or illegal.

Revertting then to tho argument based •m the provisions of s. 423(1 )(a) of the Criminal Procedure Code, it is obvious that the order of acquittal passed in favour of Rachhpa.! Singh cannot be set asiclc un le~R an apf'cu.I had been duly preferred in that behalf against the said order. But do the provisi0ns of s. 4:!:! (I )(a) create a bar against the High Court iuiliPntally considering the question about

lfachhpal Singh's 11rcsence and conduct at the relevant time while it is dealing with the prosecution cruie aain8t the three appellants before it ?

Whn the High Court in appeal considered the ca.so against the three appellants, it had inevitably to examine the comment made by Mr. Sethi against the reliability of the witnesses on tho ground that

their evidence against H.achhpal Singh had not been accepted Ly the trail Court and that neoeasarily meant that the High Court had to apply its mind to that problem as well. If in dealing with the case

presented Lefore it on behalf of tho appellants it

Lccame necessary for tho High Court to deal indirectly or incidentally with the case against Raehupal Singh. them iH no fogal bar at all. It

may be that in considering the evidence as a whole the High Court may have come to the conclusion that the evidence against Rqchhpal Singh was unsatisfactory and if it had come to such a conclu

si<>n, it would have examined the said evidence in the light of this infirmity. On the othur hand, after considering the evidence, tho High Court may well have com" to the conclusion, as it has, in fact, done in the present case, that the evidence against Rachhpal Singh is also good and need not have been discarded. Iu our opinion, there is no doubt that if in appreciating the points made by the appellants before it the High Court hn, d to consider the whole of the evidence, in respect. of the acoused persons, it was freo to come to one conclusion or the other in respect of the said evidence, so far a.s it related to Hachhpal Singh. Thn, t is why we think that the point made by Mr. Sethi that s. 4:'3(l)(a) precluded the High Court from considering the merits of the order of acquittal even incidentally or indirectly cannot be upheld.

Mr. Sflthi, however, sought to derive assistance from the decision of this Court in the case of Pritam Singh v. Si, awof Punj11b('). In that case, this Court has observed "that the pffect of a verdict of acquittal pronounced by a competent Court on a

lawful charge aud after a lawful trial is not completely stated by saying that tho person acquitted cannot be tried again for the same offence.

To that it must be added that tlie verdict is binding and conclusive in all subsequen¥ proceedings between the parties to t.he adjudication.

The maxim 'res judiratii pro veritate accipitm' is no less applicable to criminal than to civil proceedings." These observations were m'itle wlwn dcspitr the order of acquittal passed against a pcrnon under sections Hl (ft of t.he Amrn Ad in 1rn cmlier proceeding, the same allegation \\a~ 1na.<le aga.iust him in a subRcqu<'nt case where he was charg<'d with

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CorJ.

666 SUPREME COURT REPORTS [l!Hl2] SLl'P. murder. [n other words, the derision of this Court in the case of Prit.am Singh rn<'l'P ly shows that if a person is acquitted of an off.nce on a charg<' frarn('() against him which had heen tried in a court of competent jurisdiction, tho acquittal is conclusive between the said person and the prosc<ution and it cm be challenged or reopened only by an appeal against the said acquittal, not otherwise.

This proposition has no relevance to the present case.

When the High Court considered Mr. Sethi's cri

tioism against the prosecution evidence based on the a.BBumption that the said evidence was found to be unreliable in rn far as Rachhpal Singh is

concerned, it was not appreciating that evidence with a view to reverse the order of acquittal passed in favour of R&chhpal Singh ; it wn.A appreciating that evidence only with a \'iew to decide whetl1er the said evidence shoul<I be believl'd against the appellants before it.

That is wlty we think no assistance c9.D be legitimately claimed by Mr. Sethi from the decision in the case uf Pritam Singh in support of his argum<'nt that the High Court has acted illegally or improperly in <'Xpr<ssin)( its opinion that tho prosecution •vi<lencc against Raohhpal Singh was not unsatisfactory.

Indel'd, as an appellate Court, the High Cvurt has tu consider indirectly and incidentally the evidencu adduced against an accused person who had been acquitted by a trial Court in several roses where it is dealing with the appeals brfore it by the cu. accused persons who had been convicttd at the same trial and in. doing so, the High Court and even this court some times records its indirect conclusion that the evidence against the acquitted persons was not weak or unsatisfactory and that the acquittal may in that sense be regard as unjustified, !'ide Bimbadl111r Pradhrm v. 'l'he State of Oris.<a. (1) Therefore, we do not think tha.t there is any substance in the point ma.du by Mr. Sethi that the judgment of the High Court Ruffers rrom a

\I) [1951i]S.C, R.2W,~19.

2 S.C.R.

SUPREME coerrT REPORTS 667

serious infirmity in that it examined the evidence against Rachhpal Singh and came to the conclusion that the said evidence was not unsatisfactory.

In this connection, we may incidentally poin.t out that even the trial Court which acquitted Rachhpal Singh has expressly observed that it did not say that the eyewitnesses were false in their claim that Rachhpal Singh also took part in the furtherance of the afqresaid common intention, but it thought that the case against him was not proved beyond all reasonable doubt.

In other words, even the finding of the trial Court was not that the prosecution evidence against Rachhpal Singh was false; it only was to the effect that it left room for reasonable donbt. That .is about all.

That takes us to the merits of the case. On the merits, Mr. Sethijias raised some general considerations affecting the credibility of the oral evidence adduced by tho prosecution in support of itR case.

It appears that in the trial Court the prosecution case was that shooting had taken place from n 8hort distance of 9 to 12 inch< s between the assailants and their victims.

This case appears to receive support from the evidence of Dr. (Mrs.) Iqbal Shukla who had conduckd post mortem examinr,'.ina of the three dead bodies.

While giving the details of various gun-shot injuries, she noted that in most cases the wounds l1ad burnt irregular edgts and signs of burning wrre also found in some of the internal or1wns, such as lungs and heart, through whirh the bullet or the pellets passed. It is true that he does not appear h1 have been seriously cross-!':xamined at th<' trial on this part of the evidence ; but it was pointed out to the High Court that if the culprits werr alleged to have fired from the lieens<•d guns, the buming of the edges could take place on!~' if th<• rliManre lwtwe<>n the muzzle of the gun and the bod.v mis not more than nine inchrs, but since the wound8 on the dead

1969 s"""'r sn., i. . " Th• s1a1, of r..v•

J:RSZ hoclies '.plearly showed that , the pellets had n.ot

Sanihr Sinth entered the body en masse but had dispersed, .it v. woul_d be obvious that the deceased persons were.

T7rt sr.zr, •/ Pulij•b shot from a: distance of not less than 20 or 25 •feet i

GaJmkrirt..Zkn .-, The High Court was impresse':l: by this argument and so examined Dr. (Mrs.) Shukla and Dr. K.S.

Rai who is a Professor of Forensic Medicines.

Dr. (Mrs.) Iqbal Shukla adhered to the opinion already given py her but Dr. Rai's evidence completely destroyed the evidence giyen by Dr. (Mrs.) Shukla. Besides, the clothes of, the deceased which were examined by Dr. Rai should that there were no marks of burning on them.

Jn the result, the High C9urt"<!ame to the conclusion th11, t it wns diffiC:vlt to accept Dr. (Mrs.) Shnkla's evidence that thii gun-shot injuries on the deceased had burnt

edges and it also held that the shooting must have taken pface from q. distace of 20 to 25 feet. 'Fhis findihg of the. High Court is not disput, ed , before us by Mr. Chari wpo appeared for the l::itate.

Mr,. Sethi contends that the finding as to the

dist.anc~ fro~ whfoh shooting took place introduces, a Sl'ri<;>us infirmity in the prosecution evidence in as such as the eye-witnesAes suppo_rteq the. proAccution case .as priginally. set out al, Joqt the cjistanc!l; t)Jey said that the firing took place from a distance

- of '9•...

Tp.e .Ft; igl). Cour.t tliought that this , infirmity was. true only in the C\le of .;:ihahbeg S, ingh. '.!'.hat,. ho.wever, i.s clearly erron.e'ous. '.l'hat injirm.it.y is presept evep in the easy .of B!i-lkar j3ingh., n.nd .A, ma, r Kaur, th9ugh Amar J(anr put the clistance , at 2 to 4 fee~. ' Tb, e .High Court _d, oes not appear to have

nptied the fact that ev!ln B.\tlkar Singh like Sh&hbeg_ :Singh dyscribed the clisnce from whi.ch firing. too!f P, lace as' .being 9 inches, t rt , i~ true that Mohinqer ingh d_oes no~ give. (l.nyl <wjdenco ahout,

tliis.ilitanoo.,, ,'

Therefor'c;:Mr. Setl)i js right ip con~(\ndiNg' tjlat thet hree e:v.c.witheslles have clriposetl to Lho distnace

from which" firing t.ook p1acc \\'hich is demonstrated .

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to be wholly inaccurate, Incidentally, we would like to add that in dealing with the evidence of Amar Kaur, the High Court has referred to her 8tatement in the committal court and erroneously treated it as substantial evidence in the present case. Thus, it may be conceded in favou; of the defence that three out of the four eye-witnessas have deposed to the distance in terms of the theory propounded by Dr. (Mrs.) Iqbal Shukla and that, no doubt, is an infirmity in the evidence.

Then, Mr. Sethi contends that the prosecution story as to how the incident occurred is not consis tent with its case that the appellants ca.me to the scene of the offence pre-determined to assault Ma.look Singh and his companions. If the common intention of the appellants wa.e to attack Ma.look Singh and his companions, they would not have allowed the appellant Sunder Singh to gu ahead armed with a lathi, particularly when his son, La.I Singh was armed with a. gun. Sunder Singh was an old man of 65 and seeing that Ma.look Singh has a spear in his hand, it is very unlikely that Sunder Singh's son would have allowed him to go a.head with a lathi to assault Malook Singh and his com pa.nions. Therefore, the sequence of events as it is described by the prosecution witnesses, it is urged, is not consistent with the story of a pre-concerted plan on the part of the appellants. In our opinion, this contention. cannot be rejected as wholly un reasonable.

On the other hand, it appears to be fairly clear that Sunder Singh attempted to attack Ma.look Singh before he received the injury himself. As the High Court has pointed out, having regard to the real nature of the injury inflicted on Sunder Singh by Malook Singh, it is very unlikely that Sunder Singh attacked Anup Singh after he himself was assaulted by l\falook Singh. Therefore, it oan be taken to be established on probabilities that when Sunder Singh

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67<> SUPREME COUHT REl'OR'.l'S [1962J SUP.I:' .

.IHI and his sons met Malook SiT1gh and his com- ..., .tirfA {!anions, Sunder. Singh must have attempted to .,...,,,, v;, 1"o#iJoJ dllll&Ult Malook Smgh and in the process, injury was

_ cauaed to Anup Singh . ............ ,.

The fact that Sunder Singh assaulted Malook Singh does not, however, show a pre-concerted plan in the minds of Sunder Singh and his sons. In our opinion, it was a chance encounter which, iD all probability, led to an exchange of words and Sunder Singh took the aggressive and wanted to aasault Malook Singh. Tho oral evidence given by the four eye-witnesses describes the incident as though Sunder Singh and his companions came armed determined tO attack Malook :Singh ; but that evidence appears to us to be artificial and as we have just indicated, Sunder Sinizh could not have been left

1.lone to tackle Malook Singh and hi11 companions if his 11on and he had decided to attack Malook Singh even before they mat.

It is, however, urged that Lal Singh who had deposited the gun with the Police when proceedings had been commenced against his father and the members of hi1 party under s. I 07 of the Criminal Procedure Code, took the gun back on January 9,

1960, and the argument is that Lal Singh took the gun back because he and his father had decided toaasaultMalook Singh. The High Court appears to have attached considerable importance to this circum stance. Unfortunately, this circumstance h88 not been put to Lal Singh when he was examined under s. 342 of the Code in the trial Court. If it was thought that the conduct of Lal Singh in taking back his gun on .January 9, 1960, was an incriminating circumetanoo, the trial Judge should have given an opportunity to Lal Singh to explain that ciroumstance. In the absence of any question put to him in that behalf, it would, we think, not be fair w press this circumstance very much against Lal

Singh and in support of the theory of the common

intention of Lal Singh, his father and his brother.

Besides, even the High Court has observed that going about with a gun in that part of the oountry and amongst the class to whom the parties belong is not such an unusual circumstance at a.IL Just as Malook Singh was going about with a spear, so Lal Singh may be going about with a gun for which he had a licence. 'l'herefore, the fact that Lal Singh was armed with a gun which he had taken ha.ck from the Police custody on January 9, would not, in o.ur opinion, support tho theory of a pre-oonoerted plan.

It is also urged that whatever may be said against the evidence of Shahbeg Singh, Balkar Singh and Amar Kaur, Mohinder. Singh is an independent witness and since he has given evidence in support of the prosecution case of a pre-concerted

plan, there is no reason why that evidence should not be believed. Apart from the fa.ct that the probabilities do not support the prosecution case of a pre-concerted plan, we are not satisfied that Mohinder Singh can claim to be an absolutely independent witness as the High 'Court seems to have thought. Mohinder Singh was •asked in cross-examination whether he was not related to Malook Singh and in order to establish his relationship, it was put to him that Gehna Singh was his grandfather and that Gehna Singh was the cousin of Phula Singh. Mohinder Singh replied that he did not know the name of his grandfaher because he had not seen him and he had not enquired from any relation about the name of his

grandfa.~er either: The High Court thought that this explanat10n was genuine. We are not satjrdied that.the view taken by the High Court is right. In our . opinion, the trend of the answers given by Mohinder cingh in hiE cross examination clearly suggests that he was evading to give truthful replies in respect of his relationship with Phula Singh

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672 Sl:PBEME COl:RT REPORTS [1962) SUPP.

Besides, it appears in evidnnce that proceedings had been taken against whom lllalook Singh and his friends amongst l\Iohindcr Singh was included, under HS. I 07 and 150 of the Code of Criminal Procedur1" Hazur Singh was the person who had made the complaint in that behalf. The allegations made hy Hazur Singh clearly point to the fact that disputes were going on between two groups-one led by the appellant Sunder Singh and the other led by Malook Singh. The High Court thought that there was nothing on the record to show. that Sunder Singh or members of his party were witnesses in those proceedings. That, however, is not decisiv<'.

What is important is tho fact that disputes were going on between two rival groups to one of which Mohinder Singh belonged and that was the point of the croBB-examination to which Mohindor Singh was s11 hjccted at the trial. Therefore, we are not incline< I to hold that l\Iohinder Singh

ia an absolutely independent witnss. Like the other eye-witnosrs, he also must be characterised as the partisan witness. That is wh.)' the argument based on the unimpcu.chable character of the evidence given by .Mohindcr Singh in support of the theory of the common intention of the appellants cannot be accepted. We must, therefore, hold that the prosecution evidem c fails to establish its CMe that the appellants case on the scene of the offence determined to attack Malook Singh.

On the other hand, it appear to have been a chance meeting which bP.gan with an exchange of hot words between Sur.der Singh and Malook Singh and the verbal exchange was followed by an attack by Sunder Singh on Malook Singh. That means

Sunder Singh was the a.ggreesor and so La.I Singh could claim no right of private defence.

Indeed, in the present appeal, Mr. Sethi's arguments were, in 1111betance, confined to the case ofGurmukh Singh.

Sunder Singh who had been ordered to be hanged

died in jail pending the present appeal, and the case of Lal Singh, as Mr. Sethi himself fairly conceded, is difficult to defend. It is on the case of Gurmukh Singh that Mr. Sethi naturally concentrated, and it is to Gurmukh Singh's case that we must now turn.

If the prosecution case about the pre-concerted plan does not succeed and if it is held that Sunder Singh began the assault against Malook Singh and was followed by Lal Singh who fired at Malook Singh and his companions, there can be no doubt that Sunder Singh and Lal Singh can be held to have been actuated by the common intention of murdering Malook Singh and his companions.

Sunder Singh knew that La.I Singh was armed with a gun and when he deliberately provoked a controversy with Malook Singh and proceeded. to assault him, he musi; have known that Lal Singb was behind him, he would follow up the attack and do the rest of the work. That is why we are inclined to a0cept the conclusion of the High Court that the common intention to murder Malook Singh arid his companions must have developed in the minds of Sunder Singh and Lal Singh soon after they met Malook Singh and his companions and Sunder Singh attacked Malook Singh.

But can we reasonably hold that Gurmukh Singh also developed the same common intention?

And that must take us to the evidence which implicates Gurmukh Singh. As we have already pointed out, Gurmukh Singh is alleged to have caused an injury to Anup Singh on his knee and an injury to Amar Kaur. It is, however, significant that none of the prosecution witnesses has refarrred to Gurmukh Singh attacking Anup Singh until they gave evidence in the Sessions Court. An omission to refer to this part of Gurmukh Singh's conduct, therefore, assumes considerable significance.

The detailed manner in which the incident has been described suggests that the omission to

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674 SUPREME COURT REPORTS [1962) SUPP.

refer to Gurmukh Singh's aseult on Anup Singh ia in the nature of a contradiction and so, it cannot be lightly brushed aside.

As to the injury alleged to have been caused by Gurmukh Singh on Amar Kaur, the evidence is not very satisfactory. It is

true that Amar Kaur has deposed to this injury but the manner In which she has given this .evidence does not strike us as reliable. Besides, this injury is outside tho scope of the common intention charged and it is not the subject-matter of a sepa. rate charge. We haye carefully considered the whole of the evidenoo adduced by the prosecution in this case and we are not satisfied that it would be safe to hold that Gurmukh Singh was present at the soene of the offence and that he took part in attacking either Anup Singh or Amar Kaur from which it could be reasonably inferred that like his father and his brother, he also developed a common intention to attack Malook Singh and his compa nions. That is why, having examined the probabilities in the caae and bearing in mind the infirmities from which the evidence suffers, we are disposed to differ from the High Court when it came to the conclusion that Gunnukh Singh was also guilty under eection 302 read with section 34 of the I. P. C. in our opinion, the case against Gurmukh Singh is not established beyond a reasonable doubt and so, he is entitled to the benefit of doubt.

In the result, the order of conviction and sentence pa888d against Sunder Singh and Lal Singh

is confirm.ed, where&!> the order of conviction and sentence passed against Gurmukh Singh is set aside, and he is ordered to be acquitted and discharged.

Apptnl parl.ly allowed.