BHUPENDRA SINGH

THE STA~ OF PUNJAB

March 5, 1968

(S. M. SllQU, J.M. S!mLAT AND V. BHARGAVA, JJ.] B

Code of Criminal Proctdure, 1898, ss. 375, 376 and 423-Duty of 'J{Jpellate Court to examine entire record in proceedlll//S for con{irmatron of dtath se11te11L:e--if court can acctpt dtf•nct admission of Its CflSt! luzv. inJl no substance or should exG111lnt rec!ird for itself.

Stnttnce-<Jpptal against-when Supreme Court may interfere.

The appellant lived with his father A in a house adjoining that of the deceased G who lived there with his two sons and a daughter. An argument developed one evening between the appellant and one of the sons of G.

When G intervened, the appellant's father A raised a 'lalkara' asking the appellant to finish him off. Thereupon the appellant shot and killed G.

By this time G's two sons, his daughter and one M who lived neaf-by had arrived and witnessed the occurrence. At the trial the appellant's defence was a pica of alibi but the Trial Coun rejected the defence and convicted the appellant of G's murder and sentenced him to death.

In appeal, the High Court did not go into the defence evidence because the counsel appearin~ for the appellant admitted that there was no substance in it.

The High Court accordingly dismilled the•appeal and con' finned the sentence of death.

In appeal to this Court against the conviction and the sentence it was contended that the High Court in not examining the defence evidence for itself, committed an er'ror and did not properly discharge its duties.

HBLD : (i) Although ordinarily, in a criminal appeal against conviction, the appellate Court, under s. 423 of the Code of Criminal Procedure.

can d; smiss the appeal if the Court is of the opinion that theM is no sufficient ground for interference and it is not necessary for the appellate Court to examin<0 the entire record for the purpose of arriving at an in

dependent decision, the position i• different where the appeal is by an F accused who is sentenced to death, so that the High Court dealing with the appeal has before it. simultaneously witb the appeal. a reference for continnation of the capital sentence under s. 374 of the Code. On a reference for confirmation of sen!ence of death, the High Court is requirctl to proceed in occordance witb sections 375 and 376 of the Code Of Cri minal Procedure and the provisions of these sections make it clear that the duty of the High Court, in dealing with the reference, is not only to G see whether the order passed by the Sessions Judge Is correct but to examine the case for itself and even direct a further enauirv or the taking of additional evidence if the Court considers it desirable in order to as certain the guilt or the innocence of the convicted penon. (407 D-0)

. Jummcn and Others v. The State of Punjab, A.I.R. 1957, S.C. 469; . Ram ShGnker Singh & Ors. v. State of West Bengal,

(1962) Supp. 1 . S.C.R. 49 at p. 59; applied.

(ii) (UPon an exarilination of the entiro evidence by tho Court) : No grconds had been made out for intcm.rence with the appellant's con viotion. [409 D-B)

BHUPBNDRA v. PUNJAB (Bhargava, /.)

A Masalti v. State of U.P., [1964] 8 S.C.R, 133 at p. 144; referred to.

(iii) The sentence of death must be set aside and instead the appellant s.entenced to imprisonment for life Although ordinarily this Coiirt, in exercise of its power under Art.. 136 does not interfere with a sentence, in the present case there were som'e special features which had to be taken into account : even according to the proSccution, the murder of G by the appellant was not pn:- meditated; the act Of firing at him appeared to be that of a hot-beaded person who was incited to do so by his father; the murder was not in any way cruel cir brutal. In all these circumstances, tho ends of justice would.

be met if the lesser penalty prescribed by law was awarded to the appellant [413 G•Hl

CRIMINAL AIIPELLATE JURISDICTION : Criminal Appeal 185of 1967.

Appeal by special leave from the judgment and order dated May 18, 1967 of the Punjab and Haryana High Court in Criminal Appeal No. 24 7 of 1967 and Murder Reference No. 23 of

19~. .

D A. S. R. Chari, B. A. Desai, S. C. Agarwal, A. K. Gupta,

Shiva Pujan Singh and Virendra Verma, for the appellant.

Hans Raj Khanna and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

Bbargava, J. Bhupendra Singh has come up to this Court irr appeal by special leave against a judgment of the High Court of Punjab and Haryana confirming the sentence of death awarded to him by the Sessions . Judge of Jullundur for an offence under section 302 of the Indian. Penal Code and dismissing his appeal against the conviction and sentence. The conviction of the appellant was recorded for committing the murder of one Gurdarshan Singh who was living in the same village Birpind as the appellant in the house adjoining the appellant's house.

The appellant's father, Ajit Singh, also lived with the appellant, while, with Gurdarshan Singh, were living his sons, Gurdial Singh and Sarvjit Singh, and his daughter Gian Kaur. According to the prosecution, on the 6th November, 1965, at about 7.45 p.m., the two brothers, Gurdial Singh and Sarvjit Singh, happened to be standing in front of their house talking to each other, when the appellant came out of his house and asked them what they were talking about. Gurdial Singh replied that he and Sarvjit Singh were brothers apd were talking between themselves and it was no business of th~ appellant to interfere. The appellant, thereupon, abused the two brothers and also slapped Sarvjit Singh on the face.

Gurdial Singh asked the appellant why he had beaten his brother and used abusive language against the appellant. The appellant got e.nraged, ran into his house abusing the two boys, and returned with a double-barrel 12 bore gun. When he came out of his house this time, he was accompanied by his father, Ajit Singh.

Gurdial Singh and Sarvjit Singh then ran into the 'deorhi' of their house. In the meantime, their father, Gurdarshan Singh, and their sister, Gian Kaur, returned to the house from their fields.

When Gurdarshan Singh saw the appellant carrying the gun, he enquired what the matter was. Thereupon, Ajit Singh raised a 'lalkara' asking his son, the appellant, to finish off Gurdarshan Singh. The appellant then fired two shots in quick succession from his gun hitting Gurdarshan Singh on vital parts of his body.

Gurdarshan Singh fell down dead on the ground. One Malkiat Singh, who lived in a house nearby, had arrived and saw this occur. rence, so that the four persons, who witnessed the occurrence, were Malkiat Singh, Gurdial Singh, Sarvjit Singh and Gian Kaur.

Gurdial Singh, leaving others to look after the dead body of his father, went with Lal Singh, Lambardar, to the Police Station which was situated at a distance of about three miles and lodge the }'irst Information Report at about 9.30 p.m. on the same day. The case was then investigated. A post mortem examination on the corpse of Gurdarshan Singh was performed and articles like pellets, blood-stained cardboard pieces lying near the scene of occurrence were taken into their possession by the. Police. Both the appellant and his father, Ajit Singh, were thereafter prosecuted for this murder. The appellant was charged with being the principal offender in committing the murder, while his father, Ajit Singh, was prosecuted for having participated in the murder with the common intention that Gurdarshan Singh should be killed.

However, before the trial could take place in the Court of Sessions, Ajit Singh was murdered and, for that murder, Gurdial Singh was prosecuted.

In the case, at the first stage before the Court of the Commit ting Magistrate, both Ajit Singh and the appellant took the plea that neither of them was responsible for committing the murder of Gurdarshan Singh and contented themselves with denying the correctness of the prosecution case. In the Court of Sessions. when the appellant was examined under section 342 of the Code of Criminal Procedure, he came forward with the plea that it was his father, Ajit Singh, who actually fired and killed Gurdarshan Singh. He pleaded that he himself was not present in this village at all and was, in fact, that day staying at Phillaur. He, thus, put forward the plea of alibi.

The Sessions Judge believed the evidence of the four prosecution witnesses mentioned above, and, after discussing the defence evidence given on behalf of the appellant in support of his pleas. rejected that evidence. He did not accept the defence evidence that Gurdarshan Singh was fired at by Ajit Singh and he also held that the evidence given on behalf of the appellant to prove

bis alibi could not be relied upon. On these findings, the Sessions Judge convicted the appellant and sentenced him to death for committing the murder of Gurdarshan Singh.

When the case came up before the High Court, the High Court briefly examined the evidence of tbe prosecution witnesses and held that their evidence was reliable. The High Court did not, however, go into the defence evidence, because the counsel appearing for the appellant, according to the High Court, frankly admitted that there was no substance in it. On this view, the High Court dismissed the appeal of the appellant and confirnied his sentence of death.

In this appeal, the principal question that was canvassed before us on behalf of the appellant was that the High Court, in not examining the defence evidence for itself on the simple ground that counsel for the appellant admitted that there was no substance in it, committed an error and did not properly discharge its duty.

It appears that there is substance in the submission made on behalf of the appellant. Ordinarily, in a criminal appeal against conviction, .the appellate Court, under s. 423 of the Code of Criminal Procedure, can dismiss the appeal, if the Court is of the opinion that there is no sufficient ground for interference, after examining all the grounds urged before it for challenging the correctness of the decision given by the trial Court. It is not necessary for the appellate Court to examine the entire record for the purpose of arriving at an independent decision of its own whether the conviction of the appellant is fully justified.

The position is, however, different where the appeal is by an accused who is sentenced to death, so that the High Court dealing with the appeal has before it, simultaneously with the appeal, a reference for confirmation of the capital sentence under s. 374 of the Code of Criminal Procedure. On a reference for confirmation of sentence of death, the High Court is required to proceed in accordance with sections 375 and 376 of the Code of Criminal Procedure and the provisions of these sections make it clear that the duty of the High Court, in dealing with the reference, is not only to see whether the order passed by the Sessions Judge is correct. but to examine the case for itself and even direct a further enquiry or the taking of additional evidence if the Court considers it desirable in order to ascertain the guilt or the innocence of the convicted person. It is true that, under the proviso to s. 376, no order of confirmation is to be made until the period allowed for preferring the appeal has expired, or, if an appeal'is presented within such period, until such appeal is disposed of, so that, if an appeal is filed by a condemned prisoner that. appeal has to be disp<ised of_ before any order is made in the reference confirming the sentence of death. In disposing of such an appeal, however, it is necessary that the High Court should keep in view its dutv under s. 375 of the Code of Criminal Procedure and, consequently, the Couri must examine the appeal record for itself,

40~ SUPllBMB COUllT llBPOllTS

(1968) 3 S.C.R.

.arrive at a view whether a further enquiry-or taking of additional .evidence is desirable or not, and then come to its own conclusion on the entire material on record whether conviction of the condemned prisoner is justified and the sentence of death should be confirmed. In Jumman and Others v. The State of Punjab(1 ), 1his Court explained this position in the following words :-

" . . . . . ..... but there is a difference when a reference is made under s. 374, Criminal Procedure Code, and when, disposing of an appeal under s. 423, Criminal Procedure Code, and that is t:pat the High Court has to satisfy itself as to whether a case beyoRd reasonable doubt has been made out against the accused persons for the infliction of the penalty of death. In fact the proceedings before the High Court are a reappraisal and the reassessment of the entire facts and law in order that th,~ High Court should be satisfied on the materials about the guilt or innocence of the accused persons. Such being the case, it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions fodge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the Jaw above-men!ioned it is for the High Court to come to an independent conclusion of its

own""

The same principle was recognised in Ram Shankar Singh and -Others v. State of We.s<t Bengal(2) :-

" ... .. .. . . . The High Court had also to consider what order should be passed on the reference under s. 374, and to decide on an appraisal of the evidence whether the order of conviction for the offences for which the accused were convicted was justified and whether, having regard to the circumstances. the sentence of death was the appropriate sentence."

Jn Masalti v. State of U.P.(3) this Court was dealing with an appeal under Article 136 of the Constitution and, in that appeal, on behaJf of the persons who were under sentence of death, a point was sought to be urged which was taken before the trial Court and was rejected by it, but was not repeated before the High Court. This Court held :-

" .... . ...... . . .it may, in a proper case, be permissible to the appellants to ask this Court to consider

(l) A.J.R. 1957 S.C. 469.

(2) (1962) Supp. 1S.C.R. 49 at p. S9.

(3) (196418 S.C.R. 133 at p. 144.

that point in an appeal under Artice 136 of _the Constitution; after all in criminal proceedings of this character where sentences of death are imposed on the appellants, it may not be appropriate to refuse to consider relevant and material plas of fact and law only on the ground that they were not urged before the High Court. If it is shown that the pleas were actually urged before the High Court and had not been considered by it, then, of course the party is entitled as a matter of right to

obtain a decision on those pleas from this Court. But zven otherwise no hard and fast rule can be laid down prohibiting such pleas being raised in appeals under Art. 136."

In view of these principles indicated by us above, and in view of the fact that, in this case, the High Court did not properly examine the defence evidence on the ground that the counsel for the appellant in that Court admitted that there was no substance in it, we permitted learned counsel for the appellant in this appeal to take us through the entire evidence on the record given by the prosecution and the defence so as to enable us to form our own judgment about the correctness of the conviction and sentence of the appellant.

We, however, find that, after examining the entire cv'idence, we are unable to hold that any grounds are made out for interference with the conviction.

The prosecution case, as already mentioned by us above, is supported by the evidence of four eye-witnesses, Gurdial Singh,

Sarvjit Singh, Gian Kaur and Malkiat Singh.

Three of these witnesses, Gurdial Singh, Sarvjit Singh and Gian Kaur are the

sons and daughter of the deceased Gurdarshan Singh, but this circumstance, in our opinion, does not detract from the value to be attached to their evidence, because, naturally enough, , they

are interested in seeing that the real murderer of their father is convicted of te offence. and they cannot be expected to adopt a course by which some mnocent person would be substituted for the person really guilty of the murder. None of these witnesses hd any such enmity with the appellant as could induce him to give false evidence and to substitute him as the murderer in place of the perso!1 really guilty. n fact, their feelings would be strongest agamst. the real culprit and, consequently, their evid~

mce cannot be discarded on the mere ground of their close interest m the deceaed. "fyf alkiat Singh has been held both by the Sessions Judge and the High Court to be an independent witness and we find no reason to differ from the view taken by the two Courts O.n behalf of the appellant.' it w~~ so.ught to be urged that Malkiat

Singh. bore a grudge agamst AJtt Smgh, because Ajit Singh had been instrumental in the adoption of a son by Malkiat Singh's real uncJe, Veer ingh, with the result that Malkiat Singh was

deprived of the succession to the property of his uncle. Malkiat Singh denied that he had any grievance against Ajit Singh on such a ground. In support of the plea put forward on behalf of the appellant, one defence witness, Niranjan Singh was examined who claimed to be the son of another' real uncle of Malkiat Singh.

Niranjan Singh came to depose that his son, Sadha Singh, had been adopted by Veer Singh and this adoption took place because Ajit Singh had asked Veer Singh to take Sadhu Singh in adoption.

Niranjan Singh had, however, to admit that, in the deed of adoption, the person adopted is described as Mukhtiar Singh and not Sadhu Singh. To explain this discrepancy, Niranjan Singh came forward with the assertion that his son, Sadhu Singh, bore an alias Mukhtiar Singh. If Sadhu Singh was the real and principal name of the boy adopted by Veer Singh, there is no reason why that name was not mentioned in the deed of adoption and why the person adopted was described only as Mukhtiar Singh.

There is further the circumstance that, even according to Niran jan Singh, Malkiat Singh, witness, did not try to challenge the adoption, even though the adoption had taken place in April 1965, seven months before this incident. Malkiat Singh had stated that he had no grievance against Ajit Singh and was in fact not interest cd in challenging the adoption.

In these circumstances, we do not think that Malkiat Singh can be said to be an interested wit ness and must hold that his evidence has been rightly relied upon.

The time of the murder was not only J?roved by the evidence E of these four witnesses, but is also borne out by the circumstance that the First lnfonnation Report was lodged at the Police 9tation three miles away at about 9.30 p.m. without any undue delay.

On behalf of the appellant, it was urged that the First Wormation Report was in fact recorded much later and not at 9.30 p.m. the same day, on the basis that the copy of that report sent to F the Ilaqa Magistrate was received by him at 10.30 a.m. on 8th November, 1965. The argument was that, if the report had been lodged at 9.30 p.m. on 6th No:vember 1965, the copy should have reached the Magistrate the same night or early on the 7th November and not as late as 8th November. We are unable to accept this submission. The evidence of Gurdial Singh was perfectly clear that he reached the police station and lodged the G report that very night at 9.30 p.m. and there is no reason to disbelieve him. It appears that in this case, the investigating officer, Sub-Inspector Ram Saran Dass was, to some extent, negligent.

In the report lodged by Gurdial Singh, the facts given clearly made out an offence of murder, and yet the Sub-Inspector chose to register .the case wrongly as for an offence under section 304 H read with section 34. of the Indian Penal C<><te. It may be that, having wrongly put down the offenc.e as under .304 .J.P.C. instead of section 302, the Sub-Inspector did not consider 1t 1lecesarv to

send the report to the Ilaqa Magistrate the same night and delay eJ sending it, so that it was received at 10-30 a.m. on 8th November, 1965 by the Magistrate. It is also not clear from the evidence whether, apart from the copy of the First Information Reporl sent to the Ilaqa Magistrate, any special report was also

ent to the Magistrate by the Sub-Inspector. In any case, we do not think that this late receipt of the copy of t.lte First Information Report by the Magistrate can lead to the infere1ice that Gurdial Singh is not right in saying that he had the report recorded the s:une night at 9 .30 p.m.

The evidence of the doctor who performed the post mortem examination and of the ballistic expert clearly estabfish that Gurdarshan Singh had died as a result of gun shot injury received by him from a gun. The guri which the appellant passesscd under a licence issued to him was examined by the ballistic expert and his evidence proved that the shots, which killed the deceased, were tired from that very gun. In these circumstances, the Sessions Judge and the High Court were right in recording the conviction of the appellant for the murder of Gurdarshan Singh on the basis of this prosecution evidence.

So far as the defence put forward on behalf of the appellant is concerned, the first point to be noticed is that the plea that the shots. which killed Gurdarshan Singh, were fired by Ajit Singh, was not taken by the appellant until his father, Ajit Singh, had already died. It seems to be clear that this plea, which was put forward for the first time in the Court of Sessions, was an afterthought which could be taken safely by the appellant after Ajit Singh had died and he could not be convicted for the murder.

When the appellant was examined in the court of the Committing Magistrate while Ajit Singh was alive, he did not make any such statement. This is an important circumstance that militates against the plea put forward in defence.

The appellant relied upon the evidence of two witnesses in support of the p~a hat the shots '.-"hich killed Gurdarshan Singh were fired by A11t Smgh and not by the appeltant. The first of these witnesses is Uggar Singh who stated that he was in his house situated opposite to the house of the appellant and, when he c?mc out on earing the noise, he saw Ajit Singh quarelling with

(1rdashan Singh deceased and exchanging abuses. Thereafter,

~.11t .Smgh fired the gun shots towards Gurdarshan Singh killing

h.1111 instantaneously. Acco\ding to him, neither MaJkiat Singh nor tnc sons of Gurdarshan Singh were present at that time. Even Shrimati Giano. according to him, was not there. TI1e evidence of this witness cannot be relied upon for several reasons. According to this witness, his statement was recorded by the Police at about 10 a.m. the next day, i.e., the 7th November, 1965; but L7Sup.C.1:61!- -:?

the investigating officer's statement is clear that no person residing ih the neighbourhood had been examined by him or had come forward to give any statement to him. Uggar Singh, thus, made a wrong statement that he was examined by the Police the next day.

It also appears that he was prosecuted in a murder case in which he was acquitted and Ajit Singh had assisted him in that trial. The answers given by him in the cross-examination also show that, in fact, his house is not in front of the house of the appellant but is situated in the same line as the house of the appellant and the deceased and at some distance. He tried to get over this difficulty by stating that he has another house which is opposite to the house of the appellant, but it appears that that house belongs to his cousin, Ujagar Singh, and that is how the house is described in the site plan also. In all these circumstances, the evidence of Uggar Singh cannot be accepted.

The second witness is Niranjan Singh, whose evidence we have noticed above, and he also partially supported this part of th'! defence case by saying that he came rus!ling to the spot after the incident and found Gurdarshan Singh lying dead, while Ajit Singh . D was standing outside his house with something which appeared to be a gun. It is clear that this is an, another attempt by Niran jan Singh to help the appellant and on this point also reliance cannot be placed on his evidence.

. There remains to be considered the evidence given ori behalf of the appellant to establish his plea of alibi. One defence wit- E ness Kirpal Singh was examined to prove that the accused was on deputation in the Seed Corporation at Phillaur and was attached to the Tehsildar, Phillaur and that he was not suspended until

11th November, 1965. His evidence is of no help, because it is obvious that the appellant could be suspended only after he surrendered in connectlon with this charge which happened on F 11th November 1965. The fact that be was in service on 6th November, 1965, does not necessarily prove that he could not have been present at the place of occurrence.

The-_witness, on whose evidence relince is primarily placed is Bunta Ram, Patwari. Bunta Ram stated that on 6th November, 1965 he had come to the office of the Corporation at Phillaur G in order to collect his pay and he also brought some files from Nakodar in order to consign those files. In that connection, he remained in the office of the Corporation throughout the day. He .saw the appellant also working in the said office throughout the day. According to him, at about 6.30 p.m., he and the appellant went to the house of Inderjit Singh, Patwari and spent the H night at his house.

It, however, appears that this witness is a direct subordinate of the appellant and that is the reason why he has come forward to support the appellant's case. In this connection, Jagdish Rai Batta, Tehsildar in the Seed Corporation, was examined as a court witness by the Sessions Judge and his evidence shows that Bunta Ram was one of the Patwaris working as a subordinate of the appellant who was a kanoongo in the Corporation.

Bunta Ram had stated that on that day he had himself appeared before the Tehsildar in connection with the consignment of the files and the Tehsildar had given him some directions in that behalf.

Jagdish Rai Batta stated that on that day Bunta Ram, Patwari did not appear before him nor did he produce any files.

He went further and stated that' he did not point out any defects to Bunta Ram Patwari either orally or in writing. Thus, Bunta Ram is proved to be an untruthful witness by the evidence of Jagdish Rai Batta, Tehsildar. Bunta Ram, in his cross-examination, purported to state that the appellant was living in a part of the house of Inderjit Singh at.Phillaur.

On the face of it, it cannot be correct because the appellant did not belong to Phillaur and was not even posted there in connection with his employment.

His headquarters, according to Jagdish Rai Batta, was Nakodar and not Phillaur. The evidence of Jagdish Rai Batta only shows that he saw the appellant working in his office at Phillaur on that day until about 5 p.m. Phillaur is connected with Nakodar by a metalled road along with which there is a bus service, and village Birpind, where the murder took place, is only three miles from Nakodar; It is quite clear that the appellant could easily reach Birpind well before 7.45 p.m. even if he worked at Phillaur till 5 p.m. on that day.

It is also significant that the murder was committed with the gun belonging to the appellant.

If the appellant himself had not been at Birpind and had been at Phillaur or Nakodar, the gun should have been with. him at one of these places and not at Birpind.

The gun could not, therefore, have been available for use by Ajit Singh, his father, in his absence. Considering all these circumstances and the nature of the evidence, we are unable to accept that there is any force in the defence plea of alibi put forward by the appellant, so that the conviction based on the prosecution evidence must be upheld .

. A plea was put in for reduction of sentence. Ordinarily, this Court, in exercise of its powers under Art. 136 of the Constitution, does not interfere with a sentence . awarded by a Sessions Judge and upheld by the High Court; but, in this case, there are some special features which we cannot ignore. Even according to the prosecution, the murder of Gurdarshan Singh by the appellant was not pre-meditated. The act of firing at him appears to be that of a hot-headed person who was incited to do .so by his father. The murder was not in any way cruel or brutal. In all these circumstances, we think that the ends of justice would be met if the lesser penalty prescribed by law is awarded to the appellant.

Consequently, while upholding the conviction, we allow the ap- '- peal to the extent that the sentence of death is set aside, and, instead, the appellant is sentenced to imprisonment for life.

R.K.P.S.

Appeal allowed.