KESARSINGH

STATE OF PUNJAB

March 4, 1974

[M. H. BEG ANDY. V. CHANDRACHUD, JJ.J

Criminal Practice.

Conviction for murder-Sentence.

The appellant was charged with an offence under s. ~02, Indian Penal Code of murdering three persons. The trial court found that there was enough evidence to show that the appellant was one of murderers of one of the three men and sentenced him to life imprisonment. The High Court enhanced the sentence to one for death on the grounds: that, the motive was to avenge murder of the appellant's brotherin-law committed some years prior to the occurrence so that there could be no immediate provocation; that, the three murders were committed in very coldblooded and brutal manner when the deceased were sleeping on their cots; that, two shots from a 12 bore gun had been fired at each of the three murdered men indicating the-determination to give no chance of survival to anyone; that, the time selected for the murder was such that no possible help could be rendered to, iprevent the death of any of the three deceased and no obstruction could be possible to carry out the design of committing these murders.

Allowing the appeal in part,

HELD : A criminal case is not tied down to a particular version as a clvii case is by the pleading of the parties. Moreover, there is so much of explicable inaccuracy often intermingled with imagination and exaggeration by witnesses who are coni vinced of the guilt of a particular accused person that courts dealing with criminal cases cannot throw the whole case over-board simply because parts of it are improbable. To hold that a version is improbable is not to disbelieve entirely or to find it to be false.ltmaybethat factsaresometimesstrangerthanfiction. Prudence, however compels courts to test the version advanced in the light of what is reason ably to be expected from the ordinary or usual norrns of human conduct and tl:e common course of natural events so as to infer what may have actually happened.

In a criminal case conviction must rest on a proof so strong that the court musl te convinced that what is concluded must necessarily have happened and is not really explicable in any other way. [492A-DJ

In the instant case although the appellant was .guilty of an offence punishable under s. 302 Tndian Penal Code, all the reasons given by the High Court for awarding the death sentence have not been substantiated. The evidence only disclosed thr.t it was more likely that the appellant wM one of the several murderers and that he caused the death of only one man with his gun, the other having b~-en killed by others who were not recognised, and, therefore, nothing, apart from the occurrence, proved about the character of the appellant. Nothing was disclosed about tile antecedents of the} app~!lant. Therefore, the real basis adopted by the High Court for enhancing the en!ence of the appellant would disappear. [493ACJ -

CRIMINAL APPELLATE JuRrsorcno~ : Criminal Appal No. 167 of 1973.

Appeal by special leave from the judgment and order dated the 24th April, 1973, of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No. 29 of 1972 and Criminal Revision No. 224 of 1972.

Nuruddin Ahmed and JP. Goburdhun, for the appellant.

H.R. Khanna, 0. P. Sharma and R. N. Sachthey, for the respondent.

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SUPREME COURT REPORTS U9741 3-s.c.R.

The Judgment of the Court was delivered.by -

BEG. J.-This is an appeal by special leave filed by Kesar Singh,

agd 23 years, who was convicted under Section 302 Indian Penal

Code on three counts and sentenced to life imprisonment by an Additional Sssions' Judge of Patiala for having committed the murders of three persons, namely, Gurbachan Singh, Karnail Singh and Dewan Singh, one after another, during the night between 20th and 21st June, 1970, in village Dhablan. On appeal against the conviction and a revision application by the State against the lesser penalty for murder, the High Court of Punjab & Haryana dismissed the appeal of Kesar Singh, but it allowed the revision application of the State of Punjab enhancing the s!nten~ of Kesar Singh to one ofdeath. ·

The grounds given by the High Court for enhancing the sentence were: the motive was tL avenge the murder of the appellant's brotherin-law Gurnam Singh committed about 7 or 8 years prior to the occurren~ so that there could ba no immediate provocation; the three murders were committed "in a very cold blooded and brutal manner when the deceased wer~ sleeping on their cots"; two shots from a 12 bore gun had been fired at each of the three murdered men "indicating the determination to give no chance of survival to anyone"; "the time selected for the murder was such that no possible help could re rendered to prevent the death of any of the three deceased and no

obc:.truction could be possible to carry out the design of committing these murders". Before giving these reasons, quoted mostly in the words of the High Court itself, the High Court had relied on obser vations of this Court in A.pren Joseph & Ors. Vs. The- State oj Kerafa:(l) ·

"The determination of sentence in a given case depends on a variety of considerations, the more important being, the nature of the crime, the manner of its commission, the motive which impelled it and the character and antecedents of accuso:Jds".

Learned Counsel for the appellant has taken us through the evidence of the two eye witnesses Gurdev Singh, P. W. 3, and Nachhattar Singh, P. W. 4, whose testimony had been accepted wholly by the Trial Court and the High Court about the murder of three men by the appellant singly, although the Trial Court had disbelieved the

vry reason given for Gurdev Singh to wake up in time to see the murder of Gurbachan Singh, and, therefore, had acquitted the co-accused Kishori.

It may be mentioned here that Gurdev. Singh, P. W. 3, was shown to be sleeping on the roof of the house of his uncle Dewan Singh, from where he could see his cousin, Gurbachan Singh, and brother Gunnel Singh, P. W. 5, sleeping on the roof of the next house where Gurbachan Singh was murdered on a full moon night. The prosecution version was that, when Kesar Singh and the acquitted accused, Kishori, went up the stairs to the roof, Gurmel Si_ngh, P. W. 5, who was totally blind from birth, woke up and heard Kesar Singh, whom he recognised by voice, telling Kishori to catch hold of the blind man who was awake.

(1) A.I.R. 1973 S.C. 1.

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ICESAR SINGH V, PUN.TAB (Beg, J,) 489 ,. 1-{e alleged that Kishori gave him two blow~ whereupon h d M D'tt "

I h . e cnc out • ••Mar Dttta ar 1 . a • t 1s t ese cnes which are said to hav~ anlrened Gurdev Stngh. There were two abrasions on th b d f Oorel Singh, one on the forehead and another on his ewrt yi~- dicatlng tha.t he had fallen down and hurt himself. The Trial &urt I ht.d, very ngbtly, held that he must have got up and shouted only • after he .two sho~ ha~ been fired at Guibacban Singh. There was .B no po1nt m assaultmg hm merely because he was awake. If that was do-ne he was sure o rruse hue and cry and wake up others. Therefore, the prosecution ver~1on , that _Guniev Singh, P. w. 3, had got up because of Gurmel Smgh s cnes and had seen the appellant

firin~ twice: at Gurbahan Singh hd to be discarded as too transparent .; ... an emllishment With an obviOus purpose behind it. The High c Court, however, had not analysed the evidence of any of the witness. It had ob.erved rather mechanically:

"Both Gurdev Singh and Nachhattar Singh have given colliistent version of the incident and their statements are wholly free from inaccuracies or discrepancies, even though both these witnesses were cros~-examined at considerable length.

Nothing at all has ben brought out in their cross-examination D which would show that the story set up by them in the examina- !ion-in-chief wa.'i not true".

Apart from the fact that the High Court l).ad not even noti12d the very good reason.~ given by the Trial Court for discarding the evidence of Gurmel Singh, P. W. ~. including the fact that this wit-

DC!iS, who claimed to have identified Kesar Singh by voice, could not recognise Kesar Singh's voice when the Presiding Judge spoe to K.esar Singh, during the trial, to test the correctness of the cla1m of the 'olitness, the High Court bad overlooked a numb:er of featues .brought out by cross-examination of the two eye wtnesse~ whtch

made the version given out by them very difficult to beheve totally .•

Gurdev Singh had described Kesar Sigh s wearing a blue tur- F ban whereas Nachhattar Singh had descnbed tt a cream colorcd ("Badami") turban. While Gur<lev Singh had srud that Kesar Stnb

; ·.·: wore a whtte shirt Nachhattar Singh had said that he was draped tn a clw1ar with stripes on it and wore a shirt of sever a~ col?ur5. Con- ~ "

i4ering that Nachbattar Singh was said to be sleep1ng tn remote COrllCr of the enclosure around the house on the roof of wtch Sf?u~

G. cha.u Singh was murdered and I?ewn S!ngh .nd Ka:n~l di~lt were asleep nt 11omc distance from h1m sn th1s endosure, 11 1 1 to believe that Nachhattnr could have made out not Xnlti'rrtthef ~r of the turban but also the r.tripes on the chadar a:; s. . 0 e ld s . . escnpttons cou . 1nn even ou a full moon night. These . vrytng n with uns had icato that perhaps two different uthstnulad :tied as 1he murn seen shooting but only Kesar. Stng was I e 1

11 derer with a gun, .

A t ( m the cross-exanrina!lon f nother broad feature, brought ou rKe Singh was shown to 0 the witnesses, may be pointed out here. rar 3-t.f4S Sup Cl/75 ....

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SUPREME COURT REPORTS

[1974] 3 S.C.R.

have first climb:d to the mof of the house where Gurbachan Singh was asleep and then to have come down the stairs to shoot at Karnall Singh on his cot, and, threaf£er, to have shot D~:wan Singh on his cot. 1t does appear rather unlikely that, while even a blind man had got up, and Gurdev Singh, P. W. 3, sleeping onthe roof of the next house, and Nachhattar Singh, P. W. 4, Puran Singh, P. W. 6, declared hostile, who were als'} steeping nar Karnail Singh and Dewan Singh, had got up, neither Karnail Singh nor D.!wan Singh could get up from their cots and try to either grapple with or run away from the assailant who was permitted to quietly reload his double barrelled gun to shoot at each of the three men twice each time. Dewan Singh_

was, however, said to be awake and sitting up in his bd when shot.

But, no empty cartridges were recovered. from the scene of occurrence.

The witnesses, who claimed to have oMerved everything so closly, did .not depose that Kesar Singh took out and put the spent cartridges into a pocket.

Another difficulty in accepting the proscution version totaEy, a . put forward by the two eye witnesses, is that Gurdev Singh, P. W. :;, was shown to have rushed out of the house on the roof of which he was sleeping and to have taken up his stand at the bottom of the stairs down which the murderer and his companion are shown to have descended altho:1gh Gurdev Singh was. empty handed and admitted that he was .afraid of Kesar Singh who had a gun in his poSS'!S'iion.

We find it very difficult to believe that Gurdev Singh would have rushed and taken up his stand here to S'!e the murders o ·~ Kamail Singh and D::wan Singh if h:: had actually s'!en Kesar Sing11 shoot twice at Gurbachan Singh on the roof. We think that it is very likely that Gurdev Singh woke up, like the others nearby. at hearing the gun shots and took up his stand near the stairs from where he could have S';!en Kesar Singh murdering Karnail Singh and Dewan Singh. It is only because he had not seen the murder of Gurbachan Singh that he could b:: expected, to act like this and c()me and stand at the bottom of the stairs, without apprehending danger to himself, down which the murderer descended. If he had rushed at once t() this spot in this fashion he was, mme likely, than n()t, to have virtually intercepted the murderer.

The broad probabilities which we have melltioned above certainly make it difficult to accept. unhesitatingly, as the High Court had done, the version that Kesar Singh alone shot at each of the three

men and killed them. We have, however, no doubt that Kesar Singh was seen by the witnesses running away with a double barrelled gun and had actually killed at least one of the three men murdered on the night between 20th and 21st June, 1970. and could have been seen doing so. It is likely that more than that is due to the not un. common pr()pensity of witneses f() speculate, imagine, and exaggerate.

Evidence show~ that the appellant had two brothers at least one of whom was. a resident of village Dhablan at the time of tpe. shooting.

Jf implication was only due to a desire to take revenge for three murders. the appellant would not have been the only one who would have

KESAR SINGH v. PllNJAB (Beg, /,) 491

been alleged to have used a gun o shoot when there was opportunity to implicate others too in the same position as the appellant so far as any enmity goes. It is difficult to hold that either Gurdev Singh or

Nachhattar Singh, . who had both b:en prosecuted for the murder of their step brother Gurnam Singh but acquitted about seven years before the occurrence, could have any grudge for this reason. only either against Kesar Singh or his brother Bhajan Singh both of whom were residing with and looking after the land of Tej Kaur the widow of Gurnam Singh. If the witnesses had implicated Kesar Singh merely out of suspicion they would have involved Bhajan Singh also for the same reason. ' The statements of the two eye witnesses find corroboration from the fairly detailed account of the occurrence of about 3 a.m. in the F.IR. lodged at Police Station Sadar Patiala about 10 miles away at 8 25 a.m. on 21-6-1970.

It appears that Lal Singh Sarpanch and Jag Singh Panch, had also come to the scene of occurrence after it had taken place and had gone to the Police Station so that the F.I.R. was lodged in their presence although they did not sign it because there was no need for that.

It was contended that they. ()ught to have en proouced by the prosecution becausil the eye witnesses gave their accounts to them fist. They were neither eye witnes.es nor essential for unfold

ing of the prosecution version ... If the eye witnesses had said anything before them which could help the accused, they could have been pro duced in defence, or, in any case, ti)e accused could have applied for their examination under Section- 540 Criminal Procedure Code.

'We do not think that the failure to examine these witnesses either by the prosecution or by the Court, suo moto, can cast a doubt on the prosecution case .

. Apart from the motive to murder, we think that the prosecution case against the appellant finds corroboration fom the statement of the Investigating Officer, Kuldev Singh, P. W. 12, who deposed that when he went to the house ofTej Kaur, looking for the appellant, he found it locked. The appellant could be arrested only on 27·6,1970 after a "Nakabandi" at the canal bridge of village Dhakraba and was found ifl illegal pos.sesion of the gun No. 60780 loaded with live cartridges and with powder lining inside the barrel so that it must

have been usd. At the trial, the appellant falsely denied this recovery and circumstances of his arrest. His conduct was a:rtainly ·

very suspicious.

The manner in which the witnesses describe the infliction of the injuries is also corroborated, according to the. Rig~ C?urt, by the medical evidence. On the whole we agree wHh tlus V!eW.

Although we are not impressed by the rather read~ atld failc acceptance by the High Court of the whole prosecution versiOn, which suffers from the improbabilities mentioned above, we find the evidence to be enough to establish beyod reasonable doubt that Kesar Singh was at least one of the posstbly several murderers.

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SUPREME. COURT REPORTS

£19741 3 S.C.R.,

Learned Counsel for the appellant bas s1;1bmitted that it would not be prudent, while discarding th~ case of tnple murder against Kesar Singh, to uphold his conviction on the assumption that he COilllllitted at least one murder as this \Vold be contrary to the.procution version. It is also urged that a Witness who has been disbelieved becall'le he has falsely implicated an accused for one murder could not be relied upon for convicting the accused for. another murder.

We think that a criminal case is not tied down to a particular version as

a civil case is by the pleading of the parties. Moreover, there is so much of explicable inaccuracy often inter-mingled with imagination and exag~; eration by witnesses who are convinced of the guilt of a pa.rticular accused person that Courts dealing with criminal cases C&llDOt throw the whole case OVer-board simply because parts Of it are improbable. To hold that a version is improbable u not to dil!bclieve it entirely or to find it to be false. It may be that facts arc '9metimes stranger than fiction. Prudence, however, compels

Caurt• to test the version advanced in the light of what i! reasonably to l,>e expected from the ordinary or usual norms of human conduct

and 'the common course of natural events so as to infer what may hueactually happened. In a criminal case a conviction must rest on a. proof so strong that the Court must be convince<:! that what it concludes must necessarily have happened and is not reasonably explicable in any other way.

We think that the version given by the two eye witnesses, even though it suffers from improbabilities mentioned above, so as to make it:; total truthfulness doubtful, must

be true at least so far as participation of Kesar Singh in the murder

o~ three men by shooting at least one of them, if not both Karnail SJD~ and Dewan Singh before their eyes is concerned. This much C.~~· we think, be disbelieved.

As pointed out abC>ve, the par- IJCipauon cf Kesar Singh in the occurrence is sufficiently corroborated

y other facts and circwnstance.' mentioned above. Thus, the testimony . of the two eye witnesses docs not stand ulone against the appellant. We are unable to conclude that the two eye witnes

helng to the category of wholly unreliable witnesses so that thc1r teStlDlDny cannot be acted upon even when corroborated by other c~ .

It may be mentioned bere that Kesar Singh's sister, Tej Kaur, with whom he was saiu to be residing and who was the owner of the licensed double barrelled gun recovered from the appellant's poises:>ion, was al-io challaned as an instigator, but she was Jis G charge\.1. It nuy be that the appellant h:1J grown up from hildho<>d hearing the woeful story, from his widowed sister, of the murder of

!Ji~ brother-in-law, Gurnam Singh, who was a step-brother of Guruev Singh. The appellant, who i'> a young man, may have bren im pellcd or goaded 011 by the grief of his whJowcd sister to participate I in the murd.:r of three men Dll a pilrt of a vendetta. It had come in Jl

c:\'ince that two of the murdered men, Karnail Singh and Dewan Siogh, had been proiecuted for the murder of Gurnam Sin~:h the .· brother-iu-Ltw of Kcsar Singh and had been ;\cquitted.

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B !

DSAR SINGH v. PUNJAB (Beg, /.) 493

Therefore, although we hold that Kesar Singh was guilty of a11 offence punishable under Section 302 J. P. C., we do not consider all the reasons given by the High Court for awarding the death sentnce to have been substantiated. The High Court had overlooked facts which we have mentioned above. It had also overlooked that there was nothing, apart from the occurrence, proved about the character of the appellant. Nothing was disclsed about the antecedent~ of the appellant. If it was more likely, as we think it was, that the appellant was one of the several murderers and that he had caused the death of only one man with his gun, the others having been killed by others who were probably not recognised, the real basis ad()pted for awarding a death sentence to him would disappear.

The result is that, although we uphold the conviction of the appellant for an offence punishable under Section 302 I. P. C., we set aside the sentence of death and substitute it by life imprisonmenT, The appeal is thus partly allo\\ed to the extent indicated above .

P.B.R. • 4pptal allowed iJJ 14Jrt.