Judgment Case ID: 2364

Judgment:
minal Appeal 185of 1967. Appeal by special leave from the judgment and order dated May 18	 1967 of the Punjab and Haryana High Court in Cri minal Appeal No. 247 of 1967 and Murder Reference No. 23 of 1967. A.S.R. Charl	 B. A. Desai	 section C. Agarwal	 A. K. Gupta	 Shiva Pujan Singh and Virendra Verma	 for the appellant. Hans Rai Khanna and R. N. Sachthey	 for the respondent. The Judgment of the Court was delivered by Bhargava	 J. Bhupendra Singh has come up to this Court in 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 and were talking between themselves and it was no business of the 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 enraged	 ran into his house abusing the two boys	 and return 406 ed 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 occurrence	 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 First 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 Committing 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 407 his 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 the 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 confirmed 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 section 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 section 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 section 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 disposed 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 duty under section 375 of the Code of Criminal Procedure and	 consequently	 the Court must examine the appeal record for itself	. 408 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 vs The State of Punjab( ')	 this Court explained this position in the following words: ". . but there is a difference when a reference is made under section 374	 Criminal Procedure Code	 and when	 disposing of an appeal under section 423	 Criminal Procedure Code	 and that is that the High Court has to satisfy itself as to whether a case beyond 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 the 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 Judge. In so doing	 the High Court will be assisted by the opinion expressed by the Sessions Judge	 but under the provisions of the law above mentioned it is for the High Court to come to an independent conclusion of its own. " The same principle was recognised in Ram Shankar Singh Others	 vs State of West Bengal (2) :_ ". The High Court had also to consider what order should be passed on the reference under section 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." In 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 behalf 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 wits 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 (1) A.I.R. 1957 S.C. 469. (2) [1962] Supp. I S.C.R. 49 at p. 59. (3) ; at P. 144. 409 that point in an appeal under Article 136 of the Constitution; after aft 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 pleas 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 even otherwise no hard and fast rule can be laid down prohibiting such pleas being raised in appeals under article 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 evidence	 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 the offence and they cannot be expected to adopt a course by which some innocent person would be substituted for the person really guilty of the murder. None of these witnesses had 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 person really guilty. In fact	 their feelings. would be strongest against the real culprit and	 consequently	 their evidence cannot be discarded on the mere ground of their close interest in the deceased. Malkiat 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. On behalf of the appellant	 it was sought to be. urged that Malkiat Singh bore a grudge against Ajit Singh	 because Ajit Singh had been instrumental in the adoption of a son by Malkiat Singh 's real uncle	 Veer Singh	 with the result that Malkiat Singh was 410 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	 Sadhu 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 Niranjan 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 interested in challenging the adoption. In these circumstances	 we do not think that Malkiat Singh can be said to be an interested witness and must hold that his evidence has been rightly relied upon. The time of the murder was not only proved by the evidence of these four witnesses	 but is also borne out by the circumstance that the First Information Report was lodged at the Police station three miles away at about 9.30 p.m. without any undue delay. On behalf of the appellant	 it was urged that the First lnformation 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 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 November 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 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 read with section 34 of the Indian Penal Code. It may be that	 having wrongly put down the offence as under 304 I.P.C. 'instead of section 102	 the Sub Inspector did not consider it necessary to 411 send the report to the Ilaqa Magistrate the same night and delayed 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 Report sent to the Ilaqa Magistrate	 any special report was also sent to the Magistrate by the Sub Inspector. In any case	 we do not think that this late receipt of the copy of the First Information Report by the Magistrate can lead to the inference that Gurdial Singh is not right in saying that he had the report recorded the same night at 9.30 p.m. The evidence of the doctor who performed the post mortem examination and of the ballistic expert clearly establish that Gurdarshan Singh had died as a result of gun shot injury received by him from a gun. The gun which the appellant possessed under a licence issued to him was examined by the ballistic expert and his evidence proved that the shots	 which killed the deceased	 were fired 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 plea that the shots which killed Gurdarshan Singh were fired by Ajit Singh and not by the appellant. 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 came out on hearing the noise	 he saw Ajit Singh quarelling with Gurdarshan Singh deceased and exchanging abuses. Thereafter	 Ajit Singh fired the gun shots towards Gurdarshan Singh killing him instantaneously. According to him	 neither Malkiat Singh nor the sons of Gurdarshan Singh were present at that time. Even Shrimati Giano	 according to him	 was not there. The 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.l.68 2 412 the investigating officer 's statement is clear that no person residing in 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 the defence case by saying that he came rushing to the spot after the incident and found Gurdarshan Singh lying dead	 while Ajit Singh was standing outside his house with something which appeared to be a gun. It is clear that this is art another attempt by Niranian 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 on behalf of the appellant to establish his plea of alibi. One defence witness 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 connection with this charge which happened on 11th November 1965. The fact that he 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 reliance is primarily placed is Bunta Ram	 Patwari. Bunta Ram stated that on 6th Novem ber	 1965 he had come to the office of the Corporation at Phillaur 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 night at his house. It	 'however	 I 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 connec 413 tion	 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 tiles 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 Nako dar 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 article 1 36 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. 414 Consequently	 while upholding the conviction	 we allow the appeal 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.

Summary:
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 nearby had arrived and witnessed the occurrence. At the trial the appellant 's defence was a pica of alibi but the Trial Court 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 appearing for the appellant admitted that there was no substance in it. The High Court accordingly dismissed the appeal and confirmed 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 error and did not properly discharge its duties. HELD : (i) Although ordinarily	 in a criminal appeal against conviction	 the appellate Court	 under section 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 and it is not necessary for the appellate Court to examine the entire record for the purpose of arriving at an independent decision	 the position is 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 section 374 of the Code. On a re ference 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. [407 D G] Jumman and Others vs The State of Punjab	 A.I.R. 1957	 S.C. 469; Ram Shanker Singh & Ors. vs State of West Bengal	 [1962] Supp. 1 S.C.R. 49 at p. 59; applied. (ii)(Upon an examination of the entire evidence by the Court) : No s had been made out for interference with	 the appellants con[409 D E] 405 Maaslti vs State of U.P.	 ; at p. 144; referred to. (iii) The sentence of death must be set aside and instead the appellant sentenced to imprisonment for life Although ordinarily this Court	 in exercise of its power under Art 136	 does not interfere with a sentence	 in the present case there were some special features which had to be taken into account : even according to the prosecution	 the murder of G by the appellant was not premeditated; the act of firing at him a 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	 the ends of justice would be met if the lesser penalty prescribed by law was awarded to the appellant. [413 G H]