Dalip Singh & Ors Vs. State of
Punjab  INSC 42 (15 May 1953)
BOSE, VIVIAN MAHAJAN, MEHR CHAND
CITATION: 1953 AIR 364 1954 SCR 145
CITATOR INFO :
R 1954 SC 204 (7) D 1954 SC 648 (8) D 1955 SC
762 (7) R 1955 SC 778 (15) RF 1956 SC 460 (9) R 1956 SC 469 (14) F 1958 SC 993
(11) F 1960 SC 289 (18) D 1960 SC 673 (6) RF 1961 SC1787 (11) R 1963 SC 174
(10) R 1965 SC 202 (20) RF 1968 SC1464 (3) R 1972 SC 254 (4) F 1974 SC 276 (11)
F 1974 SC 323 (5,9) RF 1975 SC1917 (14) R 1976 SC1084 (12) R 1976 SC2207 (51) F
1977 SC 472 (13) F 1991 SC 318 (13)
Indian Penal Code (XLV of 1860), ss.
149,302-Conviction under s. 149-Conviction of less than five persons-When
proper-Sentence for transportation-Enhancement to sentence of death, on
appeal-Interference with discretion of trial
judge-Propriety-Evidence-Relationship of witness to deceased.
Before s. 149 of the Indian Penal Code can be
applied, the court must find with certainty that there were at least live persons
sharing the common object.
This does not, however, mean that five
persons must always be convicted before s. 149 can be applied. If the judge
concludes that five persons were unquestionably present and shared the common
object, though the identity of some of them is in doubt, the conviction of the
rest would be good;
but if this is his conclusion, it behoves
him, particularly in a murder case where heavy sentences have been imposed, to
say so with certainty.
Rameshwar v. The State of Rajasthan (
S.C.R. 377) referred to.
The power to enhance a sentence from
transportation to death should very rarely be exercised and only for the
strongest reasons. It is not enough for the appellate court to say or think
that if left to itself it would have awarded the greater penalty because the
discretion does not belong to the appellate court but to the trial judge, and
the only ground on which the appellate court can interfere is that the
discretion has been improperly exercised, as for instance where no reasons have
been given and none can be inferred from the circumstances of the case or where
the facts are so gross that no normal judicial mind would have awarded the
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 22 of 1953.
Appeal by special leave from the Judgment and
Order dated the 19th November, 1952, of the High Court of Judicature of Punjab
at Simla in Criminal Appeal No. 102 of 1952 and Criminal Revision Nos. 423 146
and 499 of 1952 of the Court of the Sessions Judge, Jullundur, in Sessions Case
No. 30 of 1951 and Sessions Trial No. 5 of 1951.
Jai Gopal Sethi (R. L. Kohli and Deva Singh,
with him) for the appellants.
Gopal Singh for the respondent.
1953. May 15. The Judgment of the Court was
delivered by Bose J.-Four persons appeal against sentences of death passed upon
them in convictions for a double murder, the victims being two brothers, Rattan
Singh and Bawa Singh.
The learned Sessions Judge convicted three
others also but sentenced all, including the four appellants, to transportation
for life. The High Court acquitted three of the seven but sustained the
convictions of the four appellants and enhanced their sentences in each case to
The prosecution story is simple. All seven
accused belong to the same village and belong to the same faction or
"party", as Mst. Punnan (P.W. 2) calls it. Of the seven, the
appellants Dalip Singh and Battan Singh are brothers.
Jarnail Singh who was acquitted is a son of
The remaining four, including the appellants
Sadhu Singh and Kundan Singh, are not related to the other three and, except
for the evidence that they belong to the same party, are not shown to have any
common interest with the other three.
The appellants Dalip Singh and Battan Singh
are said to have assaulted the two dead men Rattan and Bawa about twenty years
before the occurrence. They were prosecuted and convicted and served short
terms of imprisonment. Dalip Singh and Battan Singh are also said to be dacoits
and it is said that they believed that the two dead men used to furnish
information against them to the police. This is said to be the motive for the
murders. Why the others should have joined in, except on the basis that they
belong to the same "Party", is not disclosed.
147 The prosecution case is as follows:-On 16th June, 1951, Rattan Singh was taking some food out to a well a short distance from his
house for himself and his son. This was about 2 p.m. Just as he left the house, his wife Mst. Punnan (P.W. 2) heard cries of alarm and on rushing out with
her daughter Mst. Charni (P.W. 11) saw all seven accused assaulting her
husband. They beat him up till he fell to the ground.
As soon as Rattan Singh fell down, they left
him and rushed to his (Rattan Singh's) Haveli where the other brother Bawa
Singh was lying on a cot, shouting that they would also make short work of him.
All seven belaboured him on the cot, then they dragged him out and beat him up
After this they returned to where Rattan
Singh was still lying on the ground and gave him some more blows. Then they ran
Bawa Singh died very shortly after the
assault. The other brother survived a little longer but he also died not long
According to Mst. Punnan (P.W. 2) the accused
were armed as follows: The appellants Dalip Singh and Sadhu Singh with
barchhas; the appellant Battan Singh and two of the accused who have been
acquitted with lathis; the appellant Kundan Singh had a takwa -a hatchet with
along handle, and the accused Kehar Singh, who has been acquitted, had a khunda-a
hefty stick with a curved iron end.
The medical evidence discloses that Rattan
Singh had nineteen injuries on his person. Of these, only two, on the head,
would have been fatal in themselves. The rest were on non-vital parts like the
foot, ankle, leg, knee, thigh, buttock, forearm and wrist, but of these six
The doctor says death was caused by shook
produced by the multiple injuries aided by haemorrhage in the brain due to
injury No. 14.
The other brother Bawa had sixteen injuries but
except for two the rest were on non-vital parts. One of the two was on the head
and the other ruptured the 148 spleen. The rest were on the ankle, leg, knee,
thigh, elbow, thumb and wrist, but eleven of them were grievous.
In his case the doctor put the death down to
rupture of the spleen.
In Rattan Singh's case, only one of the
injuries was inflicted by a sharp-edged pointed weapon and all the rest by
blunt weapons. The two on the head were inflicted by blunt weapons.
In Bawa Singh's case, four wounds were caused
by a sharp- edged or pointed sharp-edged weapon. The others were all inflicted
by blunt weapons. Here again, the fatal injury which ruptured the spleen was
caused by a blunt weapon.
This analysis would appear to indicate that
neither of the appellants Dalip Singh and Sadhu Singh, who carried spears, nor
the appellant Kundan Singh, who carried a hatchet, aimed at any vital part; and
of those who had blunt weapons, the appellant Battan Singh who had a lathi has
alone been convicted while Indar Singh and Jarnail Singh, who also had lathis,
and kehar Singh, who had a khunda, have all been acquitted; and yet Battan
Singh alone could hardly have been responsible for eighteen injuries on Rattan
Singh and nine on Bawa Singh.
The appellant Dalip Singh was arrested on the
17th June and the other three on the 18th. Each was wearing blood-stained
The learned Sessions Judge did not attach
much importance to the bloodstained clothes, nor did he regard the recovery of
certain weapons, some of which were blood-stained, as of much consequence. But
he was impressed with the evidence of the two eyewitnesses Mst. Punnan (P.W. 2)
and Mst. Charni (P. W. 11) and believing them convicted each of the seven
accused under section 302 read with section 149, Indian Penal Code. He said
that as the fatal injuries could not be attributed to any one of the accused he
refrained from passing the sentence of death. All the assessors considered all
seven accused guilty.
The learned High Court Judges did not attach
any importance to the recovery of the weapons because 149 for one thing they
were not recovered till the 30th, that is to say, not until fourteen days after
the murders, and when found, one set pointed out by Jarnail Singh, who has been
acquitted, was found in Dalip Singh's field and another set, pointed out by
Sadhu Singh, was found in Kehar Singh's field. But they considered the
blood-stained clothes an important factor. They were not prepared to believe
the two eye-witnesses all the way, partly because they were of opinion that a
part of their story was doubtful and seemed to have been introduced at the
instance of the police and partly because they considered that when the fate of
seven men hangs on the testimony of two women "ordinary prudence" requires
corroboration. They found corroboration in the case of the four appellants
because of the blood-stained clothes and none in the case of the others.
Accordingly, they convicted the four appellants and acquitted the others.
Now this has led the learned Judges into an
inconsistency and it is that which led to the granting of special leave to
appeal. The learned Judges say that their conclusion is that (1)
"generally the story related by Mst. Punnan and Mst. Charni is true;
(2) that certainly not less than five persons
took part in the beating of the two deceased; and (3) that the corroboration
required by prudence is afforded by the presence of the blood stained clothes
found on the persons of the four appellants who have been convicted. " As
regards the three accused whom they acquitted the learned Judges say- The other
three accused may or may not have taken part in the affair." Now it is
clear from the above that it is impossible to ascribe any particular injury to
any particular person.
Therefore' it is impossible to convict any
one of the accused of murder simpliciter under section 302, 21 150 nor do the
learned Judges attempt to do that. They convict under section 302 read with
section 149. But section 149 requires the presence of five persons who share the
common object. It is true that in one place the learned Judges say that there
were certainly not less than five present but in the very next breath they say
that the three whom they acquit "may or may not have taken part in the
affair". If those three -are eliminated, then we are left with only four
and that militates against their previous finding that they were at least five.
Before section 149 can be called in aid, the
court must find with certainty that there were at least five persons sharing
the common object. A finding that three of them "may or may not have been
there" betrays uncertainty on this vital point and it consequently becomes
impossible to allow the conviction to rest on this uncertain foundation.
This is not to say that five persons must
always be convicted before section 149 can be applied. There are cases and
cases. It is possible in some eases for Judges to conclude that though five
were unquestionably there the identity of one or more is in doubt. In that
case, a conviction of the rest with the aid of section 149 would be good. But
if that is the conclusion it behoves a court, particularly in a murder case
where sentences of transportation in no less than four cases have been enhanced
to death, to say so with unerring certainty. Men cannot be hanged on
vacillating and vaguely uncertain conclusions.
In fairness to the learned Judges we have
examined the evidence with care to see whether, if that was in their minds,
such a conclusion could be reached in this particular case on the evidence
here. That it might be reached in other cases on other facts is undoubted, but
we are concerned here with the evidence in this case.
Now mistaken identity has never been
suggested. The accused are all men of the same village and the eye-witnesses
know them by name. The murder took 151 place in daylight and within a few feet
of the two eye- witnesses. If the witnesses had said, "I know there were
five assailants and I am certain of A, P and C. I am not certain of the other
two but think they were D and E", a conviction of A, B and C, provided the
witnesses are believed, would be proper, But when the witnesses are in no doubt
either about the number or the identity and there is no suggestion about
mistaken identity and when further, the circumstances shut out any reasonable
possibility of that, then hesitation on the part of the Judge can only be
ascribed, not to any doubt about identity but to doubt about the number taking
part. The doubt is not whether D and E have been mistaken for somebody else but
whether D and E have been wrongly included to swell the number to five.
Again, it is possible for a witness to say
that "A, B, C, D, E and others, some ten or fifteen in number, were the
assailants". In that event, assuming always that the evidence is otherwise
accepted, it is possible to drop out D and E and still convict A, B and C with
the aid of section 149. But that again is not the case here. No one suggests
that there were more than seven; no one suggests that the seven, or any of
them, were, or could be, other than the seven named.
Nor is it possible in this case to have
recourse to section 34 because the appellants have not been charged with that
even in the alternative, and the common intention required by section 34 and
the common object required by section 149 are far from being the same thing. In
the circumstances, we find ourselves unable to allow the conviction to rest on
the insecure foundations laid by the High Court. We have accordingly reviewed
the evidence for ourselves. Mr. Sethi took us elaborately through it. In our
opinion, the learned Sessions Judge's conclusions are right.
We are unable to agree with the learned
Judges of the High Court that the testimony of the two eyewitnesses requires
corroboration. If the foundation 152 for such an observation is based on the
fact that the witnesses are women and that the fate of seven men hangs on their
testimony, we know of no such rule. If it is grounded on the reason that they
are closely related to the deceased we are unable to concur. This is a fallacy
common to many criminal cases and one which another Bench of this court
endeavoured to dispel in Rameshwar v. The State of Rajasthan(1). We find,
however, that it unfortunately still persists, if not in the judgments of the
courts, at any rate in the arguments of counsel.
A witness is normally to be considered
independent unless he or she springs from sources which are likely to be
tainted and that usually means unless the witness has cause, such as enmity
against the accused, to wish to implicate him falsely. Ordinarily, a close
relative would be the last to screen the real culprit and falsely implicate an
innocent person. It is true, when feelings run high and there is personal
cause' for enmity, that there is a tendency to drag in an innocent person
against whom a witness has a grudge along with the guilty, but foundation must
be laid for such a criticism and the mere fact of relationship far from being a
foundation is often a sure guarantee of truth. However, we are not attempting
any sweeping generalisation. Each case must be judged on its own facts. Our
observations are only made to combat what is so often put forward in cases
before us as a general rule of prudence. There is no such general rule. Each
case must be limited to and be governed by its own facts.
This is not to say that in a given case a
Judge for reasons special to that case and to that witness cannot say that he
is not prepared to believe the witness because of his general unreliability, or
for other reasons, unless he is corroborated. Of course, that can be done. But
the basis for such a conclusion must rest on facts special to the particular
instance and cannot be grounded on a supposedly general rule of prudence
enjoined by law as in the case of accomplices.
(1)  S.C.R. 377 at 390.
153 Now what is the ground for suspecting the
testimony of these two witnesses? The only other reason given by the learned
High Court Judges is that they have introduced a false element into their story
at the instigation of the police in order to save the "face" of the
lambardars. But if that is so, it throws a cloak of, unreliability over the
whole of their testimony and, therefore, though it may be safe to accept their
story where the corroborative element of the blood-stained clothes is to be
found, it would be as unsafe to believe, on the strength of their testimony,
that at least five persons were present as it would be to accept that the ones
who have been acquitted were present; and once we reach that conclusion section
149 drops out of the case.
We have carefully weighed the evidence of
these women in the light of the criticisms advanced against them by Mr. Sethi,
most of which are to be found in the judgments of the lower courts, and we are
impressed by the fact that the learned Sessions Judge who saw them in the
witness box was impressed with their demeanour and by the way they stood up to
the crossexamination, and also by the fact that the learned High Court Judges
appear to believe them to the extent that at least five persons were concerned.
Some of the accused have made general and
sweeping statements to the effect that the prosecution witnesses are inimical
to them but no one has suggested why. In the long cross-examination of these
witnesses not a single question has been addressed to them to indicate any
cause of enmity against any of the accused other than the appellants Dalip
Singh and Battan Singh. A general question was asked, and it was suggested that
there was some boundary dispute between Mst. Punnan's husband and the accused
Indar Singh and Kundan Singh but that was not followed up by other evidence and
neither Kundan Singh nor Indar Singh suggests that there was any such dispute
in their examinations under section 342, Criminal Procedure Code. Kehar Singh
says vaguely that he has inherited land which will pass to the line 154 of
Rattan and Bawa if he dies without heirs but lie has made no effort to
substantiate this. The questions put in cross- examination therefore remain
just shots in the dark and leave the testimony of the two women unimpaired.
The first information report was made by Mst.
Pullnan (P.W. 2) herself. It was made very promptly though this was attacked by
Mr. Sethi. It was made at 8-30 p.m. within 6- 1/2 hours of the occurrence at a
place 12 miles from the police station. The victims did not die at once and it
was only natural that Mst. Punnan's first thoughts should have been to tend
them Next, she had to walk part of the distance and the rest she covered in a
lorry, and above all she has not been cross-examined regarding delay. We
consider that a report made within 61 hours in such circumstances is prompt.
Now the important thing about this report is
that it names the seven accused, no less and no more, and from start to finish
Mst. Punnan has adhered to that story without breaking down in
cross-examination and without any attempt to embellish it by adding more names;
and in this she is -supported by Mst. Charni (P.W. 11).
Next, the bloodstained clothes found on the
persons of the four appellants afford strong corroboration as against them, and
as two courts have believed the witnesses to that extent all we need do is to
concentrate on the other three accused who have been acquitted in order to see
whether there were seven persons as Mst. Punnan says and to see whether the
conclusion of the High Court that there were at least five present is sound.
We do not think the discovery of tile weapons
can be, lightly excluded. One set was pointed out by Jarnail Singh.
In itself that might not mean much but it is
unquestionable corroboration as against Jarnail Singh unless the fact of
discovery is disbelieved or is considered to be a fraud.
But that is not the finding of either court.
The first court, believes the evidence and the High Court does not disbelieve it
but 155 considers the incident as of small probative value. It may be in
itself, but it is a corroborative element in the case of two witnesses who do
not require corroboration and that makes it all the more safe to accept their
Next comes the discovery of another set of
weapons by Sadhu Singh. He was already implicated by reason of some blood-
stained clothes but the importance of the discovery in his case lies in the
fact that the weapons were found in the field of Kehar Singh. It is certainly a
circumstance to be taken into consideration that these weapons should be found
in the field of a man who was named from the start.
Then comes the fact that Mst. Punnan (P.W. 2)
not only named the various assailants in her first information report but
stated exactly what sort of weapon each was carrying.
Here again she is consistent from start to
finish except for an unessential difference in the case of Jarnail. In the
first information report she said he had a dang while in her evidence she says
he had a lathi, but as a dang is a big lathi that is not a real discrepancy.
This, in our opinion, is impressive consistency, especially as it tallies in
general with the postmortem findings. Now the fact that weapons of this
description, four stained with human blood, are discovered at the instance of
two persons she has named from the beginning in the fields of others whom she
has also named from the start certainly does not tend to weaken her testimony.
The only accused who is not in some way
independently linked up with the testimony of these two women is Indar. But
when their stories find corroboration on so many important particulars we see
no reason why they should be disbelieved as regards Indar, always remembering
that these are not witnesses who require corroboration under the law. In our
opinion, the High Court was unnecessarily cautious in acquitting the other
three accused when the learned Judges were convinced that at least five persons
were, concerned, 156 We have taken into consideration the fact that the High
Court considers that the portion of Mst. Punnan's story regarding the
lambardars has been falsely introduced by the police, also that both courts
have rejected the evidence about the dying declaration. Despite that, we agree
with the learned Sessions Judge that Mst. Punnan and Mst.
Charni are to be believed regarding the main
facts and that they correctly named all seven accused as the assailants.
On that finding the conviction under section
302 read with section 149 can be sustained. We accordingly uphold these
convictions. The acquittals in the other the cases will of course stand but the
mere fact that these persons have, in our opinion, been wrongly acquitted
cannot affect the conviction in the other cases.
On the question of sentence, it would have
been necessary for us to interfere in any event because a question of principle
is involved. In a case of murder, the death sentence should ordinarily be
imposed unless the trying Judge for reasons which should normally be recorded
considers it proper to award the lesser penalty. But the discretion is his and
if he gives reasons on which a judicial mind could properly found, an appellate
court should not interfere. The power to enhance a sentence from transportation
to death should very rarely be exercised and only for the strongest possible
reasons. It is not enough for an appellate court to say, or think, that if left
to itself it would have awarded the greater penalty because the discretion does
not belong to the appellate court but to the trial Judge and the only ground on
which an appellate court can interfere is that the discretion has been
improperly exercised, as for example where no reasons are given and none can be
inferred from the circumstances of the case, or where the facts are so gross
that no normal judicial mind would have awarded the lesser penalty.
None of these elements is present here. This
is a case in which no one has been convicted for his own act but is being held
vicariously responsible for the act of another or others. In cases where the
facts are more 157 fully known and it is possible to determine who inflicted
blows which were fatal and who took a lesser part, it is a sound exercise of
judicial discretion to discriminate in the matter of punishment. It is an equally
sound exercise of judicial discretion to refrain from sentencing all to death
when it is evident that some would not have been if the facts had been more
fully known and it had been possible to determine, for example, who hit on the
head or who only on a thumb or an ankle; and when there are no means of deter-
mining who dealt the fatal blow, a judicial mind can legitimately decide to
award the lesser penalty in all the cases. We make it plain that a Judge is not
bound to do so, for he has as much right to exercise his discretion one way as
the other. It is impossible to lay down a hard and fast rule for each case must
depend on its own facts. But if a Judge does do so for reasons such as those
indicated above, then it is impossible to hold that there has not been a proper
exercise of judicial discretion.
Now the High Court do not consider these
facts at all. They give no reasons and dispose of the matter in one sentence as
"I would dismiss the appeals of the
other four and accepting the revision petitions change their sentences from
transportation to death." That, in our opinion, is not a proper way to
interfere with a judicial discretion when a question of enhancement is
concerned. We are unable to hold that the discretion was improperly exercised
by the learned Sessions Judge. Whether we ourselves would have acted
differently had we been the trial court is not the proper criterion. We
accordingly accept the appeals on the question of sentence and reduce the
sentence in each case to that of transportation for life. Except for that, the
appeal is dismissed.
Agent for the appellants: Naunit Lal.
Agent for the respondents: G H. Rajadhyaksha.