Kesar Singh Vs. State of Punjab 
INSC 45 (4 March 1974)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
CITATION: 1974 AIR 985
Conviction for murder-Sentence.
The appellant was charged with an offence
under s. 302, 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 brother in- 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 prevent 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 civil 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 convinced 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 im- probable. To hold that a version is improbable is
not to disbelieve entirely or to find it to be false. It may be that facts are
sometimes stranger than fiction. Prudence, however compels courts to test the
version advanced in the light of what is reasonably to be expected from the
ordinary or usual norms of human conduct and the 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 must be convinced that
what is concluded must necessarily have happened and is not really explicable
in any other way. [492A-D] In the instant case although the appellant was
guilty of an offence punishable under s. 302 Indian Penal Code, all the reasons
given by the High Court for awarding the death sentence have not been
substantiated.. The evidence only disclosed that it was more likely that the appellant
was one of the several murderers and that he caused the death of only one man
with his gun, the other having been 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 the antecedents of the appellant.
Therefore, the real basis adopted by the High Court for enhancing the sentence
of the appellant would disappear. [493A-C]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal 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
Nuruddin Ahmed and D. Goburdhun, for the
H.R. Khanna, O. P. Sharma and R. N.Sachthey,
for the respondent.
488 The Judgment of the Court was delivered
by BEG. J.-This is an appeal by special leave filed by Kesar Singh, aged 23
years, who was convicted under Section 302 Indian Penal Code on three counts
and sentenced to life imprisonment by an Additional Sessions' 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 sentence
of Kesar Singh to one of death.
The grounds given by the High Court for
enhancing the sentence were: the motive was to avenge the murder of the
appellant's brother in-law Gurnam Singh committed about 7 or 8 years prior to
the occurrence so that there could, be no immediate provocation; the three
murders were committed "in a very cold blooded and brutal manner when the
deceased were sleeping on their cots"; two shots from a 1 2 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 be rendered to prevent the death of
any of the three deceased and no obstruction 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
observations of this "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 accuseds".
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 very 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 Gurmel
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 Singh, 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.R 1.
489 He alleged that Kishori gave him two
blows whereupon he cried out: "Mar Ditta Mar Ditta". It is these
cries which are said to have awakened Gurdev Singh. There were two abrasions on
the body of Gurmel Singh, one on the forehead and another on his wrist,
indicating that he had fallen down and hurt himself. The Trial Court had, very
rightly, held that he must have got up and shouted only after the two shots had
been fired at Gurbachan Singh. There was no point in assaulting him merely because
he was awake. If that was done he was sure to raise a hue and cry and wake up
Therefore, the prosecution version that
Gurdev Singh, P. W.
3, had got up because of Gurmel Singh's cries
and had seen the appellant firing twice at Gurbachan Singh had to be discarded
as too transparent an embellishment with an obvious purpose behind it. The High
Court, however, had not analysed the evidence of any of the witnesses. It had
observed rather mechanically:
"Both Gurdev Singh and Nachhattar Singh
have given consistent version of the incident and their statements are wholly
free from inaccuracies or discrepancies, even though both the witnesses were
cross-examined at considerable length. nothing at all has been brought out in
their cross-examination which would show that the story set up by them in the
examination-in-chief was not true".
Apart from the fact that the High Court had
not even noticed the very good reasons given by the Trial Court for discarding
the evidence of Gurmel Singh, P. W. 5, including the fact that this witness ,
who claimed to have identified Kesar Singh by voice, could not recognise Kesar
Singh's voice when the Presiding Judge spoke to Kessar Singh, during the trial,
to test the correctness of the claim of the witness, the High Court had
overlooked a number of features brought out by cross-examination of the two eye
witnesses which made the version given out by them very difficult to believe
Gurdev Singh had described Kesar Singh as
wearing a blue turban whereas Nachhattar Singh had described it as a cream
coloured ("Badami") turban. While Gurdev Singh had said that Kesar
Singh Awe a white shirt, Nachhattar Singh had said that he was draped in a with
stripes on it and wore a shirt of several colours. Considering that Nachhattar
Singh was said to be sleeping in a remote corner of the enclosure around the
house on the roof of which Gurbachan Singh was murdered and Dewan Singh and
Karnail Singh were asleep at some distance from him in this enclosure, it is
difficult to believe that Nachhattar could have made out not only the colour of
the turban but also the stripes on the chadar and shirt of Kesar Singh even on
a full moon night. These varying descriptions could indicate that perhaps two
different but similar men with guns had been seen shooting but only Kesar
Singh-was identified as the murderer with a gun.
Another broad feature, brought out from the
cross- examination of the witnesses, may be pointed out here.
Kesar Singh was shown to 3-M45 Sup CI/75 490
have first climbed to the roof of the house where Gurbachan Singh was asleep
and then to have come down the stairs to shoot at Karnail Singh on his cot,
and, thereafter, to have shot Dewan Singh on his cot It does appear rather
unlikely that, while even a blind man had got up, and Gurdev Singh, P. W. 3,
sleeping on the roof of the next house, and Nachhattar Singh, P. W. 4, Purran
Singh, P. W. 6, declared hostile, who were also sleeping near Karnail Singh and
D.- wait Singh, had got up, neither Karnail Singh nor Dewan Singh could got 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 bed when shot. But, no empty cartridges were recovered
from the scene of occurrence. The witnesses, who claimed to have observed
everything so closely, did not depose that Kesar Singh took out and put the
spent cartridges into a pocket.
Another difficulty in accepting the
prosecution version totally, as put forward by the two eye witnesses, is that
Gurdev Singh, P. W. 3, 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
although Gurdev Singh was empty handed and admitted that he was afraid of Kesar
Singh who had a gun in his possession.
We. find it very difficult to believe that
Gurdev Singh would have rushed and taken up his stand here to see the murders
of Karnail Singh and Dewan Singh if he had actually seen Kesar Singh 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 seen Kesar Singh murdering
Karnail Singh and Dewan Singh It is only because he had not seen the murder of
Gurbachan Singh that he could be expected, to act like this and. come and stand
at the bottom of the stairs, without apprehending danger to himself, down which
the murderer descended. If he had rushed at once to this spot in this fashion
he was, more likely, than not, to have virtually intercepted the murderer.
The broad probabilities which we have
mentioned 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 Kessar 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 uncommon propensity of witnesses to speculate, imagine, and exaggerate.
Evidence shows that the appellant had two
brothers at least one of whom was a resident of village Dhablan at the time of
the shooting, if 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 491 been
alleged to have used a gun to 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
been 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.I.R. 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
ought to have been produced by the prosecution because the eye witnesses gave
their accounts to them first. They were neither eye witneesses nor essential
for unfolding of the prosecution version. If the eye witnesses had said
anything before them which could help the accused, they could have been
produced in defence, or in any case, the 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 from the
statement of the Investigating Officer, Kuldev Singh, P. W. 12, who deposed
that when he went to the house of Tej Kaur, looking for the appellant, he found
The appellant could be arrested only on
27-6-(97t) after a "Nakabandi" at the canal bridge of village Dhakraba
and was found in illegal possession of the gun No. 60780 loaded with live
cartridges and with powder lining inside the barrel so that it must have been
used. At the trial, the appellant falsely denied this recovery and
circumstances of his arrest. His conduct was certainly very suspicious.
The manner in which the witnesses describe
the infliction of the injuries is also corroborated, according to the High
Court, by the medical evidence. On the whole we agree with this view.
Although we are not impressed by the rather
ready and facile 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 beyond reasonable doubt that Kesar Singh was at least
one of the possibly several murderers.
492 Learned Counsel for the appellant has
submitted that it would not be prudent, while discarding the case of triple
murder against Kesar Singh., to unhold his conviction on the assumption that he
committed at least one murder as this would be contrary to the prosecution
version. It is also urged that a witness who has been disbelieved because 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 exaggeration by witnesses who are convinced of the guilt of a
particular accused person that Courts dealing with criminal cases cannot throw
the whole caw over-board simply because parts of it are improbable. To hold
that a version is improbable is not to disbelieve it entirely or to find it to
be false. It may be that facts arc sometimes stranger than fiction. Prudence,
however, compels Courts to treat the version advanced in the light of what is
reasonably be expected from the ordinary or usual norms of human conduct and
the common course of natural events so as to infer what may have actually
happened. In a criminal case a conviction must rest on a proof so strong that
the Court must be convinced 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 its total truthfulness doubtful, must be true at least so far as
participation of Kesar Singh in the murder of three men by shooting at least
one of them, if not both Karnail Sigh and Dewan Singh before their eyes is
concerned. This much cannot, we think, be disbelieved. As pointed out above,
the participation of Kesar Singh in the occurrence is sufficiently corroborated
by other facts and circumstances mentioned above. Thus, the testimony of the
two eye witnesses does not stand alone against the appellant. We are unable to
conclude that the two eye witnesses belong to the category of wholly unreliable
witnesses so that their testimony cannot be acted upon even when corroborated
by other facts.
It may be mentioned here that Kesar Singh's
sister, Tej Kaur, with whom he was said to be residing and who was the owner of
the licensed double barrelled gun recovered from the appellant's possession,
was also challenged as an instigator, but she was discharged. It may be that
the appellant had grown up from childhood hearing the woeful story, from his
widowed sister, of the murder of his brother-in-law, Gurnam Singh, who was a step-brother
of Gur- dev Singh. The appellant, who is a young man, may have been imP.-lied
or goaded on by the grief of his widowed sister to participate in the murder of
three men as a part of a vendetta. It had come in evidence that two of the
murdered men, Karnail Singh and Dewan Singh, had been prosecuted for the murder
of Gurnam Singh the brother-in-law of Kesar Singh and had been acquitted.
493 Therefore , although we hold that Kesar
Singh was guilty of an offence punishable under Section 302 I. P. C., we do not
consider all the reasons given by the High Court for awarding the death
sentence 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
disclosed about the antecedents 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 adopted 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 allowed to the
extent indicated above.
P.B.R. Appeal allowed in part.