Dudh Nath Pandey Vs. The State of U.P
[1981] INSC 32 (11 February 1981)
CHANDRACHUD, Y.V. ((CJ) CHANDRACHUD, Y.V.
((CJ) SEN, A.P. (J)
CITATION: 1981 AIR 911 1981 SCR (2) 771 1981
SCC (2) 166 1981 SCALE (1)285
CITATOR INFO :
RF 1990 SC1359 (5)
ACT:
Indian Penal Code-Section 302-For the offence
of murder the normal sentence is sentence of life imprisonment and not of
death-Witnesses failed to reveal the whole truth- Considerations to be taken
into account while dealing with the question of sentence for the offence of
murder.
Concurrent findings of two courts
below-Supreme Court, if could examine their correctness.
Plea of alibi-Its postulates.
HEADNOTE:
The prosecution alleged that when the
appellant, a motor-car driver who was living as a tenant in the out-house of
the bungalow belonging to the family of the deceased, developed a fancy for the
sister of the deceased. His overtures created resentment in the family and the
deceased took upon himself the task of preventing the appellant from pursuing his
sister. The appellant's effort to take custody of the deceased's sister through
legal proceedings had failed; sometime later on a complaint to the police that
the appellant had been making indecent overtures towards her he was arrested. A
day before the day of the occurrence the appellant was alleged to have
threatened to kill the deceased if he opposed his (appellant's) marriage with
his sister. It was further alleged that while the deceased was returning home
on his scooter after leaving his sister in the school where she was working as
a teacher, the appellant fired a shot at him with a pistol at which the
deceased fell dead instantaneously.
He was convicted under section 302 I.P.C. and
sentenced to death. The order of conviction and sentence was confirmed by the
High Court.
On the question of sentence
HELD: 1. The Sessions Court and the High
Court were right in convicting the appellant under section 302 I.P.C.
[779 G] (a) The mere circumstance that two or
more courts have taken the same view of facts does not shut out all further
inquiry into the correctness of that view. Concurrence is not an insurance
against the charge of perversity though a strong case has to be made out in
order to support the charge that findings of fact recorded by more than one
court are perverse. The merit of the normal rule that concurrent findings ought
not to be reviewed by this Court consists in the assumption that it is not
likely that two or more tribunals would come to the same conclusion unless it
is a just and fair conclusion to come to. [718 E-G]
2. While dealing with the question of
sentence for the offence of murder, the normal sentence is the sentence of life
imprisonment and not of death. If in a same conclusion unless it is a just and
fair conclusion to come to. [778 E- G] 772 balances do not choose to reveal the
whole truth the Court while dealing with the question of sentence has to step
in interstitially and take into account all reasonable possibilities having
regard to the normal and natural course of human affairs. In the instant case
it would be unsafe, on the evidence on record, to sentence the appellant to the
extreme penalty of death. [780 H] The appellant, a poor motor-car driver, must
have been offended enormously when the deceased abused him that he was a man of
two paise worth and that if he attempted to marry his sister he would break his
hands and feet and that his poverty was being put up as the reason why his
sister would not be allowed to marry him. The dispute thus assumed proportions
of a fued over social status. The poor man was fretting that the rich man's
daughter would not be allowed to marry him for the mere reason that he did not
belong to an equal class of society. The appellant, rightly or wrongly,
believed that the girl was not unwilling to marry him. The incident of the
previous evening could not be considered as affording "sudden"
provocation to the appellant for the crime committed by him on the following
morning. It cannot reduce the offence of murder into a lesser offence, but the
mental turmoil and the sense of being socially wronged through which the
appellant was passing could not be overlooked while deciding the appropriate
sentence. [780 B-D] Secondly the fact that, apart from the gun-shot wound, the
deceased had no other injury on his person except an abrasion on the left side
of the chest evidently caused by the gun-shot itself coupled with the fact that
the scooter was found "standing" on the road showed that the deceased
stopped on seeing the appellant and that there was an exchange of hot words
between them culminating in the murder. But since in the present case a part of
the crucial evidence had been screened from the Court's scrutiny the
possibility of an altercation between the appellant and the deceased cannot
reasonably be excluded. [780 F-H] (3) The evidence of the defence witnesses has
failed to establish the alibi of the appellants. The plea of alibi postulates
the physical impossibility of the presence of the accused at the scene of
offence by reason of his presence at another place. The plea therefore succeeds
only if it is shown that the accused was so far away at the relevant time that
he could not be present at the place where the crime was committed. But in the
present case the evidence of the defence witnesses, accepting it at its face
value, is consistent with the appellant's presence at the factory at the
appointed hour and half an hour later at the scene of offence. So short is the
distance between the two points.
[778 H; 779 D]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 163 of 1979.
Appeal by Special Leave from the Judgment and
Order dated 23-8-1978 of the Allahabad High Court in Criminal Appeal No.
1264/78 and Murder Reference No. 9/78.
R. C. Kohli for the Appellant.
O. P. Rana and K. K. Bhatta for the
Respondent.
Yogeshwar Prasad and Mrs. Rani Chhabra for
the Complainant.
773 The Judgment of the Court was delivered
by CHANDRACHUD, C.J.-A college-going boy called Vijay Bhan Kishore was shot
dead on the morning of November 2, 1976 near the Hathi Park, Dayanand Marg,
Allahabad. The appellant was convicted for that offence under section 302 of
the Penal Code by the learned Third Additional Sessions Judge, Allahabad and
was sentenced to death. The order of conviction and sentence having been confirmed
by the High Court of Allahabad by its judgment dated August 23, 1979, the
appellant has filed this appeal by Special Leave.
Vijay Bhan Kishore alias Pappoo was the son
of an Advocate called Brij Bhan Kishore who died in about 1967 leaving behind a
widow, three daughters and Pappoo. The youngest of the three daughters was
married while the two elder were working as school teachers. Out of those two,
Ranjana Kishore was a teacher in the St. Anthony's Convent.
The appellant, Dudh Nath Pandey, who was a
motor-car driver by occupation, used to live as a tenant in an out- house of a
sprawling bungalow belonging to the family of the deceased, situated at 17,
Stanley Road, Allahabad. The appellant developed a fancy for Ranjana who was
about 20 years of age when he came to live in the out-house. The overtures made
by the appellant to Ranjana created resentment in her family and its only
surviving male member, her brother Pappoo, took upon himself the task of
preventing the appellant from pursuing his sister. As a first step, the
appellant was turned out of the out-house. Soon thereafter, he filed an
application before the City Magistrate, Allahabad, asking for the custody of
Ranjana, alleging that she was his lawfully wedded wife. That application was
dismissed by the learned Magistrate after recording the statement of Ranjana,
in which she denied that she was married to the appellant. The appellant
thereafter filed a habeas corpus petition in the Allahabad High Court alleging
that Ranjana was detained unlawfully by the members of her family, including
her uncle K. P. Saxena, and asking that she be released from their custody.
Ranjana denied in that proceedings too that she was married to the appellant or
that she was unlawfully detained by the members of her family. The habeas
corpus petition was dismissed by the High Court on November 8, 1973. On August
1, 1975, the Principal of St. Anthony's Convent made a complaint to the police
that the appellant had made indecent overtures to Ranjana. The appellant was arrested
as a result of that complaint.
774 On November 1, 1976, Ranjana was having
an evening stroll with her brother, the deceased Pappoo, in the compound of
their house. The appellant came there in a rickshaw, abused Pappoo and is
alleged to have threatened to kill him, if he dared oppose his, the appellant's
marriage with Ranjana. As a result of these various incidents and the family's
growing concern for Ranjana's safety, Pappoo used to escort Ranjana every
morning to the school where she was teaching.
On the following day, i.e. on November 2,
1976, Pappoo took Ranjana to her school on his scooter as usual. The classes
used to begin at 9-30 A.M. but Ranjana used to go to the school 30 to 40
minutes before time for correcting the students' home-work. After dropping
Ranjana at the school, Pappoo started back for home on his scooter. While he
was passing by the Children's Park, known as the Hathi Park, the appellant is
alleged to have fired at him with a country- made pistol. Pappoo fell down from
his scooter and died almost instantaneously.
The occurrence is said to have been witnessed
by Harish Chandra (P. W. 3), a domestic servant of the family of the deceased
and by Harish Chandra's friend Ashok Kumar (P. W. 1). Harish Chandra used to
live in the out-house of the deceased's bungalow at 17, Stanley Road, while
Ashok Kumar, who generally lived at Kanpur, is said to have come to Allahabad
the previous day in search of employment. Almost immediately after Pappoo and
Ranjana left the house on the scooter, Ashok Kumar and Harish Chandra too left
the house as the former wanted to see the Hathi Park. They were near about the
gate of the park, which is a few steps away from the scene of occurrence, when
the deceased Pappoo was passing along on his scooter, after dropping Ranjana at
the St. Anthony's Convent. Ashok Kumar and Harish Chandra are alleged to have
seen the appellant, who was standing near the northern boundary of the park,
firing a shot at Pappoo.
The appellant re-loaded his pistol and is
said to have run away to wards the south-east.
Ashok Kumar and Harish Chandra rushed to St.
Anthony's Convent in a rickshaw and informed Ranjana Kishore about the murder
of her brother. Ranjana went to the scene of incident along with them and on
finding that her brother was dead, she went straight to the Cannington police
station which is about 2 kms. away. She wrote out the report (Ex. Ka-1) in her
own hand and submitted it to the officer-in-charge of the police station at
9-45 A.M. In the meantime, information of the murder had reached the police
station of Colonelganj, within the 'jurisdiction' of which the murder had taken
place.
775 The police deserve a word of appreciation
because they did not, as usual, enter into a squabble as to in whose
'jurisdiction' the offence had taken place. H. R. L. Srivastava, the sub
inspector attached to Colonelganj police station, went within minutes to the
scene of offence and, believing that Pappoo was alive, sent him in a jeep to
the Tej Bahadur Sapru hospital. A little later, P. S. I. Chandrapal Singh of
the Cannington police station arrived on the scene and started the
investigation. He took charge of an empty cartridge-shell and the bloodstained
earth and later, he sent the dead body of Pappoo for postmortem examination.
P. S. I. Srivastava arrested the appellant at
about 2- 30 P.M. while he was standing near a pan-shop in front of the Indian
Telephone Industries, Naini, where he used to work. The appellant was taken to
the scene of offence where he made a certain statement and took out a loaded
pistol from a heap of rubbish lying on the Kamla Nehru Road, being the
direction in which he had run away after killing Pappoo.
The Ballistic expert, Budul Rai, opined that
the empty cartridge-shell, which was lying at the scene of offence, was fired
from that particular pistol.
Dr. G. S. Saxena, who conducted the
postmortem examination found a single gun-shot injury on the left side of the
chest of the deceased, below the armpit. The injury had caused seven pellet
wounds, each measuring 1/3 inch in diameter. Seven pellets were recovered from
the body. The injury, according to Dr. Saxena, was sufficient in the ordinary
course of nature to cause death.
The appellant stated in his defence that he
used to live in the house of the deceased as the guest of the family and not as
a tenant and that Ranjana got intimate with him during that period. He left the
house because she told him that there was danger to his life. The murder of
Pappoo, according to the appellant, was engineered by Dr. K. P. Saxena, the
maternal uncle of the deceased. The appellant denied his hand in the murder,
saying that he had no reason to do so since the deceased's mother and the other
members of the family desired that he should marry Ranjana.
The appellant examined five witnesses to
prove his alibi, his contention being that he was on duty at the Indian
Telephone Industries, right from 8-30 A.M. on the date of the incident and that
he was arrested from inside the factory at about 2-30 P.M. while on duty.
776 The learned Additional Sessions Judge,
Allahabad, examined the Deputy Superintendent of Police, R. P. Bhanu, and the
General Manager of the Indian Telephone Industries as Court witnesses.
The prosecution examined 13 witnesses in
support of its case that the appellant had committed the murder of Pappoo.
Ashok Kumar (P.W. 1) and Harish Chandra (P.W.
3) were examined as eyewitnesses to the incident. Ranjana Kishore (P.W. 2) was
examined to prove the motive for the murder as also for showing that the
deceased Pappoo had taken her to the school on his scooter and that, soon
thereafter, she was informed by the two eye-witnesses of the murder. Ram
Kishore (P.W. 4) was examined to prove the arrest of the appellant and the
recovery of the loaded pistol. P. S. I. Srivastava (P.W. 9) and P.S.I.
Chandrapal Singh (P.W. 10) deposed about the various steps taken during the
course of investigation.
Dr. G. S. Saxena (P.W. 11) was examined in
order to show the nature of the injuries suffered by the deceased while Budul
Rai (P.W. 12) stated that the empty cartridge-shell which was lying at the
scene of offence was fired from the particular pistol which is stated to have
been recovered at the instance of the appellant. The other prosecution
witnesses are mostly of a formal nature.
Were this a case of circumstantial evidence,
different considerations would have prevailed because the balance of evidence
after excluding the testimony of the two eye witnesses is not of the standard
required in cases dependent wholly on circumstantial evidence. Evidence of
recovery of the pistol at the instance of the appellant cannot by itself prove
that he who pointed out the weapon weilded it in offence. The statement
accompanying the discovery is woefully vague to identify the authorship of
concealment, with the result that the pointing out of the weapon may at best
prove the appellant's knowledge as to where the weapon was kept. The evidence
of the Ballistic expert carries the proof of the charge a significant step
ahead, but not near enough, because at the highest, it shows that the shot
which killed Pappoo was fired from the pistol which was pointed out by the
appellant. The evidence surrounding the discovery of the pistol may not be
discarded as wholly untrue but it leaves a few significant questions unanswered
and creates a sense of uneasiness in the mind of a Criminal Court, the Court of
conscience that it has to be: How could the appellant have an opportunity to
conceal the pistol in broad-day light on a public thoroughfare ? If he
re-loaded the pistol as a measure of self protection, as suggested by the
prosecution, why did he get rid of it so quickly by throwing it near the Hathi
Park itself ? And how come that the police hit upon none better that Ram
Kishore (P.W. 4) to witness the discovery of the pistol ? Ram Kishore had
already 777 deposed in seven different cases in favour of the prosecution and
was evidently at the beck and call of the police.
But the real hurdle in the way of the
appellant is the evidence of the eye witnesses: Ashok Kumar (P.W. 1) and Harish
Chandra (P.W. 3). Shri R. C. Kohli who appears for the appellant made a valiant
attempt to demolish their evidence but in spite of the counsel's able argument,
we find it difficult to hold that the eye-witnesses have perjured themselves by
claiming to be present at the time and place of the occurrence. It is true that
Harish Chandra, who was working as a domestic servant with the deceased's
family, should normally have been doing his daily morning chores. Few masters
would permit a household servant to go away on a sight-seeing spree right in
the morning. But there are at least two plausible reasons which lend assurance
to the claim that Harish Chandra left the house almost immediately after the
deceased Pappoo drove away with his sister Ranjana. Ashok Kumar had come to
Allahabad the previous evening and he wanted to go to the Hathi Park where,
though it is called a children's park, adults too find their merriment. There
is nothing fundamentally improbable in Ashok Kumar coming to Allahabad in
search of employment and equally, nothing inherently strange in the two friends
going out on a frolic. And though a small consideration, it is relevant that
the normal morning routine of Harish Chandra was to help in the kitchen but the
2nd November, 1976 was an Ekadashi day and therefore, there was not much to do
for him.
The second reason is weightier and almost
clinches the issue. The evidence of Ranjana (P.W. 2) shows beyond the manner of
doubt that Harish Chandra and Ashok Kumar broke to her the news of her
brother's murder, while she was in the school. The events after the murder
happened in such quick succession that there was no time for anyone to contrive
and confabulate. Within ten minutes of the occurrence, Ranjana was informed of
the incident by the two eyewitnesses and within a few moments thereafter she
went to the scene of the tragedy. Her F.I.R. (Ex. Ka-1) was recorded at the
police station at 9-45 a.m. A fact of preponderating importance is that the
story which Ranjana disclosed in the F.I.R. is precisely the same as the
witnesses, including herself, narrated in the Court. The F.I.R. is a brief
document of a page and half. But it is remarkable that it mentions (1) that the
appellant wanted to marry Ranjana and was harassing her towards that end; (2)
that there was a quarrel between the appellant and Pappoo the previous evening,
in which the former gave a threat of life to the latter (3) that Ranjana left
for the school on the day of occurrence at 8-45 A.M.; and (4) that soon
thereafter Harish 778 Chandra and Ashok Kumar met her at the school and
conveyed to her that they had gone to see the Hathi Park when, while Pappoo was
passing along the road, the Appellant fired a shot at him. We consider it
beyond the normal range of human propensities that Ranjana could have built up
the whole story within three quarters of an hour which intervened between the
time that she learnt of her brother's murder and the lodging by her of the
F.I.R. She could not have taken the risk of creating a false witness by placing
Ashok Kumar, who normally, resided in Kanpur, alongside Harish Chandra.
With the death of her brother, her own house
was left without a male member. At home was an ailing mother and two other
sisters, more or less of her own age. There was no one to advise her upon the
hatching of a conspiracy to involve the appellant and she could not have been
in a proper frame of mind to do anything of the kind on her own. Her
inexperience of life, the promptness with which she gave the F.I.R. and the wealth
of details she mentioned therein afford an assurance that the story of the
eye-witnesses is true in so far as it goes. Shri Kohli's submission that
Ranjana's F.I.R. is anti-timed and must have been recorded late in the evening
leaves us cold.
Shri Kohli has pointed a defect here and an
improbability there in the evidence of the eye-witnesses but it has to be borne
in mind that the Trial Court and the High Court have concurrently believed that
evidence. We do not suggest that the mere circumstances that two or more courts
have taken the same view of facts shuts out all further inquiry into the
correctness of that view. For example, concurrence is not an insurance against
the charge of perversity though a strong case has to be made out in order to
support the charge that findings of fact recorded by more than one court are
perverse, that is to say, they are such that no reasonable tribunal could have
recorded them. The merit of the normal rule that concurrent findings ought not
to be reviewed by this Court consists in the assumption that it is not likely
that two or more tribunals would come to the same conclusion unless it is a
just and fair conclusion to come to. In the instant case, the view of the
evidence taken by the Sessions Court and the High Court is, at least, a
reasonable view to take and that is why we are not disposed, so to say, to
re-open the whole case on evidence.
We have indicated briefly why we consider
that the eye- witness account accords with the broad probabilities of the case.
Counsel for the appellant pressed hard upon
us that the defence evidence establishes the alibi of the appellant. We think
not. The evidence led by the appellant to show that, at the relevant time, he
was on duty at his usual place of work at Naini has a certain amount 779 of
plausibility but that is about all. The High Court and the Sessions Court have
pointed out many a reason why that evidence cannot be accepted as true. The
appellant's colleagues at the Indian Telephone Industries made a brave bid to
save his life by giving evidence suggesting that he was at his desk at or about
the time when the murder took place and further, that he was arrested from
within the factory. We do not want to attribute motives to them merely because
they were examined by the defence. Defence witnesses are entitled to equal
treatment with those of the prosecution. And, Courts ought to overcome their
traditional, instinctive disbelief in defence witnesses.
Quite often, they tell lies but so do the
prosecution witnesses. Granting that D. Ws. 1 to 5 are right, their evidence,
particularly in the light of the evidence of the two Court witnesses, is
insufficient to prove that the appellant could not have been present near the
Hathi Park at about 9-00 A.M. when the murder of Pappoo was committed. The plea
of alibi postulates the physical impossibility of the presence of the accused
at the scene of offence by reason of his presence at another place. The plea
can therefore succeed only if it is shown that the accused was so far away at the
relevant time that he could not be present at the place where the crime was
committed. The evidence of the defence witnesses, accepting it at its face
value, is consistent with the appellant's presence at the Naini factory at 8-30
A.M. and at the scene of offence at 9.00 A.M. So short is the distance between
the two points. The workers punch their cards when they enter the factory but
when they leave the factory, they do not have to punch the time of their exit.
The appellant, in all probability, went to the factory at the appointed hour,
left it immediately and went in search of his prey. He knew when, precisely,
Pappoo would return after dropping Ranjana at the school.
The appellant appears to have attempted to go
back to his work but that involved the risk of the time of his re-entry being
punched again. That is how he was arrested at about 2- 30 P.M. while he was
loitering near the pan-shop in front of the factory. There is no truth in the
claim that he was arrested from inside the factory.
That settles the issue of guilt. We agree
with the view of the High Court and the Sessions Court and uphold the
appellant's conviction under section 302 of the Penal Code.
The question of sentence has gravely agitated
our minds. A young college-going boy was murdered because he was trying to wean
away his sister from the influence of the appellant who had set his heart upon
her. But there are two reasons why we are not disposed to confirm the death
sentence. In the first place, the appellant was smarting 780 under the insult
hurled at him by the deceased Pappoo, the previous evening. As stated by
Ranjana in the F.I.R., when the appellant proclaimed his determination to marry
her, Pappoo retorted: "You are a man of two Paisa's worth. How can you
dare to marry my sister ? I will break your hands and feet." A poor
motor-car driver that the appellant was, he must have been offended enormously
that his poverty was being put up as the reason why Ranjana would not be
allowed to marry him. The dispute thus assumed the proportions of a feud over
social status, the poor man fretting that the rich man's daughter would not be
allowed to marry him for the mere reason that he did not belong to an equal
class of society. And it is evident that he believed, rightly or wrongly, that
Ranjana was not unwilling to take him as a husband. It is in the immediate
background of the previous evening's incident that the question of sentence has
perforce to be considered. That incident cannot certainly be considered as
affording "sudden" provocation to the appellant for the crime
committed by him the next morning and, therefore, it cannot reduce the offence
of murder into a lesser offence. But, the mental turmoil and the sense of being
socially wronged through which the appellant was passing cannot be overlooked
while deciding which is the appropriate sentence to pass, the rule being that
for the offence of murder, the normal sentence is the sentence of life
imprisonment and not of death.
Secondly, Harish Chandra and Ashok Kumar do
not appear to have revealed the whole truth to the Court. If the appellant had
fired a shot at Pappoo while the latter was driving along on his scooter, and
if Pappoo, as is alleged, dropped dead, his scooter would have dragged him
ahead and in that process he would have received some injury. The scooter too
would have been damaged, howsoever slightly. But it is strange that apart from
the gun-shot wound, Pappoo had no other injury on his person except an abrasion
on the left side of the chest which was evidently caused by the gun-shot
itself. The scooter was not dragged at all, except for the mark of pellets.
And, most importantly, the scooter was not lying on the road but was
"standing". Pappoo seems to have stopped on seeing the appellant and
quite clearly, there was an exchange of hot words between them which culminated
in Pappoo's murder. The death of the brave, young lad which has deprived the
family of the succour of its only male member is to be deeply lamented. But, if
witnesses on whose evidence the life of an accused hangs in the balance, do not
choose to reveal the whole truth, the Court, while dealing with the question of
sentence, has to step in interstitially and take into account all reasonable
possibilities, having regard to the normal and natural course of human affairs.
781 Since a part of the crucial event has
been screened from the Court's scrutiny and the possibility of an altercation
between the appellant and the deceased cannot reasonably be excluded, we
consider it unsafe to sentence the appellant to the extreme penalty.
In the result, we confirm the conviction of
the appellant under section 302 of the Penal Code but set aside the sentence of
death imposed upon him. We sentence the appellant to imprisonment for life. The
appeal is, accordingly, allowed partly.
P.B.R. Appeal allowed partly.
Back
