TMI Blog1953 (5) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... have any common interest with the other three. 3. 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. 4. 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. 5. 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 laying on a cot, shouting that they w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted; and yet Battan Singh alone could hardly have been responsible for eighteen injuries on Rattan Singh and nine on Bawa Singh. 14. The appellant Dalip Singh was arrested on the 17th June and the other three on the 18th. Each was wearing blood-stained clothes. 15. 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. 16. The learned High Court Judges did not attach any importance to the recovery of the weapons because 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 Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... betrays uncertainty on this vital point and it consequently becomes impossible to allow the conviction to rest on this uncertain foundation. 21. 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 cases 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 behaves 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. 22. In fairness to the learned Judges we have examined the evidence with care to see whether, if that was in them 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. 23. Now mistaken identity has never been suggested. The accused are all men of the same villag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another Bench of this court endeavoured to dispel in (Rameshwar v. The State of Rajasthan ([1952] S.C.R. 377at 390). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel. 27. 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 here 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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 of Rattan and Bawa if he dies without heirs but he 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. 32. The first information report was made by Mst. Punnan (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 6 1/2 hours in such circumstances is prompt. 33. Now the important thing about this report is that it names the seven accused, no less and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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. 38. 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. 39. 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 Session 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 convic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. 42. Now the High Court do not consider these facts at all. They give no reasons and dispose of the matter in one sentence as follows : I would... dismiss the appeals of the other four and accepting the revision petitions change their sentences... from transportation... to death. 43. 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. 44. Sentence reduced. 45. Appeal dismissed. Agent for the appellants : Naunit Lal. Agent for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
