# 19eI Rag/wbar D<11•l Jai l'Jaush v. TM Union of lndi4

- **Citation:** [1962] 3 S.C.R. 580
- **Court:** Supreme Court of India
- **Decided:** 1960-10-28
- **Case number:** CRIMINAL APPELLATE JuRISDl'JTION : Criminal Appeal No. 38 of 1961
- **Bench:** K. ~- WA:>CHoo, K. C. Das Gupta, J. C.Suaji
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/19ei-rag-wbar-d-11-l-jai-l-jaush-v-tm-union-of-lndi4-2460
- **Pages:** 10

## Headnote

Crim;naT Tril71-~k,fch Map-Marks placed on ba.ti8 of
,.1a1,,,,,,,,1.t
nf
,,.,'fnol!'"P.' to
~ulJ-lMpr:c'1Jr-Adm1'ssibility of
rod, o{Crim1°nal Proc<-l1m, 1898. (I' of 1898), •· 162.
Jfurdtr-SmfnC'--Son killing at in•ligation of fatht.r
,C:en!enr.e'oj flPOth, if inappropna/t.
The d•c•a•ed was i:oini:r to his field and passed by a
ph•form on which T and his fathrr B were sittinl!'., T carrying
-'
a pi<tol with him.
A• he passed bv the platform B instiir.ited
T to shoot the derease~ dnwn and T shot him.
T and B were
trie<l for the murder and were convicted on the ba.<is of the
tcstimonv of eye witnesses and the dying d•claration of the
deceas•d.
B was 'entenced to imprisonm•nt for· life and T
wa< sentenced to death. The app•llant contended that if the
dcreased was at the spot marked by the Sub-Inspector on the
~ketch map he coulrl not have received the injuries ac; stated
~
by the eye witn"'5es.
It was further urged that the sentence
of T should be rrduced to imprisonment for life as he had
,acted under the influence of his father.
llel.cl, that, the mark! made on the sketch map by the
Suh-Inspector on the b.sis of statements made by witnesses
to him were inadmi<sible unJer s. 162 Code of Criminal Procedure and the appellant could not use them to found any
ar~umcnt as to the improbability of the deceased being hit in
the manner stated by the witncues if he was standing at the ~
sp<>t marked on the •ketch map.
•
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3 S.C.R. SUPREMR COURT REPORTS
581
Bhagirathi Ohowdhury v. King Emperor, A.LR. 1926
Cal. 550, !bra Akanda v. Emperor, A.LR. 1944 Cal. 339 and
· Santa Singh v. The State of Punjab, A.LR. 19j6 S. C. 526,
referred to.
Held, further, that there was no reason to interfere with
the sentence of death passed on T. T was a mature man of
25 and he was sitting armed with a pistol along with his father
obviously having planned the murder with his
father.
Though he shot at the instigation of his father, he could not be
considered a young boy in his teens who was completely under
the influence of his father.
CRIMINAL APPELLATE JuRISDl'JTION : Criminal
Appeal No. 38 of 1961.
Appeal by special leave from the judgment
and order· dated October 28, 1960 of the Allahabad
High Court in Criminal Appeals Nos. 1310 and 1389
of 1960 and Referred No. 80 of 60.
C. B. Agarwala and K. P. Gupta, for the appel·
lants.
G. C. Mathur and C. P. Lal, for the respondent.
196L September 12.
The Judgment of the
Court was delivered by
WANCHOO, J.--This is an appeal by special
leave against the judgment of the Allahabad High
Court. The appellants are father and son and live
in village Patrasi. The deceased Sohanlal also
lived in the same village. He is said to have 1.Jeen
murdered on the morning of December 2, 1959,
after sun-rise. About two years before the incident
one Sunder h'1d filed a criminal case against the
deceased. In that case.the present appellants had
helped Sunder against the deceased.
Tho deceased
was acquitted.
One Chetram was a witness for the
deceased in that case.
Later on, Tori Singh
appellant attacked Chetram with a spear and
Chetram made a report in that connection against
Tpri ~ingh. Sohanlal was helping him in that
matter,. and in consequence ther0 was enmity
between .Tori Singh and his father Budhi Singh,
appe1lants, and the deceased.
·
T(Jri Sirgh
v.
The State of
i·uar Ptcde1h
Tori Sirigh
v.
Th.Stai< of
U1tar P1adtsh
Wan<hoo ].
Q82
St1PREIIIB COt.IB'1' REPoR1'$
It is said that on tho morning of Decembor 2f
HJ.'i!J, the deceased wai;; going to the fields ouwidw
the villago in order to ease himself. He passed ~
a platform which is on a cross·rca<l in the \'ill~
The appellants were sitting on the platform,
Tori Singh carrying a pistol ''"ith him. As the
rlcceased passed by the platform, Burlhi Singh
instigated Tori Singh to shoot him down. Thereupon
Tori Singh shot at Sohanlal who was hit in tho
lumbar region.
Sobania! thm ran towards his
house while the two appellants fled away. Sobania]
was thereafter taken to

## Text

19eI
Rag/wbar D<11•l
Jai l'Jaush
v.
TM Union of lndi4
AYJOlllar J.
IHI
•
580
SUPREME COURT REPORTS
[1962j
to be settled ont fixed in the impugned notification •. ~
conformed to the requirement of reasonalifoness in
~rt. liJ (6) and that undel'lying the relevant provi-
&1ons of tho statute,
-
Tho petitions fail and aro dismissed with costs -
on<' •mt of hearing-fees.
Petitions diamissea.
TORI SINGH
v.
THE STATE OF UTTAR PRADESH
(K. ~- WA:>CHoo, K. C. DAS GUPTA and
J. C.SUAJI, JJ.)
Crim;naT Tril71-~k,fch Map-Marks placed on ba.ti8 of
,.1a1,,,,,,,,1.t
nf
,,.,'fnol!'"P.' to
~ulJ-lMpr:c'1Jr-Adm1'ssibility of
rod, o{Crim1°nal Proc<-l1m, 1898. (I' of 1898), •· 162.
Jfurdtr-SmfnC'--Son killing at in•ligation of fatht.r
,C:en!enr.e'oj flPOth, if inappropna/t.
The d•c•a•ed was i:oini:r to his field and passed by a
ph•form on which T and his fathrr B were sittinl!'., T carrying
-'
a pi<tol with him.
A• he passed bv the platform B instiir.ited
T to shoot the derease~ dnwn and T shot him.
T and B were
trie<l for the murder and were convicted on the ba.<is of the
tcstimonv of eye witnesses and the dying d•claration of the
deceas•d.
B was 'entenced to imprisonm•nt for· life and T
wa< sentenced to death. The app•llant contended that if the
dcreased was at the spot marked by the Sub-Inspector on the
~ketch map he coulrl not have received the injuries ac; stated
~
by the eye witn"'5es.
It was further urged that the sentence
of T should be rrduced to imprisonment for life as he had
,acted under the influence of his father.
llel.cl, that, the mark! made on the sketch map by the
Suh-Inspector on the b.sis of statements made by witnesses
to him were inadmi<sible unJer s. 162 Code of Criminal Procedure and the appellant could not use them to found any
ar~umcnt as to the improbability of the deceased being hit in
the manner stated by the witncues if he was standing at the ~
sp<>t marked on the •ketch map.
•
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l
f
f
r
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3 S.C.R. SUPREMR COURT REPORTS
581
Bhagirathi Ohowdhury v. King Emperor, A.LR. 1926
Cal. 550, !bra Akanda v. Emperor, A.LR. 1944 Cal. 339 and
· Santa Singh v. The State of Punjab, A.LR. 19j6 S. C. 526,
referred to.
Held, further, that there was no reason to interfere with
the sentence of death passed on T. T was a mature man of
25 and he was sitting armed with a pistol along with his father
obviously having planned the murder with his
father.
Though he shot at the instigation of his father, he could not be
considered a young boy in his teens who was completely under
the influence of his father.
CRIMINAL APPELLATE JuRISDl'JTION : Criminal
Appeal No. 38 of 1961.
Appeal by special leave from the judgment
and order· dated October 28, 1960 of the Allahabad
High Court in Criminal Appeals Nos. 1310 and 1389
of 1960 and Referred No. 80 of 60.
C. B. Agarwala and K. P. Gupta, for the appel·
lants.
G. C. Mathur and C. P. Lal, for the respondent.
196L September 12.
The Judgment of the
Court was delivered by
WANCHOO, J.--This is an appeal by special
leave against the judgment of the Allahabad High
Court. The appellants are father and son and live
in village Patrasi. The deceased Sohanlal also
lived in the same village. He is said to have 1.Jeen
murdered on the morning of December 2, 1959,
after sun-rise. About two years before the incident
one Sunder h'1d filed a criminal case against the
deceased. In that case.the present appellants had
helped Sunder against the deceased.
Tho deceased
was acquitted.
One Chetram was a witness for the
deceased in that case.
Later on, Tori Singh
appellant attacked Chetram with a spear and
Chetram made a report in that connection against
Tpri ~ingh. Sohanlal was helping him in that
matter,. and in consequence ther0 was enmity
between .Tori Singh and his father Budhi Singh,
appe1lants, and the deceased.
·
T(Jri Sirgh
v.
The State of
i·uar Ptcde1h
Tori Sirigh
v.
Th.Stai< of
U1tar P1adtsh
Wan<hoo ].
Q82
St1PREIIIB COt.IB'1' REPoR1'$
It is said that on tho morning of Decembor 2f
HJ.'i!J, the deceased wai;; going to the fields ouwidw
the villago in order to ease himself. He passed ~
a platform which is on a cross·rca<l in the \'ill~
The appellants were sitting on the platform,
Tori Singh carrying a pistol ''"ith him. As the
rlcceased passed by the platform, Burlhi Singh
instigated Tori Singh to shoot him down. Thereupon
Tori Singh shot at Sohanlal who was hit in tho
lumbar region.
Sobania! thm ran towards his
house while the two appellants fled away. Sobania]
was thereafter taken to the police station where he
made a report against the appellants. He also
mado a statement before tho investigating officer
and his dying declaration was recorded by a
magistrate. Sohanlal died on December 3, ]()5!).
Th~ appellants had absconded during investig~tion.
They were prosecu terl aftor tlwir arrest.
The appellants did not dispute that thero was
bad blood between them and the deceased ;<but
their case was that they were not responsiblel for
this murder and had nothing to do with it.
The main evidence against tho appellants
consisted of the statcmer.ts of four witnesses,
narnelv, llabunath, Chhannu, Itwari and Khamani,
and the dying declarations made by the dcce."sed
before his <loath.
The Additional Sessions Judgo
who triod tho mise relied on the evidence of
Ilabunath, Itwari and Khamani and on t.ho dying
declarations ; he did not, howe\'er, place rclianco
on the statement of Chhannu. He found the two
appelhnta guilty under s. 302 road with s. 34 of
the Indian Penal Code and sentenced Tori Singh
to death as he was tho man who had shot at
Sohrmlal and Burlhi Singh to imprisonment for life.
There were two appeals to the High Court
by f he two appellan1s and tho learned Judge also
made a reference for confirmation of tho scntenco
of death. A suggestion was· made during the
course of"trial that one Chhiddu was responsible for
J
3 s.o.:R.
V the murder, particularly as he was said to have
made . a confession. Chhiddu was, however, not
examined by the trial court. The High Court,
therefore,
in the interest of justice, examined
Chhiddu and took his statement into consideration
along with the prosecution evidence in order to
judge the guilt of the appellants. The High Court
-i.
ag1eed with the trial court in its conclusion that
Babunath, Khamani and Itwari were credible
witnesses and re]jance could be placed on the dying
declarations made by the deceased. It further
accepted the evidence of Chhannu which· had not
been relied upon by the trial court. It considered
the evidence of Chhiddu and was of opinion that
'.,;
that evidence was false. · It therefore dismi8sed
the appeals and con'firmed the sentence of death
passed on Tori Singh after making slight modification in the · sections under which the convictions
were recorded. The application of the appellants
for leave to appeal having been di11missed, they
-
obtained special leave from this Court ; and that
is how the matter has come up before us.
'ifl
The main point urged on behalf of the
appellants before us . is that . if one looks at the
sketch map Ex. Ka-9 on which the place where the
deceased is S'lid to have been hit is markEd and
~
compares it with the statements of the prosecution
witnesses and the medical evidence, it would be
extremely improbable for the injury which was
received by the deceased to have been caused on
that part of the body where it bas been actually
caused, if the deceased was at the place marked on
the map. It bas also been urged that according to
the medical evidence, the wound of exit was at a
.. higher level than the wound of entry showing that
the b)lllet hit obliquely and that· it was extremely
improbable that the . bullet should have passed
_
.~ from down . below upwards . through the body,
considering that Tori Singh W{ls on a platform and
thus at, l!<)i.ig.4er !(')vel than the deceased.
·
-
J96l
Tori Sil<gh
v.
The State of
VIiar Pradesh
--.
Wat~hoo J.
19/Jl
Tori Sttigh
v.
Th. SliU< cf
(Jt•a., Pradesh
W.,,dvo).
•
[1962]
We are of opinion that neither of these a.rgu·
- mcnts has anv force.
Lot us first take tho contention that it was most unlikely that the deceased
would be hit on that part of the body wh&e tho
injury was actually received by him, if he was at
the spot marked in Ex:. Ka-9. The validity of this
argument depends mainly on tho spot which bas
been rua~kod on the sketch-map Ex. Ka-9 as the
place where the deceased received his injuries. In
the first place, the map itself is not to scale but is
merely a rough sketch and therefore 0110 rannot
postulate that the spot marked on tho map is in
exact relation to the platform. In the second
place, tho mark on the skotch-map was put by the
Sub-inspector who was obviously not an eye-witness
to the incident.
He could only have put it there
after taking the statements of tho eye witnesses.
The marking of the spot on tho sketch-map is really
bringing on record the conclusion of the SubinspcC'tor on the basis of the statements made by
the witnesses to him. This in our opinion would
not be admissible in view of tho provisions of s. 162
of the Code of Criminal Procedure, for it .. is in effect
nothing more than the
Rtatement of the Subinspector that the e>ye-witnesses told him that the
deceased wae at such ancl such placo at tho time when
he wa:i hit. The sketch·map would be admissible so
far as it indicates all that the Sub-inspector saw
himself at the spot; but any mark put on tho sketchmap based on the statemenl.8 ma.de
by the
witnesses to the Sub-inspector would be inadmissible
in view of the clear provisions of s. Hi2 of tho Codo
of Criminal Prnccdurc as it will be no more than a
statement made to the polico during investigation.
W c may in this connection re for to Rhagirathi
Clwwrllmry v. King Emperor,(').
where it '"ns ob.
served that placing of maps before the jury containing statement-11 of witnesses or of information
received by .tho investigating officer preparing the
map from other persons was improper, and that the
(I) A. I. II.. 1926 Cal. 5.50.
" .
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~S.C.R.
investigating officer who m.ade a map in a criminal
case .ought not to put anythin.£( more than what he
had seen him;ielf.
The same view was expressed
by the Calcutta High Court again in !bra Akanda
v. Emperor (1), where it was held that any information derived from witnesses during police investi.
gation, and recorded in the index to a map must
be proved by the witnesses concerned and not by
the investigu.ting officer, and that if such information is sought to be proved by the evidence of the
investigating officer, it would manifestly offend
against s. 162 of the Code of Criminal Procedure.
This Court had occasion to consider the admissibility of a plan drawn to scale by a draftsman
in which after ascertaining from the witnesses
where exactly the assailants and the victims stood
at the time of the commilision of offence. the draftsman put do»n the places in the map, in Santa Singh
v. The State of Punjab ('). It was held that such
a plan drawn to scale was admissible if the witnesses corroborated the statement of the draftsman
that they showed him the places and would not be
hit by s. 162 of the Code of Criminal Procedure.
In that case there W'l.S another sketch prepared by
the Sub-inspector which was ruled out as inadmissible under s. 162. The sketch-map in the present
c1se has been prepared by the Sub-inspector and
the place where the deceased was hit and also the
places where the witnesses were at the time of the
in< ident were obviously marked by him on the map
on the basis of the statements made to him by
the witnesses. In the circumstances these markJl
on the map based on the statements made to the
Sub-inspector are inadmissible under s. 162 of the
Code of Criminal Procedure and cannot be used
to found any argument as to the improbability of
the deceased being hit on that part of the body
where he was actually injured, .if he was standing
at the spot marked on the sketch-map.
·
(ti A, I. P. · 114 Cal. 339.
(2) A. J, R. 10S&S. C. 526.
1961
Turi .Singh
v.
Tf,, S1at1 of
UJJar Praduh
[1962j
We havo howover still to examine the a.rgumcnt on behalf of the appellanls that it was
extremoly unlikely that the deceased would have
been hit on that part of the body, leaving out of
account the sketch-map and spots marked on it by
tho Sub-inspector. Tho argument is that the
e'.'idence of tho witnesses was that the deceased
was focing or going towards cast when he was hit.
and therefore it was mos~ unlikely that he would
be hit on the left 8ide of the lumbar region where
he was actuallv hit. There is no doubt that if the
deceased was towm:d9 the west or north-we.st of tho
platform \vhen ho was hit, the .chances of his being
!tit on the left side of tho lumbar r<'gion would be
-.ery slight; but. if he wns to the east. or north·east
cif the platform . .it. would only be a matter of
chance if ho was hit on the.loft 'side .of tho lumbar
region or on the right side, and the argument
would Iese.all force if he was slightly towards t.he
cast or north-cast. of' tho platform. Let us therefore look at the evidence of . tho witnesses in this
connection. Babunath stated that tho deco1aed
\tas at a distance of 5 or G paces from the plat.form
towarcla tho east and was 'facing towards the east
while the appellants · wero towards the west of
SohnJilal. If that is so .it is only a matter of cha.nee
whether the deceased would be hit .on the left side
of tho lumbar r.cgion or tho· right side. Chhannu
stated that tho deceased had passed tho platform
and had gone 5 or G paces beyond whell' ho waa
shot and that h'e was towards the east at the time.
Tho
skotch-m~p shqws that there was a. pond
towards the ca:st and tho deceased was obviously
going towards that pond. The evidence ofChhannu
therefore shciws that tho' deceased was in a,11_ probability towards · nortb,cast of the . platform when
tho shot was fired and if so he could have been hit
on either side of t1le .lumbar l'cgion. Itwa.ri. stated
that tho dece-ased was going by the platform a.nd
was hit when ho had gone some distance beyond tho
platform. He did not say which way.th1r dooe&se<l
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a s.C.tt
SUi>REl\iE dot.fRT REPORTS
58'1
was going, whether north or east. His evidence
therefore
cannot be used to show
that the
deceased could not have been struck on the
left side of the lumbar region. Khamani stated that
the deceased had gone 5 or 6 paoe8 beyond the platform and was towards the east of the assailant. lf
that is so there would be nothing improbable if the
shot hit towards th" left side of the lumbar region.
There is nothing therefore in the evidence of the
witnesses which would show that it was next to
impossible for the shot fired from the platfrom to
have bit the deceased on the left side of the lumbar
region. The whole argument on this aspect of the
matter therefore based as it was on the spot marked
on the mao must fail, for the evidence of the
witnesses ~hioh we have noticed above, does not
show that the position of the deceased was such
that he could not have been hit on the left side of
the lum~ar region.
The other contention in this connection is that
that the medical evidence Rhows that the wound of
exit was higher than the wound of entry, and this
means that the bullet must have travelled from
down below upwards. The witnesses are not quite.
consistent as to whether the shot was fired by Tori
Singh while he was sitting on the platform or while
he stood on the platform or after he got down from
the platform. The High Court has accepted that
the shot was fired while Tori Singh was sitting on
the platform and therefore accordlng to the High
Court the chances were that the bullet would travel
upwards through the body. But apart from this,
the medical evidence is not that the bullet travelled
in a straightline through the body.
If the medical
evidence had been that the bullet travelled in a
straightline through the body· from the wound of
()ntry to the wound of exit, it might have been said
that the course of the bullet was from down below
upwards. However, the evidence of the doctor is
that the movement of the bullet through the body
w114 very i~za.~. · Therefore, it cannot be. said that
1961
Tori, Singh
v.
The Stale af
Uttar Pradesh
Wa11tluio J.
1H1
Tori SiRfh
v.
The St.U of
Uttar Pratksh
StJPRE!IIE COURT REPORTS
[1962]
the Hhot must necessarily have been !ired from a
lower position than where it hit the body of the Jeeeased. This is apart from tho fact that tho course of a
bullet may be deflected on entering the body because
of tho resistance from tissues and more particularly
from bones if it moots any bone on the way. Therefore the position from wihch the s'iot was fired
cannot be said to have much importanco in this case
and the discrepancies which have been noticed by
the High Court woukl not in our opinion affect the
value of the evidence given by the witnesses.
It was also urged that the witnesses ~hould
not have been believed because they wern partisan
or cha1H·t' witnes8es;
in particular it was Htressed
that the High Court has not given con\'incing reasons for helievin1t Chhannn who had not hern relied
upon by tho trial court. Leaving out thll evidence
of Chhannu, we ha.vo still the evidence of three
other witnesses bclongiug to this very villa.go who
gave reaBona why they were present near the spot
though they live some distancl' away. These three
witnesses have lice!! believed by the trial court as
well as by the High Court and we sec no reason to
disagrl'e with tho estimate of their evidence by the
two -courts; nor <lo wo see any reason to disagree
with the estimate by the two courts of the value of
the dying declarations in this case.
As for the evidence of Chhiddu, we agree with
the estimate of the High Court that he being a
cousin of Tori Singh was prevailed upon to make o.
confession. He could do so almost with impunity,
becauBe the prosecution ca.so definitely was that
the assailants were only the two appellants and no
one else. The only evidence that was referred to in
this eonneotion is the stakment of the dc()(>ased in
;he dyin~ declaration that Chhiddu_ was a cousin of
Tori Singh (vide Ex. Ka-8).
It 1s not clear why
the deceased said so;
but in any case it cannot be•
inferred from this that the deceased was naming him
because ho was the man who h~d shot him, -
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3 s.c.R.
SUPREME COURT .REPORTS
589
In the · circumstances when .both the courts
have accepted the evidence of three of the eyewitnesses and the dying decW,rations there is in our
opinion no cause for interference with their conclusi9n that tho incident. took place iI). the manner
alleged by the prosecution.
Th.e conviction of the
_ .. ,appelJants must therefore be upheld.
Lastly, it was urged that we might consider
· reducing the sentence of Tori Singh to imprison-
. ment for life on the ground that he acted as he did
und~r the influence of his father. There is no doubt
that Tori Singh shot at the deceased at the instigation 0£ his father; but he is a mature man of25 and
the evidence shows that he was sitting with the
pistol along with his father.
Obviously therefore
murder must have been planned between the father
and the son, as they were apparently expecting
that the deceased would pass that way in connection
with his morning ablutions. Tori Singh cannot be
considered to be a young boy in his teens who would
be completely under the influence of his father, and
in the circumstances we see no reason to interfere
with the sentence of death passed on him by the
trial court and comfirmed by the High Court. The
appeal fails and is hereby dismissed.
Appeal dismissed.
•
' 1961
' c t Ori lliifth
v.
Thi Stat• of
Uttar l'tadtsh
Wanchoo J.