# BHUPENDRA SINGH v. THE STA~ OF PUNJAB

- **Citation:** [1968] 3 S.C.R. 404
- **Court:** Supreme Court of India
- **Decided:** 1968-03-05
- **Bench:** S. M. SllQU, J.M. S!mLAT, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhupendra-singh-v-the-sta-of-punjab-4407
- **Pages:** 11

## Headnote

B
Code of Criminal Proctdure, 1898, ss. 375, 376 and 423-Duty of
'J{Jpellate Court to examine entire record in proceedlll//S for con{irmatron
of dtath se11te11L:e--if court can acctpt dtf•nct admission of Its CflSt! luzv.
inJl no substance or should exG111lnt rec!ird for itself.
Stnttnce-<Jpptal against-when Supreme Court may interfere.
The appellant lived with his father A in a house adjoining that of the
deceased G who lived there with his two sons and a daughter. An argument developed one evening between the appellant and one of the sons
of G.
When G intervened, the appellant's father A raised a 'lalkara'
asking the appellant to finish him off. Thereupon the appellant shot and
killed G.
By this time G's two sons, his daughter and one M who lived
neaf-by had arrived and witnessed the occurrence. At the trial the appellant's defence was a pica of alibi but the Trial Coun rejected the defence
and convicted the appellant of G's murder and sentenced him to death.
In appeal, the High Court did not go into the defence evidence because
the counsel appearin~ for the appellant admitted that there was no substance in it.
The High Court accordingly dismilled the•appeal and con'
finned the sentence of death.
In appeal to this Court against the conviction and the sentence it was
contended that the High Court in not examining the defence evidence for
itself, committed an er'ror and did not properly discharge its duties.
HBLD : (i) Although ordinarily, in a criminal appeal against conviction, the appellate Court, under s. 423 of the Code of Criminal Procedure.
E
can d;smiss the appeal if the Court is of the opinion that theM is no
sufficient ground for interference and it is not necessary for the appellate
Court to examin<0 the entire record for the purpose of arriving at an in·
dependent decision, the position i• different where the appeal is by an
F
accused who is sentenced to death, so that the High Court dealing with
the appeal has before it. simultaneously witb the appeal. a reference for
continnation of the capital sentence under s. 374 of the Code. On a reference for confirmation of sen!ence of death, the High Court is requirctl
to proceed in ·occordance witb sections 375 and 376 of the Code Of Cri·
minal Procedure and the provisions of these sections make it clear that
the duty of the High Court, in dealing with the reference, is not only to
G
see whether the order passed by the Sessions Judge Is correct but to examine the case for itself and even direct a further enauirv or the taking
of additional evidence if the Court considers it desirable in order to as·
certain the guilt or the innocence of the convicted penon. (407 D-0)
. Jummcn and Others v. The State of Punjab, A.I.R. 1957, S.C. 469;
. Ram ShGnker Singh & Ors. v. State of West Bengal,
(1962) Supp.
1
. S.C.R. 49 at p. 59; applied.
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(ii) (UPon an exarilination of the entiro evidence by tho Court) : No
grconds had been made out for intcm.rence with the appellant's con·
viotion. [409 D-B)
BHUPBNDRA v. PUNJAB (Bhargava, /.)
A
Masalti v. State of U.P., [1964] 8 S.C.R, 133 at p. 144; referred to.
B
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(iii) The sentence of death must be set aside and instead the appellant
s.entenced to imprisonment for life
Although ordinarily this Coiirt, in exercise of its power under Art..
136 does not interfere with a sentence, in the present case there were
som'e special features which had to be taken into account : even according
to the proSccution, the murder of G by the appellant was not pn:-
meditated; the act Of firing at him appeared to be that of a hot-beaded
person who was incited to do so by his father; the murder was not in any
way cruel cir brutal. In all these circumstances, tho ends of justice would.
be met if the lesser penalty prescribed by law was awarded to the·
appellant [413 G•Hl
CRIMINAL AIIPELLATE JURISDICTION : Criminal Appeal 185of 1967.
Appeal by special leave from the judgment and order dated
May 18, 1967 of the Punjab and Haryana High Court in Criminal Appeal No. 2

## Text

404
BHUPENDRA SINGH
v.
THE STA~ OF PUNJAB
March 5, 1968
(S. M. SllQU, J.M. S!mLAT AND V. BHARGAVA, JJ.]
B
Code of Criminal Proctdure, 1898, ss. 375, 376 and 423-Duty of
'J{Jpellate Court to examine entire record in proceedlll//S for con{irmatron
of dtath se11te11L:e--if court can acctpt dtf•nct admission of Its CflSt! luzv.
inJl no substance or should exG111lnt rec!ird for itself.
Stnttnce-<Jpptal against-when Supreme Court may interfere.
The appellant lived with his father A in a house adjoining that of the
deceased G who lived there with his two sons and a daughter. An argument developed one evening between the appellant and one of the sons
of G.
When G intervened, the appellant's father A raised a 'lalkara'
asking the appellant to finish him off. Thereupon the appellant shot and
killed G.
By this time G's two sons, his daughter and one M who lived
neaf-by had arrived and witnessed the occurrence. At the trial the appellant's defence was a pica of alibi but the Trial Coun rejected the defence
and convicted the appellant of G's murder and sentenced him to death.
In appeal, the High Court did not go into the defence evidence because
the counsel appearin~ for the appellant admitted that there was no substance in it.
The High Court accordingly dismilled the•appeal and con'
finned the sentence of death.
In appeal to this Court against the conviction and the sentence it was
contended that the High Court in not examining the defence evidence for
itself, committed an er'ror and did not properly discharge its duties.
HBLD : (i) Although ordinarily, in a criminal appeal against conviction, the appellate Court, under s. 423 of the Code of Criminal Procedure.
E
can d;smiss the appeal if the Court is of the opinion that theM is no
sufficient ground for interference and it is not necessary for the appellate
Court to examin<0 the entire record for the purpose of arriving at an in·
dependent decision, the position i• different where the appeal is by an
F
accused who is sentenced to death, so that the High Court dealing with
the appeal has before it. simultaneously witb the appeal. a reference for
continnation of the capital sentence under s. 374 of the Code. On a reference for confirmation of sen!ence of death, the High Court is requirctl
to proceed in ·occordance witb sections 375 and 376 of the Code Of Cri·
minal Procedure and the provisions of these sections make it clear that
the duty of the High Court, in dealing with the reference, is not only to
G
see whether the order passed by the Sessions Judge Is correct but to examine the case for itself and even direct a further enauirv or the taking
of additional evidence if the Court considers it desirable in order to as·
certain the guilt or the innocence of the convicted penon. (407 D-0)
. Jummcn and Others v. The State of Punjab, A.I.R. 1957, S.C. 469;
. Ram ShGnker Singh & Ors. v. State of West Bengal,
(1962) Supp.
1
. S.C.R. 49 at p. 59; applied.
H
(ii) (UPon an exarilination of the entiro evidence by tho Court) : No
grconds had been made out for intcm.rence with the appellant's con·
viotion. [409 D-B)
BHUPBNDRA v. PUNJAB (Bhargava, /.)
A
Masalti v. State of U.P., [1964] 8 S.C.R, 133 at p. 144; referred to.
B
c
(iii) The sentence of death must be set aside and instead the appellant
s.entenced to imprisonment for life
Although ordinarily this Coiirt, in exercise of its power under Art..
136 does not interfere with a sentence, in the present case there were
som'e special features which had to be taken into account : even according
to the proSccution, the murder of G by the appellant was not pn:-
meditated; the act Of firing at him appeared to be that of a hot-beaded
person who was incited to do so by his father; the murder was not in any
way cruel cir brutal. In all these circumstances, tho ends of justice would.
be met if the lesser penalty prescribed by law was awarded to the·
appellant [413 G•Hl
CRIMINAL AIIPELLATE JURISDICTION : Criminal Appeal 185of 1967.
Appeal by special leave from the judgment and order dated
May 18, 1967 of the Punjab and Haryana High Court in Criminal Appeal No. 24 7 of 1967 and Murder Reference No. 23 of
19~.
.
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A. S. R. Chari, B. A. Desai, S. C. Agarwal, A. K. Gupta,
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Shiva Pujan Singh and Virendra Verma, for the appellant.
Hans Raj Khanna and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
Bbargava, J. Bhupendra Singh has come up to this Court irr
appeal by special leave against a judgment of the High Court of
Punjab and Haryana confirming the sentence of death awarded to
him by the Sessions . Judge of Jullundur for an offence under
section 302 of the Indian. Penal Code and dismissing his appeal
against the conviction and sentence. The conviction of the appellant was recorded for committing the murder of ·one Gurdarshan
Singh who was living in the same village Birpind as the appellant
in the house adjoining the appellant's house.
The appellant's
father, Ajit Singh, also lived with the appellant, while, with
Gurdarshan Singh, were living his sons, Gurdial Singh and Sarvjit Singh, and his daughter Gian Kaur. According to the prosecution, on the 6th November, 1965, at about 7.45 p.m., the
two brothers, Gurdial Singh and Sarvjit Singh, happened to be
standing in front of their house talking to each other, when the
appellant came out of his house and asked them what they were
talking about. Gurdial Singh replied that he and Sarvjit Singh
were brothers apd were talking between themselves and it was no
business of th~ appellant to interfere. The appellant, thereupon,
abused the two brothers and also slapped Sarvjit Singh on the face.
Gurdial Singh asked the appellant why he had beaten his brother
and used abusive language against the appellant. The appellant
got e.nraged, ran into his house abusing the two boys, and return-
406
SUPREME COURT REPORTS
(1968] 3 S.C.R.
ed with a double-barrel 12 bore gun. When he came out of his
house this time, he was accompanied by his father, Ajit Singh.
Gurdial Singh and Sarvjit Singh then ran into the 'deorhi' of their
house. In the meantime, their father, Gurdarshan Singh, and
their sister, Gian Kaur, returned to the house from their fields.
When Gurdarshan Singh saw the appellant carrying the gun, he
enquired what the matter was. Thereupon, Ajit Singh raised a
'lalkara' asking his son, the appellant, to finish off Gurdarshan
Singh. The appellant then fired two shots in quick succession from
his gun hitting Gurdarshan Singh on vital parts of his body.
Gurdarshan Singh fell down dead on the ground. One Malkiat
Singh, who lived in a house nearby, had arrived and saw this occur.
rence, so that the four persons, who witnessed the occurrence,
were Malkiat Singh, Gurdial Singh, Sarvjit Singh and Gian Kaur.
Gurdial Singh, leaving others to look after the dead body of his
father, went with Lal Singh, Lambardar, to the Police Station
which was situated at a distance of about three miles and lodge the
}'irst Information Report at about 9.30 p.m. on the same day. The
case was then investigated. A post mortem examination on the
corpse of Gurdarshan Singh was performed and articles like pellets, blood-stained cardboard pieces lying near the scene of occurrence were taken into their possession by the. Police. Both the
appellant and his father, Ajit Singh, were thereafter prosecuted
for this murder. The appellant was charged with being the principal offender in committing the murder, while his father, Ajit
Singh, was prosecuted for having participated in the murder with
the common intention that Gurdarshan Singh should be killed.
However, before the trial could take place in the Court of Sessions, Ajit Singh was murdered and, for that murder, Gurdial
Singh was prosecuted.
In the case, at the first stage before the Court of the Commit·
ting Magistrate, both Ajit Singh and the appellant took the plea
that neither of them was responsible for committing the murder
of Gurdarshan Singh and contented themselves with denying the
correctness of the prosecution case. In the Court of Sessions.
when the appellant was examined under section 342 of the Code
of Criminal Procedure, he came forward with the plea that it
was his father, Ajit Singh, who actually fired and killed Gurdarshan Singh. He pleaded that he himself was not present in this
village at all and was, in fact, that day staying at Phillaur. He,
thus, put forward the plea of alibi.
The Sessions Judge believed the evidence of the four prosecution witnesses mentioned above, and, after discussing the defence
evidence given on behalf of the appellant in support of his pleas.
rejected that evidence. He did not accept the defence evidence
that Gurdarshan Singh was fired at by Ajit Singh and he also
held that the evidence given on behalf of the appellant to prove
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""BHUPENDRA v. PUNJAB (Bhargava, /.)
407
bis alibi could not be relied upon. On these findings, the Sessions
Judge convicted the appellant and sentenced him to death for
committing the murder of Gurdarshan Singh.
When the case
came up before the High Court, the High Court briefly examined
the evidence of tbe prosecution witnesses and held that their evidence was reliable. The High Court did not, however, go into
the defence evidence, because the counsel appearing for the appellant, according to the High Court, frankly admitted that there
was no substance in it. On this view, the High Court dismissed
the appeal of the appellant and confirnied his sentence of death.
In this appeal, the principal question that was canvassed before us on behalf of the appellant was that the High Court, in
not examining the defence evidence for itself on the simple ground
that counsel for the appellant admitted that there was no substance in it, committed an error and did not properly discharge
its duty.
It appears that there is substance in the submission
made on behalf of the appellant. Ordinarily, in a criminal appeal against conviction, .the appellate Court, under s. 423 of the
Code of Criminal Procedure, can dismiss the appeal, if the Court
is of the opinion that there is no sufficient ground for interference, after examining all the grounds urged before it for challenging the correctness of the decision given by the trial Court. It
is not necessary · for the appellate Court to examine the entire
record for the purpose of arriving at an independent decision of
its own whether the conviction of the appellant is fully justified.
The position is, however, different where the appeal is by an
accused who is sentenced to death, so that the High Court dealing
with the appeal has before it, simultaneously with the appeal, a
reference for confirmation of the capital sentence under s. 374 of
the Code of Criminal Procedure. On a reference for confirmation of sentence of death, the High Court is required to proceed
in accordance with sections 375 and 376 of the Code of Criminal
Procedure and the provisions of these sections make it clear that
the duty of the High Court, in dealing with the reference, is not
only to see whether the order passed by the Sessions Judge is
correct. but to examine the case for itself and even direct a
further enquiry or the taking of additional evidence if the Court
considers it desirable in order to ascertain the guilt or the innocence of the convicted person. It is true that, under the proviso
to s. 376, no order of confirmation is to be made until the period
allowed for preferring the appeal has expired, or, if an appeal'is
presented within such period, until such appeal is disposed of,
so that, if an appeal is filed by a condemned prisoner that. appeal
has to be disp<ised of_ before any order is made in the reference
confirming the sentence of death. In disposing of such an appeal,
however, it is necessary that the High Court should keep in view
its dutv under s. 375 ·of the Code of Criminal Procedure and,
consequently, the Couri must examine the appeal record for itself,
40~
SUPllBMB COUllT llBPOllTS
(1968) 3 S.C.R.
.arrive at a view whether a further enquiry-or taking of additional
.evidence is desirable or not, and then come to its own conclusion on the entire material on record whether conviction of the
condemned prisoner is justified and the sentence of death should
be confirmed. In Jumman and Others v. The State of Punjab(1 ),
1his Court explained this position in the following words :-
" . . . . . ..... but there is a difference when a
reference is made under s. 374, Criminal Procedure
Code, and when, disposing of an appeal under s. 423,
Criminal Procedure Code, and that is t:pat the High
Court has to satisfy itself as to whether a case beyoRd
reasonable doubt has been made out against the accused persons for the infliction of the penalty of death. In
fact the proceedings before the High Court are a reappraisal and the reassessment of the entire facts and
law in order that th,~ High Court should be satisfied on
the materials about the guilt or innocence of the accused
persons. Such being the case, it is the duty of the High
Court to consider the proceedings in all their aspects
and come to an independent conclusion on the materials, apart from the view expressed by the Sessions
fodge. In so doing, the High Court will be assisted by
the opinion expressed by the Sessions Judge, but under
the provisions of the Jaw above-men!ioned it · is for the
High Court to come to an independent conclusion of its
own""
The same principle was recognised in Ram Shankar Singh and
-Others v. State of We.s<t Bengal(2) :-
" ... .. .. . . . The High Court had also to consider
what order should be passed on the ·reference under s.
374, and to decide on an appraisal of the evidence
whether the order of conviction for the offences for
which the accused were convicted was justified and
whether, having regard to the circumstances. the sentence of death was the appropriate sentence."
Jn Masalti v. State of U.P.(3) this Court was dealing with an
appeal under Article 136 of the Constitution and, in that appeal,
on behaJf of the persons who were under sentence of death,
a point was sought to be urged which was taken before the· trial
Court and was rejected by it, but was not repeated before the
High Court. This Court held :-
" .... . ...... . . .it may, in a proper case, be permissible to the appellants to ask this Court to consider
(l) A.J.R. 1957 S.C. 469.
(2) (1962) Supp. 1S.C.R. 49 at p. S9.
(3) (196418 S.C.R. 133 at p. 144.
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BHUPENDRA v. PUNJAB (Bhargava, J.)
that point in an appeal under Artic~e 136 of _the Constitution; after all in criminal proceedings of this character
where sentences of death are imposed on the appellants,
it may not be appropriate to refuse to consider relevant
and material pl~as of fact and law only on the ground
that they were not urged before the High Court. If it
is shown that the pleas were actually urged before the
High Court and had not been considered by it, then,
of course the party is entitled as a matter of right to
obtain a decision on those pleas from this Court. But
zven otherwise no hard and fast rule can be laid down
prohibiting such pleas being raised in appeals under Art.
136."
409
In view of these principles indicated by us above,
and in
view of the fact that, in this case, the High Court did not properly
examine the defence evidence on the ground that the counsel for
the appellant in that Court admitted that there was no substance
in it, we permitted learned counsel for the appellant in this appeal
to take us through the entire evidence on the record given by the
prosecution and the defence so as to enable us to form our own
judgment about the correctness of the conviction and sentence of
the appellant.
We, however, find that, after examining the
entire cv'idence, we are unable to hold that any grounds are made
out for interference with the conviction.
The prosecution case, as already mentioned by us above, is
supported by the evidence of four eye-witnesses, Gurdial Singh,
Sarvjit Singh, Gian Kaur and Malkiat Singh.
Three of these
witnesses, Gurdial Singh, Sarvjit Singh and Gian Kaur are the
sons and daughter of the deceased Gurdarshan Singh, but this
circumstance, in our opinion, does not detract from the value to
be attached to their evidence, because, naturally enough, , they
are interested in seeing that the real murderer of their father is
convicted of t~e offence. and they cannot be expected to adopt a
course by which some mnocent person would be substituted for
the person really guilty of the murder. None of these witnesses
h~d any such enmity with the appellant as could induce him to
give false evidence and to substitute him as the murderer in place
of the perso!1 really guilty.
~n fact, their feelings would be
strongest agamst. the real culprit and, consequently, their evid~
~mce cannot be discarded on the mere ground of their close interest
m the decea~ed. "fyf alkiat Singh has been held both by the Sessions
Judge and the High Court to be an independent witness and we
find no reason to differ from the view taken by the two Courts
O.n behalf of the appellant.' it w~~ so.ught to be urged that Malkiat
Singh. bore a· grudge agamst AJtt Smgh, because Ajit Singh had
been instrumental in the adoption of ·a son by Malkiat Singh's real
uncJe, Veer ~ingh, with the result
that Malkiat Singh was
410
SUPREME COURT REPORTS
[1968] 3 S.C.R.
deprived of the succession to the property of his uncle. Malkiat
Singh denied that he had any grievance against Ajit Singh on such
a ground. In support of the plea put forward on behalf of the
appellant, one defence witness, Niranjan Singh was examined
who claimed to be the son of another' real uncle of Malkiat Singh.
Niranjan Singh came to depose that his son, Sadha Singh, had
been adopted by Veer Singh and this adoption took place because
Ajit Singh had asked Veer Singh to take Sadhu Singh in adoption.
Niranjan Singh had, however, to admit that, in the deed of
adoption, the person adopted is described as Mukhtiar Singh and
not Sadhu Singh. To explain this discrepancy, Niranjan Singh
came forward with the assertion that his son, Sadhu Singh, bore
an alias Mukhtiar Singh. If Sadhu Singh was the real and principal name of the boy adopted by Veer Singh, there is no reason
why that name was not mentioned in the deed of adoption and
why the person adopted was described only as Mukhtiar Singh.
There is further the circumstance that, even according to Niran·
jan Singh, Malkiat Singh, witness, did not try to challenge the
adoption, even though the adoption had taken place in April 1965,
seven months before this incident. Malkiat Singh had stated that
he had no grievance against Ajit Singh and was in fact not interest·
cd in challenging the adoption.
In these circumstances, we do
not think that Malkiat Singh can be said to be an interested wit·
ness and must hold that his evidence has been rightly relied
upon.
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The time of the murder was not only J?roved by· the evidence
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of these four witnesses, but is also borne out by the circumstance
that the First lnfonnation Report was lodged at the Police 9tation
three miles away at about 9.30 p.m. without any undue delay.
On behalf of the appellant, it was urged that the First Wormation Report was in fact recorded much later and not at 9.30 p.m.
the same day, on the basis that the copy of that report sent to
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the Ilaqa Magistrate was received by him at 10.30 a.m. on 8th
November, 1965. The argument was that, if the report had been
lodged at 9.30 p.m. on 6th No:vember 1965, the copy should
have reached the Magistrate the same night or early on the 7th
November and not as late as 8th November. We are unable to
accept this submission. The evidence of Gurdial Singh was perfectly clear that he reached the police station and lodged the
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report that very night at 9.30 p.m. and there is no reason to disbelieve him. It appears that in this case, the investigating officer,
Sub-Inspector Ram Saran Dass was, to some extent, negligent.
In the report lodged by Gurdial Singh, the facts given clearly
made out an offence of murder, and yet the Sub-Inspector chose
to register .the case wrongly as for an offence under section 304
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read with section 34. of the Indian Penal C<><te. It may be that,
having wrongly put down the offenc.e as under .304 .J.P.C. instead
of section 302, the Sub-Inspector did not consider 1t 1leces~arv to
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BHUPENDRA v. PUNJAB (Bhargava, J.)
411
send the report to the Ilaqa Magistrate the same night and delay·
eJ sending it, so that it was received at 10-30 a.m. on· 8th November, 1965 by the Magistrate. It is also not clear from the
evidence whether, apart from the copy of the First Information
Reporl sent to the Ilaqa Magistrate, any special report was also
~ent to the Magistrate by the Sub-Inspector. In any case, we do
not think that this late receipt of the copy of t.lte First Information
Report by the Magistrate can lead to the infere1ice that Gurdial
Singh is not right in saying that he had the report recorded the
s:une night at 9 .30 p.m.
The evidence of the doctor who performed the post mortem
examination and of the ballistic expert clearly estabfish that Gurdarshan Singh had died as a result of gun shot injury received
by him from a gun. The guri which the appellant passesscd under
a licence issued to him was examined by the ballistic expert and
his evidence proved that the shots, which killed the deceased, were
tired from that very gun. In these circumstances, the Sessions
Judge and the High Court were right in recording the conviction
of the appellant for the murder of Gurdarshan Singh on the basis
of this prosecution evidence.
So far as the defence put forward on behalf of the appellant is
concerned, the first point to be noticed is that the plea that the
shots. which killed Gurdarshan Singh, were fired by Ajit Singh,
was not taken by the appellant until his father, Ajit Singh, had already died. It seems to be clear that this plea, which was put forward for the first time in the Court of Sessions, was an afterthought which could be taken safely by the appellant after Ajit
Singh had died and he could not be convicted for the murder.
When the appellant was examined in the court of the Committing
Magistrate while Ajit Singh was alive, he did not make any such
statement. This ·is an important circumstance that
militates
against the plea put forward in defence.
The appellant relied upon the evidence of two witnesses in
support of the p~~a ~hat the shots '.-"hich killed Gurdarshan Singh
were fired by A11t Smgh and not by the appeltant. The first of
these witnesses is Uggar Singh who stated that he was in his house
situated opposite to the house of the appellant and, when he
c?mc out on ~earing the noise, he saw Ajit Singh quarelling with
(1~rda~shan Singh deceased and exchanging abuses. Thereafter,
~.11t .Smgh fired the gun shots towards Gurdarshan Singh killing
h.1111 instantaneously. Acco\ding to him, neither MaJkiat Singh nor
tnc sons of Gurdarshan Singh were present at that time. Even
Shrimati Giano. according to him, was not there. TI1e evidence
of this witness cannot be relied upon for ·several reasons. According to this witness, his statement was recorded by the Police at
about 10 a.m. the next day, i.e., the 7th November, 1965; but
L7Sup.C.1:61!- -:?
412
SUPREME COURT REPORTS
[1968] 3 s.c.R.
the investigating officer's statement is clear that no person residing
ih the neighbourhood had been examined by him or had come
forward to give any statement to him. Uggar Singh, thus, made
a wrong statement that he was examined by the Police the next
day.
It also appears that he was prosecuted in a murder case
in which he was acquitted and Ajit Singh had assisted him in
that trial. The answers given by him in the cross-examination also
show that, in fact, his house is not in front of the house of the
appellant but is situated in the same line as the house of the appellant and the deceased and at some distance. He tried to get over
this difficulty by stating that he has another house which is opposite to the house of the appellant, but it appears that that house
belongs to his cousin, Ujagar Singh, and that is how the house
is described in the site plan also. In all these circumstances, the
evidence of Uggar Singh cannot be accepted.
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The second witness is Niranjan Singh, whose evidence we have
noticed above, and he also partially supported this part of th'!
defence case by saying that he came rus!ling to the spot after the
incident and found Gurdarshan Singh lying dead, while Ajit Singh . D
was standing outside his house with something which appeared to
be a gun. It is clear that this is an, another attempt by Niran jan
Singh to help the appellant and on this point also reliance cannot
be placed on his evidence.
. There remains to be considered the evidence given ori behalf
of the appellant to establish his plea of alibi. One defence witE
ness Kirpal Singh was examined to prove that the accused was
on deputation in the Seed Corporation at Phillaur and was attached to the Tehsildar, Phillaur and that he was not suspended until
11th November, 1965. His evidence is of no help, because it
is obvious that the appellant could be suspended only after he
surrendered in connectlon with this charge which happened on
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11th November 1965. The fact that be was in service on 6th
November, 1965, does not necessarily prove that he could not
have been present at the place of occurrence.
The-_witness, on whose evidence reli~nce is primarily placed
is Bunta Ram, Patwari. Bunta Ram stated that on 6th November, 1965 he had come to the office of the Corporation at Phillaur
G
in order to collect his pay and he also brought some files from
Nakodar in order to consign those files. In that connection, he
remained in the office of the Corporation throughout the day. He
.saw the appellant also working in the said office throughout the
day. According to him, at about 6.30 p.m., he and the appellant went to the house of Inderjit Singh, Patwari and spent the
H
night at his house.
It, however, appears that this witness is a
direct subordinate of the appellant and that is the reason why he
has come forward to support the appellant's case. In this connec-
A
8
c
0
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G
H
BHUPENDRA v. PUNJAB (Bhargava, J.)
413
tion, Jagdish Rai Batta, Tehsildar in the Seed Corporation, was
examined as a court witness by the Sessions Judge and his evidence shows that Bunta Ram was one of the Patwaris working as a
subordinate of the appellant who was a kanoongo in the Corporation.
Bunta Ram had stated that on that day he had himself
appeared before the Tehsildar in connection with the consignment
of the files and the Tehsildar had given him some directions in
that behalf.
Jagdish Rai Batta stated that on that day Bunta
Ram, Patwari did not appear before him nor did he produce any
files.
He went further and stated that' he did not point out any
defects to Bunta Ram Patwari either orally or in writing. Thus,
Bunta Ram is proved to be an untruthful witness by the evidence
of Jagdish Rai Batta, Tehsildar. Bunta Ram, in his cross-examination, purported to state that the appellant was living in a part
of the house of Inderjit Singh at.Phillaur.
On the face of it,
it cannot be correct because the appellant did not· belong to Phillaur and was not even posted there in connection with his employment.
His headquarters, according to Jagdish Rai Batta, was
Nakodar and not Phillaur. The evidence of Jagdish Rai Batta
only shows that he saw the appellant working in his office at Phillaur on that day until about 5 p.m. Phillaur is connected with Nakodar by a metalled road along with which there is a bus service,
and village Birpind, where the murder took place, is only three
miles from Nakodar;
It is quite clear that the appellant could
easily reach Birpind well before 7.45 p.m. even if he worked at
Phillaur till 5 p.m. on that day.
It is also significant that the
murder was committed with the gun belonging to the appellant.
If the appellant himself had not been at Birpind and had been
at Phillaur or Nakodar, the gun should have been with. him at
one of these places and not at Birpind.
The gun could not,
therefore, have been available for use by Ajit Singh, his father,
in his absence. Considering all these circumstances and the nature
of the evidence, we are unable to accept that there is any force
in the defence plea of alibi put forward by the appellant, so that
the conviction based on the prosecution evidence must be upheld .
. A plea was put in for reduction of sentence. Ordinarily, this
Court, in exercise of its powers under Art. 136 of the Constitution, does not interfere with a sentence . awarded by a Sessions
Judge and upheld by the High Court; but, in this case, there are
some special features which we cannot ignore. Even according
to the prosecution, the murder of Gurdarshan Singh by the appellant was not pre-meditated. The act of firing at him appears to
be that of a hot-headed person who was incited to do .so by his
father. The murder was not in any way cruel or brutal. In all
these circumstances, we think that the ends of justice would be met
if the lesser penalty prescribed by law is awarded to the appellant.
414
SUPREME COURT REPORTS
[1968] 3 S.C.R.
Consequently, while upholding the conviction, we allow the ap-
'-
peal to the extent that the sentence of death is set aside, and, instead, the appellant is sentenced to imprisonment for life.
R.K.P.S.
Appeal allowed.
B