# DALBIR KAUR & ORS v. STATE OF PUNJAB

- **Citation:** [1977] 1 S.C.R. 280
- **Court:** Supreme Court of India
- **Decided:** 1976-08-20
- **Case number:** Criminal Appeals Nos. 232 E and 373 of 1975
- **Bench:** A. C. Gupta, S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dalbir-kaur-ors-v-state-of-punjab-6917
- **Pages:** 26

## Headnote

Constitution of India-Article 136-Practice and procedure-W Ii ether a
court of criminal appeal-Whether can interfere with concurrent findings of fact
-interference when grave and substantial injustice.
Indian Penal Code-Section 302-Non-examination of eye wimesses-lnterested witnesses-Meaning of-Necessity of examining independent witnessesMotive-Delay in lodging FIR and despatch to Magistrate-Identification parade,
necessity of.
The deceased Ajaib Singh had two sons, Dalbir Singh and Amir Singh.
Dalbir Singh along with his wife Mrs. Dalbir Kaur and Mrs. Dalbir Kaur's
brother Ajit Singh and her cousin, Puraon Singh were charged with having
committed the murder of Ajaib Singh and Amir Singh.
A partition had taken
place between Ajaib Singh, Dalbir Singh and Amir Singh.
After the partition
Dalbir Singh separated and lived in a separate portion of the same house
wherea.s Ajaib Singh and Amir Singh lived jointly.
Mrs. Jaswant Kaur, the
wife of Amir Singh had delivered a child and, therefore, her mother Shiv
Kaur was in the house to look after Jaswant Kaur and the child.
As the
newly born child was not well, both Jaswant Kaur and her mother were
awake at that time and electric bulb was burning in the courtyard. Ajaib
Singh was sleeping near the stable outside the house and Amir Singh was
sleeping in the house.
All the male appellants were armed with kirpans and
Mis. Dalbir Kaur was armed with datar.
They went to the house of Ajaib
Singh at about 1.00 A.M. Dalbir Singh had altercation with his father Ajaib
Singh and expressed his dissatisfaction over the partition of the lands and
asked his father and brother to get ready to meet the consequences and to
call anybody for help if they liked.
Thereupon Dalbir Singh gave a kirpan
blow on the left jaw of Ajaib Singh and Mrs. Dalbir Kaur gave a datar blow
on his right shoulder while Ajit Singh and Puran Singh gave kirpa·n blows
on his chest. Thereafter, the appellants proceeded to the cot of Amir Singh
who was caught hold of by Dalbir Singh and Puran Singh.
Ajit Singh gave
a kirpan blow on his right leg while Mrs. Dalbir Singh gave a datar blow on
his left shoulder. Da·lbir Singh and Puran Singh thereafter dragged Amir
Singh and put him over the body of Ajaib Singh and thereafter all the appellants caused further injuries to Amir Singh and Ajaib Singh.
Both of them
died on the spot.
J aswant Kaur and Shiv Kaur raised alarm but they were
threatened to keep quiet a6 a result of which those two helpless ladies shut
themselves up in one of the rooms. Some time early morning the appellants
left the house.
Jaswant Kaur narrated the incident to Mukhtiar Singh and
Mohinder Singh and ultimately left with Mohinder Singh and lodged the first
information report at the police station which is about six miles awa~ at 9.00
a.m. The Sessions Court convicted the appellants under s. 302 of the Indian
Penal Code and sentenced the male appellants to death sentence and to the
female appellant to imprisonment for life.
In a-ppeals and confirmation proceedings, the High Court confirmed the conviction and sentence imposed by
the trial court.
In an appeal by special leave, the appellants contended :
1. Since the special leave is granted, the appellants are entitled to argue
H
a-11 the questions of law and facts.
2. The only eye-witnesses, namely, Mrs. Jaswant Kaur and Mrs. Shiv
Kaur are the interested witnesses and, therefore, their evidence should
not be accepted.
\
!D!l.LBIR KAUR V. l'UNJAB
2 81
3. No indepeadent witness has been examined to prove the recoveries.
4. There was no evidence of motive for the murder.
5. The prosecution case should be thrown out because of the n?n·exami·
nation of four material witnesses, Mohinder Sing~, J?ayal Smgh w~o
are alleged to have watched the .assau1t and Mukhtiar Smgh and Moh111·
der Singh who went to the house after the assault was over.
6. There was delay in the lodging of the first information report and also
in its despa.tch to the Magistrate.
·
7. Jaswant Kaur and Shiv

## Text

_Characters 0–39,791 of 77,010. This is a partial read: ask again with offset=39791 for what follows._

A
B
c
D
E
F
G
DALBIR KAUR & ORS.
v.
STATE OF PUNJAB
August 20, 1976
[A. C. GUPTA AND S. MURTAZA FAZAL ALI, JJ.)
Constitution of India-Article 136-Practice and procedure-W Ii ether a
court of criminal appeal-Whether can interfere with concurrent findings of fact
-interference when grave and substantial injustice.
Indian Penal Code-Section 302-Non-examination of eye wimesses-lnterested witnesses-Meaning of-Necessity of examining independent witnessesMotive-Delay in lodging FIR and despatch to Magistrate-Identification parade,
necessity of.
The deceased Ajaib Singh had two sons, Dalbir Singh and Amir Singh.
Dalbir Singh along with his wife Mrs. Dalbir Kaur and Mrs. Dalbir Kaur's
brother Ajit Singh and her cousin, Puraon Singh were charged with having
committed the murder of Ajaib Singh and Amir Singh.
A partition had taken
place between Ajaib Singh, Dalbir Singh and Amir Singh.
After the partition
Dalbir Singh separated and lived in a separate portion of the same house
wherea.s Ajaib Singh and Amir Singh lived jointly.
Mrs. Jaswant Kaur, the
wife of Amir Singh had delivered a child and, therefore, her mother Shiv
Kaur was in the house to look after Jaswant Kaur and the child.
As the
newly born child was not well, both Jaswant Kaur and her mother were
awake at that time and electric bulb was burning in the courtyard. Ajaib
Singh was sleeping near the stable outside the house and Amir Singh was
sleeping in the house.
All the male appellants were armed with kirpans and
Mis. Dalbir Kaur was armed with datar.
They went to the house of Ajaib
Singh at about 1.00 A.M. Dalbir Singh had altercation with his father Ajaib
Singh and expressed his dissatisfaction over the partition of the lands and
asked his father and brother to get ready to meet the consequences and to
call anybody for help if they liked.
Thereupon Dalbir Singh gave a kirpan
blow on the left jaw of Ajaib Singh and Mrs. Dalbir Kaur gave a datar blow
on his right shoulder while Ajit Singh and Puran Singh gave kirpa·n blows
on his chest. Thereafter, the appellants proceeded to the cot of Amir Singh
who was caught hold of by Dalbir Singh and Puran Singh.
Ajit Singh gave
a kirpan blow on his right leg while Mrs. Dalbir Singh gave a datar blow on
his left shoulder. Da·lbir Singh and Puran Singh thereafter dragged Amir
Singh and put him over the body of Ajaib Singh and thereafter all the appellants caused further injuries to Amir Singh and Ajaib Singh.
Both of them
died on the spot.
J aswant Kaur and Shiv Kaur raised alarm but they were
threatened to keep quiet a6 a result of which those two helpless ladies shut
themselves up in one of the rooms. Some time early morning the appellants
left the house.
Jaswant Kaur narrated the incident to Mukhtiar Singh and
Mohinder Singh and ultimately left with Mohinder Singh and lodged the first
information report at the police station which is about six miles awa~ at 9.00
a.m. The Sessions Court convicted the appellants under s. 302 of the Indian
Penal Code and sentenced the male appellants to death sentence and to the
female appellant to imprisonment for life.
In a-ppeals and confirmation proceedings, the High Court confirmed the conviction and sentence imposed by
the trial court.
In an appeal by special leave, the appellants contended :
1. Since the special leave is granted, the appellants are entitled to argue
H
a-11 the questions of law and facts.
2. The only eye-witnesses, namely, Mrs. Jaswant Kaur and Mrs. Shiv
Kaur are the interested witnesses and, therefore, their evidence should
not be accepted.
\
!D!l.LBIR KAUR V. l'UNJAB
2 81
3. No indepeadent witness has been examined to prove the recoveries.
4. There was no evidence of motive for the murder.
5. The prosecution case should be thrown out because of the n?n·exami·
nation of four material witnesses, Mohinder Sing~, J?ayal Smgh w~o
are alleged to have watched the .assau1t and Mukhtiar Smgh and Moh111·
der Singh who went to the house after the assault was over.
6. There was delay in the lodging of the first information report and also
in its despa.tch to the Magistrate.
·
7. Jaswant Kaur and Shiv Kaur gave graphic description of the occur·
rence by detailing the nature of injuries and t~e parts. of the body
where they were inflicted.
Such a photographic descnpt10n smacks
of the evidence being tainted one.
'
A
B
8. The case of Ajit Singh· deserves special consideration.
Shi.v Ka~lT f;!'iled
C
to identify him at the test identification parade
an~ if. Aiit ~mgh
is acquitted, all the appeUants would be exonerated, smce if one mno·
cent person can be implicated there is no guarantee that others would
not be so implicated.
HELD : ( 1) The principles governing interference by this Court in a
criminal appeal by special leave were summarised as follows :
(l)
• (2)
That this Court would not interfere with the concurrent findings of
fact based on pure appreciation of evidence even if it were to take
a different view on the evidence;
That the Court will not normally enter into a reappraisement or
review of the evidence, unless the assessment of the High Court
is vitiated by an error of Jaw or procedure or is based on error
of record,
misreading of evidence or is inconsistent with the
evidence, for instance, where the ocular evidence is totally incon·
sistent with the medical evidence and so on;
'(3 )' That the Court :would not enter into credibility of the evidence with
a view to substitute its own opinion for that of the High Court;
{4) That the Court would interfere where the High Court has arrived
at a finding of fact in disregard of a judicial process, .principles of
natural jnstice w a fair hearing or has acted in violation of a
mandatory provision of law or procedure resulting in serious pre·
judice or injustice to the accused;
( 5) This Court might also interfere where on the proved facts wrong
inferences of law have been drawn or where the conclusions of
the High Court are manifestly perverse and based on no eviddence. [2900-H]
D
E
F
Pritam Singh v. The State [1950] SCR 453; Mohinder Singh v. The 'State
11950] SCR 821; Hem Raj v. The State of Aimer [1954] SCR 1133; Khachera
S!;1gh v. State of Uttar Pradesh A.I.R. [1956] S.C. 546; Saravanabhavan v .
.State of Madras, AIR [1966] S.C. 1273; Piara Singh v. State of Punjab [1969]
G
l SCC 379; Nargun Sunder Das Godeia and others v. State of Rajast/wn [1970]
1 SCC 794; Guli Chand v. State of Rajasthan [1974] 3 SCC 698; Kaur Sain v .
.State of Punjab [1974] 3 S.C.C. 649; Abdul Gani v. State of Mad/1ya Pradesh of
A.I.R. [1954] SC 31; Kanbi Nanji Virji and others v. State of Gujarat [1970] 3
SCC 1@3 and Dharam Das and others v. State of U.P. [1972] 2 SCC 216, followed.
(2) Since the incident took pla<:e
at midnight inside the house the onlv
natural witnesses who could be present to see the ·assault would be Jaswant
H
Kaur and her mother. The dose relative who· is a very natural witness cannot
be regarded as an interested . witness.
The term "interested witness" postulates
that the person concerned must have some ·direct interest in seeing that the
A
B
C_,
D_
E
F
G
H
2 82.
SUPREME COURT.REPORTS
(1977] 1 S.C.R.
accused person is somehow or the other convicted either because he had somea·nimus with the accused or for some other reason.
In the instant case there
is no evidence to indicate that· either Jaswant Kaur. or Shiv Kaur bore anv
animus against the accused. [293A-B]
·
Da!ip Singh ani .oihers v.,State of Punj{tb [1954] SCR 145 and .State of
Punjab .v. Jagir Singh and others [1974] 3 SCC 277, followed.
The evidence of these witnesses cannot be rejected merely on the grounct
that they were relatives of the deceased. They have given a graphic description
of what they saw.
There is no reason to ·discard the assessment of both the
courts below about these two witnesses. There is circumstantial evidence to
support the intrinsic evidence given by these two witnesses.
They . 'are
the
extract from the . birth register proving the birth of the son to Mrs'. Jaswant
Kaur. The electi'icity fitting in the house and <1 bulb in the courtyard is proved
from the ·sketch map and the photograph. [294 G-H, 295 A_:_E]
(3) In the instant case. th.e witnesses watched ihe. occ~rrence from a close
distance in electric light.· The assanlt was so disas(erous and grnesome that
it must have made a·.definite and lasting iinpact on the memory of the witnesses.
Human· memory is like a memory which takes. snap. shorts of striking
incident and then transmits the same through the weirds of mouth faithfully
with absolute accuracy and precision .. In view of the . electt·ic bulb burning
and since the accused w.ere fully known to the informant Jaswant Kaur,. there
is nothing unusual if she gave the names and parentage of all the
a·~cused·
persons in the F.I.R, [302 G-H, 303-A]
.
( 4) The weapons recovered are blood stained and were recovned at the
instance of the appellants.
Both the courts below have accepted the evidence·
of recovery.
29.6 [A-CJ
Nachhettar Singh & Others v. State of Punjab A.I.R. 1976 S.C. 351, distinguished.
(5) The partition with which Dalbir Singh was not satisfied was the motive
for the murder.
Both the courts below have found this to be the motive.
fa a·ny case, the High Court also confirmed the finding that ,even ,if there was.
no motive,
the offence has been established by the ·evidence of the eyewitnesses. [297 A-F]
·
·
( 6) In the prese1it case, 'four witnesses were 'not examined because two
of them· were relatives of Da·lbir Singh and two were won over by the accused
according to the prosecution and were not likely to speak the truth and they
were present in the court. ·Moreover, in the present case there are two independent witnesses who are corroborated by the medical evidence and theevidence of the. recovery o.f the weapons at the instance. oLthe appellants themselves.
The fact of non-examination of Mohinder Singh is imma,terial because
the question of bulb was. a minor .matter. Non-examination of Mohinder Singh
would not out-weigh the evidence given by the eye-witnesses corroborated by
the sketch and photographs. [297-H, 298 A-H, 299 A-El
Saliai Ram v. State of U.P. A.I.R. 1973 s,.c. 61.8, d.istinguished.
Narain and others v. The .state of Punjab [1959] Supp.· (1) S.C.R. 724 and
Masa/ti v. State of U.P. [1964] 8 S.C.R. 133, referred to:
There is no duty on the prosecution to examine witnesses who might have
been gained over by the accused and even if those witnesses are not produced by
the prosecution there is nothing to stop the accused from applying to the courr
for examining such witnesses under s. 540 of the Criminal Procedure Code.
No such applica.tion was ever made by the appellants either before the trial
court or before the High Court. Such an application is made here for the
first time which is rejected since this Court in special jurisdiction does not enter-·
tain such application .. [300 F-H, 301-A]
(7) There was no delay in lodging the F.l.R. after the grnesome murder.
Mrs. Jaswant Kaur and Mrs. Shiv Kaur were threatened by the accused as a
DALBIR KAUR v. PUNJAB: (Gitota. J.)
283
· •esult of which they had to shut .themselves in the room and it was only at
· .6 a.m .. that Mrs. Jaswant Kaur accompanied by Mohinder Singh started for the
. .POiice sta•tion and Jcidged the first information report at 9 a.m. The police
station being at a distance of six miles the informant who is a woman could
no nin to the police station at night and take the risk of being killed by the
.accused who had stayed on in their part of the house even after the .occurrence.
The delay in the despatch Qf the f.l.R. to the magistra•te has been clearly
explained by the sub inspector who deposed that he had gone to the Magistrate's
.court but as the Magistrate was not in his seat, he proceeded to Gurdaspur
to give a copy of the first information report to Superintendent of Police and
.after his return he delivered the FIR to the Magistrnte at 3 p.m.
Both ·the
courts below have believed the evidence of the sub inspector which is supported
by documents.
[301 F-H, 302 A-BJ
(8) So far as Ajit Singh is concerned, the testimony is of a single witness,
Jaswant Kaur. It is difficult to rely on the evidence of Shiv Kaur.
So far as
Ajit Singh is concerned although the evidence of Jaswant Kaur is not dis~
trusted, the possibility of her making an honest mistake in identifying Ajit
.Singh ca,nnot be safely excluded or rnled out.
Ajit Singh gave an application
praying for a test identification parade on the ground that he had never gone
to the village at the time of the occurrence but at the identification parade
Jaswant Kaur was not asked to identify him.
Jaswimt Kaur could not have
known appellant Ajit Singh very well.
The prosecution ought to have produced
Jaswant Kaur also at the test identification parade to identify Ajit Singh.
It is unsafe to rely on the single testimony of Jaswa,nt Kaur.
Therefore, he
was given benefit of doubt.
For the remaining appellants the conviction and
sentence upheld.
[303G-H, 304 A-G]
A. C. Gupta, J. (Concurring)
HELD : It is not possible to catalogue exhaustively all possible circumstances in which it can be said that grave and substantia,J
injustice is
done. [284 A-BJ.
.A
B
c
D
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 232
E
and 373 of 1975. ·
·
·
(Appeals by Special Leave from the Judgment and Order dated
10-3-1975 of the Punjab and Haryana High Court in Criminal Appeal
No. 869/74 and Murder Reference No. 44/74) ..
Frank Anthony and
Harjinder Singh, for the appellants in both
the appeals.
F
0. P. Sharma, for the respondent in both the appeals.
The Judgment of the Court was delivered by Fazal Ali, J. Gupta,
J. gave a separate opinion.
·
GUPTA, J.-I agree with Iily learned brother that the appeals of
Dalbir Singh, Puran Singh and Smt. Dalbir Kaur alias Bhiro should
G
be dismissed.
The Judgment of the High Court which affirms the
order .of conviction and the sentences passed on these appellants by
the tnal court does not appear to suffer from any infirmity which
can be said to have caused a failure of justice so far as the cases of
tl:ese appellants are concerned.
I also agree that the appeal of Ajit
Smgh should be allowed for the reasons stated in the Judgment of my
learned brother.
II
The decisions of this Court referred to in the Judgment of my
learned brother lay down that this Court does not interfere with the
A
B
c
D
E
F
G
H
284
SUPREME COURT REPORTS
[1977) 1 S.C.R.
findings of fact unless it is shown that "substantial and grave injustice
has been done". But whether such injustice has been done in a given
case depends on the circumstances of the case, and I do not think one
could catalogue exhaustively all possible circumstances in which it
can be said that there has been grave and substantial injustice done
in any case.
In the appeals before us the findings recorded by the
trial court and affirmed by the High Court do not disclose any such
e."\Ceptional and special circumstances as would justify the claim made
on behalf of the appellants whose appeals we propose to dismiss that
there has been a failure of justice in these cases.
FAZAL ALI, J.-These two appeals by special leave arc directed
against the judgment of the Punjab & Haryana High Court dated
March JO, 1975, upholding the convictions and sentences imposed on
the appellants by the Trial Court of Sessions Judge, Gurdaspur. The
two appeals arise out of the same judgment and, therefore, will be
dealt with by us by one common judgment.
Criminal Appeal No.
232 of 1975 has been filed by Smt. Dalbir Kaur (ifJ Bhiro,
Pura11
Singh and Ajit Singh, while Criminal Appeal No. 373 of 1975 lias
been filed by Dalbir Singh. The Sessions Judge convicted all the
appellants under ss. 302/34 I.P.C. and sentenced Dalbir Singh, Puran
Singh and Ajit Singh to death and Dalbir Kaur to imprisonment for
life. The convictions and sentences passed by the Sessions Judge were
upheld by the :f!igh Court.
The High Court refused to grant certificate for leave to appeal to Supreme Court and
thereafter on an
application made to this Court special leave was granted.
Two q_uestions arise in these appeals :
( 1) Can this Court in a criminal appeal by special leave
enter into a fresh review or reappraisement of the
evidence and examine the question of credibility of
witnesses where the two Courts have concurrently
found that the prosecution case against the appellants
has been proved; and
(2) Is it open to the appellant, once special leave is
granted, to argue on questions of fact at the hearing,
or i:> he required to confine his arguments only to the
points on which special leave could be granted.
Not that these points are not covered by authorities but in spite of a
catena of decisions of this Court laying down the various principles
from time to time over two decades· and a half counsel for the parties
have been insisting upon this Court to go into the questions of fact
in order to examine whethe_r the judgment of the High Court is correct.
I would, therefore, like to review the decisions of this Court on the
two points mentioned above so as to clarify the position and settle
the controversy once for all.
As to the principles on which special leave is granted by this Court,
the same have. been clearly and explicitly enunciated in a large number
of decisions of this Court. It has been pointed out that the Supreme
Court is not an ordinary Court of criminal appeal and does not inter-
\
I •
DALBIR KAUR v. PUNJAB (Fazal Ali, !.)
285
fere on pure questions of fact. It is only in very special cases where
the Court is satisfied that the High Court has committed an error oi
law or procedure as a result of which there has been a serious· miscarriage of justice that the Court would in!erfere with the concurrent
findings of the High Court and the Trial Court. It has also been
pointed out by this Court more than once that it is not in the province
of this Court to reappraise the evidence and to go into the question of
credibility of the witnesses examined by the parties, .particularly when
the Courts below has, after considering the evidence, given their findings thereon.
In other words, the assessment of the ~vidence by the
High Court would be taken by this Court as final, unless it is vitiated
by any error of law or procedure, by the principles of natural justice,
by errors of record or misreading of evidence, non-consideration of
glaring inconsistencies in the evidence which demolish the prosecution
case or where the conclusion of the High Court is manifestly perverse
and unsupportable
and the like.
As early as
1950 this Court in
Pritam Singh v. The State(') speaking through Fazal Ali, J., (as he
then was) observed as follows :
"The obvious reply to all these arguments advanced by
the learned counsel for the appellant, is that this Court is not
an ordinary Court of criminal appeal and will not, generally
speaking, allow facts to· be reopened, especially when two
Courts agree in their conclusion in regard to them and when
tile conclusions of ·fact which are challenged are dependent
on the credibility of witnesses who have been believed by the
trial Court which had the advantage of seeing them and hearing their evidence."
"In arguing the appeal,
Mr. Sethi
proceeded on the
assumption that once an appeal had been admitted by special
leave, the entire case was at large and the appellant was
free to contest all the findings of fact and raise every point
which could be raised in the High Court or the trial Court.
This assumption is, in our opinion, entirely unwarranted."
"The rule laid down by the Privy Council is based on
sound principle, and, in our opinion, only those points can
be urged at the Jina! hearing of the appeal which are lit to
be urged at the preliminary stage when leave to appeal is
asked for, and it would be illogical to adopt different standards at two different stages of the same. case."
·
On a careful examination of article 136 along with the
preceding article, it seeJilS clear that the wide discretionary
power with which tliis Court is invested under it is to be
exercised sparingly and in exceptional cases only, ........ "
Generally speaking, this
Court will not grant
special
leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done
and that the case in question presents features of sufficient
gravity to warrant a review of the decision appealed against."
(l' [1950] S.C.R. 453.
A
B
c
D
E·
f
G
H
286
SUPREME COURT REPORTS.
[1977] 1 S.C.R.
A
Analysing this. decision, two principles appear to have been clearly
. laid down by this Court. :
.
B
c
D
E
F
G
( 1) that in appeals. by special leave against the concurrent
findings of the Courts below, this Court would not go
into the credibility of the evidence and would interfere only when exceptional and special circumstances
exist which result in substantial and grave- injustice
having bee1i done to the accused; and
(2) that even after special leave has been granted the
appellant is not free to contest all the findings of fact,
but his arguments would be
limited only to those
points, even at the final hearing, which could be urged
at the stage when the special leave to appeal is asked
for.
This case was followed by another Bench decision of this Court a little
later in Mohinder Singh v. The State(') where this Court observed
thus :
"This Court, as was pointed out in Pritmii Singh v. Th'!
State (1950) SCR 453-will not entertain a criminal appeal
except in special and exceptional cases where it is manifest
that by a disregard of the forms of legal process or by a
violation of the principles of natural justice or otherwise
substantial and grave injustice has been done."
In Hem Raj v. The State of Ajmer,.(2) the same principle was reiterated by Mahajan C.J., spea]<ing for the Court, where it was observed
thus :
"Unless it is shown that exceptional and special circumstances exist that substantial and grave injusice has been
done and the case in question presents features of sufficient
gravity to warrant a review of the decision appealed against,
this Court does not exercise its overriding powers
under
article 136( 1) of the Constitution and the circumstance that
because the appeal, has been admitted by special leave does
not entitle the appeJlant to open out the whole case and contest all the findings of fact and raise every point which
could be raised in the High Court. Even at the final hearing only those points can ,be urged which are fit to be urged
at the preliminary stage when the leave to appeal is asked
for."
Jn Khacheru Singh v.
State of Uttar Pradesh( 8 ) it was pointed out
that this. Court does not interfere with the findings of fact arrived at
by the Courts below, unless something substantial has been shown to
persuade this Court to go behind the findings of fact.
Imam, J. who
H
spoke for the Court observed as follows :
(1) [1950] S.C.R. 821.
(2) [1954] S.C.R. 1133,
(3) A.LR. [1956] S.C. 5 46.
\
DALBIR KAUR v. PUNJAB (Fazal Ali, J.)
"In an appeal by way of special leave this Court usually
does not interfere with the findings of fact arrived at by the
Courts below and nothing substantial has been shown to persuade us to go behind the findings of faot arrived at by them."
287
In Saravanabhavan v. State of Madras('), Hidayatullah, J., (as he
A
then was) speaking for the majority crystallised and reiterated the
B
principles already laid down by this Court on previous occasions and
observed as follows :
"No doubt this Court has granted special leave to the
appellants but the question is one of the principles which
th.is Court will ordinarily follow in such an appeal. It has
been ruled in many cases before that this Court will not
reassess the evidence at large, particularly when it has been
concurrently accepted by the High Court and the court or
courts below.
In other words this Court does not form a
fresh opinion as to the innocence or the guilt of the accused.
It accepts the appraisal of the evidence in the High Court
and the court or courts below. Therefore, before this Court
interferes something- more must be shown, such as,
that
there has been in the trial a violation of the principles of
natural justice or a deprivation of the rights of the ,accused
or a misreading of vital evidence or an improper reception
or rejection of evidence which, if ,discarded or
receiVied,
would leave the conviction unsupportable, or that the court
or courts have committed an error of law or of the forms
of legal process or procedure by which justice itself has
failed.
We have, in approaching this case, borne these
principles in mind. They are the principles for the exercise
of jurisdiction in criminal cases, which this Court brings
before itself by a grant of special leave."
The minority judgment in the same case 'by Wanchoo, J., (as he then
was), so far as the question of interference by this Court was concerned, also took more or less the •same view
and
observed
as
follows :
"Ordinarily, this Court does not go into the evidence
c
D
E
F
when dealing with appeals under Art.
136 of the
G
Constitution particularly when there are concurrent findings.
This does not mean that this Court will in no case
interfere with a concurrent findings of fact in a
criminal
appeal; it only means that this Court will not so interfere in
the absence of special circumstances.
One such circumstance is where there is an error of law vitiating the finding
as, for example, where the convliction is based on the testiH
mony of an accomplice without first considering the question
(I) A.I.R.~1966 S.C. 1273.
A
B
c
D
E
F
G
H
288
SUPREME COURT REPORTS
[1977} 1 S.C.R.
whether the accomplice is a reliable witness.
Anoth;:)r
circumstance is where the conclusion reached by the Courts
below is so patently opposed to well established principles
of judicial approach, that it can be characterised as wholly
unjustified or perverse."
The only difference between the two views
was
that
while
the
majority view was that except for the principles mentioned above the
Supreme Court could never interfere with the concurrent findings of
fact in a criminal appeal, the minority view agreed with the principles but it held that in view of special circumstances as pointed out
in the observations quoted above the Court could interfere.
At any
rate, according to both the views the ratio is that this Court would
not normally interfere with the concurrent findings of fact,
unless
there are special circumstances justifying interference.
In Piara Singh v. State of Punjab( 1 ) ·this Court refused to interfere
because it thought that the points involved related to pure appreciation
of evidence and no error of law was at all committed and observed as
follows
'The High Court has examined in detail the argument of
the appellant on this point and reached the conclusion that
the statement of the approver with regard to the packing of
the hand grenade should be accepted as true.
The question
involved is one of appreciation of evidence and not a question
of law."
In Hargun Sunder Das Godeja and others v. The State of Maharashtra C2) it was reiterated that this Court does not normally proceed
to review the evidence, unless there was some illegality or irregularity
in the approach of procedure.
In this connection, the Court observed
as follows :
"We may appropriately repeat what has often been
pointed out by this Court that under Article 136 of the
Constitution this Court does not normally proceed to review
the evidence in criminal cases unless the trial is vitiated by
some illegality or material irregularity of procedure or the
trial fs held in violation of rules of natural justice resulting
in grave miscarriage of justice.
This Article· reserves to
this Court a special discretionary power to
interfere
in
suitable cases when for special reasons it considers that interference is called for in the larger interests of justice."
In a recent decision of this Ceurt in Guli Chand v. State of Rajasthan (3) this Court observed as follows
(I) [1969] I S.C.C. 379.
(2) [1970] I S.C.C. 724.
k
\
DALBIR KAUR v. PUNJAB (Fazal Ali, J.)
"It is difficult, after considering the totality _of evidence,
to hold that the concurrent findings of fact given by the
Courts below as regards
the proof of guilt
of
each
accused beyond reasonable doubt are really erroneous one
may not agree with the assessment of the evidence of e~ch
witness individually either by the trial Court or by
High
Court.
Yet, we do not think that this is a fit case for interference under Article 136 of the
Constitution.
Consequently, we uphold the convictions and
sentences of the
appellants and dismiss this appeal."
28~
To the same effect is the decision of this Court in Kaur Sain v.
State of Punjab, (1) where Chandrachud, J., speaking for the Court
observed thus :
"It is not the practice of this Court to undertake a fresh
appraisal of the evidence in such matters.
. . . . . If
two views of the evidence were reasonably possible, we would
not have substituted our conclusion for that of the
High
Court."
The case really lays down that where the appreciation of the evidence by the Courts below is nof erroneous even though trhis
Court
may be inclined to take a different view it would not be a fit case for
interference.
Another important principle that has been enunciated by
this
Court is that even where the prosecution case consists of an admixture of truth and falsehood it is the duty of the Court to sift truth
from falsehood, to separate the grain from the chaff instead of taking
the easy course of rejecting the entire prosecution case in view
of
some discrepancy here or there.
If, after applying these legal principles, the Court finds that truth and falsehood are so inextricably
mixed together that it is not possible to sift truth from falsehood the
Court would be justified in rejecting the prosecution case.
In Abdul
Gani v. State of Madhya Pradesh( 2 ) this Court observed as follows :
"The learned Sessions Judge was undoubtedly in error
· when he said that it was impossible to find out from
the
state of the prosecution evidence with any amount of certainty who among the accused persons participated in the
offence and that it would be a pure gamble to convict any of
the accused.
He made no effort to disengage the
truth
from the falsehood and to sift the grain from the chaff but
took an easy course and after holding the evidence discrepant held that the whole case was untrue."
•
To the same effect is a later decision of this Court in Kanbi Nanji
Virji dnd others v. State of Gujarat( 3 ) where this Court reiterated as
follows :
c
D•
E
G
"It is true that often times the courts have to separate·
Hi
to the truth from falsehood.
But where the· two are so
(1) [19741 3 S.C.C. 649.
12) A.IR. 1954 S.C.31
0) [19701 3 s.c.c. 103.
'2'90
SUPREME COURT REPORTS
[1977] 1 S.C.R.
.A
intermingled as to make it impossible to separate them, the
evidence has to be rejected in its entirety."
B
·c
'D
E
G
H
Recently also in Dharam Das and others v. State of U.P.(') this
Court commented on this aspect of the matter thus :
"In our view, the trial court approached the case ignoring
the basic principle that unless the exaggeration and falsehood
in the evidence are on points destructive of the substance
of the prosecution story, it is the Court's duty to sift . the
\
evidence, separating truth from falsehood, and come to its
..
conclusion abont the guilt or innocence of
the
persons
accused of the offence. Exaggeration or falsehood on points
which do not touch the core of the prosecution story are
not to be given undue importance,
provided,
of course,
there is trustworthy evidence supporting the real substance
and core of the prosecution case."
Thus the principles governiμg interference by this Court m
a
criminal appeal by special leave may be summarised as follows
( 1) that this Court would not i11terfcre with the concurrent
finding of fact based on pure appreciation of evidence
even if it were to take a different view on the evidence;
(2) that the Court will not normally enter into a reappraisement or review of the evidence, unless the assessment of
the High Court is vitiated by an error of law or procedure
or is based on error of record, misreading of evidence or
is inconsistent with the evidence, for instance, where the
ocular evidence is totally inconsistent with the medical
evidence and so on;
( 3) that the Court would not enter .into credibility
of
the
evidence with a view to substitute its own opinion
for
that of the High Court;
( 4) that the Court would interfere where the High Court has
arrived at a finding of fact in disregard of a judicial process, principles of natural justice or a fair hearing or has
actedf in violation of a mandatory
provision
of
law
or procedure resulting in serious prejudice or injustice
to the accused;
(5) this Court might also interfere where on the proved facts
wrong inferences of law have been drawn or where
the
conclusions of the High Court are
manifestly perverse
and based on no evidence :
-~---
(l) [1972] 2 s.c.c. 216.
f
/
I
DALBIR KAUR v. PUNJAB (Fazal Ali, J.)
2-91
It is very difficult to Jay down a rule of universal al?plication but .t~e
principles mentioned above an~ those ~dumbr~te~ in: the a:~thontres
of this Court cited supra provide _sufficient gmdelines: for this . C?urt
to decide criminal appeals by special leave. . Thus . 111
a cr:mmal
appeal by special leave, thi~ Court at tl~e heann_g ~xammes tlie evidence
and the judgment of the High Cour~ with the hffilted purpose o~ d~ter
mining whether or not· the High Court has followed the pnnciples
enunciated above.
Where the Court finds that the High Court has
committed no violation of the various principles laid down by this
Court and has made a correct approach and has not ignored or over"
looked striking features in the evidence which demolish ·tlie prosecution
case, the findings of fact arrived at by the High Court on an appreciation of the evidence in the circumstances of the case 'would not be
disturbed.
Much time, energy and expense could be s.aved if the principles
enunciated above are strictly adhered to by counsd for the: parties and
they confine their arguments within the four corners of tliose principles
and they cooperate in this sound and subtle judicial method without
transgressing the limits imposed by the decisions of this Court on its
power to interfere with the concurrent findings of fact.
In the instant
case both the Courts below have, after full and complete. appreciation
of the evidence,. accepted the prosecution case and have held tliat the
guilt against all the appellants has been proved beyond reas9.nable
doubt.
This should have been sufficient to dispose of this appeal.
But as Mr. Frank Anthony learned counsel for the appellants
has
arg11ed the case at very great length and seemed to have prepared the
case with great thoroughness and from corner to corner, we :would like
to deal with some of the important arguments advanced by him after
giving a brief narration of the main features .of the prosecution case. .
This is really a most unfortunate case of patricide where a son
along with his companions appears to have murdered his own father
and brother over a petty partition. dispute relating to few Killas, of
land.
The murder committed by the appellants, if. proved, is both
gruesome, brutal and unprovoked. The decea,sed Ajaib Singh appears
t<;> have parti~ioped his properties between his two sons, namely, Dalbir
Smgh-who 1s one of the appellants-and Amir Singh one of the sons
who was killed.
Ajaib Singh owned 18 killas of land which
wa5
divi?ed. in three shares, two shares being allotted to Dalbir Singh and
Amir Singh and one share was kept by the deceased Ajaib. Sipgh for
himself.
After tlie partition Dalbir Singh separated .and lived in a
separate portion of the house, while both the deceased Ajaib Singh
and Amir Singh lived jointly in two rooms the verandah being common.
Ajaib Singh was having joint mess and cultivation with his
son Amir Singh.
Dalbir Singh :was married to Mst. "Dalbir Kaur
@ Bhiw who is also one of the appellants.
Amir Singh was married
to ·Mst. Jaswant Kaur.
As Jaswant Kaur had given birth to. a child
she had called her mother Mst. Shiv Kaur to look after her and the
child.
According to the prosecution Dalbir Singh left for his fatherA
.E
A
c
D
E
F
G
H
292
SUPREME COURT REPORTS
[19"/7] 1 S.C.R.
in-law's village Santupura a day prior to the occurrence, while
his
wife Bhiro along with her children followed him in the morning of
the day of occurrence.
It is alleged that on the might intervening
30th and 31st July, 1973 at about 1 A.M. Jaswant Kaur and her husband Amir Singh were lying on their cots in the verandah and Shiv
Kaur was also sleeping in front of the verandah while Ajaib
Singh
was lying on a cot near the buffalo in the court-yard.
As the newly
born child of Jaswant Kaur was not well both Jaswant Kaur and her
mother Shiv Kaur were awake to nurse him.
At ihat time
electric
bulb was burning in the court-yard because an electric connection had
been recently taken from a neighbour in view of the illness of
the
child of Jaswant Kaur.
Near about 1 A. M. Jaswant Kaur and Shiv
Kaur heard the noise of foot-steps and they saw Dalbir Singh,
Ajit
Singh and Puran Singh armed with kirpans while Dalbir Kaur
@
Ilhiro armed with a datar standing by the side of the cot of Ajaib
Singh.
Dalbir Singh had an altercation with his father Ajaib Singh
and expressed his dis-satisfaction over the partition of the lands and
a>ked his father and brother to get ready to meet the
consequence:;
and to call anybody for help if they liked.
Thereupon Dalbir Singh
gave a kirpan blow on the left jaw of Ajaib Singh and Bhiro gave a
datar blow on his right shoulder, while Ajit Singh and Puran Singh
gave kirpan blows on his chest.
After this gruesome operation was
over, the accused proceeded to the cot of Amir Singh who was caught
hold of by Dalbir Singh and Puran Singh and Ajit Singh is alleged to
have given a kirpan blow on. his right leg while Mst.
Bhiro gave a
datar blow on his left shoulder. Dalbir Singh and Puran Singh then
dragged Amir Singh and put him over the body of Ajaib Singh and
thereafter all the appellants caused further injuries to Amir Singh and
Ajaib Singh with their respective weapons on different parts of their
bodies as a result of which they succumbed to the injuries.
Jaswant
Kaur and Shiv Kaur raised alarm but they were threatened to keep
quiet as a result of which these two helpless ladies shut themselves up in one of the rooms.
Sometime in
the
early
morning
the accused who had :stayed on in their part of the house left
the village and went away.
Jaswant Kaur narrated the incident to
Mukhtar Singh and Mohinder Singh and ultimately left with Mohinder
Singh and lodged the First Information Report at police station Sadar
Batala at 9 A.M. Thereafter the Investigating Officer proceeded to the
spot, prepared an inquest report sent bodies of the two deceased for
post-mortem examination and conducted the usual investigations.
It
is further alleged that in the course of the investigation all the appellants made certain statements on the basis of which recoveries of the
kirpans and the datar were made from the accused concerned. The
police after usual investigation submitted chargesheets as a result of
which the appellants were committed to the Court of Session and ultimately convicted and sentenced as indicated above. The Sessions Judge
made a reference to the High Court for confirmation of the sentence
imposed on all the appellants and appeals were also filed by all the
accused and the High Court after considering the entire evidence
agreed with the view taken by the Sessions Judge
confirmed
the
sentences and dismissed the appeals.
DALBIR KAUR v.