# DALIP SINGH AND OTHERS v. STATE OF PUNJAB

- **Citation:** [1954] 1 S.C.R. 145
- **Court:** Supreme Court of India
- **Decided:** 1952-11-19
- **Case number:** Criminal Appeal No. 22 of 1953
- **Bench:** MEHR CHAND MAHAJAN' v !VIAN BOSE, JAGANNADHA DAs
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dalip-singh-and-others-v-state-of-punjab-259
- **Pages:** 13

## Headnote

Indian Penal Code (XL V of 1860), ss. 149, 302-Conviction
nnder s. 149-Conviction of less than jive persons-·when properSentence for transportatio11-Enha1•cement to sentence of death, on
appeal-I11terference with discretion of trial j-udge-Propriet-yEvidence-Rclationship of witness to deceased.
Before -S. 149 of the Indian Penal Code can be applied, the
court must find with certainty that there w@re at least five
persons sharing the common object.
This does not, however, mean that five persons must always
be
convicted
before s. 149 can be
applied. If the judge
concludes that five persons were unquestionably present and
shared the common object, though the identity of som~ of them
is in donbt, the conviction of the rest would be good; but if this is
his conclusion, it behoves him, particularly in a murder case
where heavy sentences have been imposed, to say so with
certainty.
Rameshwar v. The State of Rajasthan ([1952) S.C.R. 377)
referred to.
The power to enhance a sentence from transportation to d·eath
should very rarely be exercised and only for the strongest reasons.
It is not enough for the appellate court to say or think that if left
to itself it would have awarded the greater penalty because the
discretion does not belong to the appellate court but to the trial
judge, and the only ground on which the appellate co1ut can
interfere is that the discretion has been improperly . exercised, as
for instance where no reasons have been given and none can be
inferred from the circumstances of the case or where the facts
are so gross that no normal judicial mind would have awarded the
lesser penalty.
CRIMINAL APPELLATE
JURISDICTION:
Criminal
Appeal No. 22 of 1953.
Appeal by special leave from the Judgment and
Order dated the 19th November, 1952, of the High
Court of Judicature of Punjab at Simla in Criminal
Appeal No. 102of1952 and Criminal Revision Nos. 423
1953
May 15.
196J
Dalip Singh
and Oth~rs
v.
State of Punjab.
146
i
J
.
SUPREME COURT REPORTS
,
[1954)
and 499 of 1952 of the Court of the Sessions Judge,
Jullundur, in Sessions Case No. 30of1951 and Sessions
Trial No. 5 of 1951.
Jai Gopal Sethi (R. L. Kohli and Deva Singh, with
him) for the appellants.
Gopal Singh for the respondent.
1953. May 15.
The Judgment of the Court was
delivered by
BosE J.-Four persons appeal against sentences of
death passed upon them in convictions for a double
murder, the victims being two brothers, Rattan Singh
and Bawa Singh. The learned Sessions Judge convicted three others also but s.entenced all, including the
four appellants, to transportation for life. The High
Court acquitted three of the seven but sustained the
convictions of the four appellants and enhanced their
sentences in each case to death.
The prosecution story is simple.
All seven accused
belong to the same village and belong to the same
faction or "party", as Mst. Punnan (P.W. 2) calls it.
Of the seven, the appellants Dalip Singh and Battan
Singh are brothers. J arnail Singh who was acquitted
is a. son of Battan Singh. The remaining four, including the appellants Sadhu Singh and Kundan Singh,
are not related to the other three and, except for the
evidence that they belong to the same party, are not
shown to have any common interest with the other
three.
The appellants Dalip Singh and Battan Singh are
said to have assaulted the two dead men Rattan and
Bawa about twenty years before the occurrence. They
were prosecuted and convicted and served short terms
of imprisonment. Dalip Singh and Battan Singh are
also said to be dacoits and it is said.that they believed
that the two dead men used to furnish information
against them to the police.
This is said to be the
motive for the mlll'ders.
Why the othern should have
joined in, except on the basis that they belong to the
same "party", is not disclosed.
•
S.C.R.
SUPREME COURT REPORTS
147
The prosecution case is as follows :-On 16th June,
1951, Rattan Singh was taking some food out to a well
a short distance from his house for himself and h

## Text

-)
S.C.R.
SUPREME COURT REPORTS
DALIP SINGH AND OTHERS
v.
STATE OF PUNJAB.
[MEHR CHAND MAHAJAN' v !VIAN BOSE
and JAGANNADHA DAs JJ.]
Indian Penal Code (XL V of 1860), ss. 149, 302-Conviction
nnder s. 149-Conviction of less than jive persons-·when properSentence for transportatio11-Enha1•cement to sentence of death, on
appeal-I11terference with discretion of trial j-udge-Propriet-yEvidence-Rclationship of witness to deceased.
Before -S. 149 of the Indian Penal Code can be applied, the
court must find with certainty that there w@re at least five
persons sharing the common object.
This does not, however, mean that five persons must always
be
convicted
before s. 149 can be
applied. If the judge
concludes that five persons were unquestionably present and
shared the common object, though the identity of som~ of them
is in donbt, the conviction of the rest would be good; but if this is
his conclusion, it behoves him, particularly in a murder case
where heavy sentences have been imposed, to say so with
certainty.
Rameshwar v. The State of Rajasthan ([1952) S.C.R. 377)
referred to.
The power to enhance a sentence from transportation to d·eath
should very rarely be exercised and only for the strongest reasons.
It is not enough for the appellate court to say or think that if left
to itself it would have awarded the greater penalty because the
discretion does not belong to the appellate court but to the trial
judge, and the only ground on which the appellate co1ut can
interfere is that the discretion has been improperly . exercised, as
for instance where no reasons have been given and none can be
inferred from the circumstances of the case or where the facts
are so gross that no normal judicial mind would have awarded the
lesser penalty.
CRIMINAL APPELLATE
JURISDICTION:
Criminal
Appeal No. 22 of 1953.
Appeal by special leave from the Judgment and
Order dated the 19th November, 1952, of the High
Court of Judicature of Punjab at Simla in Criminal
Appeal No. 102of1952 and Criminal Revision Nos. 423
1953
May 15.
196J
Dalip Singh
and Oth~rs
v.
State of Punjab.
146
i
J
.
SUPREME COURT REPORTS
,
[1954)
and 499 of 1952 of the Court of the Sessions Judge,
Jullundur, in Sessions Case No. 30of1951 and Sessions
Trial No. 5 of 1951.
Jai Gopal Sethi (R. L. Kohli and Deva Singh, with
him) for the appellants.
Gopal Singh for the respondent.
1953. May 15.
The Judgment of the Court was
delivered by
BosE J.-Four persons appeal against sentences of
death passed upon them in convictions for a double
murder, the victims being two brothers, Rattan Singh
and Bawa Singh. The learned Sessions Judge convicted three others also but s.entenced all, including the
four appellants, to transportation for life. The High
Court acquitted three of the seven but sustained the
convictions of the four appellants and enhanced their
sentences in each case to death.
The prosecution story is simple.
All seven accused
belong to the same village and belong to the same
faction or "party", as Mst. Punnan (P.W. 2) calls it.
Of the seven, the appellants Dalip Singh and Battan
Singh are brothers. J arnail Singh who was acquitted
is a. son of Battan Singh. The remaining four, including the appellants Sadhu Singh and Kundan Singh,
are not related to the other three and, except for the
evidence that they belong to the same party, are not
shown to have any common interest with the other
three.
The appellants Dalip Singh and Battan Singh are
said to have assaulted the two dead men Rattan and
Bawa about twenty years before the occurrence. They
were prosecuted and convicted and served short terms
of imprisonment. Dalip Singh and Battan Singh are
also said to be dacoits and it is said.that they believed
that the two dead men used to furnish information
against them to the police.
This is said to be the
motive for the mlll'ders.
Why the othern should have
joined in, except on the basis that they belong to the
same "party", is not disclosed.
•
S.C.R.
SUPREME COURT REPORTS
147
The prosecution case is as follows :-On 16th June,
1951, Rattan Singh was taking some food out to a well
a short distance from his house for himself and his son.
This was about 2 p.m. Just as he left the house, his
wife Mst. Punnan (P.W. 2) heard cries of alarm and on
rushing out with her daughter Mst. Oharni (P.W. 11)
saw all seven accused assaulting her husband. They
beat him up till he fell to the ground.
As soon as Rattan Singh fell down, they left him
and rushed to his (Rattan Singh's) Haveli where the
other brother Bawa Singh was lying on a cot, shouting
that they would also make short work of him.
All
seven belaboured him on the cot, then they dragged
him out and beat him up some more.
After this they returned to where Rattan Singh was
still lying on the ground and gave him some more
blows. Then they ran away.
Bawa Singh died very shortly after the assault.
The other brother survived a little longer but he also
died not long after.
According to Mst. Punnan (P. W. 2) the accused were
armed as follows: The appellants Dalip Singh and
Sadhu Singh with barchhas; the appellant Battan
Singh and two of the accused who have been acquitted
with lathis; the appellant Kundan Singh had a takwa
-a hatchet with a long handle, and the accused Kehar
Singh, who has been acquitted, had a khunda-a hefty
stick with a curved iron end.
The medical evidence discloses that Rattan Singh
had nineteen injuries on his person.
Of these, only
two, on the head, would have been fatal in themselves.
The rest were on non-vital parts like the foot, ankle,
leg, knee, thigh, buttock, forearm and wrist, but of
these six were grievous.
The doctor says death was
caused by shock produced by the multiple injuries
aided by haemorrhage in the brain due to injury
No. 14.
The other brother Bawa had sixteen injuries ·but
except for two the rest were on non-vital parts.
One
of the two was on the head and the other ruptured the
/
1953
Dalip Singh
aad Others
v.
State of Punjab.
Bose J.
SUPREME COURT REPORTS
[1954)
1963
spleen. The rest were on the ankle, leg, knee, thigh,
elbow, thumb and wrist, but eleven of them were
Dalip Singh
I
h"
h d
·
h
d
h d
and Other.
grievous.
n
IS case t e octor put t e
eat
own
v.
to rupture of the spleen.
State of Punjab.
In Rattan Sing h's case, only one of the injuries was
Bose J.
inflicted by a sharp-edged pointed weapon and all the
rest by blunt weapons.
The two on the head were
inflicted by blunt weapons.
In Bawa Singh's case, four wounds were caused by
a sharp-edged or pointed sharp-edged weapon.
The
others were all inflicted by blunt weapons.
Here
n,gain, the fatal injury which ruptured the spleen was
caused by a blunt weapon.
This analysis would n,ppear to indicate that 11either
of the appellants Dalip Singh and Sadhu Singh, who
carried spears, nor the appellant Kundan Singh, who
carried a hatchet, aimed at any vital part; and of
those
who
had blunt weapons,
the
appellant
Battan Singh who had a lathi has alone been convicted while Indar Singh and Jarnail Singh, who also had
lathis, andKehar Singh, who had a khunda, have all
been acquitted; and .yet Battan Singh alone could
hardly have been responsible for eighteen injuries on
Rattan Singh and nine on Bawa Singh.
The appellant Dalip Singh was arrested on the 17th
June and the other three on the 18th. Each was
wearing blood-stained clothes.
The learned Sessions Judge did not attach much
importance to the bloodstained clothes, nor did he
regard the recovery of certain weapons, some of which
were blood-stained, as of much consequence. But he
was impressed with the evidence of the two eyewitnesses Mst. Punnan (P.W. 2) and Mst. Charni
(P. W. 11) and believing them convicted each of the
seven accused under section 302 read with sectien 149,
Indian Penal Code.
He said that as the fatal injuries
could not be attributed to any one of the accused he
refrained from passing the sentence of death. All the
assessors considered all seven accused guilty.
The learned High Court Judges did not attach any
importance to the recovery of the weapons because
,...
·-
•
s.c.R.
SUPREME COURT REPORTS
149
1963
for one thing they were not recovered till the 30th,
that is to say, not until fourteen days after the murders, and when found, one set pointed out by J arnail
Dalip Singh
and Othera
Singh, who has been acquitted, was found in Dalip
v.
Singh's field and another set, pointed out by Sadhu State of Punjab.
Singh, was found in Kehar Singh's field.
But they
considered the blood-stained clothes an important factor.
They were not prepared to believe the two eye-witnesses all the way, partly because they were of opinion
that a part of their story was doubtful and seemed to
have been introduced at the instance of the police and
partly because they considered that when the fate of
seven men hangs on the testimony of two women
"ordinary prudence" requires corroboration. They
found corroboration in the case of the four appellants
because of the blood-stained clothes and none in the
case of the others. Accordingly, they convicted the
four appellants and acquitted the others.
Now this has led the learned Judges into an inconsistency audit is that which led to the granting of
special leave to appeal.
The learned Judges say that
their conclusion is that
( 1) "generally the story related by Mst. Punnan and
Mst. Charni is true;
(2) that certainly not less than five persons took
part in the beating of the two deceased; and
(3) that the corroboration required by prudence is
afforded by the presence of the blood-stained clothes
found on the persons of the four appellants who have
been convicted."
As regards the three accused whom they acquitted
the learned Judges say-
"Theotherthreeaccusedmay or may not have taken
part in the affair."
Now it is clear from the above that it is impossible
to ascribe any particular injury to any particular
person. Therefore, it is impossible to convict any one
of the accused of murder simpliciter under section 3021
Bose J.
1953
Dalip Si'ngh
aad" Others
v.
State of PunJrtb.
Bose J.
150
SUPREME COURT REPORTS
[1954]
nor do the learned Judges attempt to do that. They
convict under section 302 road with section 149. But
section 149 requires the presence of five persons who
share the common object. It is true that in one place
the learned Judges say that there were certainly not
less than five present but in the very next breath they
say that the three whom they acquit "may or may
not have taken part in the affair". If those three
n,re eliminated, then we n,re left with only four n,nd
that militates against their previous finding that they
were at len,st five.
Before section 149 can be called in aid, the court
must find with certainty that there were at least five
persons sharing the common object. A finding that
three of them "may or may not have been there"
betrays uncertainty on this vital point and it consequently becomes impossible to allow the conviction to
rest on this uli.certain foundation.
This is not to say that five persons must always be
convicted before section 149 can be applied. There
are cases and cases. It is possible in some cases for
.Judges to conclude that though five were unquestionably there the identity of one or more is in doubt. In
that case, a conviction of the rest with the aid of
section 149 would be good. But if that is the conclusion it behoves a court, particularly in a murder case
where sentences of transportation in no less than four
cases have been enhanced to death, to say so with
unerring certainty. Men cannot be hanged on vacillating and vaguely uncertain conclusions.
In fairness to the learned Judges we have examined
the evidence with care to see whether, if that was in
their minds, such a conclusion could be reached in this
particular case-on the evidence here. That it might
be reached in other cases on other facts is undoubted,
but we are concerned here with the evidence in this
case.
Now mistaken identity has never been suggested.
The accused are all men of the same village and the
eye-witnesses know them by name. l'he murder took
••
.. ,
•
S.C.R.
SUPREME COURT REPORTS
151
place in daylight and within a few feet of the two
eye-witnesses. If the witnesses had said, "I know
. there were five assailants and I am certain of A, B
and C.
I am not certain of the other two but think
they were D and E", a conviction of A, Band C, provided the witnesses are believed, would be proper .
But when the witnesses are in no doubt either about
the number or the identity and there is no suggestion
about mistaken identity and when further, the circumstances shut out any reasonable possibility of that,
then hesitation on the part of the Judge can only be
ascribed, not to any doubt about identity but to doubt
about
the number
taking part. The doubt is
not whether D and E have been mistaken for somebody else but whether D and E have been wrongly
included to swell the number to five.
Again, it is possible for a witness to say that
"A, B, C, D, E and others, some ten or fifteen in
number, were the assailants". In that event, assuming always that the evidence is otherwise accepted, it is
possible to drop out D and E and still convict A, B
and C with the aid of section 149. But that again is
not the case here. No one suggests that there were
more than seven; no one suggests that the seven, or
any of them, were, or could be, other than the seven
named.
Nor is it possible in this case to have recourse to
section 34 because the appellants have not been charged
with that even in the alternative, and the common
intention required by section 34 and the common
object required by section 149 are far from being the
same thing. In the circumstances, we find ourselves
unable
to
allow
the
conviction
to
rest on
the insecure"foundations laid by the High Court.
We
have accordingly reviewed the evidence for ourselves.
Mr. Sethi took us elaborately through it. In our
opinion, 1Jhe learned Sessions Judge's conclusions are
right.
We are unable to agree with the learned Judges of
the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation
1953
Dalip·Singh
and Others
v.
St,ate of Punjab.
Bose J.
1963
Dalip Singh
and Others
v.
Stata of Punjab.
BoseJ.
152
SUPREME COURT REPORTS
[i954l
for such an observation is based on the fact that the
witnesses are women and that the fate of seven men
hangs on their testimony, we know of no such rule.
If it is grounded on the reason that they are closely
related to the deceased we are unable to concm·.
This
is a fallacy common to many criminal cases and one
which another Bench of this court endeavoured to
dispel in Ranieshwar v. The State of Rajasthan('). We
find, however, that it unfortunately still persists, if
not in the judgments of the courts, at any rate in the
argu_ments of counsel.
A witness is normally to be considered independent
m1less he or she springs from sources which are likely
to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to
wish to implicate him falsely.
Ordinarily, a close
relative would be the last to screen the real culprit and
falsely implicate an innocent person. It is true, when
feelings run high and there is personal cause for
enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along
with the guilty, but foundation must be laid for such
a · criticism and the mere fact of relationship far from
being a foundation is often a sure guarantee of truth.
However, we are not attemptiirg any sweepii1g generalisation. Each case must be judged on its own facts.
Our observations are only made to combat wlrnt is so
often put forward in cases before us as a general rule of
prudence.
There is no such general rule.
Each case
must be limited to and be governed by its own facts.
This is not to say that ii1 a given case a ,Judge for
reasons special to that case and to that witness cannot
say that he is not prepared to believe the witness
because of his general unreliability, cir for other
reasons, unless he is corroborated. Of course, that can
be done. But the basis for such a conclusion must
rest on facts special to the particular instance and
cannot be grounded on a supposedly general rule
of prudence enjoined by law as in the. case of
accomplices.
·
(1) [1952] S.C.R. 377 at 390.
.....
•
S.C.i-t.
SUPREME COURT REPOR;rs
iti3
Now what is the ground for suspecting the testi1903
mony of these two witnesses?
The only other reason
Dalip Singh
given by the learned High Court Judges is that they
and Others
have introduced a false element into their story at
v.
the instigation of the police in order to save the State of Punjab.
"face" of the lambardars. But if that is so, it throws
a cloak of unreliability over the whole of their testimony and, therefore, though it may be safe to accept
their story where the corroborative element of the
blood-stained clothes is to be found, it would be as
unsafe to believe, on the strength of their testimony,
that at least five persons were present as it would be
to accept that the ones who have been acquitted were
present; and once we reach that conclusion section 149
drops out of the case.
We have carefully weighed the evidence of these
women in the light of the criticisms advanced against
them by Mr. Sethi, most of which are to be found in
the judgments of the lower courts, and we are impressed by the fact that the learned Sessions Judge who
saw them in the witness box was impressed with their
demeanour and by the way they stood up to the crossexamination, and also by the fact that· the learned
High Court Judges appear to believe them to the
extent that at least five persons were concerned.
Some of the accused have made general and sweeping statements to the effect that the prosecution witnesses are inimical to them but no one has suggested
why. In the long cross-examination of these witnesses
not a single question has been addressed to them to
indicate any cause of enmity against any of the accused other than the appellants Dalip Singh and Battan
Singh. A general question was asked, and it was
suggested that there was some boundary dispute
between Mst. Punnan's husband and the accused
Indar Singh and Kundan Singh but that was not
followed up by other evidence and neither Kundan
Singh nor Indar Singh suggests that there was any
such dispute in their examinations under section 342,
Criminal Procedure Code.
Kehar Singh says vaguely
that he has inherited land which will pass to the line
Bose J.
1963
Dalip Singh
and Others
v.
Stau of Punjab.
BoscJ.
SUPREME cou:R± REPOR1is
[1954]
of Rattan and Bawa if he dies without heirs but he ha8
made no effort to substantiate this.
The questions
put in cross-examination therefore remain just shots
in the dark and leave the testimony of the two women
unimpaired.
The first information report was made by Mst. Punnan (P.W. 2) herself. It was made very promptly
though this was attacked by Mr. Sethi. It was made
at 8-30 p.m. within 6t hours of the occurrence at a
place 12 miles from the police station. The victims
did not die at once and it was only natural that Mst.
Punnan's first thoughts should have been to tend
them. Next, she had to walk part of the distance and
the rest she covered in a lorry, and above all she has
not been cross-examined regarding delay.
We consider that a report made within 6! hours m such
circumstances is prompt:
Now the important thing about this report is that
it names the seven accused, no less and no more, and
from start to finish Mst. Punnan has adhered to that
story without breaking down in cross-examination and
without any attempt to embellish it by adding more
names; and in this she is supported by Mst. Charni
(P.W. 11).
Next, the blood-stained clothes found on the persons
of the four appellants afford strong corroboration as
against them, and as two courts have believed the
witnesses to that extent all we need do is to concentrate on the other three accused who have been acquitted in order to see whether there were seven persons
as Mst. Punnan says and to see whether the conclusion
of the High Court that there were at least five present
is sound.
We do not think the discovery of the weapons can
be lightly excluded.
One set was pointed out by
Jarnail Singh. In itself that might not mean much
but it is unquestionable corroboration as against Jar.
nail Singh unless the fact of discovery is disbelieved
or is considered to be a fraud.
But that is not the
finding of either court. The first court believes the
evidence and the High Court does not disbelieve it but
.-.. ..
•
-
•
S.O.R.
SUPREME COURT REPORTS
155
considers the incident as of small probative value. It
may be in itself, but it is a corroborative element in
the case of two witnesses who do not require corroboration and that makes it all the more safe to accept
their testimony.
Next comes the discovery of another set of weapons
by Sadhu Singh.
He was already implicated by
reason of some blood-stained clothes but the importance
of the discovery in his case lies in the fact that the
weapons were found in the field of Kehar Singh. It is
certainly a circumstance to be taken into consideration
that these weapons should be found in the field of a
man who was named from the start.
Then comes the fact that Mst. Punnan (P.W. 2) not
only named the various assailants in her first information report but stated exactly what sort of weapon
each was cahying.
Here again she is consistent from
start to finish except for an unessential difference in
the case of J arnail. In the first information report she
said he had a dang while in her evidence she says he
had a lathi, but as a dang is a big lathi that is not a
real discrepancy.
This, in our opinion, is impressive
consistency, especially as it tallies in general with the
post-mortem findings.
Now the fact that weapons of
this description, four stained with human blood, are
discovered at the instance of two persons she has
named from the beginning in the fields of others whom
she has also named from the start certainly does not
tend to weaken her te;;timony.
The only accused who is not in some way independently linked up with the testimony of these two
women is Indar. But when their stories find corroboration on so many important particulars we see no reason
why they should be disbelieved as regards Indar,
always remembering that these are not witnesses who
require corroboration under the law.
In our opinion,
the High Court was unnecessarily cautious in acquitting the other three accused when the learned J ud~es
were convinced that at least five persons were
concerned.
-
1953
Dalip Singh
and Others
v.
State of Punjab.
Bose J.
1958
Dalip Singh
a.nd Others
v.
State of Punjnb.
Bose J.
156
SUPREM~ COURT REPORTS
[1954]
We have taken into consideration the fact that the
High Court considers tpat the portion of Mst. Punnan's story regarding the lambardars has been falsely
introduced by the police, also that both courts have
rejected the evidence about the dying declaration.
Despite that, we agree with the learned Sessions Judge
that Mst. Punnan and Mst. Charni are to be believed
regarding the main facts and that they correctly
named all seven accused as the assailants.
On that
finding the conviction under section 302 read with
section 149 can he sustained.
VVe accordingly uphold
these convictions.
The acquittals in the other three
cases will of course stand but the mere fact that these
persons have, in our opinion, been wrongly acquitted
cannot affect the conviction in the other cases.
On the question of sentence, it would have been
necessary for us to interfere in any event because a
question of principle is involved. In a case of murder,
the death sentence should ordinarily be imposed
unless the trying Judge for reasons which should
normally be recorded considers it proper to award the
lesser penalty. But the discretion is his and if he
gives reasons on which a judicial mind could properly
found, an appellate court should not interfere.
The
power to enhance a sentence
from transportation
to death should very rarely be exercised and only
for the strongest possible reasons. It is not enough
for an appellate court to say, or think, that if left to
.-
f--
itself it would have awarded the greater penalty
.,.lh
because the discretion does not belong to the
appellate court hut to the trial Judge and the only
ground on which an appellate court can interfere is
that the discretion has been improperly exercised, as
for example where no reasons are given and none can
he inferred from the circumstances of the case, or
where the facts are so gross that no normal judicial
mind would have awarded the lesser penalty.
None of these elements is present here. This is a case
. , in which no one has been convicted for his own act but
is being held vicariously responsible for the act of
another or others. In cases where the facts are mure
•
•
...
•
S.C.R.
SUPREME COURT REPORTS
157
1953
fully known and it is possible to determine who inflicted blows which were fatal and who took a lesser part,
Dalip Singh
it is a sound exercise of judicial discretion to discriand Others
minate in the matter of punishment. It is an equally
v.
sound exercise of judicial discretion to refrain from State of Punjab.
sentencing all to death when it is evident that some
would not have been if the facts had been more fully
known and it had been possible to determine, for
example, who hit on the head or who only on a thumb
or an ankle; and when there are no means of determining who dealt the fatal blow, a judicial mind can
legitimately decide to award the lesser penalty in all
the cases.
We make it plain that a Judge is not
bound to do so, for he has as much right to exercise his
discretion one way as the other. It is impossible to
lay down a hard and fast rule for each case must
depend on its own facts.
But if a Judge does do so
for reasons such as those indicated above, then it is
impossible to hold that there has not been a proper
exercise of judicial discretion.
Now the High Court do not consider these facts at
all.
They give no reasons and dispose of the matter
in one sentence as follows :
"I would ..... dismiss the appeals of the other four
and accepting the ·revision petitions change their
sentences ...... from transportation ......... to death."
That, in our opinion, is not a proper way to interfere with a judicial discretion when a question of
enhancement is concerned.
We are unable to hold
that the discretion was improperly exercised by the
learned Sessions Judge. Whether we ourselves would
have acted differently had we been the trial court is
not the proper criterion. We accordingly accept the
appeals on the question of sentence and reduce the
sentence in each case to that of transportation for life.
Except for that, the appeal is dismissed.
Sentence reduced.
Appeal dismissed.
Agent for the appellants: Naunit Lal.
Agent for the respondents: G. H. Rajadhyaksha.
~~
Bose J.