# Hazara Singh Gill v. The State

- **Citation:** [1964] 4 S.C.R. 5
- **Court:** Supreme Court of India
- **Decided:** 1961-01-09
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hazara-singh-gill-v-the-state-3178
- **Pages:** 15

## Headnote

4 S.C.R ..
SUPREME COURT REPORTS
5
trate who shall be chosen by tbe District Magistrate of
Saharanpur for their disposal according to law.
Petition allowed.
NIHAL SINGH AND ORS.
fl.
STATE OF PUNJAB
(K. SuBBA RAo, RAGHUBAR DAYAL AND J. R. MuoHOLKAR,
JJ.)
Criminal Trial-Acquittal order set aside by High CourtAppeal preferred to this Court-Procedure to be followed by this
Court in hearing the appeal-Constitution of India, Art. 136.
The appellants formed themselves into an unlawful assembly
and in pursuance of their common object caused the death of two
persons.
They were tried under ss. 148 and 302/149 of Indian
Penal Code.
The trial Court acquitted them of all the charges.
On appeal, the High Court, on a review of the entire evidence, set
aside the order of acquittal and sentenced each of them to undergo
rigorous imprisonment for life and one year respectively under the
aforesaid charges.
Hence this appeal.
Held, (per Subba Rao and Mudholkar JJ.) This Court has
full discretion to hear an appeal under Art. 136 of the Constitution on facts and law.
But this wide jurisdiction has to be regu~
lated by the practice of this Court. There are two ways of approach to the hearing of such an appeal by this Court : one is
to go through the entire evidence and then come to a conclusion
whether the High Court has infringed the principles laid down in
Sanwat Singh's case or whether the appeal is an exceptional one
which calls for the interference of this Court in the interest of jus·
tice. The other and more convenient method is to allow the counsel
to state the case broadly and, after going through the judgments
of the lower courts, to come to a conclusion whether the appeal
falls under one or other of the two categories mentioned above
and then, if the court is satisfied that it is a fit case to review the.
entire evidence, to do so.
The second method is a more convenient one as it also prevents the unnecessary waste of time involved in adopting the alternative procedure of treating practically such an appeal as a regular
appeal.
Obviously this Court cannot lay down an inflexible rule
of practice in this regard and it must be left to the division benches
to follow the procedure that appears suitable to them.
1963
Hazara Singh
Gill
v.
The State
of Punjab
Hidayatullah f.
1963
May, JO
1962
1963
Nihal Singh
and others
v.
State of
Punjab
•
Subba.Rao.f.
SlJPREME COURT REPORTS
[1964]
Sanwat Singh v. State of Rajasthan, [1961] 3 S.C.R. 120,.
followed.
State of Bombay v. Rusy Mistry, A.LR. 1960 S.C. 391, followed.
(2) The High Court had borne in mind the principles laid
down by this Court in Sanrvat Singh's case and had considered the
entire evidence carefully and arrived at the finding of fact as it
did. · It is not an exceptional case in which the entire evidence can
be reviewed.
(3) On the facts found no case of private defence could be
made out. This plea was not raised either before the trial court or
before High Court.
Held (per Raghubar Dayal J.) (1) Dividing the hearing of
an appeal under Art. 136 into two parts, hearing on a broader view
and later, if necessary, on facts, does not go to make a hearing
as perfect as it would be desirable for a proper adjudication of
the appeal.
(2) It is not desirable to lay down any limitation about the
scope of the jurisdiction of this Court and the limits of the exercise
of .its discretion in hearing an appeal ef this nature as this Court
has full discretion to hear an appeal on both facts and law.
CRIMINAL APPELLATE JuR1s01cTION : Criminal Appeal
No. 53 of 1962.
Appe_al by special leave from the judgment and order
dated January 9, 1961, of the Punjab High Court in Criminal Appeal No. 1018 of 1%0.
A. Rangan'IJllham Chetty and K. L. Arora, for the appellants .
B. K. Khanna and P. D. Menon, for the respondent.
!\fay 10, 1963.-The judgment of Subb;i Rao and Mudholkar JJ., was delivered by Subba Rao J. Dayal J. delivered a separate Opinion.
SuBBA RAo J.-The appeal by special leave is .directed
against the judg

## Text

4 S.C.R ..
SUPREME COURT REPORTS
5
trate who shall be chosen by tbe District Magistrate of
Saharanpur for their disposal according to law.
Petition allowed.
NIHAL SINGH AND ORS.
fl.
STATE OF PUNJAB
(K. SuBBA RAo, RAGHUBAR DAYAL AND J. R. MuoHOLKAR,
JJ.)
Criminal Trial-Acquittal order set aside by High CourtAppeal preferred to this Court-Procedure to be followed by this
Court in hearing the appeal-Constitution of India, Art. 136.
The appellants formed themselves into an unlawful assembly
and in pursuance of their common object caused the death of two
persons.
They were tried under ss. 148 and 302/149 of Indian
Penal Code.
The trial Court acquitted them of all the charges.
On appeal, the High Court, on a review of the entire evidence, set
aside the order of acquittal and sentenced each of them to undergo
rigorous imprisonment for life and one year respectively under the
aforesaid charges.
Hence this appeal.
Held, (per Subba Rao and Mudholkar JJ.) This Court has
full discretion to hear an appeal under Art. 136 of the Constitution on facts and law.
But this wide jurisdiction has to be regu~
lated by the practice of this Court. There are two ways of approach to the hearing of such an appeal by this Court : one is
to go through the entire evidence and then come to a conclusion
whether the High Court has infringed the principles laid down in
Sanwat Singh's case or whether the appeal is an exceptional one
which calls for the interference of this Court in the interest of jus·
tice. The other and more convenient method is to allow the counsel
to state the case broadly and, after going through the judgments
of the lower courts, to come to a conclusion whether the appeal
falls under one or other of the two categories mentioned above
and then, if the court is satisfied that it is a fit case to review the.
entire evidence, to do so.
The second method is a more convenient one as it also prevents the unnecessary waste of time involved in adopting the alternative procedure of treating practically such an appeal as a regular
appeal.
Obviously this Court cannot lay down an inflexible rule
of practice in this regard and it must be left to the division benches
to follow the procedure that appears suitable to them.
1963
Hazara Singh
Gill
v.
The State
of Punjab
Hidayatullah f.
1963
May, JO
1962
1963
Nihal Singh
and others
v.
State of
Punjab
•
Subba.Rao.f.
SlJPREME COURT REPORTS
[1964]
Sanwat Singh v. State of Rajasthan, [1961] 3 S.C.R. 120,.
followed.
State of Bombay v. Rusy Mistry, A.LR. 1960 S.C. 391, followed.
(2) The High Court had borne in mind the principles laid
down by this Court in Sanrvat Singh's case and had considered the
entire evidence carefully and arrived at the finding of fact as it
did. · It is not an exceptional case in which the entire evidence can
be reviewed.
(3) On the facts found no case of private defence could be
made out. This plea was not raised either before the trial court or
before High Court.
Held (per Raghubar Dayal J.) (1) Dividing the hearing of
an appeal under Art. 136 into two parts, hearing on a broader view
and later, if necessary, on facts, does not go to make a hearing
as perfect as it would be desirable for a proper adjudication of
the appeal.
(2) It is not desirable to lay down any limitation about the
scope of the jurisdiction of this Court and the limits of the exercise
of .its discretion in hearing an appeal ef this nature as this Court
has full discretion to hear an appeal on both facts and law.
CRIMINAL APPELLATE JuR1s01cTION : Criminal Appeal
No. 53 of 1962.
Appe_al by special leave from the judgment and order
dated January 9, 1961, of the Punjab High Court in Criminal Appeal No. 1018 of 1%0.
A. Rangan'IJllham Chetty and K. L. Arora, for the appellants .
B. K. Khanna and P. D. Menon, for the respondent.
!\fay 10, 1963.-The judgment of Subb;i Rao and Mudholkar JJ., was delivered by Subba Rao J. Dayal J. delivered a separate Opinion.
SuBBA RAo J.-The appeal by special leave is .directed
against the judgment of the High Court of Judicature for
Punjab at Chandigarh setting aside that of the Second
Additional S~ssions Judge, Ferozepore, acquitting the 5
appellants of the charges under s. 148 and ss. 302/149 of
the Indian Penal Code and convicting them under the
said sections and sentencing each of them to rigorous imprisonment for life and one year respectively.
The prosecution case may be briefly stated : On December 23, 1959, the 5 appellants formed themselves into
an unlawful assembly and in pursuance of their common
object caused the death of Gurdit Singh and his son
Pal Singh.
At about sunset time on that date, the
•
-
-. ,
)
4 S.C.R.
SUPREME COURT REPORTS.
7
five appellants were present in the haveli of Banta
Singh, the father of Nihal Singh, Appellant 1.
When
Tara Singh was proceeding towards his house, the 5
appellants, armed with deadly weapons, came out of the
haveli and chased him for the purpose of assaulting him.
At that time Ranjit Singh, who was watering his cattle
at a nearby well, asked them not to beat Tara Singh. Tara
Singh also raised an alarm when he was being pursued by the appellants.
Gurdit Singh, father of Ranjit Singh, Gurdit Singh' s another son Pal Singh and
Pal Singh' s son Balbir Singh also came out of their
house on hearing the alarm raised by Tara Singh. Pal
Singh was carrying a takwa in his hand.
Gurdit
Singh and Pal Singh asked the assailants not to beat Tara
Singh. Dalip Singh, Appellant 3, caught hold of Pal
Singh from behind and Nihal Singh, Appellant 1, aimed
a dang blow at Pal Singh's head. Pal Singh used his
takwa in self-defence against Darshan Singh, Appellant
4, whereupon Harbans Singh, Appellant 5, gave a blow
with his takw1:1 to Pal Singh and the latter fell down.
Thereafter, Darshan Singh and Pritam Singh, Appellant
2 belaboured Pal Singh with their takwa when the latter
was lying on the ground. The takwa in the hand of Pal
Singh fell down from his hand and thereupon his father,
Gurdit Singh, seized the same and attempted to use it
against the appellants; Pritam Singh gave a dang b!ow to
Gurdit Singh on his head. Harbans Singh and Darshan
Singh also did likewise. Gurdit Singh died on the spot
and Pal Singh, a little time thereafter.
The appellants
were committed to the Sessions to meet the afo-esaid
charges.
The appellants pleaded "not guilty" to the charges and
stated that they were all implicated because of enmity.
The learned A<lditional Sessions Judge, on a consideration of the evidence, came to the conclusion that the pm
secution had failed to prove their case beyond all manner of doubt against any of the accused and, on that
finding, acquitted all of them.
On appeal, the High
Court, on a review of the entire evidence, came to
a different conclusion : it held that the learner! Additional Sessions Judge was completely wrong in <liscrediting the prosecution witnesses and, on that find-
!A-2 SC lniia 164
1963
Nihal Singh
and Othtts
v.
State of
Punj•b
Subba Rao /.
1963
Nihal Singh
and Others
v.
State of
Punjab
Subba Rao/.
8
SUPREME COURT REPORTS
[1%4]
ing, it convicted the appellants and sentenced them as
aforesaid.
Hence the appeal.
This Court in Sanwat Singh v. State of RajaS'than(')
laid down the following principles governing the mode
of disposing of an appeal against an order of acquittal
made by a subordinate Court :
"The foregoing discussion yields the following results: (1) an appellate Court has full powers to review the evidence upon which the order of acquittal
is founded ; (2) the principles laid down in
Sheo
Swarup's case(') afford a correct guide for the appellate Court's approach to a case in disposing of such
an appeal ; and (3) the different phraseology used
in the judgments of this Court, such as, ( i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons'', and (ii) "strong reasons" are not
intended to curtail the undoubted power of an appellate Court in an appeal against acquittal to review the entire evidence and to come to its own conclusion ; but in doing so it should not only consider every matter on record having a bearing on
the questions of fact and the reasons given by the
Court below in support of its order of acquittal
in its arriving at a conclusion on those facts, but
should also express those reasons in its judgment,
which lead it to hold that the acquittal was not
justified."
But the more difficult question is to define the scope
of the jurisdiction of this Court and the limits of the
exercise of its discretion in an appeal under Art. 136
of the Constitution against the judgment of the High
Court convicting an accused after setting aside the order
of acquittal made by a subordinate Court.
Article 136
of the Constitution is couched in the widest phraseology.
This Court's jurisdiction is limited only by its
discretion.
It can, therefore, in its discretion, entertain an appeal and exercise all the powers of an appellate
Court in respect of judgments, decrees, determinations,
sentences or orders mentioned therein. It means that this
Court has undoubtedly jurisdiction to interfere even with
(1) [1961] 3 S.C.R. 120, 129.
(2) [1934] L.R. 61 I.A. 398.
-
-r
,.
.)
4 S.C.R.
SUPREME COURT REPORTS
9
findings of fact arrived at by the High Court in an appeal
setting aside those of a subordinate Court acquitting the
accused. But this wide jurisdiction has to be regulated by
. the practice of this Court. The fact that the appellate
Court in setting aside the order of acquittal has not followed the principles laid down by this Court in Sanwat
Singh's case(') may certainly be a ground for this
Court interfering with .the judgment of the High Court.
But if the High Court, having followed the aforesaid principles, has considered the evidence and given
findings of fact thereon, we think the same practice
obtaining in this Court in regard to findings of fact
in appeals under Art. 136 of the Constitution may
conveniently be adopted. This Court in State of Bombay v. Rusy Mistry(") has recorded the practice obtaining in this Court in regard to the regulation of the exercise of its jurisdiction under Art. 136 of the Constitution in
criminal appeals thus at p. 395 :
Article 136 of the Constitution does not confer
a right of appeal on any party from the decision of
a Court ; but it confers a discretionary power on the
Supreme Court to interfere in suitable cases.
It is
implicit in the discretionary power that it cannot
be exhaustively defined. It cannot obviously be
so construed as to confer a right on a party
where he has none under the law.
The practice of the Privy Council and that followed by
the Federal Court and the Supreme Court is not
to interfere on questions of fact except in exceptional cases, when the finding is such that "it shoch
the conscience of the Court" or "by disregard to the
forms of legal process or some violation of the principles of natural justice or otherwise substantial and
;
grave injustice has been done.
The same practice may also govern the exercise of
discretion of this Court in disposing of an appeal against
a judgment of an appellate Court setting aside an order
of acquittal made by a subordinate Court. Shortly stated,
ordinarily this Court addresses itself to two questions when
such an appeal comes before · it for disposal, namely,
-1
(1) [1961] 3 S.C.R. 120, 129.
( 2) A.LR. 1960 S.C. 391.
2-2. s c. lddia/64.
1963
Nih•l Singh
and Others
v.
State of
Puniab
Subba Rao f. '
1963
Nihal Singh
and Others
v.
State of
Punjab
Subba Rao/.
10
SUPREME COURT REPORTS
[1%4]
(i) did the appellate Court follow the principles laid
down by this Court in Sanwat Singh's case(') in appreciating the evidence ; and (ii) if it did, is it one
of those exceptional cases which calls for the interference of this Court.
There are two ways of approach
to such an appeal : one is to go through the entire evidence as this Court does in a regular appeal and then
come to a conclusion whether the High Court has infringed the principles laid down in Sanwat Singh's
case(') or to ascertain whether the appeal is an exceptional one which calls for the interference of this
Court in the interest of justice.
The other and more
convenient method is to allow the counsel to state the
case broadly and, after going through the judgments
of the lower Courts, to come to a conclusion whether
the appeal falls under one or other of the two categories mentioned above and then, if the Court is satisfied that it is a fit case to review the entire evidence,
to do so.
Obviously this Court cannot lay down an
inflexible rule of practice in this regard and it must
be left to the division Benches dealing with such appeals to follow the procedure that appears suitable to them.
But it may not be out of place to observe that in our view
the second method is a more appropriate or at any
rate a more convenient one, for while it enables this
Court to do justice in an appropriate case, it also prevents the unnecessary waste of time involved in adopting
the alternative procedure of treating practically such an
appeal as a regular appeal.
Let us now look at the contentions of the parties from
the said perspective. The prosecution story was deposed
to by three eye-witnesses, Ranjit Singh (P.W. 2), Saudagar Singh (P.W. 3) and Balbir Singh (P.W. 4) and by
Balwant Singh, Sarpanch (P.W. 7), who is _alleged to
have gone to the spot immediately after the occurrence.
This oral , evidence is also sought to be corroborated by
the production of weapons by the . accused persons. The
learned Additional Sessions Judge discarded the evidence
mainly on the following grounds : (1) The distance
between the haveli of Banta Singh and the place of
(') [1961]
3 S.C.R. 120, 129.
-
., -
-
4 S.C.R.
SUPREME COURT REPORTS
11
occurrence is 17 karams i.e., about 85 feet, and that
between the place of occurrence and the gate of the
house of Pal Singh is 22 karams, i.e., about 110 feet,
and therefore it is not possible that the impact between the assailants and the deceased persons could have
taken place at the place of clash as described by the
prosecution witnesses.
(2) The time when the murders were committed was about 9 p.m. and not sunset
time as has been described by the prosecution witnesses.
for (a) the medical evidence showed that there was semidigested food of about 2 lbs. in the stomach of Gurdit
Singh and also 12 ounces of urine in his bladder, which
indicated that he should have been done to death when
asleep after taking meals ; (b) as P.W. 1 the lady doctor has stated that the likely duration betwen the injuries inflicted on the two deceased persons and their
death was about 4 or 5 hours ; this circumstance contradicts the evidence that they succumbed to the injuries soon after they were injured; (c) the distance
between the village of occurrence and the police station Mallan 'Vala is about 6t miles and therefore
P.W. 2 who gave the first information report should
have reached the police station at the latest at about
9 p.m., but as a matter of fact the report was lodged
at about 12.45 a.m. on December 24, 1959. (3) (a) While
P.W. 2 stated that the deceased Gurdit Singh gave a
takwa blow on the head of Nihal Singh, the doctor's
examination did not disclose that there .was any injury on
the head of Nihal Singh, but there was only an abration
t"X !/' on the back of his left thumb ; (b) while P.W. 3
stated that deceased Gurdit Singh had used takwa against
Dalijl Singh, the doctor was not in a position to state
the nature of the weapon with which the injury found
on him was inflicted. ( 4) Dalip Singh not having been
found with any weapon, his name should have been falsely introduced by the prosecution.
(5) P:W. 7 stated
in the cross-examination that he could not say that
the blood found in the two places near the chow k was
a masha or more and that it negatived the story of
the murder of two persons at the place of occurrence. And
( 6) there are discrepancies in minor particulars between
the evidence of different witnesses.
1963
Nihal Singh
and 0th.rs
v.
State of
Puniab
Subba Rao /,
1963
Nihal Singh
and Others
v.
State of
Puniab
Subba Rao/.
12
SUPREME COURT REPORTS
[1964]
The High Court was satisfied that the learned Additional Sessions Judge magnified the importance of minor
aspects of the evidence and minimised or ignored its basic
features. Having due regard to the principles laid down
by this Court in Sanwat Singh's case(1 ), the High Court
considered the evidence over again in detail and came to
the conclusion that the prosecution had brought home the
guilt to the accused.
On that view, the High Court,
as we have already stated, convicted the accused and
sentenced them.
Mr. A. Ranganadham Chetty, for the appellants,
contends that the learned Additional Sessions Judge had
taken a reasonable view of the evidence and the High Court
wrongly took a different view by not appreciating the
important circumstances which weighed with the Additional Sessions Judge and that, on the evidence, a clear
case of private defence has been made out.
The important ground that appealed to the learned
Additional Sessions Judge was that, having regard to the
distances, the deceased could not have been murdered at
the place where it is alleged by the witnesses that
they· were so murdered.
If we may say so, this argument on the basis of time and distance and the movements of witnesses is highly hypothetical and artificial,
for the simple reason that it is impossible to expect
any witness, much less an illiterate one, to describe
the said particulars in such a scientific detail as to
stand the test of calculation.
But that is what the
learned Additional Sessions Judge did and it was rightly
discarded by the High Court.
-
-<:'
The next circumstance strongly relied upon is the
~
insect bites found on the dead body of Pal Singh. Dr.
Balbir Kaur, the lady doctor, in her post-mortem examination of the dead body found that "both nostrils,
lower lips and fore-head bore the insect bite". Udham
Singh the Police Officer, in his injury statement, described the said injuries as "the bite marks of some
animal like a rat on the nose, the lower lip, the right
cheek and the lid of left eye".
The lady doctor's description may be accepted as more accurate. It is, there-
(1) [1961] 3 S.C.R. 120, 129.
-
' '
4 S.C.R.
SUPREME COURT REPORTS
13
fore clear that there was some insect bite on the face
of the deceased Pal Singh.
The c~ntention is that no
rat or insect could have bitten a dead body in the room
in which it was placed when the light was burning,
when it was covered and when so many people were
present by its side, and, therefore, the said bite must
have been caused by some rat or rats when the deceased
was sleeping at about 9 p.m. near a sugar-cane crusher
installed in the field. It is true that there is some evidence that sugar-cane crusher was purchased, though it
was not installed and it was in a vacant space measuring about 5 to 6 mar/as at the back of Ranjit Singh's
house.
But from this it would be an unreasonable inference that the witnesses were not speaking the truth.
We do not see any improbability in some insect or rat
getting under the cloth covering the deadbody and biting it.
Another circumstance which has been magnified by the
learned Additional Sessions Judge is the discovery at the
time of post-mortem of not less than 2 lbs. of semi-digested
food in the stomach and 12 ounces of urine in the bladder
of the deceased Gurdit Singh.
It is said that this circumstance demonstrates that the said deceased must have taken
his food and must be sleeping when he was murdered, for
if he was murdered at 5.30 pm. as the witnesses deposed
there woutd not have been such se_mi-digested food in the
stomach of the deceased or such a large quantity of urine
in his bladder. The High Court pointed out that the said
circumstances cannot afford a reliable basis of ascertaining
the time of death, particularly when there is nothing on
the record to show that the deceased had not taken any food
a couple of hours before he was attacked. Apart from the
fact that the time required to digest food varies depending
upon the nature of the food taken, the digestive capacity of
the individual concerned and his health at a particular
time, it is also not possible to rely upon such evidence unless there is some definite evidence that the deceased had
not taken any substantial food within a few hours before
his death. Without such definite data, a Court cannot
come to any conclusion on the general habit of villagers
taking lunch at 1 p.m. and dinner at 7 p.m. The capacity
to retain urine for longer time than usual depends upon
1963
Nihal Singh
and Others
v.
Stllte of
Puniab
Subba Rao/.
1963
NihaJ Singh
and Others
v.
State of
Punjab
Subba Rao/.
SUPREME COURT REPORTS
(1964)
individual habits. That apart this aspect of the .case was
not pursued in the cross-examination of the doctor and no
question was put to her on the basis of the said two factors.
The High Court was, therefore, right in holding
that the learned Additional Sessions Judge was wrong in
giving undue importance to the said circumstances.
The learned Additional Sessions Judge again relied
upon the statement of Dr. Balbir Kaur to the effect that
the duration between the infliction of the injuries on the
deceased and their death might be 4 or 5 hours and concluded that the witnesses were not speaking the truth when
they said that the deceased succumbed to the injuries either
on the spot or immediately after receiving the injuries. The
doctor in her evidence said that in the case of Gurdit Singh
the injuries were anti-mortem in nature and that the prob-.
able time between the infliction of the in juries and death
was a few hours or so and that in the case of Pal Singh
also she said that the probable time between the infliction
of the injury and death was a few hours.
This evidence
was only a mere surmise and was neither intended to be
accurate nor was it based up any scientific data. She only
meant that death had taken place within a few hours after
the incident. Such a bald opinion could not certainly outweigh the direct evidence in the case. Some argument was
made in regard to the alleged delay in lodging the first
information report at the police station in support of the
contention that the murder must have been committed in,
the night. According to the prosecution the murder was
committed at 5.30 p.m. ; the first information report was
lodged at 12.45 a.m. the next day i.e., just after midnight.
From this it is stated that the distance between the place of
the incident and the police station is only 6! miles and
that there is some evidence to show that the parties went
on mares and that the delay in giving the report supports
the case that the murder must have been committed only
in the night. That was accepted by the learned Additional
Sessions Judge. The High Court rightly pointed out that
in the circumstances of the case the first information
report was neither unduly nor unnecessarily delayed. Ranjit Singh stated in the evidence that he did not use mares
at all in going to the police station, as the road was not fit
for using them and the witnesses also stated that they
(
-
-
-
4 S;C.R.
SUPREME COURT REPORTS
15
wanted to go quietly without being noticed by the accused
who were hovering about the place. In the circumstances
we agree with the High Court that there was no such delay
as to discredit the evidence on the ground that the first
information report was concocted and the evidence was so
shaped as to fit in the version given in the first information report.
Another fact relied upon by the learned Additional
Sessions Judge in discrediting the eye-witnesses is that
the witnesses stated that the deceased gave a takwa blow
on the head of Nihal Singh, but the medical examination
showed only a s~all abrasion on his left thumb. The
High Court explained that the witnesses must be describing only the movements of the accused with their weapons
and they could not obviously give evidence as to where a
particular weapon hit the body, for that would depend
upon not only the manner in which the persons wielded their weapons but also on the movements of the
victim.
A hit aimed at the head may, if the victim
moves aside, miss altogether the body of the victim
or fall on a part of his body different from that aimed at.
There is certainly force in what the High Court said.
It was then stated that according to some prosecution
witnesses the accused had raised their weapons with a view
to using them against Tara Singh and indeed surrounded
him and that, if that version was upheld, it was impossible for Tara Singh to escape unhurt. If that be
so, the argument proceeded, the version given by the
prosecution witnesses must be untrue. This argument
is built upon the English expression "surrounded", which
is translated from a corresponding word in the Punjabi
language. ·We are told that the Punjabi expression would
also mean "pursued". Be it as it may, no argument could
be built upon that; because in the context, the witnesses
could have only meant that the accused pursued Tara
Singh.
We have been taken through the judgment of the High
Court. We are satisfied that the High Court has borne
in mind the principles laid down by this Court in Sanwat
Singh's case(') and has considered the entire evidence
{ 1 ) [19611 3 S.C.R. 120, 129.
1963
Nihal Singh
and Others
v.
State of
Puniab
Subba Rao, f.
1963
Nihal Singh
and Others
v.
State of
PunjRb
Subba Rao/.
16
SUPREME COURT REPORTS
[1964]
carefully and arrived at the finding of fact as it did.
We do not see any exceptional circumstances to depart
from the usual practice and review the evidence overagam.
Then it is contended that on the facts found a
case of private defence has been made out. It may be
mentioned that the plea of private defence has not been
taken either before the learned Additional Sessions
Judge or before the High Court on appeal. Nor is there
any foundation for such a plea on the facts found. The
argument is mainly built upon the description of the
event by the eye-wit~esses. P.W. 2 described the incident thus :
"While the accused were still chasing Tara Singh,
my father Gurdit Singh and brother Pal Singh came
out of their house, Pal Singh armed with a tak wa.
When Gurdit Singh and Pal Singh came out of
their house they requested the accused not to beat
Tara Singh. Dalip Singh, accused, on hearing those
words of Gurdit Singh and Pal Singh, took Pal Singh
m his grasp from behind.
At that stage Nihal
Singh, accused, gave a dang blow at the head of
Pal Singh, Pal Singh then used his takwa in selfdefence, against Darshan Singh, accused, using the
blunt side thereof.
Thereafter, Harbans Singh accused, gave a takwa blow usmg the blunt side
thereof to Pal Singh.
It is argued· that after Tara Singh practically escaped
from the attacks of . the assailants, Darshan Singh just
held the hand , of Pal Singh from behind whereupon
Pal Singh used his Takwa and in self-defence the accused used their weapons. This ~rgument was addressed
on the assumption that no takwa blow was aimed on the
head of Pal Singh and the accused only grasped Pal Singh.
If that was so, the argument proceeded, Pal Singh in using
his takwa was the aggressor and, therefore, the accused were entitled to defend themselves.
If we accept
this argument, we would be misreading the· evidence.
Dalip Singh, the accused, caught hold of Pal Singh
from behind which enabled Nihal Singh to give a blow
t
to him. The said act of Dalip Singh and the immediate
-
4 S.C.R.
SUPREME COURT REPORTS
17
blow given to Pal Singh by Nihal Singh followed by the
subsequent blows by the other accused leave no scope for
the argument of private defence. The accused were certainly aggressors and no question of private defence would
arise in this case.
Lastly it is contended that the prosecution has not
established any common object of the accused to murder the deceased and, therefore, the High Court was
wrong in convicting them under ss. 302/149 of the
Indian Penal Code.
It is said that nothing has been
suggested in the evidence that the accused were lying
in wait to kill Tara Singh or his rescuers, that the incident developed suddenly and, therefore there is no
common object to kill either of the two deceased. But
the evidence clearly discloses that all the accused conjointly took active part in inflicting serious injuries on
the two deceased.
Accused-3 grasped Pal Singh from
behind, Accused-1 gave a dang blow on his head, Accused-5 gave a takwa blow on him, and after the victim
fell clown, Accused-2 and 4 gave soti blows to him while
he was lying on the ground ; so too, Accused-2 gave a dang
blow on the head of Gurdit Singh, Accused-5 gave a
takwa blow to him and after Gurdit Singh fell down,
Accused-4 gave a soti blow to him.
It is, therefore,
obvious that all the accused were armed with deadly
weapons and that as soon as Tara Singh came they rushed at him and when the deceased came to rescue him they
conjointly used those weapons and gave them serious injuries which ended in their immediate death. In the circumstances the object to kill the deceased was writ large
on the evidence. There is no force in this argument.
In the result, the appeal fails and is dismissed.
RAGHUBAR DAYAL J.-1 agree that the appeal be dismissed. I, however, state about the approach of the Court
to such appeals. I do not consider it desirable to lay down
any limitation about the scope of the jurisdiction of this
Court and' the limits of the exercise of its discretion in an
appeal under Art. 136 against the judgment of a High
Court convicting an accused after setting aside the order
of acquittal made by a subordinate court. The entire exercise of the Court's discretion under Art. 136 is solely dependant on the views of a particular Bench deciding a
1963
Nihal Si,.gh
and Others
v.
State of
Punj4b
Subba Rao/.
Raghubar
Dayal/.
1963
Nihal Singh
and Others
v.
State of
Punjab
Raghubar
Dayal /.
. '
18
SUPREME COURT REPORTS
[1964]
certain appeal on the basis of the fa.cts and law and it is
for that Bench as to how to proceed to hear and decide
that appeal. No useful purpose to my mind, is served by
laying down what appears to a certain Bench to be a preferable mode for hearing such appeals and when to interfere with the order of the Court below.
It is admitted that the jurisdiction of this Court is
wide. Ordinarily one would like to exercise it according
to the practice of the Court if that be definite and uniform. Different Benches appear to have proceeded in different manner and to have had different objective outlook on the appeal. Reference may be made to the observations of this Court in Harnam Singh v. State of
Punjab(').
It is really for the Bench hearing the special leave petition to consider as fully as possible whether the case
deserves a hearing in this Court; if it deserves a hearing
whether that is to be limited to any particular aspect
of law or fact and that therefore if the Bench grants
special leave, it should make clear the matters on which
it considers a hearing in this Court desirable or necessary.
If no such indication is given, I would prefer
that the appeal be heard both on facts and law. Of
course everybody is agreed that the appeal is to be heard
on points of law. There is also some common agreement
that one should not lightly interfere with the findings
of fact arrived at by the High Court, but in this matter there is always wide · scope for different outlook.
It is better that the counsel for the parties should know
beforehand on what points that would be heard so that
they come prepared on those points.
What happens
now, to my mind, is that counsel usually come ready for
questions of law. The appellant's counsel, however, tries
to induce the Court to go into questions of fact and
whenever he succeeds he has not much to argue thereafter.
The respondent's counsel, however, is .taken unawares.
He does not come prepared to meet the appellant on facts.
He can do his best in the circumstances
to help the Court, and this .cannot be much. I therefore
feel that dividing the hearing of an appeal under Art. 136
(') [1962.J Supp. I s,c.R. 104.
-
-
-
4 s.c.R.
SUPREME COURT REPORTS
19
into two parts, hearing on a broader view and later, if
necessary, on facts, does not go to make a hearing as perfect as it would be desirable for a proper adjudication of
the appeal. If parties know that once they obtain special
leave without limitations they will be free to argue on
facts, they will come prepared and will present the case as
best a~ possible for their clients, and the Court too would
be in a better position to decide.
Of course, after hearing the appeal fully, this Court
is in the best position as to how to dispose of the appeal.
It can surely dispose of it by merely stating that it sees no
reason to consider the findings of fact to be incorrect or it
may consider those findings and express a different opimon.
I would, however, as stated earlier, not like to express
anything with respect to how such an appeal be heard by
this Court, when it is not doubted that this Court has full
discretion to hear an appeal on facts and law and has, for
similar reason laid down that the High Court has full
power to review evidence when hearing an appeal against
acquittal under s. 423 Cr. P.C.
Appeal dismissed.
BADA T AND
CO.
v.
EAST INDIA TRADING CO.
(K. SuBBA RAo, RAGHUBAR DAYAL AND J. R. MuoHOLKAR,
JJ.)
Foreign Award and /udgment-Suit filed
in
Romhay High
Court-Jurisdiction of Court to entertain the suit based on such
documents.
The respondent company, which
was
incorporated in New
York and carried on business
in
spices, brought a suit in the
original side of the Bombay High Court against the appellant for
recovery of a sum of Rs. 92,884-4-10 on the basis of a judgment
of the Supreme Court of the State of New York affirming two
awards obtained by it and also on the awards in the alternative.
!963
Nihal Singh
and Others
v.
State of
Punjab
Raghubar
Dayal /.
1963
May, HJ