# KESARSINGH v. STATE OF PUNJAB

- **Citation:** [1974] 3 S.C.R. 487
- **Court:** Supreme Court of India
- **Decided:** 1974-03-04
- **Bench:** M. H. Beg Andy. V. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kesarsingh-v-state-of-punjab-6090
- **Pages:** 7

## Headnote

Criminal Practice.
Conviction for murder-Sentence.
487
The appellant was charged with an offence under s. ~02, Indian Penal Code of
murdering three persons. The trial court found that there was enough evidence to
show that the appellant was one of murderers of one of the three men and sentenced
him to life imprisonment. The High Court enhanced the sentence to one for death
on the grounds: that, the motive was to avenge murder of the appellant's brotherin-law committed some years prior to the occurrence so that there could be no
immediate provocation; that, the three murders were committed in very coldblooded and brutal manner when the deceased were sleeping on their cots; that, two
shots from a 12 bore gun had been fired at each of the three murdered men indicating
the-determination to give no chance of survival to anyone; that, the time selected for
the murder was such that no possible help could be rendered to,iprevent the death of
any of the three deceased and no obstruction could be possible to carry out the
design of committing these murders.
Allowing the appeal in part,
HELD : A criminal case is not tied down to a particular version as a clvii case
is by the pleading of the parties. Moreover, there is so much of explicable inaccuracy
often intermingled with imagination and exaggeration by witnesses who are coni·
vinced of the guilt of a particular accused person that courts dealing with criminal
cases cannot throw the whole case over-board simply because parts of it are improbable. To hold that a version is improbable is not to disbelieve entirely or to
find it to be false.ltmaybethat factsaresometimesstrangerthanfiction. Prudence,
however compels courts to test the version advanced in the light of what is reason·
ably to be expected from the ordinary or usual norrns of human conduct and tl:e
common course of natural events so as to infer what may have actually happened.
In a criminal case conviction must rest on a proof so strong that the court musl te
convinced that what is concluded must necessarily have happened and is not really
explicable in any other way. [492A-DJ
In the instant case although the appellant was .guilty of an offence punishable
under s. 302 Tndian Penal Code, all the reasons given by the High Court for awarding
the death sentence have not been substantiated. The evidence only disclosed thr.t
it was more likely that the appellant wM one of the several murderers and that
he caused the death of only one man with his gun, the other having b~-en killed by
others who were not recognised, and, therefore, nothing, apart from the occurrence,
proved about the character of the appellant. Nothing was disclosed about tile
antecedents of the}
app~!lant. Therefore, the real basis adopted by the High
Court for enhancing the ~en!ence of the appellant would disappear. [493A·CJ
-
CRIMINAL APPELLATE JuRrsorcno~ : Criminal App~al No. 167
of 1973.
Appeal by special leave from the judgment and order dated the
24th April, 1973, of the Punjab and Haryana High Court at Chandigarh
in Criminal Appeal No. 29 of 1972 and Criminal Revision No. 224 of
1972.
Nuruddin Ahmed and JP. Goburdhun, for the appellant.
H.R. Khanna, 0. P. Sharma and R. N. Sachthey, for the respondent.
•
-
488
SUPREME COURT REPORTS
U9741 3-s.c.R.

## Text

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KESARSINGH
v.
STATE OF PUNJAB
March 4, 1974
[M. H. BEG ANDY. V. CHANDRACHUD, JJ.J
Criminal Practice.
Conviction for murder-Sentence.
487
The appellant was charged with an offence under s. ~02, Indian Penal Code of
murdering three persons. The trial court found that there was enough evidence to
show that the appellant was one of murderers of one of the three men and sentenced
him to life imprisonment. The High Court enhanced the sentence to one for death
on the grounds: that, the motive was to avenge murder of the appellant's brotherin-law committed some years prior to the occurrence so that there could be no
immediate provocation; that, the three murders were committed in very coldblooded and brutal manner when the deceased were sleeping on their cots; that, two
shots from a 12 bore gun had been fired at each of the three murdered men indicating
the-determination to give no chance of survival to anyone; that, the time selected for
the murder was such that no possible help could be rendered to,iprevent the death of
any of the three deceased and no obstruction could be possible to carry out the
design of committing these murders.
Allowing the appeal in part,
HELD : A criminal case is not tied down to a particular version as a clvii case
is by the pleading of the parties. Moreover, there is so much of explicable inaccuracy
often intermingled with imagination and exaggeration by witnesses who are coni·
vinced of the guilt of a particular accused person that courts dealing with criminal
cases cannot throw the whole case over-board simply because parts of it are improbable. To hold that a version is improbable is not to disbelieve entirely or to
find it to be false.ltmaybethat factsaresometimesstrangerthanfiction. Prudence,
however compels courts to test the version advanced in the light of what is reason·
ably to be expected from the ordinary or usual norrns of human conduct and tl:e
common course of natural events so as to infer what may have actually happened.
In a criminal case conviction must rest on a proof so strong that the court musl te
convinced that what is concluded must necessarily have happened and is not really
explicable in any other way. [492A-DJ
In the instant case although the appellant was .guilty of an offence punishable
under s. 302 Tndian Penal Code, all the reasons given by the High Court for awarding
the death sentence have not been substantiated. The evidence only disclosed thr.t
it was more likely that the appellant wM one of the several murderers and that
he caused the death of only one man with his gun, the other having b~-en killed by
others who were not recognised, and, therefore, nothing, apart from the occurrence,
proved about the character of the appellant. Nothing was disclosed about tile
antecedents of the}
app~!lant. Therefore, the real basis adopted by the High
Court for enhancing the ~en!ence of the appellant would disappear. [493A·CJ
-
CRIMINAL APPELLATE JuRrsorcno~ : Criminal App~al No. 167
of 1973.
Appeal by special leave from the judgment and order dated the
24th April, 1973, of the Punjab and Haryana High Court at Chandigarh
in Criminal Appeal No. 29 of 1972 and Criminal Revision No. 224 of
1972.
Nuruddin Ahmed and JP. Goburdhun, for the appellant.
H.R. Khanna, 0. P. Sharma and R. N. Sachthey, for the respondent.
•
-
488
SUPREME COURT REPORTS
U9741 3-s.c.R.
The Judgment of the Court was delivered.by -
BEG. J.-This is an appeal by special leave filed by Kesar Singh,
ag~d 23 years, who was convicted under Section 302 Indian Penal
Code on three counts and sentenced to life imprisonment by an Additional S~ssions' Judge of Patiala for having committed the murders
of three persons, namely, Gurbachan Singh,
Karnail
Singh and
Dewan Singh, one after another, during the night between 20th and
21st June, 1970, in village Dhablan. On appeal against the conviction and a revision application by the State against the lesser penalty
for murder, the High Court of Punjab & Haryana dismissed the appeal
of Kesar Singh, but it allowed the revision application of the State of
Punjab enhancing the s!nten~ of Kesar Singh to one of·death. ·
The grounds given by the High Court for enhancing the sentence
were: the motive was tL avenge the murder of the appellant's brotherin-law Gurnam Singh committed about 7 or 8 years prior to the occurren~ so that there could ba no immediate provocation; the three
murders were committed "in a very cold blooded and brutal manner
when the deceased wer~ sleeping on their cots"; two shots from a 12
bore gun had been fired at each of the three murdered men "indicating
the determination to give no chance of survival to anyone"; "the
time selected for the murder was such that no possible help could re
rendered to prevent the death of any of the three deceased and no
obc:.truction could be possible to carry out the design of committing
these murders". Before giving these reasons, quoted mostly in the
words of the High Court itself, the High Court had relied on obser·
vations of this Court in A.pren Joseph & Ors. Vs. The- State oj
Kerafa:(l)
·
·
"The determination of sentence in a given case depends on
a variety of considerations, the more important being, the
nature of the crime, the manner of its commission, the motive
which impelled it and the character and antecedents of accuso:Jds".
Learned Counsel for the appellant has taken us through the evidence of the two eye witnesses Gurdev Singh, P. W. 3, and Nachhattar Singh, P. W. 4, whose testimony had been accepted wholly by
the Trial Court and the High Court about the murder of three men
by the appellant singly, although the Trial Court had disbelieved the
v~ry reason given for Gurdev Singh to wake up in time to see the murder of Gurbachan Singh, and, therefore, had acquitted the co-accused
Kishori.
It may be mentioned here that Gurdev. Singh, P. W. 3, was shown
to be sleeping ·on the roof of the house of his uncle Dewan Singh, from
where he could see his cousin, Gurbachan Singh, and brother Gunnel
Singh, P. W. 5, sleeping on the roof of the next house where Gurbachan
Singh was murdered on a full moon night. The prosecution version
was that, when Kesar Singh and the acquitted accused, Kishori,
went up the stairs to the roof, Gurmel Si_ngh, P. W. 5, who was totally
blind from birth, woke up and heard Kesar Singh, whom he recognised
by voice, telling Kishori to catch hold of the blind man who was awake.
(1) A.I.R. 1973 S.C. 1.
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ICESAR SINGH V, PUN.TAB (Beg, J,)
489
,.
1-{e alleged that Kishori gave him two blow~ whereupon h
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e cnc out •
••Mar Dttta
ar
1 . a •
t 1s t ese cnes which are said to
hav~
anlrened Gurdev Stngh. There were two abrasions on th b d
f
Oor~el Singh, one on the forehead and another on his ewr~t yi~-
dicatlng tha.t he had fallen down and hurt himself. The Trial &urt
I
ht.d, very ngbtly, held that he must have got up and shouted only
•
after ~he .two sho~ ha~ been fired at Guibacban Singh. There was
.B
no po1nt m assaultmg h~m merely because he was awake. If that was
do-ne he was sure ~o rruse ~ hue and cry and wake up others. Therefore, the prosecution ver~1on ,that _Guniev Singh, P. w. 3, had got
up because of Gurmel Smgh s cnes and had seen the appellant
firin~ twice: at Gurba~han Singh h~d to be discarded as too transparent
.; ...
an em~llishment With an
obviOus purpose behind it. The High
c
Court, however, had not analysed the evidence of any of the· witness. It had ob.~erved rather mechanically:
"Both Gurdev Singh and Nachhattar Singh have
given
colliistent version of the incident and their statements are wholly
free from inaccuracies
or discrepancies, even though both
these witnesses
were cros~-examined at considerable length.
Nothing at all has b~en brought out in their cross-examination
D
which would show that the story set up by them in the examina-
!ion-in-chief wa.'i not true".
Apart from the fact that the High Court l).ad not even noti12d
the very good reason.~ given by the Trial Court for discarding
the
evidence of Gurmel Singh, P. W. ~. including the fact that this witE
DC!iS, who claimed to have identified Kesar Singh by voice, could not
recognise Kesar Singh's voice when the Presiding Judge
spo~e to
K.esar Singh, during the trial, to test the correctness of the cla1m of
the 'olitness, the High Court bad overlooked a numb:er of featu~es
.brought out by cross-examination of the two eye w~tnesse~ whtch
made the version given out by them very difficult to beheve totally .•
Gurdev Singh had described Kesar Si~gh ~s wearing a blue turF
ban whereas Nachhattar Singh had descnbed tt ~ a cream colo~rcd
("Badami") turban. While Gur<lev Singh had srud that Kesar Stn~b
;
·.·:
wore a whtte shirt Nachhattar Singh had said that he was draped tn
a clw1ar with stripes on it and wore a shirt of sever a~ col?ur5. Con-
~ ~ "
~i4ering that Nachbattar Singh was said to be sleep1ng tn ~ remote
COrllCr of the enclosure around the house on the roof of w~tch Sf?u~
G.
~cha.u Singh was murdered and I?ew~n S!ngh .~nd Ka:n~~l di~~lt
were asleep nt 11omc distance from h1m sn th1s endosure, 11 1
1
to believe that Nachhattnr could have made out not Xnlti'rrtthef ~
~~r
of the turban but also the r.tripes on the chadar a:; s. . 0
e ld
s·
.
.
escnpttons cou
. 1n~n even ou a full moon night. These . v~rytng n with uns had
~icato that perhaps two different ~uthstnula~d :~tied as 1he murn seen shooting but only Kesar. Stng was I e 1
11
derer with a gun,
.
A
t ( m the cross-exanrina!lon
f
nother broad feature, brought ou
rKe
Singh was shown to
0 the witnesses, may be pointed out here.
rar
3-t.f4S Sup Cl/75
....
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4'90
SUPREME COURT REPORTS
[1974] 3 S.C.R.
have first climb:d to the mof of the house where Gurbachan Singh
was asleep and then to have come down the stairs to shoot at Karnall
Singh on his cot, and, th~reaf£er, to have shot D~:wan Singh on his
cot. 1t does appear rather unlikely that, while even a blind man
had got up, and Gurdev Singh, P. W. 3, sleeping o·n·the roof of the
next house, and Nachhattar Singh, P. W. 4, Puran Singh, P. W. 6,
declared hostile, who were als'} steeping n~ar Karnail Singh and Dewan
Singh, had got up, neither Karnail Singh nor D.!wan Singh could get
up from their cots and try to either grapple with or run away from
the assailant who was permitted to quietly reload his double barrelled
gun to shoot at each of the three men twice each time. Dewan Singh_
was, however, said to be awake and sitting up in his b~d when shot.
But, no empty cartridges were recovered. from the scene of occurrence.
The witnesses, who claimed to have oMerved everything so clos~ly,
did .not depose that Kesar Singh took out and put the spent cartridges
into a pocket.
Another difficulty in accepting the pros~cution version totaEy, a .
put forward by the two eye witnesses, is that Gurdev Singh, P. W. :;,
was shown to have rushed out of the house on the roof of which he
was sleeping and to have taken up his stand at the bottom of the
stairs down which the murderer and his companion are shown to
have
descended altho:1gh
Gurdev Singh was. empty handed and
admitted that he was .afraid of Kesar Singh who had a gun in his
poSS'!S'iion.
We find it very difficult to believe that Gurdev Singh
would have rushed and taken up his stand here to S'!e the murders o ·~
Kamail Singh and D::wan Singh if h:: had actually s'!en Kesar Sing11
shoot twice at Gurbachan Singh on the roof. We think that it is
very likely that Gurdev Singh woke up, like the others nearby. at
hearing the gun shots and took up his stand near the stairs from
where he could have S';!en Kesar Singh murdering Karnail Singh and
Dewan Singh. It is only because he had not seen the murder of Gurbachan Singh that he could b:: expected, to act like this and c()me and
stand at the bottom of the stairs, without apprehending danger to
himself, down which the murderer descended. If he had rushed
at once t() this spot in this fashion he was, mme likely, than n()t, to
have virtually
intercepted the murderer.
The broad probabilities which we have melltioned above certainly
make it difficult to accept. unhesitatingly, as the High Court had
done, the version that Kesar Singh alone shot at each of the three
men and killed them. We have, however, no doubt that Kesar
Singh was seen by the witnesses running away with a double barrelled
gun and had actually killed at least one of the three men murdered on
the night between 20th and 21st June, 1970. and could have been
seen doing so. It is likely that more than that is due to the not un.
common pr()pensity of witnes~es f() speculate, imagine, and exaggerate.
Evidence show~ that the appellant had two brothers at least one of
whom was. a resident of village Dhablan at the time of tpe. shooting.
Jf implication was only due to a desire to take revenge for three murders. the appellant would not have been the only one who would have
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KESAR SINGH v. PllNJAB (Beg, /,)
491
been alleged to have used a gun ~o shoot when there was opportunity
to implicate others too in the same position as the appellant so far as
any enmity goes. It is difficult to hold that either Gurdev Singh or
Nachhattar Singh, . who had both b:en prosecuted for the murder of
their step brother Gurnam Singh but acquitted about seven years
before the occurrence, could have any grudge for this reason. only
either against Kesar Singh or his brother Bhajan Singh both of whom
were residing with and looking after the land of Tej Kaur the widow
of Gurnam Singh. If the witnesses had implicated Kesar
Singh
merely out of suspicion they would have involved Bhajan Singh also
for the same reason.
' The statements of the two eye witnesses find corroboration from
the fairly detailed account of the occurrence of about 3 a.m. in the
F.I·R. lodged at Police Station Sadar Patiala about 10 miles away
at 8 ·25 a.m. on 21-6-1970.
It appears that Lal Singh Sarpanch and Jag Singh Panch, had
also come to the scene of occurrence after it had taken place and had
gone to the Police Station so that the F.I.R. was lodged in their presence
although they did not sign it because there was
no need for
that.
It was contended that they. ()ught to have ~en proouced by
the prosecution becausil the eye witnesses gave their accounts to
them fi~st. They were neither eye witnes.~es nor essential for unfold·
ing of the prosecution version ... If the eye witnesses had said anything
before them which could help the accused, they could have been pro·
duced in defence, or, in any case, ti)e accused could have applied
for their examination under Section- 540 Criminal Procedure Code.
'We do not think that the failure to examine these witnesses either by
the prosecution or by the Court, suo moto, can cast a doubt on the
prosecution case .
. Apart from the motive to murder, we think that the prosecution
case against the appellant finds
corroboration fom the statement
of the Investigating Officer, Kuldev Singh, P. W. 12, who deposed
that when he went to the house ofTej Kaur, looking for the appellant,
he found it locked. The appellant could be arrested only on 27·6·,1970
after a "Nakabandi" at the canal· bridge of village Dhakraba and was
found ifl illegal pos.ses~ion of the gun No. 60780 loaded with live
cartridges and with powder lining inside the barrel so that it must
have been us~d. At the trial, the appellant falsely denied this recovery and circumstances of his arrest. His conduct was a:rtainly ·
very
suspicious.
The manner in which the witnesses describe the infliction of the
injuries is also corroborated, according to the. Rig~ C?urt, by the
medical evidence. On the whole we agree wHh tlus V!eW.
Although we are not impressed by the rather read~ atld fa~ilc
acceptance by the High Court of the whole
prosecution versiOn,
which suffers from the improbabilities mentioned above, we find the
evidence to be enough to establish beyo~d reasonable doubt that
Kesar Singh was at least one of the posstbly several murderers.
f
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492
SUPREME. COURT REPORTS
£19741 3 S.C.R.,
Learned Counsel for the appellant bas s1;1bmitted that it would not
be prudent, while discarding th~ case of tnple murder against Kesar
Singh, to uphold his conviction on the assumption that he COilllllitted
at least one murder as this \Vo~ld be contrary to the.pro~cution version. It is also urged that a Witness who has been disbelieved becall'le
he has falsely implicated an accused for one murder could not be
relied upon for convicting the accused for. another murder.
We
think that a criminal case is not tied down to a particular version as
a civil case is by the pleading of the parties. Moreover, there is so
much of explicable inaccuracy often inter-mingled with imagination
and exag~;eration by witnesses who are convinced of the guilt of a
pa.rticular accused person that Courts dealing with criminal cases
C&llDOt throw the whole case OVer-board
simply because parts Of
it are improbable. To hold that a version is improbable u not to
dil!bclieve it entirely or to find it to be false. It may be that facts
arc '9metimes stranger than fiction. Prudence, however, compels
Caurt• to test the version advanced in the light of what i! reasonably
to l,>e expected from the ordinary or usual norms of human conduct
and 'the common course of natural events so as to infer what may
hue·actually happened. In a criminal case a conviction must rest on
a. proof so strong that the Court must be convince<:! that what it
concludes must necessarily have happened and is not reasonably
explicable in any other way.
We
think that the version given
by the two eye witnesses, even though it suffers from improbabilities
mentioned above, so as to make it:; total truthfulness doubtful, must
be true at least so far as participation of Kesar Singh in the murder
o~ three men by shooting at least one of them, if not both Karnail
SJD~ and Dewan Singh before their eyes is concerned. This much
C.~~· we think, be disbelieved.
As pointed out abC>ve, the parIJCipauon cf Kesar Singh in the occurrence is sufficiently corroborated
~y other facts and circwnstance.' mentioned above. Thus, · the testimony . of the two eye witnesses docs not stand ulone against the
appellant. We are unable to conclude that the two eye witne~s
hel~ng to the category of wholly unreliable witnesses so that thc1r
teStlDlDny cannot be acted upon even when corroborated by other
~c~
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It may be mentioned bere that Kesar Singh's
sister, Tej Kaur,
with whom he was saiu to be residing and who was the owner of the
licensed double barrelled gun recovered from the appellant's poises:>ion,
was
al-io
challaned
as
an
instigator, but she
was Jis·
G
charge\.1. It nuy be that the appellant h:1J grown up from ~·hildho<>d
hearing the woeful story, from his widowed sister, of the murder of
!Ji~ brother-in-law, Gurnam Singh, who was a
step-brother of Guruev Singh. The appellant, who i'> a young man, may have bren im·
pellcd or goaded 011 by the grief of his whJowcd sister to participate I
in the murd.:r of three men Dll a pilrt of a vendetta. It had come in
Jl
c:\'i~nce that two of the murdered men, Karnail Singh and Dewan
Siogh, had been proiecuted for the murder of Gurnam Sin~:h the
.·
brother-iu-Ltw of Kcsar Singh and had been ;\cquitted.
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DSAR SINGH v. PUNJAB (Beg, /.)
493
Therefore, although we hold that Kesar Singh was guilty of a11
offence punishable· under Section 302 J. P. C., we do not consider
all the reasons given by the High Court for awarding the death sent~nce to have been substantiated. The High Court· had overlooked
facts which we have mentioned above. It had also overlooked that
there was nothing, apart from the occurrence, proved
about the
character of the appellant. Nothing was discl~sed about the antecedent~ of the appellant. If it was more likely, as we think it was,
that the appellant was one of the several murderers and that he had
caused the death of only one man with his gun, the others having
been killed by others who were probably
not recognised, the real
basis ad()pted for awarding a death sentence to him would disappear.
The result is that, although we uphold the conviction of the
appellant for an offence punishable under Section 302 I. P. C., we set
aside the sentence of death and substitute it by life imprisonmenT,
The appeal is thus partly allo\\·ed to the extent indicated above .
P.B.R.
• 4pptal· allowed iJJ 14Jrt.