Dalip Singh And Others vs State Of Punjab

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 22 of 1953

Decision Date: 15 May, 1953

Coram: Vivian Bose, Mehr Chand Mahajan, B. Jagannadhadas

In this matter, the Supreme Court of India heard an appeal titled Dalip Singh and Others versus State of Punjab, with the judgment rendered on 15 May 1953. The petitioners were Dalip Singh together with several co-accused, and the respondent was the State of Punjab. The opinion was authored by Justice Vivian Bose, who was joined by Justices Mehr Chand Mahajan and B. Jagannadhadas. The case is reported in the official law reports with the citations 1953 AIR 364 and 1954 SCR 145, and it has been referenced in numerous subsequent reports, including R 1954 SC 204, D 1954 SC 648, D 1955 SC 762, R 1955 SC 778, RF 1956 SC 460, R 1956 SC 469, F 1958 SC 993, F 1960 SC 289, D 1960 SC 673, RF 1961 SC 1787, R 1963 SC 174, R 1965 SC 202, RF 1968 SC 1464, R 1972 SC 254, F 1974 SC 276, F 1974 SC 323, RF 1975 SC 1917, R 1976 SC 1084, R 1976 SC 2207, F 1977 SC 472, and F 1991 SC 318. The relevant statutory provision was Section 149 of the Indian Penal Code, 1860, together with Section 302, concerning offences of murder committed by a group and the circumstances under which a conviction may be recorded against fewer than five participants. The judgment also addressed the appropriate sentencing range, namely transportation for life, and the conditions under which an appellate court may enhance that sentence to death. It further examined the trial judge’s discretion, the propriety of interference with that discretion, the admissibility and weight of evidence, and the relationship of a witness to the deceased.

The headnote of the decision set out an important principle: before Section 149 of the Indian Penal Code can be invoked, the court must be certain that at least two persons were acting together with a common unlawful object. This requirement does not demand that a minimum of five persons be convicted in order to apply Section 149. If a judge is satisfied that five individuals were indisputably present and shared the common intent, even if the precise identity of some of those persons remains uncertain, the convictions of the remaining accused may stand. However, in cases involving murder where the penalty imposed is severe, the judge must articulate this conclusion with unequivocal certainty. The Court referred to the earlier decision in Rameshwar v. The State of Rajasthan [1952] SCR 377 to support this view. The Court further held that the power to upgrade a sentence from transportation to death should be exercised only in exceptional circumstances and for the most compelling reasons. An appellate court cannot merely express a personal belief that a harsher sentence would have been appropriate; rather, its jurisdiction to interfere with the trial judge’s discretion is limited to situations where the discretion was exercised improperly—such as where no reasons for the sentence were recorded or could be inferred, or where the facts are so egregious that a reasonable judge could not have imposed a lesser penalty.

The judgment was delivered under the criminal appellate jurisdiction for Criminal Appeal No. 22 of 1953. The appeal was filed by special leave from the judgment and order dated 19 November 1952 of the High Court of Judicature of Punjab at Simla, which had been issued in Criminal Appeal No. 102 of 1952, and also from the judgment and order dated 19 November 1952 of the Sessions Judge, Jullundur, in Sessions Cases No. 499 of 1952 and No. 30 of 1951, as well as Sessions Trial No. 5 of 1951.

Case No. 30 of 1951 and Sessions Trial No. 5 of 1951 were the matters before the Court. The counsel for the appellants was Jai Gopal Sethi, assisted by R. L. Kohli and Deva Singh. The respondent was represented by Gopal Singh. The judgment was delivered on 15 May 1953 by BosE J. The appeal was filed by four persons who sought to set aside death sentences that had been imposed after they were convicted of a double murder of two brothers, Rattan Singh and Bawa Singh. The learned Sessions Judge had originally convicted three additional accused and had sentenced all seven accused, including the four appellants, to transportation for life. The High Court, however, acquitted three of the seven, affirmed the convictions of the four appellants and heightened each of their punishments to death. The prosecution’s narrative was straightforward. All seven accused originated from the same village and belonged to the same faction or “party,” as described by the witness Mst Punnan (PW 2). Among the seven, the appellants Dalip Singh and Battan Singh were brothers; Jarnail Singh, who was later acquitted, was the son of Battan Singh. The remaining four accused, including the appellants Sadhu Singh and Kundan Singh, were not related to the first three and, apart from the fact that they were members of the same party, no other common interest among them was established. The prosecution alleged that Dalip Singh and Battan Singh had previously assaulted the two deceased brothers roughly twenty years before the present incident, had been tried, convicted and served short imprisonment terms. It was further alleged that Dalil Singh and Battan Singh were dacoits who believed that the deceased brothers had been informing the police against them, and that this belief provided the motive for the murders. The prosecution did not explain why the other accused participated, other than their association with the same party. The factual account given by the prosecution was as follows: on 16 June 1951 at about two o’clock in the afternoon, Rattan Singh left his house to carry food to a nearby well for himself and his son. As he departed, his wife Mst Punnan (PW 2) heard cries of alarm; she rushed out with her daughter Mst Charni (PW 11) and witnessed all seven accused assaulting her husband. They beat him until he collapsed. After Rattan Singh fell, the accused left him and hurried to his brother Bawa Singh’s haveli, where Bawa was lying on a cot and was shouting that they would also finish him. All seven assailants battered him while he lay on the cot, then dragged him out and continued beating him. Subsequently they returned to the spot where Rattan Singh lay and struck him further before fleeing. Bawa Singh died shortly after the attack, and Rattan Singh survived a short while longer but also died soon after. According to the testimony of Mst Punnan (PW 2), the accused were armed as follows: the appellants

In the factual matrix, the prosecution described the armament of each accused. Dalip Singh and Sadhu Singh were said to have been carrying barchhas, the appellant Battan Singh together with two of the accused who were later acquitted each possessed lathis, the appellant Kundan Singh was said to have a takwa—a hatchet with a long handle—and the accused Kehar Singh, who was also acquitted, bore a khunda, which is a hefty stick terminating in a curved iron end. The medical testimony established that the victim Rattan Singh sustained nineteen distinct injuries. Of these, only two injuries located on the head were potentially fatal in themselves; the remaining injuries affected non-vital areas such as the foot, ankle, leg, knee, thigh, buttock, forearm and wrist, although six of those were classified as grievous. The attending physician opined that death resulted from shock produced by the aggregate of injuries and was further aggravated by haemorrhage in the brain attributable to injury number fourteen. The second victim, Bawa Singh, bore sixteen injuries. Apart from two injuries—one on the head and another that ruptured the spleen—the rest were situated on non-vital parts including the ankle, leg, knee, thigh, elbow, thumb and wrist, with eleven of these deemed grievous. The medical examiner attributed Bawa Singh’s death to the rupture of the spleen. In the case of Rattan Singh, the medical evidence indicated that only a single injury was inflicted by a sharp-edged or pointed weapon, while the remaining injuries, including the two head wounds, were caused by blunt instruments. Conversely, Bawa Singh sustained four wounds attributable to sharp-edged or pointed weapons, with all other injuries derived from blunt weapons; notably, the fatal rupture of the spleen was caused by a blunt weapon. This forensic analysis suggested that neither Dalip Singh nor Sadhu Singh, who wielded spears, nor Kundan Singh, who carried a hatchet, directed attacks at vital parts of the victims. Among those armed with blunt instruments, only Battan Singh, who possessed a lathi, had been convicted, whereas Indar Singh, Jarnail Singh—both also armed with lathis—and Kehar Singh, who carried a khunda, had been acquitted. The court further noted that it would be implausible for Battan Singh alone to have inflicted the eighteen injuries on Rattan Singh and nine injuries on Bawa Singh. The chronology of arrests showed that Dalip Singh was taken into custody on 17 June, while the remaining three appellants were apprehended on 18 June, each found clothed in blood-stained garments. The learned Sessions Judge placed little emphasis on the presence of blood-stained clothing or on the recovery of certain weapons, some of which bore blood stains, regarding them as of limited significance. Nonetheless, he was persuaded by the testimony of the two eyewitnesses, Mst. Punnan (PW 2) and Mst. Charni (PW 11), and, relying on their statements, convicted each of the seven accused under section 302 read with section 149 of the Indian Penal Code. Observing that the fatal injuries could not be ascribed to any single accused, the judge refrained from imposing the death penalty. All assessors concurred in finding all seven accused guilty. The learned High Court judges, in their appraisal, also did not assign any decisive weight to the recovered weapons because they were not found until the 30th of the month—fourteen days after the murders—and were located in fields belonging to Dalip Singh and Kehar Singh as indicated by Jarnail Singh and Sadhu Singh respectively. However, they did consider the blood-stained clothing a material factor, expressed reservations about accepting the eyewitnesses’ accounts in their entirety, and consequently relied on the corroborative value of the blood-stained garments to sustain convictions against the four appellants while acquitting the others.

The appellate judges observed that the weapons were not recovered until the thirtieth day, which was fourteen days after the murders. When the weapons were finally located, one set identified by Jarnail Singh, who had been acquitted, was discovered in the field belonging to Dalip Singh. Another set, pointed out by Sadhu Singh, was found in the field belonging to Kehar Singh. The judges, however, treated the discovery of the blood-stained clothes as a significant factor in their assessment. They were not prepared to accept the testimony of the two eyewitnesses in its entirety. Their hesitation stemmed partly from the view that a portion of the eyewitnesses’ account appeared doubtful and seemed to have been introduced by the police. It also arose from their belief that when the lives of seven accused persons depend on the testimony of two women, ordinary prudence demands corroboration. The judges found corroboration for the four appellants through the presence of blood-stained clothing, but found none for the remaining accused. Consequently, they pronounced conviction for the four appellants and acquitted the other three accused persons. The judges recognized that this approach created an inconsistency, which formed the basis for granting special leave to appeal.

The appellate judges articulated three main conclusions: first, that the narrative given by Mst. Punnan and Mst. Charni was generally true; second, that no fewer than five individuals participated in the assault on the two deceased persons; and third, that the prudential requirement of corroboration was satisfied by the blood-stained garments found on the four convicted appellants. Regarding the three acquitted individuals, the judges stated that those persons “may or may not have taken part in the affair.” From these findings, it became evident that the evidence could not attribute any specific injury to any specific accused. Accordingly, the judges concluded that it was impossible to convict any single accused of murder simpliciter under section 302, and they did not attempt such a conviction. Instead, they sentenced the four appellants under section 302 read with section 149 of the Indian Penal Code. Section 149, however, requires that at least five persons share a common unlawful object. Although the judges earlier affirmed the presence of at least five participants, they immediately qualified that statement by saying the three acquitted individuals “may or may not have taken part.” If those three individuals are excluded, only four participants remain, contradicting the earlier finding of a minimum of five. For section 149 to apply, the court must establish with certainty that at least five persons shared the common object. A finding that three persons “may or may not have been there” introduces uncertainty on this essential point, rendering the conviction based on section 149 untenable. The judges noted that this does not imply that five individuals must always be convicted before invoking section 149, as jurisprudence contains varied examples.

It is possible for a court to hold that, although five participants were unquestionably present, the identity of one or more of them may be uncertain. In such a circumstance the court could uphold the conviction of those whose identity is certain by relying on section 149. However, when the conclusion is that some participants are uncertain, the court, especially in a murder case where sentences of transportation have been escalated to death in at least four instances, must express that conclusion with absolute certainty. No person can be sentenced to death on a basis that is vague or vacillating. In order to respect the work of the lower judges, the court examined the evidence meticulously to determine whether, if that was the perspective of the lower court, such a conclusion could be supported by the material before it. While it is undisputed that a different conclusion might be reached in other cases on different facts, the present inquiry is confined to the evidence in this case. No suggestion of mistaken identity was ever raised. All of the accused belong to the same village and the eyewitnesses knew each of them by name. The homicide occurred in daylight and within a few feet of the two eyewitnesses. If the witnesses had testified, “I saw five assailants and I am certain about A, P and C, but I am not sure about the remaining two, whom I think were D and E,” a conviction of A, B and C could be sustained provided the witnesses were believed. When, however, the witnesses are unequivocal both about the number of attackers and about their identities, and there is no indication of mistaken identity, and the surrounding circumstances eliminate any reasonable possibility of such a mistake, any hesitation on the part of the judge must be attributed not to uncertainty about identity but to doubt about the number of participants. The doubt, therefore, concerns whether D and E were wrongly counted to reach a total of five rather than a genuine uncertainty about who they were.

It is also conceivable for a witness to say, “A, B, C, D, E and others, perhaps ten or fifteen in all, were the assailants.” Assuming the rest of the evidence is accepted, a court could exclude D and E and still convict A, B and C under section 149. That scenario does not apply here. No evidence suggests that more than seven persons were involved, nor is there any suggestion that any of the seven named individuals could be someone else. Moreover, reliance on section 34 is unavailable because the appellants were not charged with that offence even as an alternative, and the requirement of common intention under section 34 differs fundamentally from the requirement of a common object under section 149. Consequently, the court cannot permit the conviction to rest upon the uncertain foundation laid by the High Court. Accordingly, the court has reviewed the evidence for

In its own review of the record, the Court examined the evidence as presented by counsel, with Mr Sethi giving a detailed explanation of the material. The Court held that the conclusions reached by the learned Sessions Judge were correct and therefore it could not concur with the observations of the learned High Court judges that the testimony of the two eyewitnesses required corroboration. The Court emphasized that no rule exists whereby the fact that the witnesses are women, or that the fate of seven men depends upon their statements, automatically creates a necessity for corroboration. Likewise, the Court rejected the suggestion that the witnesses’ close familial relationship to the deceased mandates doubt, noting that such a contention reflects a common fallacy in criminal proceedings, a fallacy that a previous Bench of this Court sought to dispel in Rameshwar v State of Rajasthan (1952 S.C.R. 377 at 390). The Court observed that, despite the earlier judgment, the misconception continues to appear in counsel’s arguments, if not in judicial pronouncements. A witness is ordinarily presumed independent unless there are specific reasons to suspect bias, such as personal enmity that might lead the witness to falsely implicate the accused. The Court noted that a close relative would generally be the last person to conceal the real perpetrator and falsely accuse an innocent person, and that while strong emotions and personal grievance can sometimes cause an innocent individual to be drawn into accusations, such a conclusion must be supported by concrete evidence; mere relational ties are not sufficient to undermine credibility and may, in fact, reinforce the reliability of the testimony. The Court clarified that it was not making a sweeping generalisation, stressing that each case must be decided on its own facts, and that its remarks were intended to counter the often-invoked but unfounded “rule of prudence” that demands corroboration for such witnesses. The Court affirmed that a judge may, on the basis of particular facts, choose not to rely on a witness without corroboration, but such a decision must be grounded in the specific circumstances of the case and not on a presumed general principle akin to that applied to accomplices. Regarding the alleged reason for suspecting the witnesses’ statements, the High Court had suggested that the witnesses introduced a false element into their account at the police’s prompting to protect the reputation of the lambardars. The Court held that, if that allegation were true, it would cast doubt on the entire testimony, rendering it unsafe to accept their version of events concerning the number of persons present, even though other corroborative evidence such as the blood-stained clothing might remain reliable; consequently, the reliance on section 149 would fail to stand.

In this case, the Court observed that if the corroborative element of the blood-stained clothes were unreliable, then it would be equally unsafe to accept, based solely on the testimony of the two women, that at least five persons were present at the incident as it would be to accept that the individuals who have been acquitted were present; consequently, once that conclusion is reached, the offence under section 149 no longer applies. The Court carefully weighed the evidence of the two women against the criticisms raised by counsel for the State, most of which were recorded in the judgments of the lower courts. The Court noted that the learned Sessions Judge who had observed the witnesses in the witness box had been impressed by their demeanour and by the way they withstood cross-examination, and that the learned High Court Judges also appeared to believe them to the extent of concluding that at least five persons were involved. Some of the accused made broad statements that the prosecution witnesses were hostile to them, but no explanation was offered as to why such hostility existed. In the extensive cross-examination of the witnesses, not a single question was posed to reveal any specific enmity by any of the accused other than the appellants Dalip Singh and Battan Singh. A general query was raised suggesting a possible boundary dispute between the husband of Mrs Punnan and the accused Indar Singh and Kundan Singh, yet this line of inquiry was not pursued with further evidence, and neither Kundan Singh nor Indar Singh referred to any such dispute in their statements recorded under section 342 of the Criminal Procedure Code. Likewise, the testimony of Kehar Singh that he had inherited land which would pass to the line of Rattan and Bawa if he died without heirs remained vague and was not substantiated in any way. Accordingly, the Court found that the questions advanced in cross-examination were essentially speculative and did not diminish the credibility of the two women’s testimony. The first information report was lodged by Mrs Pullnan (identified as PW 2) herself. Although counsel for the State challenged its promptness, the report was filed at 8:30 p.m., within six and a half hours of the occurrence, at a location twelve miles from the police station. The victims did not die immediately, so it was natural for Mrs Punnan’s first instinct to be to attend to them. She had to walk part of the distance and then travel the remainder by lorry; she was not cross-examined on any delay in reporting. The Court considered that a report made within sixty-one hours under such circumstances was prompt. Importantly, the report specifically named seven accused, no more and no less, and Mrs Punnan maintained this version consistently throughout cross-examination, without attempting to add further names. Her account was also supported by the testimony of Mrs Charni (PW 3).

The Court observed that the blood-stained garments recovered from the four appellants provided strong corroboration against those individuals. Since both the lower court and the appellate court had accepted the testimony of the two women on that point, the Court focused its analysis on the three accused who had been acquitted. The purpose of this focus was to determine whether the seven persons identified by Mst. Punnan had indeed been present, and whether the High Court’s conclusion that at least five persons were present was reliable. The Court held that the discovery of weapons could not be dismissed lightly. One set of weapons had been identified by Jarnail Singh. Although the mere identification might appear of limited significance, the Court regarded it as unquestionable corroboration against Jarnail Singh, unless the discovery itself were disbelieved or deemed fraudulent – a position not adopted by either the first court or the High Court. The first court accepted the evidence, and although the High Court did not disbelieve it, it treated the incident as having only modest probative value. Nevertheless, the Court noted that the weapons constituted a corroborative element for the two witnesses, who, under the law, did not require corroboration, thereby strengthening the safety of accepting their testimony.

The Court then turned to the second set of weapons that had been discovered by Sadhu Singh. Sadhu Singh had already been implicated through the blood-stained clothing, but the significance of this discovery lay in the fact that the weapons were found in the field belonging to Kehar Singh, a man who had been named from the outset. The Court considered this circumstance important because it linked the weapons to a person whose involvement had been alleged from the beginning. Furthermore, the Court emphasized that Mst. Punnan (PW-2) had not only identified all the assailants in her first information report but had also specified the exact type of weapon each carried. Her account remained consistent throughout, except for a minor, non-essential difference concerning Jarnail Singh: the first report described his weapon as a “dang,” while her testimony referred to it as a “lathi.” Since a dang is simply a large lathi, the Court found no real discrepancy and regarded this consistency as impressive, especially as it broadly matched the post-mortem findings. The Court also highlighted that four weapons, each stained with human blood, had been discovered at the urging of the two women who had named the assailants from the beginning, and these weapons were located in the fields of other men also named by them. This pattern did not weaken Mst. Punnan’s testimony. The only accused not directly linked by independent evidence to the testimonies of the two women was Indar. However, given that the women’s narratives were corroborated on numerous critical points, the Court saw no justification for doubting their statements regarding Indar, recalling that these witnesses did not require corroboration under the law. Accordingly, the Court concluded that the High Court had been unnecessarily cautious in acquitting the other three accused when the learned judges were convinced that at least

Five persons were concerned in this matter. The Court considered that the High Court had held the part of Mst. Punnan’s testimony concerning the lambardars to have been falsely introduced by the police, and that both the High Court and the Sessions Court had rejected the evidence relating to the alleged dying declaration. Notwithstanding those observations, the Court agreed with the learned Sessions Judge that the testimonies of Mst. Punnan and Mst. Charni could be relied upon with respect to the principal facts, and that the two witnesses had correctly identified all seven accused as the perpetrators. On the basis of that finding, the conviction under section 302 read with section 149 was deemed sustain­able, and the Court accordingly upheld those convictions. The acquittals in the other cases were allowed to stand, although the Court expressed the view that those acquittals were, in its opinion, erroneous; nevertheless, the purported error could not prejudice the convictions that had been affirmed.

With regard to sentencing, the Court observed that it would have been necessary to intervene because a principle of law was involved. In a murder case, the death penalty should ordinarily be imposed unless the trial judge, for reasons that should ordinarily be recorded, considers it appropriate to impose a lesser punishment. The discretion to decide on the appropriate penalty belongs to the trial judge, and if the judge furnishes reasons that a judicial mind could accept, an appellate court should not interfere. The power to enhance a sentence from transportation to death should be exercised only in exceptional circumstances and for the strongest possible reasons. An appellate court cannot simply state, or think, that it would have imposed a higher penalty, because the discretion does not rest with the appellate court. Interference is justified only where the discretion has been exercised improperly, for example where no reasons are given or can be inferred, or where the facts are so overwhelming that no reasonable judicial mind would have imposed a lesser penalty. The Court found that none of those conditions existed.

The Court noted that this case involved individuals who were not convicted for their own acts but were held vicariously liable for the acts of others. Where the facts are sufficiently clear to identify the person who dealt the fatal blows and those who played a lesser role, it is a proper exercise of judicial discretion to differentiate the punishments. Equally, it is a proper exercise of discretion to refrain from sentencing all the accused to death when it is evident that some would not have been sentenced to death if the facts had been fully known, for instance, when it is possible to determine who struck the head and who only struck a thumb or an ankle. When there is no way of ascertaining who delivered the fatal blow, a judicial mind may legitimately decide to award the lesser penalty to all the accused. The Court made it clear that a judge is not

In this matter the Court observed that a judge is free to exercise discretion in either direction because he possesses an equal right to choose one course of action over another. The Court emphasized that it is impossible to formulate a rigid rule that applies to every case, since each case must be decided on the basis of its own factual circumstances. Consequently, when a judge exercises discretion for reasons similar to those previously discussed, it cannot be said that the judge has failed to exercise his discretion properly. The Court then turned to the review of the High Court’s handling of the facts. It noted that the High Court had ignored the factual material altogether, offered no reasons for its decision, and concluded the matter in a single sentence stating: “I would dismiss the appeals of the other four and, accepting the revision petitions, change their sentences from transportation to death.” The Court held that such a terse order does not constitute a proper interference with judicial discretion where the issue involves an enhancement of punishment. Accordingly, the Court found that it could not conclude that the learned Sessions Judge had exercised discretion improperly. The Court further stated that it was not appropriate to decide the case based on speculation about how the Court itself might have ruled if it had acted as the trial court. On that basis, the Court accepted the appeals concerning the sentences and remitted each sentence to transportation for life. Apart from this modification, the appeal was dismissed, the sentence reduced, and the appeal dismissed. The agents appearing for the parties were identified as Naunit Lal for the appellants and G H Rajadhyaksha for the respondents.