Tori Singh vs The State Of Uttar Pradesh

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

Court: supreme-court

Case Number: Criminal Appeal No. 38 of 1961

Decision Date: 12 September 1961

Coram: K.N. Wanchoo, K.C. Das Gupta, J.C. Shah

In the matter of Tori Singh versus The State of Uttar Pradesh, the Supreme Court rendered its judgment on 12 September 1961. The appeal was filed by special leave against the order of the Allahabad High Court dated 28 October 1960, which had affirmed the convictions of the appellant and his father in criminal appeals numbered 1310 and 1389 of 1960, as well as Referred No. 80 of 60. The case was reported in 1962 AIR 399 and also in the Supreme Court Reporter as 1962 SCR (3) 589. The bench that delivered the decision comprised Justice K.N. Wanchoo, Justice K.C. Das Gupta and Justice J.C. Shah. The petitioner, identified as Tori Singh, was the appellant, while the respondent was the State of Uttar Pradesh. The factual backdrop, as recorded in the headnote, described that the deceased was proceeding to his field and passed a platform on which the appellant Tori Singh and his father Budhi Singh were seated. Tori Singh was carrying a pistol. While the deceased was on the platform, Budhi Singh is said to have incited his son to fire, and Tori Singh discharged the weapon, resulting in the death of the deceased. Both father and son were tried for murder and were convicted on the basis of the testimony of eyewitnesses and the dying declaration of the deceased. Budhi Singh received a sentence of life imprisonment, whereas Tori Singh was sentenced to death. The appellant contended that the sketch map prepared by a sub‑Inspector, which placed the deceased at a spot marked on the basis of witness statements, made it impossible for the injuries described by the eyewitnesses to have been inflicted. He further urged that, having acted under his father’s direction, his death sentence should be reduced to life imprisonment.

The Court examined the admissibility of the marks placed on the sketch map and held that such marks, being derived from statements made to the sub‑Inspector, were inadmissible under section 162 of the Code of Criminal Procedure, 1898. Consequently, the appellant could not rely on the sketch map to challenge the credibility of the eyewitness accounts. The Court referred to the authorities Bhagirathi Chowdhury v. King Emperor (AIR 1926 Cal 550), Ibra Akanda v. Emperor (AIR 1944 Cal 339) and Santa Singh v. The State of Punjab (AIR 1956 SC 526) in reaching this conclusion. Regarding the sentence, the Court observed that the appellant was a mature man of twenty‑five years, who sat armed on the platform and apparently planned the murder together with his father. Although he acted at his father’s instigation, the Court rejected the characterization of the appellant as a teenage boy wholly under his father’s influence. Accordingly, the Court found no justification for altering the death sentence imposed on Tori Singh and affirmed the conviction and sentence. The judgment, delivered by Justice Wanchoo, joined by Justices Das Gupta and Shah, confirmed that the death penalty was appropriate under the circumstances, and the appeal was dismissed.

The matter before the Court originated as a special leave appeal against the judgment rendered by the Allahabad High Court. The appellants were a father and his son, who resided in the village of Patrasi, the same village where the deceased, Sohan lal, also lived. According to the prosecution, Sohan lal was killed on the morning of 2 December 1959, shortly after sunrise. The narrative of the events began roughly two years earlier, when a man named Sunder instituted a criminal proceeding against the deceased. In that earlier proceeding the present appellants assisted Sunder in opposing Sohan lal, who ultimately was acquitted. A person named Chetram acted as a witness for Sohan lal in that case. Subsequently, Tori Singh, the son‑appellant, assaulted Chetram with a spear, prompting Chetram to lodge a report. Sohan lal supported Chetram in obtaining that report, and as a result animosity developed between Tori Singh, his father Budhi Singh, and the deceased.

On the morning of 2 December 1959 the deceased set out for the fields outside the village in order to relieve himself. While walking, he passed a raised platform situated at a crossroads within the village. The appellants were seated on that platform at the time; the younger appellant, Tori Singh, was in possession of a pistol. According to the evidence, Budhi Singh urged his son to fire at the passing Sohan lal. Acting on that encouragement, Tori Singh discharged a shotgun, striking the deceased in the lumbar region. Sohan lal fled toward his house, and the two appellants subsequently ran away from the scene. The victim was later taken to the police station where he filed a formal complaint against the appellants, gave a statement to the investigating officer, and, after sustaining his injuries, made a dying declaration before a magistrate. He died on 3 December 1959. During the ensuing investigation the appellants evaded arrest, but they were later apprehended and prosecuted. Although they acknowledged the existence of hostility between themselves and the deceased, they contended that they bore no responsibility for the killing and that they were not involved in the act. The prosecution’s case rested principally on the testimonies of four witnesses—Babunath, Chhannu, Itwari and Khamani—as well as on the dying declaration of the deceased. The Additional Sessions Judge, who tried the case, placed reliance on the accounts of Babunath, Itwari and Khamani and on the dying declaration, while disregarding the statement of Chhannu. The Judge convicted both appellants under section 302 read with section 34 of the Indian Penal Code, sentencing Tori Singh to death as the person who discharged the weapon and sentencing Budhi Singh to imprisonment for life. Both appellants filed separate appeals before the High Court, and the trial Judge also sought confirmation of the death sentence. During the trial a suggestion was raised that a third individual, identified as Chhiddu, might have been responsible for the murder, particularly because he was alleged to have made a confession. However, Chhiddu was not examined by the trial court.

In the present case, the High Court, acting in the interest of justice, examined the statement of Chhiddu and took that statement into consideration together with the prosecution evidence in order to determine the guilt of the appellants. The High Court agreed with the trial court that the witnesses Babunath, Khamani and Itwari were reliable and that the dying declarations made by the deceased could be relied upon. In addition, the High Court accepted the testimony of Chhannu, which the trial court had not relied upon. After examining the evidence of Chhiddu, the High Court formed the view that this evidence was false. Consequently, it dismissed the appeals and confirmed the death sentence imposed on Tori Singh, making only a slight modification in the statutory sections under which the convictions were recorded. The appellants’ applications for leave to appeal were rejected, but they subsequently obtained special leave from this Court, and the matter therefore came before us.

The appellants principally contended that the sketch map labeled Ex. Ka‑9, which shows the place where the deceased was said to have been hit, does not correspond with the statements of the prosecution witnesses and the medical evidence. They argued that, if the deceased had been standing at the location marked on the map, it would be extremely improbable for the injury that actually occurred on his body to have been caused at that spot. They further submitted that the medical report indicated that the exit wound was situated higher than the entry wound, suggesting an oblique trajectory of the bullet, and that it was highly unlikely for the bullet to have travelled upward from a lower position through the body, especially considering that Tori Singh was positioned on a platform and therefore at a higher level than the deceased. The Court, however, found that neither of these arguments possessed any merit. Regarding the first contention, the Court noted that the argument’s validity depended chiefly on the precise spot marked on the sketch‑map Ex. Ka‑9 as the location where the deceased received his injuries. First, the map was not drawn to scale; it was a rough sketch, and consequently it could not be assumed to represent the exact relationship of the marked spot to the platform. Second, the marking on the sketch‑map had been made by the Sub‑Inspector, who was not an eyewitness to the incident; he could have placed the mark only after taking statements from the eyewitnesses. Thus, the mark on the sketch‑map essentially recorded the Sub‑Inspector’s conclusion based on the witnesses’ statements, and in the Court’s opinion such a mark would not be admissible as substantive evidence.

In applying the provisions of section 162 of the Code of Criminal Procedure, the Court observed that a sketch‑map prepared by a police officer is admissible only to the extent that it depicts matters the officer personally observed at the scene; any annotation on the map that derives from statements made by witnesses is, under that section, merely a statement made to the police during the investigation and therefore inadmissible. The Court noted that the map in the present case was drawn by the Sub‑Inspector and that the locations where the deceased was struck and where the witnesses stood were marked on the map solely on the basis of the witnesses’ testimonies to the Sub‑Inspector. Consequently, those markings could not be used as evidence to support any inference regarding the improbability of the deceased being hit at the indicated spot. The Court referred to the earlier decision in Bhagirathi Chowdhury v. King Emperor (1) A.I.R. 1926 Cal. 550, where it was held that placing maps before a jury that contain statements of witnesses or information obtained by the investigating officer from other persons is improper, and that an investigating officer should not record on a map anything beyond what he himself saw. The same principle was reiterated by the Calcutta High Court in Bra Kanda v. Emperor (1), which ruled that any information derived from witnesses during police investigation and recorded in an index to a map must be proved by the witnesses themselves and not by the investigating officer, as reliance on the officer’s testimony would contravene section 162. The Court also considered the precedent set in Santa Singh v. State of Punjab (2) A.I.R. 1969 Punjab 526, where a plan drawn to scale by a draftsman was deemed admissible because the witnesses had corroborated the draftsman’s depiction of where the assailants and victims stood at the time of the offence, and thus the plan did not fall foul of section 162. However, in that case another sketch prepared by the Sub‑Inspector was excluded as inadmissible under the same provision. Applying these authorities, the Court concluded that the present sketch‑map, being the work of the Sub‑Inspector and containing markings based on the witnesses’ statements, must be excluded under section 162 of the Code of Criminal Procedure and cannot be relied upon to argue that the deceased could not have been struck on the part of the body where the injury occurred.

In this case the Court examined the contention raised by the appellants that it was extremely unlikely for the deceased to have been struck on the left side of the lumbar region, disregarding the sketch‑map and the spots marked on it by the Sub‑inspector. The appellants argued that the eyewitness testimony indicated the deceased was facing or moving toward the east when he was hit, and therefore it was improbable that the bullet could have struck the left side of his lower back. The Court noted that if the deceased had been situated to the west or north‑west of the platform at the time of the shooting, the probability of a left‑lumbar wound would indeed have been very low; however, if he had been positioned to the east or north‑east of the platform, the occurrence of a wound on either the left or the right side would have been a matter of chance. Consequently, the appellants’ argument would lose its force if the deceased had been slightly to the east or north‑east of the platform. The Court therefore turned to the testimony of the witnesses to determine the probable position of the deceased. Babunath testified that the deceased stood five or six paces east of the platform, facing east, while the appellants were to the west of Sohanlal; under those circumstances the likelihood of a left‑lumbar injury was no more than chance. Chhannu reported that the deceased had passed the platform and proceeded five or six paces beyond it before being shot, and that he was situated to the east at that moment; the sketch‑map showed a pond to the east, indicating the deceased was moving toward that pond, which placed him probably to the north‑east of the platform, again making a left‑lumbar wound a possibility. Itwari stated that the deceased was walking toward the platform and was hit after he had gone some distance beyond it, but he did not specify whether the direction was north or east; thus his evidence could not be used to show that a left‑lumbar wound was impossible. Khamani testified that the deceased had moved five or six paces beyond the platform and was to the east of the assailant, a position that rendered a left‑lumbar injury entirely plausible. The Court concluded that none of the witnesses’ evidence demonstrated that the deceased could not have been hit on the left side of the lumbar region.

In this case, the Court observed that it was virtually impossible for a shot discharged from the platform to have struck the deceased on the left side of the lumbar region. The argument that the geography of the spot marked on the map made such a trajectory impossible therefore could not be sustained, because the testimony of the witnesses, as noted earlier, did not establish that the deceased’s position precluded a hit on the left side of the lumbar area. Another contention raised was that medical evidence indicated the exit wound lay higher than the entry wound, which was interpreted to mean that the bullet must have travelled upward from a lower position. The witnesses, however, were not uniform in their description of whether the shot was fired while Tori Singh was seated on the platform, while he was standing on the platform, or after he had descended from the platform. The High Court had accepted the version that the shot was fired while Tori Singh was seated, and consequently had concluded that the bullet was likely to have travelled upward through the body. Beyond that inference, the medical evidence did not show a straight‑line trajectory from entry to exit. If the medical report had described a direct linear path, the upward direction could have been inferred, but the doctor’s testimony described a highly irregular, zig‑zag path of the bullet within the body. Accordingly, it could not be said that the shot necessarily originated from a position lower than the point where it struck the deceased. Moreover, a bullet’s course may be altered on entry because of resistance from soft tissues and, especially, from bone if it encounters any. Therefore, the exact position from which the shot was fired was not of decisive importance, and the inconsistencies noted by the High Court did not, in this Court’s view, diminish the credibility of the witnesses’ statements. It was also argued that the witnesses should not be trusted because they were partisan or merely chance observers, and particular emphasis was placed on the lack of convincing reasons by the High Court for relying on the testimony of Chhannu, who had not been relied upon by the trial court. Excluding Chhannu’s evidence, the Court retained the testimony of three other villagers who explained why they were present near the spot despite residing at some distance. These three witnesses had been accepted by both the trial court and the High Court, and this Court found no reason to dispute the assessment of their evidence by the two lower courts.

The Court observed that there was no justification to depart from the assessments made by both the trial Court and the High Court regarding the significance of the dying declarations in the present matter. Regarding the testimony of Chhiddu, the Court concurred with the High Court’s view that, being a cousin of the accused Tori Singh, he had been induced to give a confession. The Court noted that such a confession could be made with near impunity because the prosecution’s case unequivocally alleged that only the two appellants were the perpetrators and no other individual was involved. The sole piece of evidence cited in connection with Chhiddu’s statement was the dying declaration of the deceased, which identified Chhiddu as a cousin of Tori Singh (see Exhibit Ka‑8). The Court remarked that the reason why the deceased made this identification was unclear, and it could not be inferred that the deceased was naming Chhiddu as the person who had inflicted the fatal shot. Consequently, when both courts had accepted the testimonies of the three eyewitnesses as well as the dying declarations, the Court found no basis to interfere with their conclusion that the incident occurred in the manner alleged by the prosecution. Accordingly, the Court held that the convictions of the appellants must be affirmed.

The Court further considered the argument that the sentence imposed on Tori Singh should be reduced to life imprisonment on the premise that he acted under his father’s influence. While acknowledging that the father had indeed instigated Tori Singh to fire at the deceased, the Court emphasized that the accused was a mature man of twenty‑five years of age and that the evidence showed he was seated beside his father while handling the pistol. The Court therefore concluded that the murder had been pre‑planned by the father and son, who apparently anticipated that the deceased would pass the location during his morning ablutions. Given his age and the circumstances, the Court rejected the notion that Tori Singh could be regarded as a youthful teenager wholly dominated by his father. Accordingly, the Court found no reason to alter the death sentence imposed by the trial Court and confirmed by the High Court. The appeal was dismissed, and the conviction and sentence were upheld.