Sunder 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. 100 of 1961
Decision Date: 19 January 1962
Coram: P.B. Gajendragadkar, K.C. Das Gupta, Raghubar Dayal
In the matter titled Sunder Singh and Others versus the State of Punjab, the Supreme Court of India delivered its judgment on 19 January 1962. The opinion was written by Justice P. B. Gajendragadkar, who was joined by Justices K. C. Das Gupta and Raghubar Dayal on the bench. The petitioners were identified as Sunder Singh and several other accused persons, while the respondent was the State of Punjab. The case citation appears in the law reports as 1962 AIR 1211 and 1962 S.C.R. Supplement (2) 654, and it is also referenced in later citators such as R 1965 S.C. 1037 (3) and C & R 1991 S.C. 318 (paragraphs 5, 8 and 9). The substantive issue before the Court concerned a criminal trial in which one of the accused had been acquitted, no appeal having been filed against that acquittal, while the other three convicted accused had appealed to the High Court. The Court was asked to consider whether, under Section 423 of the Code of Criminal Procedure, 1898 (Act 5 of 1898), the High Court possessed the power to examine the correctness of the acquittal alongside the convictions.
The headnote of the judgment summarized the factual background. Four individuals, designated in the record as S, G, L and R, were tried for offences under Section 302 in conjunction with Section 34 of the Indian Penal Code. The Sessions Judge, after evaluating the evidence, granted the benefit of doubt to accused R and consequently acquitted him, while finding the remaining three—S, G and L—guilty of the charges and sentencing each of them to death. No appeal was lodged against R’s acquittal; however, the three convicted persons appealed their convictions and sentences to the High Court. The High Court held that the Sessions Judge had erred in granting R the benefit of doubt, concluding that R had been present at the scene and that all four accused had shared the common intention alleged by the prosecution. Relying upon the testimony of an eyewitness, the High Court dismissed the appellants’ challenge to the convictions, but reduced the death sentence imposed on G to life imprisonment.
The appellants argued before the Supreme Court that the High Court lacked jurisdiction to investigate the propriety or validity of R’s acquittal, asserting that the High Court’s finding that R participated in the offence created a serious infirmity in its judgment. The Supreme Court, however, held that the High Court was entitled, when reviewing the entire body of evidence concerning the accused, to consider matters that related to the acquitted individual as well. The Court noted that one of the grounds of attack by the appellants was the claim that the prosecution’s evidence had not been accepted against R by the trial court. In addressing that issue, the High Court had necessarily examined the case against R, and there was no legal prohibition against doing so. Moreover, the trial court had not declared the evidence against R to be false; it had merely concluded that the case against him was not free from reasonable doubt. The Court referred to the authorities of King v. Plumber (1902) 2 K.B.D. 339, Pritam Singh v. State of Punjab (1956) A.I.R. S.C. 415 and Bimbadhar Pradhan v. State of Orissa (1956) S.C.R. 206 in support of its reasoning. The judgment concluded the criminal appeal numbered 100 of 1961, which had been filed by special leave against the Punjab High Court order dated 24 February 1961.
In Criminal Appeal No. 11 of 1961 and Murder Reference No. 9 of 1961, counsel for the appellants appeared, and counsel for the respondent also appeared. The judgment was delivered on 19 January 1962 by Justice Gajendragadkar. The three appellants, namely Sunder Singh and his sons Lal Singh and Gurmukh Singh, together with Rachhpal Singh, had been tried before the learned Additional Sessions Judge, Karnal, on a charge of having committed the murder of Malook Singh, Anup Singh and Darbara Singh on 13 January 1960 at about eleven a.m. in the Abadi of the village Habri. The prosecution alleged that the four accused acted with a common intention to kill the three victims. At the time of the alleged offence, Sunder Singh and Gurmukh Singh were said to have been equipped with lathis, while Lal Singh and Rachhpal Singh were said to have been armed with firearms. According to the charge sheet, Lal Singh had fired upon Malook Singh and Darbara Singh, thereby causing their deaths, and Rachhpal Singh had fired upon Anup Singh, killing him; both shootings were alleged to have been carried out in pursuance of the common intention of all the accused. Consequently, Lal Singh and Rachhpal Singh were charged under section 302 read with section 34 of the Indian Penal Code. The learned trial judge held that the evidence placed against Rachhpal Singh was not free from reasonable doubt and, giving him the benefit of that doubt, acquitted him. The same judge found that the prosecution case against Sunder Singh, Lal Singh and Gurmukh Singh was proved beyond reasonable doubt, convicted them under section 302 read with section 34, and sentenced each of them to death. The conviction and sentence were placed before the Punjab High Court for confirmation, and the three convicts also filed separate appeals. The High Court heard the matters together and confirmed the convictions of all three appellants. However, it modified the sentence, holding that the ends of justice would be met by confirming the death penalty for Sunder Singh and Lal Singh while reducing the death sentence imposed on Gurmukh Singh to life imprisonment. Accordingly, the appeals filed by the three accused were substantially dismissed and the sentence was confirmed for two of them. The appellants then obtained special leave to appeal to this Court against the High Court’s order of conviction and sentence. Before addressing the specific points raised on behalf of the appellants, it is appropriate to set out the material facts that gave rise to the prosecution. Darbara Singh and the deceased Malook Singh were the sons of a man named Phula, and the background of the dispute leading to the alleged offences is summarized in the subsequent portion of the record.
In the period following the partition of India, the brothers Darbara Singh and the deceased Malook Singh lived in the village of Butran, which after the partition became part of West Pakistan. The appellants also lived in that same village. Around the year 1943, Sunder Singh, who was a brother of Phula Singh, executed a mortgage of twenty killas of agricultural land for a consideration of Rs 2,500. The mortgage was made with the appellant Sunder Singh and his brothers, who in return were allotted forty killas of land situated in the village of Habri in Karnal District. The mortgagor, Sunder Singh, later died without leaving any surviving issue or a widow. After his death, his brother Phula Singh asserted that he was the rightful heir of the deceased mortgagor and accordingly demanded redemption of the mortgaged land by paying the original sum of Rs 2,500. The appellant Sunder Singh refused to acknowledge Phula Singh as the heir and consequently Phula Singh filed an application before the Assistant Collector at Kaithal on 29 November 1959 seeking redemption of the mortgage. This claim was vigorously opposed by the appellant Sunder Singh and his co‑mortgagees, who challenged Phula Singh’s title and, alternatively, contended that possession of the land could not be surrendered unless a payment of Rs 25,000 was made. The proceedings continued for some time, but Phula Singh was unable to present satisfactory evidence in support of his title before the Assistant Collector. As a result, his application was dismissed on the ground of default.
Subsequently, the deceased Malook Singh applied for a passport to travel to Pakistan. According to the prosecution, his purpose in obtaining the passport was to go to Pakistan in order to secure copies of the original mortgage deed and a pedigree‑table from the revenue records kept there, documents that would have strengthened Phula Singh’s claim to heirship of the mortgagor Sunder Singh. An inquiry into Malook Singh’s background was carried out by the relevant authorities, and on 11 January 1960 his passport application was recommended by the Sub‑Divisional Officer of Kaithal to the Punjab Government. However, on 13 January 1960, an incident occurred that forms the basis of the present prosecution: Malook Singh, his brother Darbara Singh, and a relative named Anup Singh were murdered. The prosecution case alleges that the appellants committed these murders in furtherance of a common intention, aiming to prevent Malook Singh from obtaining the evidentiary documents that would support Phula Singh’s claim to heirship of the mortgagor Sunder Singh. This alleged motive, according to the prosecution, was the principal reason for the triple homicide. The events leading up to the murders were confined to a short time span. 13 January 1960 was the festival of Lohri. A few days earlier, Malook Singh had organized an Akhand‑path, a continuous recitation of the holy Granth Sahib, which concluded on the forenoon of 12 January 1960, and the closing ceremony was attended by several individuals, including Shahbeg Singh, who was a relation of Malook Singh.
On the morning of 13 January 1960, at a time between ten and eleven a.m., Malook Singh went to the local Gurdwara accompanied by his wife Amar Kaur, her brother Anup Singh and Shahbeg Singh to pay homage on the auspicious day. Earlier that same morning Darbara Singh, Balkar Singh and Mohinder Singh had arrived at the Gurdwara and were already present. All of the persons who had gathered there remained inside the Gurdwara for a short period and then exited together. Malook Singh left the Gurdwara holding a spear because he intended to proceed to his fields after completing his visit.
When the party that included Malook Singh and his companions reached the ‘baithak’ of Tara Singh, which lay only a few paces from the Gurdwara, they observed three of the appellants approaching them, accompanied by Rachhpal Singh, and noticed that each of these men was armed. The appellant Sunder Singh immediately shouted at Malook Singh, declaring that he would dispatch him to Pakistan in order to obtain proof of the mortgage and heir‑ship of his father to the mortgagor. While making this threat, Sunder Singh raised a lathi and struck at Malook Singh, but Anup Singh intervened and pleaded with Sunder Singh not to assault Malook Singh. In response, Sunder Singh struck Anup Singh on the head with the lathi. Following this, the three companions of Sunder Singh advanced. Gurmukh Singh delivered a lathi blow to one of the limbs of Anup Singh. At that moment Malook Singh stepped forward in an attempt to protect Anup Singh and thrust his spear toward Sunder Singh, inflicting a chest wound on Sunder Singh. Sunder Singh then shouted to his associates that they must prevent Malook Singh and his friends from escaping.
At this stage Lal Singh and Rachhpal Singh drew their double‑barrelled firearms and opened fire. Lal Singh’s first shot struck Malook Singh, while Rachhpal Singh’s bullet injured the knee of Anup Singh. Rachhpal Singh fired again at Anup Singh, causing him to fall. The companions of Malook Singh, except for his wife Amar Kaur, became frightened and fled. Lal Singh pursued Darbara Singh, overtook him at a short distance and shot him dead. Mohinder Singh and Shahbeg Singh, however, managed to find shelter and escaped further harm. After killing Darbara Singh, Lal Singh returned to the scene and again fired at the still‑living Malook Singh and Anup Singh. The assailants then fled the area, each retaining his weapon. The prosecution summarized these facts as constituting three murders.
The learned trial judge, after considering the evidence, gave the benefit of doubt to Rachhpal Singh but convicted the three appellants—Sunder Singh, Lal Singh and Gurmukh Singh—of the offence of murder. Before the High Court, the appellants contended that Gurmukh Singh and Rachhpal Singh had been falsely implicated by the prosecution witnesses. They also argued that Sunder Singh himself had been the victim of aggression at the hands of the deceased Malook Singh and his companions.
In this case, the defence asserted that Lal Singh had discharged his weapon solely to protect his father, and therefore maintained that Sunder Singh and Gurmukh Singh were not guilty of any offence. The defence further argued that, at most, Lal Singh might have exceeded the limits of the right of private defence. The defence’ s position was premised on the allegation that Malook Singh and his companions had initiated the assault on Sunder Singh, making them the aggressors. The High Court examined the oral testimony of the four eyewitnesses – Shahbeg Singh, Balkar Singh, Mohinder Singh and Amar Kaur – considered the injuries suffered by the three deceased individuals, and evaluated the various points raised by the defence. After this detailed assessment, the High Court concluded that the appellants, together with Rachhpal Singh, acted with a common intention as described by the prosecution. In the Court’s view, Sunder Singh and his associates were the aggressors, while Malook Singh and his friends were the victims; consequently, the learned trial judge was correct in finding the appellants guilty of murder under section 302 read with section 34 of the Indian Penal Code.
The High Court appeared to be of the opinion that the trial judge had erred in granting the benefit of doubt to Rachhpal Singh. Alternatively, the Court held that even if the encounter between the two groups had been merely incidental, the facts of the case clearly demonstrated that a common intention to kill the three deceased persons had arisen in the minds of the appellants and Rachhpal Singh at the spot. Their conduct, which resulted in the three murders, led the Court to infer that, whether or not they entered the confrontation with a pre‑existing intention to kill, such an intention developed instantly upon their chance meeting with the opposite party. On the basis of these findings, the High Court affirmed the conviction of the three appellants, upheld the death sentences imposed on Sunder Singh and Lal Singh, and reduced the death sentence originally imposed on Gurmukh Singh to life imprisonment.
The correctness of the High Court’s findings is now being contested by counsel for the appellants, Mr Sethi. The first point raised by Mr Sethi is that the High Court erred in concluding that Rachhpal Singh was present at the scene, shared the common intention of the three other appellants, and actually fired at Anup Singh as alleged by the prosecution. Mr Sethi points out that the trial court had acquitted Rachhpal Singh of the charge, and that no appeal by the State was filed against that order of acquittal. He further observes that, under section 423(1)(a) of the Code of Criminal Procedure, the High Court may reverse an order of acquittal only when an appeal from that order has been preferred and the Court is satisfied that the acquittal was not justified on the evidence produced.
The counsel argued that the acquittal of Rachhpal Singh was not justified on the basis of the evidence presented at trial. He therefore maintained that the High Court ought not to have examined either the propriety or the validity of the order of acquittal in favour of Rachhpal Singh. According to his submission, the High Court possessed neither the authority nor the jurisdiction to embark upon such an enquiry. By recording a conclusion that Rachhpal Singh had taken part in the offence as alleged by the prosecution, the counsel asserted that the High Court introduced a serious infirmity into its own judgment. To support this argument, the counsel relied heavily on the decision in The King v. Plummer. In that case, three persons were tried jointly for a conspiracy. One of the accused pleaded guilty and a judgment was entered against him on the basis of his plea, while the other two pleaded not guilty and were subsequently acquitted. The court held that the judgment against the guilty plea was defective and could not stand. The indictment in that case contained five counts of obtaining money by false pretences and a sixth count alleging a conspiracy among the three accused to defraud the prosecutors. The sixth count did not mention any other or unknown participants and named all three defendants in a single arraignment. All three defendants entered not‑guilty pleas to the five counts, but only one entered a guilty plea to the sixth count; the remaining two pleaded not guilty even to that count. The conviction of the defendant who had pleaded guilty to the sixth count was later set aside on two grounds. First, at a later stage of the trial the guilty defendant sought to withdraw his plea, but the trial court refused, holding that it lacked jurisdiction to permit such a withdrawal. The King’s Bench Division, to which the questions were referred, observed that the trial court did possess discretion, yet it had acted on the erroneous belief that it had no power to allow the withdrawal; consequently, it had not exercised any discretion at all. The division concluded that, had the discretion been properly exercised and the plea withdrawn, the defendant would have been acquitted, which explained the order of acquittal granted by the King’s Bench Division. The second ground was that where an indictment charges that A, B and C together conspired, and a jury subsequently acquits A and B of that charge, it becomes inconsistent to find that any combination, confederation or agreement existed between A, B and C; therefore C could not be convicted of the same charge. These two reasons together led to the setting aside of the conviction against the defendant who had pleaded guilty to the sixth count.
The Court observed that if A, B and C had indeed combined, confederated and agreed together, then C could not be found guilty of the charge. Consequently, on those two foundations the conviction that had been recorded against the defendant who had pleaded guilty to the sixth count was set aside. The Court found it difficult to perceive how the decision in the earlier case could be of assistance to Mr Sethi in the matter before it. Mr Sethi did not contend that the order of the trial Court, which had convicted the three appellants even after acquitting Rachhpal Singh, was itself void. The Court reasoned that, had the precedent of Plummer been applicable, Mr Sethi would have been able to challenge the validity of the three appellants’ conviction at the trial‑court stage itself. Instead, Mr Sethi’s submission was that the appellate court ought not to have examined the propriety or validity of Rachhpal Singh’s acquittal. The Court indicated that it would address that particular issue in due course, but it noted that the Plummer case offered no material assistance for resolving it. The Court then explained that certain cases arise where individuals are charged as members of an unlawful assembly and, simultaneously, with offenses alleged to have been committed by that assembly. In such situations, if the charge specifically and clearly lists the persons constituting the unlawful assembly and does not suggest that any other known or unknown persons were also members, the acquittal of one or more of those specifically charged may create a serious defect in the charge as it stands against the remaining accused. It was in this category of cases that the principle articulated in Plummer might bear relevance. For example, where six persons are charged under section 149 of the Indian Penal Code together with other offenses, the acquittal of two individuals could mean that the remaining four cannot be convicted because the essential element of an unlawful assembly may no longer exist. However, the Court observed that in the present matter the prosecution’s failure to prove that Rachhpal Singh participated in the commission of the offence does not create any defect in its case against the appellant. Even if Rachhpal Singh is deemed not to have been present at the scene, the law does not forbid the prosecution from pursuing its case against the three appellants, provided the evidence it presents is otherwise satisfactory and persuasive. Accordingly, the Court was satisfied that the Plummer decision does not render the appellants’ convictions unreasonable or illegal. Turning to the argument based on section 423(1)(a) of the Criminal Procedure Code, the Court noted that the acquittal order in favour of Rachhpal Singh could be set aside only if an appeal had been properly filed against that order. The Court then posed the question whether the provisions of section 423(1)(a) create a bar against further consideration of the matter.
In this matter the Court examined whether the High Court was prohibited by section 423(1)(a) of the Criminal Procedure Code from addressing, even incidentally, the issue of Rachhpal Singh’s presence and conduct at the material time while it was hearing the prosecution case against the three appellants. When the High Court heard the appeal filed by the three appellants it inevitably had to confront the objection raised by counsel Sethi concerning the reliability of the witnesses. That objection was based on the observation that the trial Court had not accepted the testimony against Rachhpal Singh, a circumstance that required the High Court to give the matter some consideration. The Court held that if, in the course of evaluating the case against the appellants, it became necessary to discuss, even indirectly, the evidence relating to Rachhpal Singh, no statutory prohibition existed. The High Court could, on a complete appraisal of the evidence, reach the conclusion that the material against Rachhpal Singh was unsatisfactory; in that event it would have examined that evidence in the light of the identified deficiency. Conversely, after a thorough review of the whole record, the High Court could, and indeed did, find that the evidence against Rachhpal Singh was satisfactory and therefore required no rejection. The Court emphasized that while assessing the points put forward by the appellants, the High Court was free to consider the entire evidential matrix, including any material pertaining to Rachhpal Singh, and could arrive at either a favorable or an adverse finding regarding that evidence. Consequently, the submission that section 423(1)(a) barred the High Court from even indirectly entertaining the merits of the acquittal order could not be sustained.
The Court further noted that counsel Sethi attempted to rely on the decision of this Court in Pritam Singh v State of Punjab. In that precedent, the Court observed that a verdict of acquittal pronounced by a competent court after a lawful trial is not merely a statement that the acquitted person cannot be tried again for the same offence; the verdict is binding and conclusive in all subsequent proceedings between the same parties, and the maxim “res judicata pro veritate accipitur” applies equally to criminal and civil matters. Those observations were made in a situation where, despite an earlier acquittal under sections 19(f) of the Arms Act, the same individual faced a later murder charge. The Court clarified that the Pritam Singh ruling was intended to demonstrate that an acquitted person cannot be retried on the identical charge unless the acquittal is appealed. It was not intended to prevent a higher court, while adjudicating a separate case, from evaluating evidence that also relates to the acquitted individual, provided the purpose is to determine the credibility of that evidence against other accused persons. Accordingly, the Court concluded that the Pritam Singh decision offered no support for counsel Sethi’s argument that the High Court acted illegally or improperly by expressing an opinion on the prosecutorial evidence concerning Rachhpal Singh.
In this case the Court explained that when a person is acquitted of an offence that has been duly charged and tried before a competent court, that acquittal becomes binding between the individual and the prosecution. The only way to challenge or reopen such an acquittal is through an appeal against that specific judgment; no other method is permissible. The Court observed that this rule did not apply to the matter before it. The High Court, when it examined the criticism raised by counsel for the petitioner regarding the prosecution’s evidence on the basis that the evidence was unreliable with respect to Rachhpal Singh, was not attempting to overturn the acquittal that had been granted to Rachhpal Singh. Rather, the High Court was assessing whether the same evidence could be trusted when considered against the other appellants who were before it. Consequently, the Court found that the petitioner could not legitimately rely on the earlier decision in Pritam Singh to contend that the High Court had acted illegally or improperly by expressing the view that the prosecution’s evidence against Rachhpal Singh was not unsatisfactory. The Court further noted that, as an appellate forum, the High Court is required, on occasion, to examine indirectly and incidentally the evidence presented against an accused who was already acquitted in the trial court, especially when the High Court is hearing appeals filed by co‑accused persons who were convicted in the same trial. In doing so, both the High Court and this Court have sometimes recorded an indirect conclusion that the evidence against the acquitted individual was not weak or unsatisfactory, and that the acquittal might therefore be seen as unjustified, as reflected in Bimbadhar Pradhar v. The State of Orissa. Accordingly, the Court concluded that there was no substance in the petitioner’s claim that the High Court’s judgment suffered from a serious flaw because it had examined the evidence against Rachhpal Singh and found it not unsatisfactory. The Court also pointed out that the trial court, which had acquitted Rachhpal Singh, had expressly stated that it did not conclude that the eyewitnesses were false in alleging Rachhpal Singh’s participation in the common intention; instead, the trial court held that the case against him was not proved beyond reasonable doubt. In other words, the trial court’s finding was not that the prosecution evidence was false, but that it left room for reasonable doubt. Having clarified those points, the Court turned to the merits of the case. On the merits, counsel for the petitioner raised several general observations affecting the credibility of the oral evidence produced by the prosecution. According to the trial court record, the prosecution’s case was that the shooting had taken place from a very short distance, ranging between nine and twelve inches.
In this case, the Court described that the forensic evidence offered by Dr (Iqbal) Shukla, who performed the post‑mortem examinations on the three deceased, indicated that most of the gunshot wounds possessed burnt, irregular edges and that signs of burning were also observed on certain internal organs, such as the lungs and the heart, through which the bullet or pellets had passed. The Court noted that, although this portion of Dr Shukla’s testimony had not been subjected to rigorous cross‑examination at trial, the State had submitted to the High Court that if the assailants had fired licensed firearms, burning of wound edges could occur only when the muzzle‑to‑body distance did not exceed nine inches. The Court further explained that the autopsy findings showed the pellets had entered the bodies separately rather than as a mass, which implied that the victims had been shot from a distance of at least twenty to twenty‑five feet. Persuaded by this line of reasoning, the High Court called upon Dr Shukla and Dr K S Rai, a Professor of Forensic Medicine, to clarify the matter. While Dr Shukla reiterated her original opinion, Dr Rai’s evidence contradicted hers and, in addition, his examination of the victims’ clothing revealed no signs of burning. Consequently, the High Court concluded that Dr Shukla’s assertion of burnt wound edges was difficult to accept and held that the firing must have taken place from a distance of twenty to twenty‑five feet. The Court recorded that this conclusion was not contested before it by the counsel representing the State. However, counsel for the petitioner, Mr Sethi, argued that this determination of shooting distance created a serious infirmity in the prosecution’s case because the eyewitnesses had originally testified that the shots were fired from a distance of nine inches. The High Court had considered this infirmity only in the testimony of Shahbeg Singh, a view that Mr Sethi labeled erroneous. He pointed out that the same inconsistency existed in the accounts of Balkar Singh, who also described a nine‑inch distance, and of Amar Kaur, who stated the distance as two to four feet. Only Monhinder Singh gave no evidence on the distance. Accordingly, Mr Sethi maintained that three of the four eyewitnesses had given a completely inaccurate statement regarding the range of fire.
In addressing the testimony of Amar Kaur, the Court observed that the High Court had incorrectly treated her statement made before the committal court as substantive evidence in the present trial. Consequently, it could be accepted in favor of the defence that three of the four eyewitnesses had given their accounts of the distance from which the firing occurred in accordance with the theory advanced by Dr Mrs Iqbal Shukla, an observation that undeniably weakened the prosecution evidence. Counsel for the defence further argued that the prosecution’s narrative of how the incident unfolded was inconsistent with the allegation that the appellants had arrived at the scene with a pre‑determined intention to assault Malook Singh and his companions. The Court noted that if the appellants had indeed shared a common intent to attack, they would not have permitted Sunder Singh, an elderly man of sixty‑five, to advance armed with a lathi while his son, Lal Singh, was already armed with a firearm. It appeared implausible that Lal Singh would have allowed his aged father to confront an opponent who was already armed with a spear. Accordingly, the sequence of events presented by the prosecution witnesses seemed at odds with the theory of a pre‑concerted plan, a contention that the Court could not dismiss as wholly unreasonable. Nonetheless, the Court found it fairly clear that Sunder Singh had attempted to strike Malook Singh before he himself sustained injury. As the High Court had emphasized, given the nature of the wounds inflicted on Sunder Singh by Malook Singh, it was unlikely that Sunder Singh could have attacked Anup Singh after being assaulted. Therefore, on a balance of probabilities, the Court concluded that when Sunder Singh and his sons encountered Malook Singh and his companions, Sunder Singh attempted to assault Malook Singh, during which Anup Singh was injured. This finding did not, however, demonstrate a pre‑arranged plan by Sunder Singh and his sons; rather, it suggested a chance encounter that escalated into an exchange of words and a subsequent aggressive act by Sunder Singh. The oral testimony of the four eyewitnesses portrayed the incident as if Sunder Singh and his companions had arrived armed and determined to attack Malook Singh, but the Court regarded that depiction as artificial. Moreover, the Court reasoned that Sunder Singh could not have been left to confront Malook Singh alone if he and his son had intended to attack before meeting him. The defence also raised the point that Lal Singh had deposited his firearm with the police when proceedings under section 107 of the Criminal Procedure Code were initiated, only to retrieve it on 9 January 1960, arguing that this retrieval indicated a prior decision to assault Malook Singh. The High Court had attached considerable weight to this circumstance, yet the trial Judge had not questioned Lal Singh about it under section 342 of the Code, rendering it unfair to heavily rely on this fact against him in support of a theory of common intention.
In this case, the Court observed that the investigation that had been launched against the appellant’s father and his associates under section 107 of the Criminal Procedure Code was followed by the retrieval of a firearm by Lal Singh on 9 January 1960, and the prosecution argued that Lal Singh reclaimed the gun because he and his father had resolved to assault Malook Singh. The High Court had placed great weight on this circumstance. However, the Court noted that the trial judge had never put this matter before Lal Singh when he was examined under section 342 of the Code. If the act of retrieving the gun on that date was to be regarded as incriminating, the trial judge ought to have afforded Lal Singh an opportunity to explain his conduct. Because no question on this point was addressed to him, the Court found it unfair to rely heavily on this circumstance to sustain the theory that Lal Singh, his father and his brother shared a common intention to commit the assault. Moreover, the Court recalled that the High Court itself had observed that carrying a gun in that region and among persons of the same social class was not an unusual occurrence. Just as Malook Singh was known to carry a spear, Lal Singh could likewise be seen carrying a licensed firearm, and therefore the fact that he possessed a gun taken back from police custody on 9 January does not, in the Court’s view, confirm a pre‑concerted plan. The prosecution also contended that, despite objections to the testimonies of Shahbeg Singh, Balkar Singh and Amar Kaur, Mohinder Singh was an independent witness whose evidence supported the prosecution’s claim of a pre‑arranged plan and should therefore be believed. The Court, however, was not persuaded. Apart from the overall improbability of the prosecution’s theory, the Court was unconvinced that Mohinder Singh could be regarded as an absolutely independent witness, contrary to the High Court’s conclusion. During cross‑examination, Mohinder Singh was asked whether he was related to Malook Singh, and it was suggested that his grandfather was Gehna Singh, who was said to be a cousin of Phula Singh. Mohinder Singh responded that he did not know his grandfather’s name because he had never seen him and had never inquired about it from any relative. The High Court accepted this explanation as genuine, but the Court was not satisfied with that assessment. In the Court’s opinion, the pattern of Mohinder Singh’s answers indicated an attempt to evade giving truthful information about his relationship with Phula Singh. Furthermore, the evidence showed that proceedings had been
The proceedings that had been initiated against Malook Singh and his associates, including Mohinder Singh, were filed under sections 107 and 150 of the Code of Criminal Procedure. The complaint in that matter had been lodged by Hazur Singh. Hazur Singh’s allegations clearly indicated that there were ongoing disputes between two rival factions, one headed by the appellant Sunder Singh and the other headed by Malook Singh. The High Court had observed that the record did not contain any evidence showing that Sunder Singh or members of his party had appeared as witnesses in those proceedings. However, that observation was not considered decisive. What was material, according to the Court, was the existence of a dispute between the two rival groups, one of which included Mohinder Singh, and the fact that this dispute formed the subject of the cross‑examination of Mohinder Singh at trial. Consequently, the Court was not prepared to deem Mohinder Singh an absolutely independent witness. Like the other eye‑witnesses, he had to be characterised as a partisan witness. This assessment undermined the argument that Mohinder Singh’s evidence was unimpeachable in support of the theory that the appellants shared a common intention. Accordingly, the Court held that the prosecution evidence failed to establish its case that the appellants, at the scene of the offence, had resolved to attack Malook Singh. Instead, the evidence suggested that the incident arose from a chance meeting that began with an exchange of heated words between Sunder Singh and Malook Singh, after which Sunder Singh attacked Malook Singh. By this reasoning, Sunder Singh was the aggressor, and Lal Singh could not rely on a claim of private defence. In the present appeal, the arguments presented by counsel were essentially confined to the case of Gurmukh Singh. Sunder Singh, who had been sentenced to death, died while in jail pending the appeal, and, as counsel fairly admitted, the case of Lal Singh was difficult to defend. Counsel therefore concentrated on Gurmukh Singh’s case, and the Court turned its attention to that matter. If the prosecution’s allegation of a pre‑ concerted plan does not succeed and it is held that Sunder Singh initiated the assault on Malook Singh and that Lal Singh subsequently fired at Malook Singh and his companions, then there can be no doubt that Sunder Singh and Lal Singh acted with a common intention to murder Malook Singh and his companions. The Court noted that Sunder Singh was aware that Lal Singh possessed a firearm, and when Sunder Singh deliberately provoked a controversy with Malook Singh and proceeded to assault him, he must have known that Lal Singh was positioned behind him to follow up the attack and complete the assault. For this reason, the Court was inclined to accept the High Court’s conclusion that a common intention to murder had been formed.
The Court observed that the intention to murder Malook Singh and his companions must have arisen in the minds of Sunder Singh and Lal Singh shortly after they encountered the victims and after Sunder Singh initiated the assault on Malook Singh. The Court then examined whether it could be reasonably concluded that Gurmukh Singh shared that same common intention. The evidence linking Gurmukh Singh to the offence was considered next. According to the prosecution, Gurmukh Singh is alleged to have inflicted a knee injury on Anup Singh and to have caused an injury to Amar Kaur. It was noted, however, that none of the prosecution’s witnesses mentioned Gurmukh Singh’s attack on Anup Singh until they testified in the Sessions Court. This failure to refer to that part of his conduct was regarded as highly significant. The manner in which the incident was described in detail suggested that the omission created a contradiction that could not be dismissed lightly.
Regarding the alleged injury to Amar Kaur, the Court found the evidence to be unsatisfactory. Although Amar Kaur had testified about the injury, the Court was not convinced that her testimony was reliable. Moreover, the injury to Amar Kaur lay outside the scope of the common‑intention charge and was not the subject of a separate charge. After a careful review of all the prosecution evidence, the Court concluded that it was not safe to hold that Gurmukh Singh was present at the scene of the offence or that he participated in attacking either Anup Singh or Amar Kaur. Consequently, the Court could not infer that Gurmukh Singh, like his father and brother, had developed a common intention to attack Malook Singh and his companions.
Having examined the probabilities in the case and bearing in mind the weaknesses in the evidence, the Court differed with the High Court’s conclusion that Gurmukh Singh was also guilty under section 302 read with section 34 of the Indian Penal Code. In the Court’s opinion, the case against Gurmukh Singh was not established beyond a reasonable doubt, and therefore he was entitled to the benefit of that doubt. As a result, the Court confirmed the conviction and sentence of Sunder Singh and Lal Singh, but set aside the conviction and sentence of Gurmukh Singh, ordering his acquittal and discharge. Accordingly, the appeal was partly allowed.