Kirpal Singh vs State Of U.P

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 54 of 1963

Decision Date: 10 May 1963

Coram: J.C. Shah, Bhuvneshwar P. Sinha, N. Rajagopala Ayyangar

The Court recorded that the present matter is Kirpal Singh versus State of Uttar Pradesh, decided on 10 May 1963. The judgment was authored by Justice J. C. Shah, with Justices Bhuvneshwar P. Sinha and N. Rajagopala Ayyangar forming the bench. The parties were identified as the petitioner Kirpal Singh and the respondent State of Uttar Pradesh. The decision bears the citation 1965 AIR 712 and 1964 SCR (3) 992, and it is also referenced as R 1968 SC 1402 (7). The applicable statutory provision concerned the powers and duties of the magistrate in criminal law, specifically the desirability of examining all witnesses to the actual commission of the offence under the Code of Criminal Procedure, 1898, as amended by Act 26 of 1955, sections 173 and 207A.

The headnote summarised the factual and procedural background. The appellant had been convicted by the Sessions Judge of the offence of murder of a person identified as K and sentenced to death; the High Court had affirmed both conviction and sentence. During the committal proceedings, it emerged that the magistrate had committed the accused to the Court of Session without recording the evidence of witnesses who had actually witnessed the commission of the offence. The Court held that, under section 207A of the Code of Criminal Procedure, as amended, a magistrate possesses discretion concerning the examination of witnesses not produced by the prosecutor. Ordinarily, the prosecutor is expected to examine, before the committing magistrate, all witnesses to the actual commission of the offence. If the prosecutor fails to do so without adequate reasons, the magistrate is justified in calling such witnesses, especially in serious charges such as murder, because the magistrate owes a duty to call witnesses who can illuminate the prosecution case. A failure by the magistrate to examine witnesses simply because they were not produced, without considering whether their testimony is necessary in the interests of justice, constitutes a neglect of duty. The magistrate must consider the documents referred to in section 173 of the Code and any testimony produced and examined by the prosecutor, and must decide whether, in the interests of justice, the evidence of other witnesses should also be recorded. In committing an accused for trial, the magistrate performs a judicial function of vital importance to the ultimate trial, and any slipshod or mechanical handling of the proceeding must be condemned. The Court referred to the earlier decision in Shriram Daya Ram v. State of Bombay, [1961] 2 S.C.R. 890, for guidance.

The formal judgment noted that the case arose under criminal appellate jurisdiction, specifically Criminal Appeal No. 54 of 1963. The appeal was taken by special leave from the judgment and order dated 13 September 1962 of the Allahabad High Court in Criminal Appeal No. 877 of 1962 and Referred No. 79 of 1962. Counsel for the appellant was identified, and counsel for the respondent was also noted. The judgment dated 10 May 1963 was delivered by Justice Shah, who began by stating that the appellant Kirpal Singh and his two brothers, Arjun Singh and Sarwan Singh, had been tried by the Sessions Judge at Pillibhit for causing the death of one Karam Singh with gunshot injuries on the evening of 26 March 1961 at the village of Shanti Nagar. The Sessions Judge had acquitted the two brothers but had convicted the appellant Kirpal Singh of the charge and sentenced him to death, subject to confirmation by the High Court. The High Court of Allahabad confirmed the conviction and sentence. With special leave, Kirpal Singh appealed to this Court.

Kirpal Singh, together with his two brothers Arjun Singh and Sarwan Singh, was tried before the Sessions Judge at Pillibhit for the alleged killing of a man named Karam Singh by means of a gunshot on the evening of 26 March 1961 at the village of Shanti Nagar. The Sessions Judge held that Arjun Singh and Sarwan Singh were not guilty and acquitted them, but found the appellant Kirpal Singh culpable of the charge that had been framed against him. The Judge then imposed the capital punishment on Kirpal Singh, subject to the confirmation of the sentence by the High Court. The Allahabad High Court reviewed the matter and affirmed both the conviction and the death sentence. Thereafter, by way of a special leave petition, Kirpal Singh appealed the decision to this Supreme Court.

The prosecution presented its case by first describing the background of the parties. The appellant and his father‑in‑law, Rakkha Singh, were refugees who had arrived from West Pakistan. The Government had allotted a block of agricultural land to both Rakkha Singh and the appellant, and the land was subsequently divided between them; however, no physical boundary markers were erected on the dividing line. In December 1960 a dispute arose concerning the harvesting of sugarcane that had been planted on the disputed portion of the land. The disagreement was mediated by a third person identified as Sardar Ajit Singh, after which Rakkha Singh consented to transfer seven hundred maunds of sugarcane to the appellant and his brothers. On 22 March 1961 the appellant and his brothers visited the residence of Rakkha Singh to demand that the promised amount be delivered. They alleged that they had received only three hundred maunds, leaving four hundred maunds unpaid. During that visit an altercation occurred between Karam Singh, the eldest son of Rakkha Singh, and the appellant; Karam Singh is recorded as having accused the appellant and his brothers of “behaving like dishonest persons”. Rakkha Singh intervened in the quarrel and the episode concluded without any further incident.

According to the prosecution, on the evening of 26 March 1961 at approximately six o’clock, Rakkha Singh, his two sons Karam Singh and Manjit Singh, and a neighbour named Sardar Anokh Singh were seated inside a thatched hut. At that moment the appellant arrived at the hut carrying a firearm, while his two brothers came armed with lathis (wooden sticks). The appellant is said to have shouted to Karam Singh, ordering him to emerge from the hut. When Karam Singh stepped out, the appellant allegedly addressed him, stating that because Karam Singh had not resolved the earlier sugarcane dispute, the appellant would now “settle his account”. The appellant then discharged his weapon, striking Karam Singh in the chest; the wound is described as being immediately fatal. Upon hearing the sound of the gunfire, Rakkha Singh, his son Manjit Singh, and Sardar Anokh Singh left the hut. Manjit Singh attempted to seize the appellant and his brothers but was unable to do so. Rakkha Singh subsequently proceeded to the police station at Puranpur and lodged a first information report at 7:45 a.m.

During the trial before the Court of Session, the prosecution called several eye‑witnesses who were present at the scene. Manjit Singh, Sardar Anokh Singh, and Rakkha Singh were examined as persons who had observed the assault on Karam Singh. However, Manjit Singh and Sardar Anokh Singh did not corroborate the prosecution’s version of events. Both of them testified that, on the night of 26 March 1961, after hearing gunshots while they were in their respective homes, they went out and learned from an unidentified individual that Karam Singh had been shot by “some Sardar who was wearing a mask”. Their statements, recorded by the sub‑inspector of police during the investigation, were later cross‑examined by the prosecutor, but the witnesses denied having made any statements that the appellant and his brothers had arrived at Shanti Nagar at six o’clock on the day of the incident or that the appellant had fired the fatal shot. In contrast, Rakkha Singh supported the prosecution’s narrative, recounting the earlier sugarcane dispute, the quarrel on 22 March, and his observation that on 26 March at around six p.m. the appellant and his brothers approached his hut, that the appellant called out to Karam Singh, and that he subsequently shot Karam Singh, causing his instant death.

According to the testimony of Manjit Singh and Anokh Singh, they were at home in their respective houses when, at about eight or nine o’clock in the evening of 26 March 1961, they heard the report of gunfire. When they came out, they learned from an unidentified person that Karam Singh had been shot by “some Sardar who was wearing a mask.” Their statements, recorded by the sub‑inspector of police during the investigation, were later placed on record, and the prosecutor was permitted by the Court to cross‑examine them. During cross‑examination the two witnesses denied that they had previously said the appellant and his two brothers had arrived at Shanti Nagar at six o’clock on the day of the incident, nor that the appellant had killed Karam Singh by shooting him.

In contrast, Rakkha Singh gave evidence that supported the prosecution’s case. He described the earlier dispute concerning sugarcane and also mentioned a quarrel that had taken place between Karani Singh and the appellant on 22 March 1961. He then recounted that on 26 March 1961, at about six o’clock in the evening, the appellant and his two brothers had come near his hut. He said the appellant called out to Karam Singh, and after shouting that Karam Singh was not settling the sugarcane matter and that “they were going to settle his matter,” the appellant fired a shot that killed Karam Singh instantly. When cross‑examined, Rakkha Singh explained that from inside the hut he could not see the faces of the assailants. He added that after hearing the gunshot he emerged from the hut, saw the assailants running away, and was able to recognize them by their gait and voice. The learned Sessions Judge accepted Rakkha Singh’s testimony as reliable, found that it implicated the appellant, and consequently convicted the appellant of causing the death of Karam Singh. The judge, however, concluded that the evidence did not prove the guilt of the appellant’s two brothers, and therefore acquitted them. The High Court of Allahabad affirmed the findings of the trial court, upheld the conviction and the death sentence imposed on the appellant, and held that the conclusions were based on an appreciation of the evidence with no question of law involved. The Supreme Court noted that it ordinarily does not re‑examine factual evidence in criminal appeals unless the trial was marred by illegality, procedural irregularity, denial of natural justice, or resulted in a gross miscarriage of justice. Rakkha Singh’s claim that he identified the appellant by voice and gait was highlighted; he was the appellant’s father‑in‑law and had seen the appellant frequently in the days preceding Karam Singh’s death, including a quarrel about sugarcane that occurred four days earlier.

The court observed that the appellant’s brothers had withdrawn from the scene after Rakkha Singh intervened, and that they appeared greatly annoyed. It acknowledged that identifying a person solely by the timbre of his voice can be risky in a criminal trial, especially when the recogniser is not well‑acquainted with the person identified. However, the court noted that the appellant was intimately known to Rakkha Singh, and that for more than two weeks before the offence Rakkha Singh had met the appellant repeatedly while discussing the dispute over the sugarcane crop. Rakkha Singh reported hearing the appellant and his brothers call Karam Singh to come out of the hut, and also hearing the appellant, before the shooting, refer to the sugarcane dispute. In his primary examination, Rakkha Singh testified as if he had seen the actual assault, but during cross‑examination he admitted that he had not seen the assailant’s face. He nevertheless maintained that he could recognise the appellant and his two brothers by their gait and voice. The court held that such identification, based on what Rakkata Singh heard and observed, was not so improbable as to justify overturning the trial court’s assessment of the witness’s credibility, nor the High Court’s acceptance of his testimony. The court further noted that the statements of Manjit Singh and Anokh Singh, who attempted to protect the appellant by claiming the assault occurred at about nine o’clock and that the assailant wore a mask, were inconsistent with their earlier investigative statements, thereby weakening their version.

The court also considered the issue of delay in lodging the first information report. According to Rakkha Singh, the offence occurred at six p.m. on 26 March 1961, while the FIR was filed at the Puranpur police station at 7.45 a.m. on 27 March 1961. The distance between Puranpur police station and the village of Shanti Nagar is roughly fifteen miles in a straight line, but public transport requires a considerably longer detour. Rakkha Singh explained that, to avoid delay and to ensure a police officer’s presence, he obtained a jeep from Sampurna Nagar Union, transported the sub‑inspector in the same vehicle, and brought him to the police station. The court concluded that, given the circumstances and the geography of the area, there was no gross delay in filing the FIR that would merit doubting Rakkha Singh’s account. The court further observed that two police outposts existed near Shanti Nagar—one about two miles away and another about five miles away—although the officer in charge of those outposts did not have the authority to record a first information report.

It was conceded by counsel for the appellant that the officer at the nearby police outpost had no authority to record a first information report. Rakkha Singh wished to lodge a complaint concerning the alleged commission of murder. He did not fear any violence from the appellant or his brothers, and because the officer at the outpost could not have recorded his complaint, no fault could be attached to Rakkha Singh for not approaching that officer. The post‑mortem examination of Karam Singh’s stomach revealed approximately eight ounces of half‑digested food, which indicated that death occurred roughly two hours after Karam Singh’s last meal. Counsel for the appellant argued that the condition of the stomach supported the version given by Manjit Singh and Anokh Singh; however, Rakkha Singh testified that Karam Singh had taken tea and pakadas at about four p.m., which explains the presence of half‑digested food. The prosecution’s case relied entirely on the testimony of a single witness who did not claim to have identified the assailant by sight. The Court held that this circumstance did not warrant a departure from the normal rule that such testimony may be relied upon. The offence was committed in sufficient daylight, the assailant was intimately known to Rakkha Singh, and the witness had heard the appellant’s voice discussing the dispute with the complainant. The Court found that the fact that Rakkha Singh did not see the appellant’s face while the latter was fleeing was not a sufficient ground to reject his testimony. Accordingly, the conviction of the appellant was affirmed, and the sentence imposed by the Trial Court was deemed the only appropriate sentence under the facts. Before concluding, the Court observed that the committing Magistrate had erred in committing the accused to the Court of Session without recording the evidence of all witnesses to the actual commission of the offence. Under the Code of Criminal Procedure, as amended by Act 26 of 1955, a Magistrate conducting committal proceedings must take the evidence of any persons produced by the prosecution as witnesses to the actual commission of the alleged offence, and may, if he believes it necessary in the interests of justice, take evidence of any additional prosecution witnesses pursuant to section 207A(4). In enquiries involving serious charges such as murder, the Magistrate possesses, and indeed has a duty, to record the testimony of other witnesses who can shed light on the case, thereby serving the interests of the accused and the public. Examination of witnesses to the actual commission of the offence should, therefore, form the normal rule in such inquiries.

In cases involving serious offences, it was established that committing an accused should normally be preceded by the examination of all witnesses who actually observed the commission of the offence. The prosecutor was ordinarily expected to present such witnesses before the committing Magistrate. If the prosecutor failed to do so without adequate justification, the Magistrate was authorised, and indeed obliged, to call those witnesses himself in order to illuminate the prosecution’s case. Prior to the amendment effected by Act 26 of 1955, the law required the Magistrate conducting the inquiry to record the testimony of every important witness. To reduce unnecessary delay before a trial, the Legislature introduced section 207A, which gave the Magistrate discretionary power to examine witnesses who had not been produced by the prosecutor. The exercise of this discretion was required to be judicial in nature; it was not to be governed by rigid rules or standards but had to be adapted to the particular circumstances of each case. The Magistrate was also directed not to be unduly influenced by the prosecutor’s attitude. While the prosecutor’s representation concerning witness examination could be considered, the Magistrate had to decide, based on the interest of justice, whether taking evidence from any additional prosecution witnesses was necessary. In doing so, he had to give due regard to the nature and gravity of the offence, the interests of the accused, the broader public interest, and any defence that the accused might have disclosed.

The Court held that a Magistrate who declined to examine witnesses to the actual commission of the offence solely because they were not produced, and who did not consider whether their evidence was required in the interest of justice, had failed to discharge his duties. The judgment noted that no authority, including the decision in Sriram v. State of Bombay ([1961] 2 S.C.R. 890), supported the proposition that, especially in inquiries concerning serious charges such as murder or culpable homicide, the Magistrate must be guided by the prosecutor. The Magistrate’s duty extended beyond merely examining witnesses presented by the prosecution; he was required to study the documents referred to in section 173 and the testimony of any witnesses already examined, and to determine whether, in the interest of justice, it was necessary to record the evidence of additional witnesses. Consequently, in inquiries involving serious offences like murder, the Magistrate should normally insist on the examination of the principal witnesses to the offence. Only in exceptional circumstances could a failure to examine such witnesses be justified, because the Magistrate’s role in committing an accused to trial performed a vital judicial function that impacted the subsequent trial.

The Court observed that the magistrate who conducts a trial must discharge a judicial function that is of vital importance for the ultimate determination of the case. It emphasized that the magistrate’s role is not merely administrative but requires careful judicial attention because the findings made at this stage can significantly affect the final trial outcome. Accordingly, any careless, slipshod, or merely mechanical handling of the proceedings was held to be undesirable and was expressly condemned. The Court then turned to the pending appeal. After reviewing the submissions and the record, the Court concluded that the appeal did not establish any error or infirmity that warranted reversal or modification of the lower decision. Consequently, the appeal was found to have failed. In accordance with that conclusion, the Court ordered that the appeal be dismissed. The dismissal of the appeal was thus confirmed, and the parties were directed to abide by the decision of the lower tribunal.