In January 1949, Dalip Singh was murdered. The deceased was the brother of
Bachittar Singh and Jita Singh. Bachittar Singh had lodged a complaint against
seven persons including the appellant Mohinder Singh for wrongfully cutting a
tree that was in his possession. A date was fixed for hearing the said matter on
28th February 1949 before the Naib Tehsildar.
On the date of hearing, the
deceased and Jita Singh were attacked by the appellant and a seventeen-year-old
boy, Gurnam Singh. Both the brothers were returning from their fields when they
were attacked. The deceased had sickles in his hand and his brother was carrying
a load of fodder on his head. The first attack was directed towards Jita Singh.
The appellant fired a bullet which hit Jita Singh and he instantly fell.
deceased was being chased by Gurnam Singh around the outer boundary of a tank
that was close by. From the opposite side, the appellant caught him and shot him
in the chest. Gurnam Singh also reached the spot and fired from a distance of
about 4 to 5 feet near the deceasedís ears.
The deceased died on the spot. Jita
Singh went to the police station and filed a first information report against
the appellant and Gurnam Singh for murdering his brother. They were charged with
Section 302 and 307 read with Section 34 of the Indian Penal Code.
Arguments on behalf of the Prosecution
The prosecution has not examined any person from the locality in supporting
their argument. The entire case rests on the evidence produced by the three
witnesses i.e., Jita Singh, Harnam Singh, and Buta Singh. Jita Singh asserts
that he has seen the co-accused shooting his brother. At the time of the
incident, Harnam Singh was coming from another village to fetch medicine for his
maternal cousin when he saw the incident. Buta Singh had come to see Harnam
Singh an evening before the incident took place. Thus, he was present near the
crime scene. The prosecution had produced three oral witnesses to prove their
claim against the appellant.
Arguments on behalf of the Defence
The defence had produced the observation made by Dr. Goyle, Director of the CID
Laboratory, Phillaur on the empty cartridges. It was submitted that the guns had
signs of being fired but he could not tell the exact time when they were fired
last. There is ambiguity over the fact that whether cartridges were filed from
P-16 or another similar gun. The appellant had denied the allegation of firing
at the deceased and Jita Singh. At the time of the incident, he had gone to the
Naibís Tehsildar court.
To support his claim the counsels have examined three
alibis. The first witness was Naib Tehsildar itself. He stated that around six
people were present in court on the date of the hearing when the incident took
place. The appellant had also submitted an application for taccavi loan which
had been filed by him on the date of the incident and bears his thumb imprint.
The second witness was the appellantís brother-in-law, Joginder Singh who had
stated that the appellant had signed the application (Exhibit D-C) and was
present in court. The third witness was the fingerprint expert.
Sessions Courtsí & High Court Judgment
The police filed a charge sheet against the said co-accused after the
investigation was complete. The matter was then heard by the Sessions Judge of
Ferozepur. The judge convicted the appellant under section 302 and the
co-accused was sentenced to transportation of life. Both of them were also
sentenced to three yearsí rigorous imprisonment. The post mortem report
indicates that the deceased had succumbed to the gunshot injuries. There were
total six injuries on his body. Jita Singh had suffered modest injuries on his
back from pellets and blunt weapons.
When the investigating officer reached the crime scene, he found an empty
cartridge case at the place where Jita Singh was attacked and two empty
cartridge cases, and a bloodstained cartridge where the deceasedís body was
lying. The police questioned the appellant whether he possessed any gun. He had
a licenced 12 bore gun. The entire incident took place in the area surrounding
the Gurudwara and local houses.
Both the Sessions Court and High Court have held the appellantís alibi to be
unsatisfactory and he had been convicted of the said charges.
Issues raised before the Supreme Court
This case is a special leave petition under Article 136 of the Indian
Constitution. The appellant had appealed against the High Courtsí judgment
which upheld his death penalty sentence. He had also appealed against his
conviction under Section 302 and 307 read with Section 34 of the Indian Penal
- Whether the special leave petition is maintainable under Article 136 of
the Indian Constitution?
- Whether the High Courtís judgment confirming the death penalty can be
Supreme Courtsí Judgment
The Supreme Court has criticised the Sessions and High Courtsí judgment. They
had convicted the appellant on the basis of three oral witnesses produced by the
prosecution. The statements made by Jita Singh can be criticised as he was
himself shot and was not in a position to identify the murderers. The standard
of proof is not a reasonable one. Jita Singh had identified the gun on the basis
of the brass plate he saw at the end of the gun. This cannot be taken as
appropriate evidence in the identification of the gun.
The Supreme Court has stated that in cases where death is caused by a lethal
weapon, the prosecution always must prove by expert evidence that it was likely
or at least possible for the injuries to have been caused with the weapon with
which and in the manner in which they are alleged to have been caused. In the
present case, it is doubtful to ascertain whether the injuries were caused by a
gun or a rifle to the deceased.
This issue could have been settled with the help
of an expert but the prosecution has failed to do so. The entire prosecutionís
case is based on the fact that the appellant was armed with a gun. The
prosecution has failed to establish that the two shots were fired by the co-accusedís
and not the appellant only.
In the case of Pritam Singh v. State
, the court had held that a criminal appeal
will only be allowed under special and exceptional circumstances.
The three conditions are as follows:
- Where the legal process is not followed
- Principles of natural justice are violated
- A substantial and grave injustice has been done
The present case has fulfilled the said conditions. Therefore, the special leave
petition under Article 136 of the Constitution is maintainable. Moreover, the
prosecution is lacking on material evidence to prove their contention.
The manner in which the defenceís alibis had been disposed of is also
unsatisfactory. The standard of proof must be a reasonable one applied to both
the prosecution and defence evidences. The defence had produced the taccavi loan
application which affirms the appellantsí presence in court on the date of the
The court has allowed the appeal and set aside the appellantsí conviction. In
normal circumstances, the court would have ordered to start a fresh trial but in
the present case the appellant has been in suspense regarding his death sentence
for a year and it would be unfair to him.
The said case was a criminal trial and the appellant was charged with penal
provisions. Section 302 of IPC lays down the punishment for murder. A person who
has committed murder shall be punished with death or life imprisonment and a
fine. It is a cognizable, non-bailable, and non-compoundable offence. Such a
charge is triable in a Sessions Court. Section 307 provides the punishment for
attempt to murder. Such an offender can be charged with ten years imprisonment,
fine, or life imprisonment. Section 34 defines acts that are done by several
persons in furtherance of a common intention.
The prosecution has lacked on material evidence. It is a settled matter of law
that in cases where death is caused by a lethal weapon, the prosecution is
supposed to prove by expert evidence that such injuries have been caused by the
use of that particular weapon. Such injuries are likely to have been caused in a
particular manner in which they have been caused. The standard of proof required
in a murder trial should be a reasonable one.
The standard which is applied to the prosecutionís witnesses should be applied
to defenceís alibis as well. The High Court had found a gap in the prosecutionís
evidence but ended up relying on the oral witnesses. The same should have been
done to the alibis presented by the defence.
A preference towards the prosecutionís witnesses can be seen which is completely
wrong. The Supreme Court acknowledged the mistake and allowed the special leave
petition. Thus, the prosecution was unable to prove the material claims and
therefore the Court had no option other than to set aside the accusedís
- Mohinder Singh v. State, AIR 1953 SC 415
- The Indian Penal Code, 1860 ß302.
- The Indian Penal Code, 1860 ß307.
- Indian Constitution, art. 136.
- Pritam Singh v. State, AIR 1950 SC 169.