MOHINDER SINGH v. THE STATE

Citation: [1950] 1 S.C.R. 821; 1950 INSC 26

Court: Supreme Court of India

Bench: BIJAN KUMAR MUKHERJEA , SIR SYED FAZL ALI, N. CHANDRASEKHARA AIYAR

Judgment date: 1950-10-17

Case summary

1950 INSC 26. Supreme Court of India judgment dated 1950-10-17. MOHINDER SINGH v. THE STATE. Read the judgment and case details on LawSphereX.

Judgment text

S. C. R. SUPREME COURT REPORTS 821 .. saleable interest or interest as a tenant, ryot or under- 1950 tenure holder. S. ri Rt'lnga I agree in the conclusion reached by my learned N. tayam Rama brother. Kdshna Rao v. Appeals allowed. Kandrikori Agent for the appellant: M . S. Krishnamoorthi Sastri. Ghtllayanima and Anothe,.. Agent for the respondents: M. S. K. Aiyangar. 1950 MOHINDEI s found on the body of Dalip Singh ...... vVhat kind of bullet it was which, though it had blackened the area where it entered the brain showing tliat it had been fired from not far away, did not shatter the brain we do not know. \Vhat kind of projectile it was which entered the body (which if the evidence is to be believed was fired at from a few feet at Dalip Singh) and passed through the body without shattering the inside of the chest or causing extensive damage therein is also not kn0wn. Mr.

Sethi (counsel for the accused) quoted Taylor's book on medical jurisprudence and Hatcher's book on ballistics and argued that the firing must have bern from a place between 600 and 1,200 yards away in order that the projectile may pass through and through the body and not shatter it. That of cuurse pre-supposes that the barrel of the gun. using the word ' gun' in a generic sense, is grooved which causes a projectile to go forward with a rotatory motion of something under a quart r of a million revolutions a minute and travel. ling at the rate of about 2,000 rniks an hour when it leaves the gun ......... \Ve do not know whether the barrel of this gun (exhibit P. 16) is grooved or not. It is a single birrelled gun and is country made. The likelihood is that the barrel is not grooved. " On a careful re" ding of the judgment under appeal.

it appears that 1 he learned ] uclges of the High Court strongly felt that they had no adequate explanation in the oral evidence before them for certain puzzling features of the injuries on Dalip Singh. This is exactly what we also feel in this case, and it seems to us that the evidence which has been adduced falls short of proof in regard to a very material part of the prosecution case. In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecu. tion to 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. It is elementary that where the prosecution. has a definite 1950 or positive case, it must prove the whole of that case.

In the present case, it is doubtful whether the injuries Mohindor Singh which are attributed to the appellant were caused by Th ;; 1 a gun or by a rifle. Indeed, it seems more likely that ' a'· they were caused by a rifle than by a gun-, and yet the Fa•l Ali J. case for the prosecution is that the appellant was armed with a gun and, in his examination, it was definitely put to him that he was armed with the gun P-16. It is only by the evidence of a duly qualified expert that it could have been ascertained whether the injuries attributed to the appellant were caused by a gun or by a rifle and such evidence alone could settle the controversy as to whether they could possi. bly have been caused by a fire-arm being used at such a close range as is suggested in the evidence.

It is clear, and it is also the prosecution case, that only 2 shots were fired at Dalip Singh and one of the crucial points which the prosecution had to prove was that these shots were fired by two persons and not by one man, and both the shots were fired in such manner and from such distance as is alleged by the eye witnesses. There is, in our opinion, a gap in the prosecution evidence on a most fundamental point and the error which has been committed by the courts below is to ignore the gap and decide the case merely upon the oral evidence of 3 witnesses, two of whom are mere chance witnesses and not altogether independ-ent persons, and the evidence of the third witness is open to criticism on the ground of his partisanship as well as the improbability of his having been able to see the firing at his brother after he had himself been shot at the back of the neck.

The learned Judges of the High Court, after commenting upon the entire evidence, say in their judgment:- " We are thus left with the evidence of the three witnesses of the prosecution together with the state of wounds as shown by the medical evidence and an, unsatisfactory statement of Dr. Goy le," They reject the evidence of Dr. Goy le and they consider the nature of the wounds to have created a Smghserious difficulty in the case. Having arrived at these conclusions, ·it was a serious thing to rest the appellant's conviction wholly upon the oral testimony in the case which has remained unchecked and uncon. firmed by expert evidence. The real position appears to be that the prosecution case cannot be said to be wholly proved but only partly proved if it is permissi-ble to use such an expression. This Court, as was 1 pointed out in Pritam Singh v.

The State ( ), will not entertain a criminal appeal except in special and ex-ceptional cases where it is manifest that by a disregard of the forms of legal process or by a violation of the principles of natural justice or otherwise substantial and grave injustice has been done. It seems to us that the present case comes within the rule laid down, because the appellant has been convicted notwith-standing the fact that the evidence is wanting on a most-material part of the prosecution case. This is enough to dispose of this appeal, but we are constrained to say that we are not altogether happy about the manner in which the plea of alibi put forward by the appellant has been disposed of by the courts below. Ordinarily this court will not look be-yond the findings of fact arrived at by the courts below, but we find that in the present case the deci. sion on the plea of alibi has been arrived at in disre.

gard of the principle that the standard of proof which is required in regard to that plea must be the same as the standard which is applied to the prosecution evidence and in both cases it should be a reasonable standard. It is common ground in this appeal that the appellant was summoned to appear before the Naib Tehsildar on the 28th February, 1949, which was the date fixed for dealing with Bachittar Singh's complaint. Ordinarily and without looking at any-thing else, there should have been nothing improbable about his appearance before the Naib Tehsildar on that date, but in the present case there is positive (11 [1950] s. c,R. 453, evidence that an application for a tacca vi loan bearing ! 95o that date and also bearing the thumb impression of. --the appellant wa. s put up before the Naib Tehsildar J! ohinder Singh and that was dealt with by him on that very da. y. The ? tate.

There is also affirmative evidence of a witness to prove that the appellant was present in the Naib Tehsildar's Fail Ali J. court. This witness is undoubtedly closely related to the appellant but his evidence is supported by proba-bility and a written document. One of the points raised by the prosecution was that the summons for appearance on the 28th February was not served upon Mohinder Singh, but such evidence as there is on the record bearing on this point has certain peculiar features. The prosecution having cited the N aib Tehsildar and the Ahlrnad (Bench Clerk) as witnesses in the case gave them up and stated that the former had been won over by the appellant. This allegation could have been substantiated in the cross. examination of the Naib Tehsildar who was examined as a defence witness, but nothing was elicited from him to support such a charge. From the evidence of the Naib Tehsildar, it appears that on the 5th July, 1949, the Public Prosecutor showed him exhibit P. S.

(which is an order directing the appearance of the seven persons including the appellant mentioned by Bachittar Singh in his complaint, before the Naib Tehsildar on the 28th February, 1949), and that he told the Public Prosecutor that 6 or 7 persons appeared in his court on that date. After this incident, on the 6th July, 1949, the Public Prosecutor informed the Court that he would "give up the Naib Tehsildar as he has been won over ''. The evidence of the process peon is of a somewhat suspicious character, because he has conveniently forgotten every material detail. The appellant asserteci at the trial that the original report of the process peon had been suppressed and another report had been fabricated and substituted in its place. An application to this effect was ma de by h irn before the corn rnitting Magistrate, and he also examined a hand-writing expert to prove some of his allegations. Neither of the courts below has dealt with the evidence of this expert.

The evidence of the Investigating hOfficer as recorded by the Sessions Judge is to the ••g f JI · ff t o owmg e ec · :- "P. B. and P. C. were obtained by me from the headquarters. Along with P. B. and P. C. the Parvana P. S. was also received by me. After going through the zimnis, the witness states that the aforesaid documents P. B. , P. C. and P. S. were summoned by the committing Magistrate and were not sent for by the witness. On 16th March, 1949, a Foot Constable was certainly sent to Zira to bring the said file. But since the file had been sent to the headquarters, therefore, the said constable returned quite blank. I never inspected this file at the headquarters. " The most material document with which we are concerned is P. S. which should have contained an endorsement of service of summons on the persons against whom Bachittar Singh had complained.

It is clear from the first part of the evidence of the Investigating Officer that he had received the report of the process peon which was endorsed on the back of P . S. , from the headquarters, but he says later that the papers were sent for but they did not arrive. It is surprising that when a document was the subject of so much controversy he should have said by mistake that he had received it. One of the comments made by the learned Sessions Judge in dealing with the application alleged to have been made by the appellant on the 28th February, 1949, for a taccavi loan is that after producing the application before the N aib Tehsildar on that date, Mohinder Singh could have reached his village by noon time, but on this point the learned Sessions Judge seems to have wholly ignored the evidence of the Naib Tehsildar that he usually dealt with such applications between 12 and 4 P. M. on working days, and also the affirmative evidence of Joginder Singh.

In our opinion, there has been in substance no fair and proper trial in this case, and we are constrained to allow this appeal, set aside the conviction of the appellant under sections 302 and 307 read with section 34 1 of the Indian Penal Code, and direct that he be set at 95" liberty forthwith. In crdinary circumstances, we -d- . . b Afohin er Singh might have remanded the case for a fresh tnal, ut we v. consider that such a course would, in the present The State. case, be unfair and contrary to settled practice, seeing that the appellant has been in a state of suspense over Fail Ali J. his sentence of death for more than a year . .. Appeal allowed. Agent for the appellant: R. S. Narula. Agent for the respondent: P. A. Mehta. MANGAN LAL DEOSHI 1950 v. Dec. l, MOHAMMAD MOINUL HAQUE & OTHERS. [SHRI HARILAL KANIA C. J. , PATANJALI SASTRT and DAS JJ. ] 1 Indian R<gistration Act. 1908. s. 17 (1) (bl awl (d), !. 17 (2 - " Lease "-Conivromise decree c1·eatina ! tnder. lea. se l.

Jetw::e11 A and E on condition that A vavs a. s1t11i. of money to 0-TV! utlrnr comr'llfrorify 1 regist1·ab e-Aareem£nt to lease not creatin'] i'lnm~diate interest in la~d- Whether ''lease ". An agreement for a lense, which a lease is by the Indian Registration Act declared to include, must be a document which effects an nctu•I demise and operates as a lease. It must creato a present and irn1nediate interest in land. Where a litigation between two perrnns A and B who claimed • to he tenants under C was settled by a compromise decree tho effect of which \\'RS to create a perpetual underlease between A and B which was to tako effect only on condition that A paid ll. s. 8,000 to C within a fixed period : 7 11 He, d, that such a contingent agreement was not a. lease" within cl. (d) of s. I 7 (1) of the Indian Registrotion Act, ond even though it was covered by cl. (b' of the said section it was exempt from registration under cl. (vi) of sub·s. (2) of s. 17. Hemanta Kumari Debi v.

Midnapur Zaminiari Co. (I L. R. 47 Cal. 485 P. O. ) relied on. CIVIL APPELLATE j! JRISmGTION: Civil Appeal No. 94 of 1949. ·

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