PETITIONER:
DUDH NATH PANDEY
Vs.
RESPONDENT:
THE STATE OF U.P.
DATE OF JUDGMENT11/02/1981
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
SEN, A.P. (J)
CITATION:
1981 AIR 911 1981 SCR (2) 771
1981 SCC (2) 166 1981 SCALE (1)285
CITATOR INFO :
RF 1990 SC1359 (5)
ACT:
Indian Penal Code-Section 302-For the offence of murder
the normal sentence is sentence of life imprisonment and not
of death-Witnesses failed to reveal the whole truth-
Considerations to be taken into account while dealing with
the question of sentence for the offence of murder.
Concurrent findings of two courts below-Supreme Court,
if could examine their correctness.
Plea of alibi-Its postulates.
HEADNOTE:
The prosecution alleged that when the appellant, a
motor-car driver who was living as a tenant in the out-house
of the bungalow belonging to the family of the deceased,
developed a fancy for the sister of the deceased. His
overtures created resentment in the family and the deceased
took upon himself the task of preventing the appellant from
pursuing his sister. The appellant's effort to take custody
of the deceased's sister through legal proceedings had
failed; sometime later on a complaint to the police that the
appellant had been making indecent overtures towards her he
was arrested. A day before the day of the occurrence the
appellant was alleged to have threatened to kill the
deceased if he opposed his (appellant's) marriage with his
sister. It was further alleged that while the deceased was
returning home on his scooter after leaving his sister in
the school where she was working as a teacher, the appellant
fired a shot at him with a pistol at which the deceased fell
dead instantaneously.
He was convicted under section 302 I.P.C. and sentenced
to death. The order of conviction and sentence was confirmed
by the High Court.
On the question of sentence
^
HELD: 1. The Sessions Court and the High Court were
right in convicting the appellant under section 302 I.P.C.
[779 G]
(a) The mere circumstance that two or more courts have
taken the same view of facts does not shut out all further
inquiry into the correctness of that view. Concurrence is
not an insurance against the charge of perversity though a
strong case has to be made out in order to support the
charge that findings of fact recorded by more than one court
are perverse. The merit of the normal rule that concurrent
findings ought not to be reviewed by this Court consists in
the assumption that it is not likely that two or more
tribunals would come to the same conclusion unless it is a
just and fair conclusion to come to. [718 E-G]
2. While dealing with the question of sentence for the
offence of murder, the normal sentence is the sentence of
life imprisonment and not of death. If in a same conclusion
unless it is a just and fair conclusion to come to. [778 E-
G]
772
balances do not choose to reveal the whole truth the Court
while dealing with the question of sentence has to step in
interstitially and take into account all reasonable
possibilities having regard to the normal and natural course
of human affairs. In the instant case it would be unsafe, on
the evidence on record, to sentence the appellant to the
extreme penalty of death. [780 H]
The appellant, a poor motor-car driver, must have been
offended enormously when the deceased abused him that he
was a man of two paise worth and that if he attempted to
marry his sister he would break his hands and feet and that
his poverty was being put up as the reason why his sister
would not be allowed to marry him. The dispute thus assumed
proportions of a fued over social status. The poor man was
fretting that the rich man's daughter would not be allowed
to marry him for the mere reason that he did not belong to
an equal class of society. The appellant, rightly or
wrongly, believed that the girl was not unwilling to marry
him. The incident of the previous evening could not be
considered as affording "sudden" provocation to the
appellant for the crime committed by him on the following
morning. It cannot reduce the offence of murder into a
lesser offence, but the mental turmoil and the sense of
being socially wronged through which the appellant was
passing could not be overlooked while deciding the
appropriate sentence. [780 B-D]
Secondly the fact that, apart from the gun-shot wound,
the deceased had no other injury on his person except an
abrasion on the left side of the chest evidently caused by
the gun-shot itself coupled with the fact that the scooter
was found "standing" on the road showed that the deceased
stopped on seeing the appellant and that there was an
exchange of hot words between them culminating in the
murder. But since in the present case a part of the crucial
evidence had been screened from the Court's scrutiny the
possibility of an altercation between the appellant and the
deceased cannot reasonably be excluded. [780 F-H]
(3) The evidence of the defence witnesses has failed to
establish the alibi of the appellants. The plea of alibi
postulates the physical impossibility of the presence of the
accused at the scene of offence by reason of his presence at
another place. The plea therefore succeeds only if it is
shown that the accused was so far away at the relevant time
that he could not be present at the place where the crime
was committed. But in the present case the evidence of the
defence witnesses, accepting it at its face value, is
consistent with the appellant's presence at the factory at
the appointed hour and half an hour later at the scene of
offence. So short is the distance between the two points.
[778 H; 779 D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
163 of 1979.
Appeal by Special Leave from the Judgment and Order
dated 23-8-1978 of the Allahabad High Court in Criminal
Appeal No. 1264/78 and Murder Reference No. 9/78.
R. C. Kohli for the Appellant.
O. P. Rana and K. K. Bhatta for the Respondent.
Yogeshwar Prasad and Mrs. Rani Chhabra for the
Complainant.
773
The Judgment of the Court was delivered by
CHANDRACHUD, C.J.-A college-going boy called Vijay Bhan
Kishore was shot dead on the morning of November 2, 1976
near the Hathi Park, Dayanand Marg, Allahabad. The appellant
was convicted for that offence under section 302 of the
Penal Code by the learned Third Additional Sessions Judge,
Allahabad and was sentenced to death. The order of
conviction and sentence having been confirmed by the High
Court of Allahabad by its judgment dated August 23, 1979,
the appellant has filed this appeal by Special Leave.
Vijay Bhan Kishore alias Pappoo was the son of an
Advocate called Brij Bhan Kishore who died in about 1967
leaving behind a widow, three daughters and Pappoo. The
youngest of the three daughters was married while the two
elder were working as school teachers. Out of those two,
Ranjana Kishore was a teacher in the St. Anthony’s Convent.
The appellant, Dudh Nath Pandey, who was a motor-car
driver by occupation, used to live as a tenant in an out-
house of a sprawling bungalow belonging to the family of the
deceased, situated at 17, Stanley Road, Allahabad. The
appellant developed a fancy for Ranjana who was about 20
years of age when he came to live in the out-house. The
overtures made by the appellant to Ranjana created
resentment in her family and its only surviving male member,
her brother Pappoo, took upon himself the task of preventing
the appellant from pursuing his sister. As a first step, the
appellant was turned out of the out-house. Soon thereafter,
he filed an application before the City Magistrate,
Allahabad, asking for the custody of Ranjana, alleging that
she was his lawfully wedded wife. That application was
dismissed by the learned Magistrate after recording the
statement of Ranjana, in which she denied that she was
married to the appellant. The appellant thereafter filed a
habeas corpus petition in the Allahabad High Court alleging
that Ranjana was detained unlawfully by the members of her
family, including her uncle K. P. Saxena, and asking that
she be released from their custody. Ranjana denied in that
proceedings too that she was married to the appellant or
that she was unlawfully detained by the members of her
family. The habeas corpus petition was dismissed by the High
Court on November 8, 1973. On August 1, 1975, the Principal
of St. Anthony’s Convent made a complaint to the police that
the appellant had made indecent overtures to Ranjana. The
appellant was arrested as a result of that complaint.
774
On November 1, 1976, Ranjana was having an evening
stroll with her brother, the deceased Pappoo, in the
compound of their house. The appellant came there in a
rickshaw, abused Pappoo and is alleged to have threatened to
kill him, if he dared oppose his, the appellant’s marriage
with Ranjana. As a result of these various incidents and the
family’s growing concern for Ranjana’s safety, Pappoo used
to escort Ranjana every morning to the school where she was
teaching.
On the following day, i.e. on November 2, 1976, Pappoo
took Ranjana to her school on his scooter as usual. The
classes used to begin at 9-30 A.M. but Ranjana used to go to
the school 30 to 40 minutes before time for correcting the
students’ home-work. After dropping Ranjana at the school,
Pappoo started back for home on his scooter. While he was
passing by the Children’s Park, known as the Hathi Park, the
appellant is alleged to have fired at him with a country-
made pistol. Pappoo fell down from his scooter and died
almost instantaneously.
The occurrence is said to have been witnessed by Harish
Chandra (P. W. 3), a domestic servant of the family of the
deceased and by Harish Chandra’s friend Ashok Kumar (P. W.
1). Harish Chandra used to live in the out-house of the
deceased’s bungalow at 17, Stanley Road, while Ashok Kumar,
who generally lived at Kanpur, is said to have come to
Allahabad the previous day in search of employment. Almost
immediately after Pappoo and Ranjana left the house on the
scooter, Ashok Kumar and Harish Chandra too left the house
as the former wanted to see the Hathi Park. They were near
about the gate of the park, which is a few steps away from
the scene of occurrence, when the deceased Pappoo was
passing along on his scooter, after dropping Ranjana at the
St. Anthony’s Convent. Ashok Kumar and Harish Chandra are
alleged to have seen the appellant, who was standing near
the northern boundary of the park, firing a shot at Pappoo.
The appellant re-loaded his pistol and is said to have run
away to wards the south-east.
Ashok Kumar and Harish Chandra rushed to St. Anthony’s
Convent in a rickshaw and informed Ranjana Kishore about the
murder of her brother. Ranjana went to the scene of incident
along with them and on finding that her brother was dead,
she went straight to the Cannington police station which is
about 2 kms. away. She wrote out the report (Ex. Ka-1) in
her own hand and submitted it to the officer-in-charge of
the police station at 9-45 A.M. In the meantime, information
of the murder had reached the police station of Colonelganj,
within the ‘jurisdiction’ of which the murder had taken
place.
775
The police deserve a word of appreciation because they
did not, as usual, enter into a squabble as to in whose
‘jurisdiction’ the offence had taken place. H. R. L.
Srivastava, the sub inspector attached to Colonelganj police
station, went within minutes to the scene of offence and,
believing that Pappoo was alive, sent him in a jeep to the
Tej Bahadur Sapru hospital. A little later, P. S. I.
Chandrapal Singh of the Cannington police station arrived on
the scene and started the investigation. He took charge of
an empty cartridge-shell and the bloodstained earth and
later, he sent the dead body of Pappoo for postmortem
examination.
P. S. I. Srivastava arrested the appellant at about 2-
30 P.M. while he was standing near a pan-shop in front of
the Indian Telephone Industries, Naini, where he used to
work. The appellant was taken to the scene of offence where
he made a certain statement and took out a loaded pistol
from a heap of rubbish lying on the Kamla Nehru Road, being
the direction in which he had run away after killing Pappoo.
The Ballistic expert, Budul Rai, opined that the empty
cartridge-shell, which was lying at the scene of offence,
was fired from that particular pistol.
Dr. G. S. Saxena, who conducted the postmortem
examination found a single gun-shot injury on the left side
of the chest of the deceased, below the armpit. The injury
had caused seven pellet wounds, each measuring 1/3 inch in
diameter. Seven pellets were recovered from the body. The
injury, according to Dr. Saxena, was sufficient in the
ordinary course of nature to cause death.
The appellant stated in his defence that he used to
live in the house of the deceased as the guest of the family
and not as a tenant and that Ranjana got intimate with him
during that period. He left the house because she told him
that there was danger to his life. The murder of Pappoo,
according to the appellant, was engineered by Dr. K. P.
Saxena, the maternal uncle of the deceased. The appellant
denied his hand in the murder, saying that he had no reason
to do so since the deceased’s mother and the other members
of the family desired that he should marry Ranjana.
The appellant examined five witnesses to prove his
alibi, his contention being that he was on duty at the
Indian Telephone Industries, right from 8-30 A.M. on the
date of the incident and that he was arrested from inside
the factory at about 2-30 P.M. while on duty.
776
The learned Additional Sessions Judge, Allahabad,
examined the Deputy Superintendent of Police, R. P. Bhanu,
and the General Manager of the Indian Telephone Industries
as Court witnesses.
The prosecution examined 13 witnesses in support of its
case that the appellant had committed the murder of Pappoo.
Ashok Kumar (P.W. 1) and Harish Chandra (P.W. 3) were
examined as eyewitnesses to the incident. Ranjana Kishore
(P.W. 2) was examined to prove the motive for the murder as
also for showing that the deceased Pappoo had taken her to
the school on his scooter and that, soon thereafter, she was
informed by the two eye-witnesses of the murder. Ram Kishore
(P.W. 4) was examined to prove the arrest of the appellant
and the recovery of the loaded pistol. P. S. I. Srivastava
(P.W. 9) and P.S.I. Chandrapal Singh (P.W. 10) deposed about
the various steps taken during the course of investigation.
Dr. G. S. Saxena (P.W. 11) was examined in order to show the
nature of the injuries suffered by the deceased while Budul
Rai (P.W. 12) stated that the empty cartridge-shell which
was lying at the scene of offence was fired from the
particular pistol which is stated to have been recovered at
the instance of the appellant. The other prosecution
witnesses are mostly of a formal nature.
Were this a case of circumstantial evidence, different
considerations would have prevailed because the balance of
evidence after excluding the testimony of the two eye
witnesses is not of the standard required in cases dependent
wholly on circumstantial evidence. Evidence of recovery of
the pistol at the instance of the appellant cannot by itself
prove that he who pointed out the weapon weilded it in
offence. The statement accompanying the discovery is
woefully vague to identify the authorship of concealment,
with the result that the pointing out of the weapon may at
best prove the appellant’s knowledge as to where the weapon
was kept. The evidence of the Ballistic expert carries the
proof of the charge a significant step ahead, but not near
enough, because at the highest, it shows that the shot which
killed Pappoo was fired from the pistol which was pointed
out by the appellant. The evidence surrounding the discovery
of the pistol may not be discarded as wholly untrue but it
leaves a few significant questions unanswered and creates a
sense of uneasiness in the mind of a Criminal Court, the
Court of conscience that it has to be: How could the
appellant have an opportunity to conceal the pistol in
broad-day light on a public thoroughfare ? If he re-loaded
the pistol as a measure of self protection, as suggested by
the prosecution, why did he get rid of it so quickly by
throwing it near the Hathi Park itself ? And how come that
the police hit upon none better that Ram Kishore (P.W. 4) to
witness the discovery of the pistol ? Ram Kishore had
already
777
deposed in seven different cases in favour of the
prosecution and was evidently at the beck and call of the
police.
But the real hurdle in the way of the appellant is the
evidence of the eye witnesses: Ashok Kumar (P.W. 1) and
Harish Chandra (P.W. 3). Shri R. C. Kohli who appears for
the appellant made a valiant attempt to demolish their
evidence but in spite of the counsel’s able argument, we
find it difficult to hold that the eye-witnesses have
perjured themselves by claiming to be present at the time
and place of the occurrence. It is true that Harish Chandra,
who was working as a domestic servant with the deceased’s
family, should normally have been doing his daily morning
chores. Few masters would permit a household servant to go
away on a sight-seeing spree right in the morning. But there
are at least two plausible reasons which lend assurance to
the claim that Harish Chandra left the house almost
immediately after the deceased Pappoo drove away with his
sister Ranjana. Ashok Kumar had come to Allahabad the
previous evening and he wanted to go to the Hathi Park
where, though it is called a children’s park, adults too
find their merriment. There is nothing fundamentally
improbable in Ashok Kumar coming to Allahabad in search of
employment and equally, nothing inherently strange in the
two friends going out on a frolic. And though a small
consideration, it is relevant that the normal morning
routine of Harish Chandra was to help in the kitchen but the
2nd November, 1976 was an Ekadashi day and therefore, there
was not much to do for him.
The second reason is more weighty and almost clinches
the issue. The evidence of Ranjana (P.W. 2) shows beyond the
manner of doubt that Harish Chandra and Ashok Kumar broke to
her the news of her brother’s murder, while she was in the
school. The events after the murder happened in such quick
succession that there was no time for any one to contrive
and confabulate. Within ten minutes of the occurrence,
Ranjana was informed of the incident by the two eyewitnesses
and within a few moments thereafter she went to the scene of
the tragedy. Her F.I.R. (Ex. Ka-1) was recorded at the
police station at 9-45 a.m. A fact of preponderating
importance is that the story which Ranjana disclosed in the
F.I.R. is precisely the same as the witnesses, including
herself, narrated in the Court. The F.I.R. is a brief
document of a page and half. But it is remarkable that it
mentions (1) that the appellant wanted to marry Ranjana and
was harassing her towards that end; (2) that there was a
quarrel between the appellant and Pappoo the previous
evening, in which the former gave a threat of life to the
latter (3) that Ranjana left for the school on the day of
occurrence at 8-45 A.M.; and (4) that soon thereafter Harish
778
Chandra and Ashok Kumar met her at the school and conveyed
to her that they had gone to see the Hathi Park when, while
Pappoo was passing along the road, the Appellant fired a
shot at him. We consider it beyond the normal range of human
propensities that Ranjana could have built up the whole
story within three quarters of an hour which intervened
between the time that she learnt of her brother’s murder and
the lodging by her of the F.I.R. She could not have taken
the risk of creating a false witness by placing Ashok Kumar,
who normally, resided in Kanpur, alongside Harish Chandra.
With the death of her brother, her own house was left
without a male member. At home was an ailing mother and two
other sisters, more or less of her own age. There was no one
to advise her upon the hatching of a conspiracy to involve
the appellant and she could not have been in a proper frame
of mind to do anything of the kind on her own. Her
inexperience of life, the promptness with which she gave the
F.I.R. and the wealth of details she mentioned therein
afford an assurance that the story of the eye-witnesses is
true in so far as it goes. Shri Kohli’s submission that
Ranjana’s F.I.R. is anti-timed and must have been recorded
late in the evening leaves us cold.
Shri Kohli has pointed a defect here and an
improbability there in the evidence of the eye-witnesses but
it has to be borne in mind that the Trial Court and the High
Court have concurrently believed that evidence. We do not
suggest that the mere circumstances that two or more courts
have taken the same view of facts shuts out all further
inquiry into the correctness of that view. For example,
concurrence is not an insurance against the charge of
perversity though a strong case has to be made out in order
to support the charge that findings of fact recorded by more
than one court are perverse, that is to say, they are such
that no reasonable tribunal could have recorded them. The
merit of the normal rule that concurrent findings ought not
to be reviewed by this Court consists in the assumption that
it is not likely that two or more tribunals would come to
the same conclusion unless it is a just and fair conclusion
to come to. In the instant case, the view of the evidence
taken by the Sessions Court and the High Court is, at least,
a reasonable view to take and that is why we are not
disposed, so to say, to re-open the whole case on evidence.
We have indicated briefly why we consider that the eye-
witness account accords with the broad probabilities of the
case.
Counsel for the appellant pressed hard upon us that the
defence evidence establishes the alibi of the appellant. We
think not. The evidence led by the appellant to show that,
at the relevant time, he was on duty at his usual place of
work at Naini has a certain amount
779
of plausibility but that is about all. The High Court and
the Sessions Court have pointed out many a reason why that
evidence cannot be accepted as true. The appellant’s
colleagues at the Indian Telephone Industries made a brave
bid to save his life by giving evidence suggesting that he
was at his desk at or about the time when the murder took
place and further, that he was arrested from within the
factory. We do not want to attribute motives to them merely
because they were examined by the defence. Defence witnesses
are entitled to equal treatment with those of the
prosecution. And, Courts ought to overcome their
traditional, instinctive disbelief in defence witnesses.
Quite often, they tell lies but so do the prosecution
witnesses. Granting that D. Ws. 1 to 5 are right, their
evidence, particularly in the light of the evidence of the
two Court witnesses, is insufficient to prove that the
appellant could not have been present near the Hathi Park at
about 9-00 A.M. when the murder of Pappoo was committed. The
plea of alibi postulates the physical impossibility of the
presence of the accused at the scene of offence by reason of
his presence at another place. The plea can therefore
succeed only if it is shown that the accused was so far away
at the relevant time that he could not be present at the
place where the crime was committed. The evidence of the
defence witnesses, accepting it at its face value, is
consistent with the appellant’s presence at the Naini
factory at 8-30 A.M. and at the scene of offence at 9.00
A.M. So short is the distance between the two points. The
workers punch their cards when they enter the factory but
when they leave the factory, they do not have to punch the
time of their exit. The appellant, in all probability, went
to the factory at the appointed hour, left it immediately
and went in search of his prey. He knew when, precisely,
Pappoo would return after dropping Ranjana at the school.
The appellant appears to have attempted to go back to his
work but that involved the risk of the time of his re-entry
being punched again. That is how he was arrested at about 2-
30 P.M. while he was loitering near the pan-shop in front of
the factory. There is no truth in the claim that he was
arrested from inside the factory.
That settles the issue of guilt. We agree with the view
of the High Court and the Sessions Court and uphold the
appellant’s conviction under section 302 of the Penal Code.
The question of sentence has gravely agitated our
minds. A young college-going boy was murdered because he was
trying to wean away his sister from the influence of the
appellant who had set his heart upon her. But there are two
reasons why we are not disposed to confirm the death
sentence. In the first place, the appellant was smarting
780
under the insult hurled at him by the deceased Pappoo, the
previous evening. As stated by Ranjana in the F.I.R., when
the appellant proclaimed his determination to marry her,
Pappoo retorted: “You are a man of two Paisa’s worth. How
can you dare to marry my sister ? I will break your hands
and feet.” A poor motor-car driver that the appellant was,
he must have been offended enormously that his poverty was
being put up as the reason why Ranjana would not be allowed
to marry him. The dispute thus assumed the proportions of a
feud over social status, the poor man fretting that the rich
man’s daughter would not be allowed to marry him for the
mere reason that he did not belong to an equal class of
society. And it is evident that he believed, rightly or
wrongly, that Ranjana was not unwilling to take him as a
husband. It is in the immediate background of the previous
evening’s incident that the question of sentence has
perforce to be considered. That incident cannot certainly be
considered as affording “sudden” provocation to the
appellant for the crime committed by him the next morning
and, therefore, it cannot reduce the offence of murder into
a lesser offence. But, the mental turmoil and the sense of
being socially wronged through which the appellant was
passing cannot be overlooked while deciding which is the
appropriate sentence to pass, the rule being that for the
offence of murder, the normal sentence is the sentence of
life imprisonment and not of death.
Secondly, Harish Chandra and Ashok Kumar do not appear
to have revealed the whole truth to the Court. If the
appellant had fired a shot at Pappoo while the latter was
driving along on his scooter, and if Pappoo, as is alleged,
dropped dead, his scooter would have dragged him ahead and
in that process he would have received some injury. The
scooter too would have been damaged, howsoever slightly. But
it is strange that apart from the gun-shot wound, Pappoo had
no other injury on his person except an abrasion on the left
side of the chest which was evidently caused by the gun-shot
itself. The scooter was not dragged at all, except for the
mark of pellets. And, most importantly, the scooter was not
lying on the road but was “standing”. Pappoo seems to have
stopped on seeing the appellant and quite clearly, there was
an exchange of hot words between them which culminated in
Pappoo’s murder. The death of the brave, young lad which has
deprived the family of the succour of its only male member
is to be deeply lamented. But, if witnesses on whose
evidence the life of an accused hangs in the balance, do not
choose to reveal the whole truth, the Court, while dealing
with the question of sentence, has to step in interstitially
and take into account all reasonable possibilities, having
regard to the normal and natural course of human affairs.
781
Since a part of the crucial event has been screened from the
Court’s scrutiny and the possibility of an altercation
between the appellant and the deceased cannot reasonably be
excluded, we consider it unsafe to sentence the appellant to
the extreme penalty.
In the result, we confirm the conviction of the
appellant under section 302 of the Penal Code but set aside
the sentence of death imposed upon him. We sentence the
appellant to imprisonment for life. The appeal is,
accordingly, allowed partly.
P.B.R. Appeal allowed partly.
782