{"id":209224,"date":"1961-09-12T00:00:00","date_gmt":"1961-09-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tori-singh-vs-the-state-of-uttar-pradesh-on-12-september-1961"},"modified":"2015-12-21T05:34:22","modified_gmt":"2015-12-21T00:04:22","slug":"tori-singh-vs-the-state-of-uttar-pradesh-on-12-september-1961","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tori-singh-vs-the-state-of-uttar-pradesh-on-12-september-1961","title":{"rendered":"Tori Singh vs The State Of Uttar Pradesh on 12 September, 1961"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Tori Singh vs The State Of Uttar Pradesh on 12 September, 1961<\/div>\n
Equivalent citations: 1962 AIR 399, \t\t 1962 SCR (3) 589<\/div>\n
Author: K Wanchoo<\/div>\n
Bench: Wanchoo, K.N.<\/div>\n
           PETITIONER:\nTORI SINGH\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF UTTAR PRADESH\n\nDATE OF JUDGMENT:\n12\/09\/1961\n\nBENCH:\nWANCHOO, K.N.\nBENCH:\nWANCHOO, K.N.\nGUPTA, K.C. DAS\nSHAH, J.C.\n\nCITATION:\n 1962 AIR  399\t\t  1962 SCR  (3) 589\n\n\nACT:\nCriminal   Trial-Sketch\t  Map-Marks  placed  on\t  basis\t  of\nstatements  of witnesses to  sub-Inspector-Admissibility  of\nCode of Criminal Procedure, 1898. (V of 1898), s. 162.\nMurder-Sentence-Son   killing  at  instigation\t of   father\nSentence of death, if inappropriate.\n\n\n\nHEADNOTE:\nThe deceased was going to his field and passed by a platform\non  which  T  and his father B were sitting,  T\t carrying  a\npistol with him.  As he passed by the platform B  instigated\nT  to shoot the deceased down and T shot him.  T and B\twere\ntried for the murder and were convicted on the basis of\t the\ntestimony  of  eye witnesses and the  dying  declaration  of\n-'the  deceased.  B was sentenced to imprisonment  for\tlife\nand T was sentenced to death.  The appellant contended\tthat\nif the deceased was at the spot marked by the  Sub-Inspector\non the sketch map he could not have received the injuries as\nstated by the eye witnesses.  It was further urged that\t the\nsentence of T should be reduced to imprisonment for life  as\nhe had acted under the influence of his father.\nHeld,  that,  the marks made on the sketch map by  the\tSub-\nInspector on the basis of statements made by witness\" to him\nwere  inadmissible under s. 162 Code of\t Criminal  Procedure\nand  the appellant could not use them to found any  argument\nas  to\tthe improbability of the deceased being hit  in\t the\nmanner\tstated\tby the witnesses if he was standing  at\t the\nspot marked on the sketch map,\n581\nBhagirathi Chowdhury v. King Emperor, A.I.R. 1926 Cal.\t550,\nIbra Akanda v. Emperor, A.I.R. 1944 Cal. 339 and Santa Singh\nv. The State of Punjab, A.I.R.<\/a> 1956 S. C. 526,referred to.\nHeld,  further, that there was no reason to  interfere\twith\nthe sentence of death passed on T. T was a mature man of  25 and  he  was\n sitting armed with a pistol  along  with  his\nfather obviously having planned the murder with his  father.\nthough\the shot at the instigation of his father,  he  could\nnot  be\t considered  a\tyoung  boy  in\this  teens  who\t was\ncompletely under the influence of his father.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal- No. 38 of
\n1961.\n<\/p>\n
Appeal\tby special leave from the judgment and\torder  dated
\nOctober\t 28,  1960 of the Allahabad High Court\tin  Criminal
\nAppeals\t Nos. 1310 and 1389 of 1960 and Referred No.  80  of\n<\/p>\n
60.
\nC.   B. Agarwala and K. P. Gupta, for the appellants.
\nG.   C. Mathur and C. P. Lal, for the respondent.
\n1961.\tSeptember  12.\t The  Judgment\tof  the\t Court\t was
\ndelivered by
\nWANCHOO,  J.-This is an appeal by special leave against\t the
\njudgment  of the Allahabad High Court.\tThe  appellants\t are
\nfather\tand son and live in village Patrasi.   The  deceased
\nSohanlal also lived in the same village.  He is said to have
\nbeen murdered on the morning of December 2, 1959, after sun-
\nrise.\tAbout two years before the incident one\t Sunder\t had
\nfiled  a criminal case against the deceased.  In  that\tcase
\nthe  present  appellants  bad  helped  Sunder  against\t the
\ndeceased.   The deceased was acquitted.\t One Chetram  was  a
\nwitness\t for  the deceased, in that case.   Later  on,\tTori
\nSingh appellant attacked Chetram with a spear and   Chetram   made
\na report in. that connection against Tori Singh.  Sohanlal
\nwas  helping him in that matter, and in,  consequence  there
\nwas  enmity between Tori Singh and his father  Budhi  Singh,
\nappellants, and the deceased.\n<\/p>\n
582<\/span><\/p>\n
It  is\tsaid that on the morning of December  2,  1959,\t the
\ndeceased  was  going to the fields outside  the\t village  in
\norder to ease himself.\tHe passed by, a platform which is on
\na cross-road in the village.  The appellants were sitting on
\nthe platform, Tori Singh carrying a pistol with him.  As the
\ndeceased passed by the platform, Budhi Singh instigated Tori
\nSingh  to  shoot  him  down.Thereupon  Tori  Singh   shotgun
\nSohanlal who was hit in the lumbar region. Sohanlal then ran towards  his
\n house\twhile the two  appellants  fled\t away.\n<\/p>\n
Sohanlal was thereafter taken to the police station where he
\nmade  a\t report\t against the appellants.   He  also  made  a
\nstatement  before  the investigating officer and  his  dying
\ndeclaration was recorded by a magistrate.  Sohanlal died  on
\nDecember  3,  1959.   The appellants  had  absconded  during
\ninvestigation.\tThey were prosecuted after their arrest.
\nThe  appellants\t did not dispute that there, was  bad  blood
\nbetween\t them and the deceased but their case was that\tthey
\nwere not responsible for this murder and had nothing to\t do
\nwith it.\n<\/p>\n
The  main evidence against the appellants consisted  of\t the
\nstatements  of\tfour witnesses, namely,\t Babunath,  Chhannu,
\nIt warm and Khamani, and the dying declarations made by\t the
\ndeceased  before his death.  The Additional  Sessions  Judge
\nwho  tried  the\t case relied on the  evidence  of  Babunath,
\nItwari\tand Khamani and on the dying declarations ;  he\t did
\nnot,  however, place reliance on the statement\tof  Chhannu.
\nHe found the two appellants guilty under s. 302 read with s.
\n34  of\tthe Indian Penal Code and sentenced  Tori  Singh  to
\ndeath  as be was the man who had shot at Sohanlal and  Budhi
\nSingh to imprisonment for life.\n<\/p>\n
There  were  two  appeals to the High.\t Court\tby  the\t two
\nappellants  and the learned Judge also made a reference\t for
\nconfirmation  of the sentence of death.\t A  suggestion\t‘was
\nmade  during’  the  course of trial  that  one\tChhiddu\t was
\nresponsible for
\n\t\t\t    583<\/span>
\nthe  murder,  particularly  as he was said to  have  made  a
\nconfession.   Chhiddu  was, however, ‘not  examined  by\t the
\ntrial court.  The High Court, therefore, in the interest  of
\njustice,  examined  Chhiddu  and  took\this  statement\tinto
\nconsideration alongwith the prosecution evidence in order to
\njudge  the guilt of the appellants.  The High  Court  agreed
\nwith  the  trial  court in  its\t conclusion  that  Babunath,
\nKhamani\t and  Itwari were credible  witnesses  and  reliance
\ncould  be  placed  on the dying\t declarations  made  by\t the
\ndeceased.  It further accepted the evidence of Chhannu which
\nhad not been relied upon by the trial court.  It  considered
\nthe evidence of Chhiddu and was of opinion that evidence was
\nfalse.\tIt therefore dismissed the appeals and confirmed the
\nsentence’ of death passed on Tori Singh after making  slight
\nmodification  in  the sections under which  the\t convictions
\nwere recorded.\tThe application of the appellants for  leave
\nto appeal having been dismissed, they obtained special leave
\nfrom  this  Court ; and that is how the matter has  come  up
\nbefore us.\n<\/p>\n
The  main point urged on behalf of the appellants before  us
\nis  that if one looks at the sketch map Ex.  Ka-9  on  which
\nthe  place  where the deceased is said to have been  hit  is
\nmarked\t and  compares\tit  with  the  statements   of\t the
\nprosecution witnesses and the medical evidence, it would  be
\nextremely  improbable for the injury which was\treceived  by
\nthe  deceased to have been caused on that part of  the\tbody
\nwhere  it has been actually caused, if the deceased  was  at
\nthe  place marked on the map.  It has also been\t urged\tthat
\naccording to the medical evidence, the wound of exit was  at
\na  higher  level than the wound of entry  showing  that\t the
\nbullet\thit obliquely and that it was  extremely  improbable
\nthat  the bullet should have passed from down below  upwards
\nthrough\t the  body,  Considering that Tori Singh  was  on  a
\nplatform and thus at a higher level than the deceased.\n<\/p>\n
584<\/span><\/p>\n
We  are of opinion that neither of these arguments  has\t any
\nforce.\t Let us first take the contention that it  was\tmost
\nunlikely that the deceased would be hit on that part of\t the
\nbody  where the injury was actually received by him,  if  he
\nwas  at the spot marked in Ex.\tKa-9.  The validity of\tthis
\nargument depends mainly on the spot which has been marked on
\nthe  sketch-map\t Ex.  Ka-9 as the place where  the  deceased
\nreceived  his injuries.\t In the first place, the map  itself
\nis  not to scale but is merely a rough sketch and  therefore
\none  cannot postulate that the spot marked on the map is  in
\nexact  relation to the platform.  In the second\t place,\t the
\nmark on the sketch-map was put by the Sub-inspector who\t was
\nobviously not an eyewitness. to the incident.  He could only
\nhave  put  it there after taking the statements of  the\t eye
\nwitnesses.   The  marking of the spot on the  sketch-map  is
\nreally\tbringing  on  record the conclusion  of\t ‘.the\tSub-
\ninspector  on  the  basis  of the  statements  made  by\t the
\nwitnesses  to  him.   This  in\tour  opinion  would  not  be
\nadmissible  in view of the provisions of s. 162 of the\tCode
\nof  Criminal Procedure., for it is in effect  nothing  more,
\nthan  the  statement  of  the  Subinspector  that  the\teye-
\nwitnesses  told him that the deceased was at such  and\tsuch
\nplace at the time when he was hit.  The sketch-map would  be
\nadmissible so far as it indicates all that the Sub-inspector
\nsaw  himself at the spot; but any mark put on  the  sketch..
\nmap  based  on the statements made by the witnesses  to\t the
\nSub-inspector  would be inadmissible. in view of  the  clear
\nprovisions of s. 162 of the Code of Criminal Procedure as it
\nwill  be no more than a statement made to the police  during
\ninvestigation.\t  We  may  in  this  connection\t  refer\t  to
\nBhagirathi  Chowdhury v. King Emperor,(1), where it was\t ob-
\nserved\tthat  placing of maps before  the  jury.  containing
\nstatements  of witnesses or of information received  by\t the
\ninvestigating officer preparing the map from ‘Other  persons
\nwas improper, and that the
\n(1)  A. I. R. 1926 Cal. 550.\n<\/p>\n
585<\/span><\/p>\n
investigating  officer\twho made a map in  a  criminal\tcase
\nought  not  to\tpat  anything more than\t what  he  had\tseen
\nhimself.  The same view was expressed by the ‘Calcutta\tHigh
\nCourt  again in, [bra A kanda v. Emperor (1), where  if\t was
\nheld  that  any information derived  from  witnesses  during
\npolice\tinvestigation,\tand recorded in the index to  a\t map
\nmust  be  proved by the witnesses concerned and not  by\t the
\ninvestigating  officer,\t and  that if  such  information  is
\nsought\tto be proved by the evidence of the  investigating
\nofficer,  it would manifestly offend against s. 162  of\t the
\nCode of Criminal Procedure.\n<\/p>\n
This  Court had occasion to consider the admissibility of  a
\nplan   drawn  to  scale\t by  a\tdraftsman  in  which   after
\nascertaining from the witnesses where exactly the assailants
\nand  the  victims  stood at the time of\t the  commission  of
\noffence,  the draftsman put down the places in the  map,  in
\nSanta  Singh v. The` State of Punjab (2).  It Was hold\tthat
\nsuch  a\t plan drawn to scale was admissible if\tthe  witness
\ncorroborated the statement of the draftsman that they showed
\nhim  the places ‘and would not be hit by s. 162 of the\tCode
\nof Criminal Procedure. In. that raw there was another sketch
\nprepared  by  the  Sub-inspector  which\t was  ruled  out  as
\ninadmissible  under s. 162.  The sketch-map in\tthe  present
\ncase has been prepared by the.’ Sub-inspector and the  place
\nwhere  the  deceased was hit and also the places  where\t the
\nwitnesses were at the time of the. incident were,  obviously
\nmarked\tby  him on the map on, the basis of  the  statements
\nmade  to him by the witnesses.\tIn the\tcircumstances  these
\nmarks  on the map based on the statements  made to  the Sub-
\niuspector  are\tinadmissible  under s. 162 of  the  Code  of
\ncriminal Procedure and cannot be used to found any  argument
\nas  to the improbability of the deceased being hit  on\tthat
\npart  of the body where be was actually injured, if  he\t was
\nstanding at the spot marked on the- sketch-map.\n<\/p>\n
(1)  A. X. P.\t   944\tCal. 939.\n(2) A. I. R.   C. 526.\n586<\/span>\n<\/pre>\n
We  have however still to examine the argument on behalf  of
\nthe  appellants\t that’ it was extremely\t unlikely  that\t the
\ndeceased  would.  have been hit on that part of\t the body,
\nleaving out of account the sketch-map and spots marked on it
\nby the Sub-inspector.  The argument is that the evidence  of
\nthe   witnesses\t was  that  the\t deceased  was\t facing\t  or
\ngoing  to  wards east when be was hit and therefore  it\t was
\nmost unlikely that he would, be hit on the left side of\t the
\nlumbar’ region where he was actually hit.  There is no doubt
\nthat  if the deceased was towards the west or north-west  of
\nthe  platform when he was hit, the chances of his being\t bit
\non the left side of the lumbar region would be very  slight;
\nbut  if he was to the east or north-east of the platform  it
\nwould  only be a matter of chance if he was hit on the\tleft
\nside  of  the lumbar region or on the right side,  ‘and\t the
\nargument,  would lose all force if he was  slightly  towards
\nthe  east or north-east of the platform.  Let  us  therefore
\nlook  at the evidence of the witnesses in  this\t connection.
\nBabunath stated that the deceased’ was at a distance of 5 or
\n6  paces from the platform towards the east and\t was  facing
\ntowards\t the  east while the appellants were  towards the’
\nwest  of  Sohanlal.  If that is so it is only  a  matter  of
\nchance whether the deceased would be hit on the left side of
\nthe lumbar region or the right side. Chhannu stated that the
\ndeceased  had passed the platform and had gone 5 or 6  paces
\nbeyond when he was shot and that he was towards the east  at
\nthe time The sketch-map shows that there was a pond  towards
\nthe east and’ the deceased was obviously going towards that
\npond.\tThe  evidence of Chhannu therefore  shows  that\t the
\ndeceased  was in all probability towards north-east  of\t the
\nplatform when the shot.,was fired and if so be could have’
\nbeen  on  either side of the number region.   Itwari  stated
\nthat the deceased was going the platform and was hit when he
\nhad  gone  some: distance beyond the platform.\tHe  did\t not
\nwhich way  the deceased
\n587<\/span>
\nwas  going  whether north or east.  His\t evidence  therefore
\ncannot be used to show that the deceased could not have been
\nstruck\ton  the\t left side of the  lumbar  region.   Khamani
\nstated\tthat the deceased bad gone 5 or 6 paces\t beyond\t the
\nplatform and was towards the east of the assailant.  If that
\nis  so\tthere would be nothing improbable if  the  shot\t hit
\ntowards\t the  left  side of the lumbar\tregion.\t  There’  is
\nnothing\t therefore  in the evidence of the  witnesses  which
\nwould show that it was next to impossible for the shot fired
\nfrom the platform to have bit the deceased on the left\tside
\nof the lumbar region.  The whole argument on this aspect  of
\nthe  matter therefore based as it was on the spot marked  on
\nthe map must fail, for the evidence of the witnesses  which
\nwe  have noticed above, does not show that the\tposition  of
\nthe deceased was such that he could not have been hit on the
\nleft side of the lumbar region.\n<\/p>\n
The other contention in this connection is that the  medical
\nevidence  shows that the wound of exit was higher  than\t the
\nwound  of  entry, and this means that the bullet  must\thave
\ntraveled  from\tdown below upwards.  The witnesses  are\t not
\nquite  consistent as to whether the shot was fired  by\tTori
\nSingh while he was sitting on the platform or while he stood
\non the platform or after he got down from the platform.\t The
\nHigh  Court has accepted that the shot was fired while\tTori
\nSingh  was sitting on the, platform and therefore  according
\nto  the\t High Court the chances were that the  bullet  would
\ntravcl upwards through the body.  But apart from this,\tthe
\nmedical\t evidence  is  not that the  bullet  traveled  in  a
\nstraightline through the body.\tIf the medical evidence\t bad
\nbeen that the bullet travelled in a straightline through the
\nbody from the wound of entry to the wound of exit, it  might
\nhave been said that the course of the bullet was from  down
\nbelow upwards.\tHowever, the evidence of the doctor is\tthat
\nthe movement of the bullet through the body was very zigzag.
\nTherefore, it cannot be said that
\n\t\t\t    588<\/span>
\nthe  shot  must necessarily have been fired  from’  a  lower
\nposition than where it hit the body of the’ deceased.\tThis
\nis  apart from the fact that the course of a bullet  may  be
\ndeflected  on  entering the body because of  the  resistance
\nfrom  tissues and more particularly from bones if  it  meets
\nany bone on the way.  Therefore the position from which\t the
\nshot  was  fired cannot be said to have much  importance  in
\nthis  case and the discrepancies which have been noticed  by
\nthe High Court would not in our opinion affect the value  of
\nthe evidence given by the witnesses.\n<\/p>\n
It  was also urged that the witnesses should not  have\tbeen
\nbelieved because they were partisan or chance witnesses;  in
\nparticular it was stressed that the High Court has not given
\nconvincing  reasons for believing Chhannu who had  not\tbeen
\nrelied upon by the trial court.\t Leaving out the evidence of
\nChhannu, we have still the evidence of three other witnesses
\nbelonging  to  this very village who gave reasons  why\tthey
\nwere. present near the spot though they live some  distance
\naway.\tThese  three witnesses. have been  believed  by\t the
\ntrial  court  as  well as by the High Court and\t we  see  no
\nreason\tto disagree with the estimate of their\tevidence  by
\nthe  two courts; nor (lo we see any reason to disagree\twith
\nthe  estimate  by the two courts of the value of  the  dying
\ndeclarations in this case.\n<\/p>\n
As  for the evidence of Chhiddu, we agree with the  estimate
\nof  the High Court that he being A cousin of Tori Singh\t was
\nprevailed upon to make a confession.  He could do so  almost
\nwith impunity, because the, prosecution case definitely\t was
\nthat the assailants were only the two appellants and no\t one
\nelse.\tThe  only  evidence that. was referred\tto  in\tthis
\nconnection  is the statement of the deceased, in  the  dying
\ndeclaration  that Chhiddu was a cousin of Tori\tSingh  (vide
\nEx.  Ka-8).It is not clear why the deceased said so; but  in
\nany  case it cannot be inferred from this that the  deceased
\nwas naming him because he was the man who had shot him.\n<\/p>\n
 589<\/span><\/p>\n
In the circumstances when both the courts have accepted\t the
\nevidence  of  three  of the eye-  witnesses  and  the  dying
\ndeclarations   there  is  in  our  opinion  no-:cause for
\ninterference  with their conclusion that the  incident\ttook
\nplace  in  the\tmanner\talleged\t by  the  prosecution.\t The
\nconviction of the appellants must therefore be upheld.
\nLastly,\t it  was urged that we might consider  reducing\t the
\nsentence  of  Tori  Singh to imprisonment for  life  on\t the
\nground\tthat he acted as he- did under the influence of\t his
\nfather.\t  There\t is  no doubt that Tori Singh  shot  at\t the
\ndeceased  at  the  instigation of his father; but  he  is  a
\nmature man of 25 and the evidence shows that he was  sitting
\nwith the pistol along with his father.\tObviously  therefore
\n\\murder\t must have been planned between the father  and\t the
\nson,  as  they were apparently expecting that  the  deceased
\nwould\tpass  that  way\t in  connection\t with  his   morning
\nablutions.   Tori Singh cannot be considered to be  a  young
\nboy in his teens who would be completely under the influence
\nof his father, and in the circumstances we see no reason  to
\ninterfere “With the sentence of death passed on him by\tthe.
\ntrial  court and confirmed by the High Court.\t‘The  appeal
\nfails and is hereby dismissed.\n<\/p>\n
Appeal dismissed.\n<\/p>\n
590<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Tori Singh vs The State Of Uttar Pradesh on 12 September, 1961 Equivalent citations: 1962 AIR 399, 1962 SCR (3) 589 Author: K Wanchoo Bench: Wanchoo, K.N. PETITIONER: TORI SINGH Vs. RESPONDENT: THE STATE OF UTTAR PRADESH DATE OF JUDGMENT: 12\/09\/1961 BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GUPTA, K.C. DAS SHAH, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-209224","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nTori Singh vs The State Of Uttar Pradesh on 12 September, 1961 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tori-singh-vs-the-state-of-uttar-pradesh-on-12-september-1961\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tori Singh vs The State Of Uttar Pradesh on 12 September, 1961 - 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