{"id":29261,"date":"1981-02-11T00:00:00","date_gmt":"1981-02-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dudh-nath-pandey-vs-the-state-of-u-p-on-11-february-1981"},"modified":"2017-12-11T07:04:19","modified_gmt":"2017-12-11T01:34:19","slug":"dudh-nath-pandey-vs-the-state-of-u-p-on-11-february-1981","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dudh-nath-pandey-vs-the-state-of-u-p-on-11-february-1981","title":{"rendered":"Dudh Nath Pandey vs The State Of U.P on 11 February, 1981"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Dudh Nath Pandey vs The State Of U.P on 11 February, 1981<\/div>\n
Equivalent citations: 1981 AIR 911, \t\t 1981 SCR (2) 771<\/div>\n
Author: Y Chandrachud<\/div>\n
Bench: Chandrachud, Y.V. ((Cj)<\/div>\n
           PETITIONER:\nDUDH NATH PANDEY\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF U.P.\n\nDATE OF JUDGMENT11\/02\/1981\n\nBENCH:\nCHANDRACHUD, Y.V. ((CJ)\nBENCH:\nCHANDRACHUD, Y.V. ((CJ)\nSEN, A.P. (J)\n\nCITATION:\n 1981 AIR  911\t\t  1981 SCR  (2) 771\n 1981 SCC  (2) 166\t  1981 SCALE  (1)285\n CITATOR INFO :\n RF\t    1990 SC1359\t (5)\n\n\nACT:\n     Indian Penal Code-Section 302-For the offence of murder\nthe normal sentence is sentence of life imprisonment and not\nof  death-Witnesses   failed  to  reveal  the  whole  truth-\nConsiderations to  be taken  into account while dealing with\nthe question of sentence for the offence of murder.\n     Concurrent findings  of two courts below-Supreme Court,\nif could examine their correctness.\n     Plea of alibi-Its postulates.\n\n\n\nHEADNOTE:\n     The prosecution  alleged that  when  the  appellant,  a\nmotor-car driver who was living as a tenant in the out-house\nof the\tbungalow belonging  to the  family of  the deceased,\ndeveloped a  fancy for\tthe  sister  of\t the  deceased.\t His\novertures created  resentment in the family and the deceased\ntook upon  himself the task of preventing the appellant from\npursuing his  sister. The appellant's effort to take custody\nof the\tdeceased's  sister  through  legal  proceedings\t had\nfailed; sometime later on a complaint to the police that the\nappellant had  been making indecent overtures towards her he\nwas arrested.  A day  before the  day of  the occurrence the\nappellant  was\talleged\t to  have  threatened  to  kill\t the\ndeceased if  he opposed\t his (appellant's) marriage with his\nsister. It  was further\t alleged that while the deceased was\nreturning home\ton his\tscooter after  leaving his sister in\nthe school where she was working as a teacher, the appellant\nfired a shot at him with a pistol at which the deceased fell\ndead instantaneously.\n     He was convicted under section 302 I.P.C. and sentenced\nto death. The order of conviction and sentence was confirmed\nby the High Court.\n     On the question of sentence\n^\n     HELD: 1.  The Sessions  Court and\tthe High  Court were\nright in  convicting the  appellant under section 302 I.P.C.\n[779 G]\n     (a) The  mere circumstance that two or more courts have\ntaken the  same view  of facts does not shut out all further\ninquiry into  the correctness  of that\tview. Concurrence is\nnot an\tinsurance against  the charge of perversity though a\nstrong case  has to  be made  out in  order to\tsupport\t the\ncharge that findings of fact recorded by more than one court\nare perverse.  The merit  of the normal rule that concurrent\nfindings ought\tnot to be reviewed by this Court consists in\nthe assumption\tthat it\t is not\t likely\t that  two  or\tmore\ntribunals would\t come to  the same conclusion unless it is a\njust and fair conclusion to come to. [718 E-G]\n     2. While  dealing with the question of sentence for the\noffence of  murder, the\t normal sentence  is the sentence of\nlife imprisonment  and not of death. If in a same conclusion\nunless it  is a just and fair conclusion to come to. [778 E-\nG]\n772\nbalances do  not choose\t to reveal the whole truth the Court\nwhile dealing  with the\t question of sentence has to step in\ninterstitially\tand   take  into   account  all\t  reasonable\npossibilities having regard to the normal and natural course\nof human affairs. In the instant case it would be unsafe, on\nthe evidence  on record,  to sentence  the appellant  to the\nextreme penalty of death. [780 H]\n     The appellant,  a poor motor-car driver, must have been\noffended enormously   when  the deceased  abused him that he\nwas a  man of  two paise  worth and  that if he attempted to\nmarry his  sister he would break his hands and feet and that\nhis poverty  was being\tput up\tas the reason why his sister\nwould not  be allowed to marry him. The dispute thus assumed\nproportions of\ta fued\tover social status. The poor man was\nfretting that  the rich\t man's daughter would not be allowed\nto marry  him for  the mere reason that he did not belong to\nan  equal  class  of  society.\tThe  appellant,\t rightly  or\nwrongly, believed  that the  girl was not unwilling to marry\nhim. The  incident of  the previous  evening  could  not  be\nconsidered  as\t affording  \"sudden\"   provocation  to\t the\nappellant for  the crime  committed by\thim on the following\nmorning. It  cannot reduce  the offence\t of  murder  into  a\nlesser offence,\t but the  mental turmoil  and the  sense  of\nbeing socially\twronged\t through  which\t the  appellant\t was\npassing\t could\t not  be   overlooked  while   deciding\t the\nappropriate sentence. [780 B-D]\n     Secondly the  fact that, apart from the gun-shot wound,\nthe deceased  had no  other injury  on his  person except an\nabrasion on  the left  side of the chest evidently caused by\nthe gun-shot  itself coupled  with the fact that the scooter\nwas found  \"standing\" on  the road  showed that the deceased\nstopped on  seeing the\tappellant  and\tthat  there  was  an\nexchange of  hot words\tbetween them  culminating    in\t the\nmurder. But  since in the present case a part of the crucial\nevidence had  been screened  from the  Court's scrutiny\t the\npossibility of\tan altercation between the appellant and the\ndeceased cannot reasonably be excluded. [780 F-H]\n     (3) The evidence of the defence witnesses has failed to\nestablish the  alibi of\t the appellants.  The plea  of alibi\npostulates the physical impossibility of the presence of the\naccused at the scene of offence by reason of his presence at\nanother place.\tThe plea  therefore succeeds  only if  it is\nshown that  the accused was so far away at the relevant time\nthat he\t could not  be present\tat the place where the crime\nwas committed.\tBut in\tthe present case the evidence of the\ndefence witnesses,  accepting  it  at  its  face  value,  is\nconsistent with\t the appellant's  presence at the factory at\nthe appointed  hour and\t half an  hour later at the scene of\noffence. So short is the distance between the two points.\n\t\t\t\t\t      [778 H; 779 D]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL APPELLATE\t JURISDICTION: Criminal\t Appeal\t No.
\n163 of 1979.\n<\/p>\n
     Appeal by\tSpecial Leave  from the\t Judgment and  Order
\ndated 23-8-1978\t of the\t Allahabad High\t Court\tin  Criminal
\nAppeal No. 1264\/78 and Murder Reference No. 9\/78.\n<\/p>\n
     R. C. Kohli for the Appellant.\n<\/p>\n
     O. P. Rana and K. K. Bhatta for the Respondent.
\n     Yogeshwar\tPrasad\t and  Mrs.   Rani  Chhabra  for\t the
\nComplainant.\n<\/p>\n
773<\/span><\/p>\n
     The Judgment of the Court was delivered by
\n     CHANDRACHUD, C.J.-A college-going boy called Vijay Bhan
\nKishore was  shot dead\ton the\tmorning of  November 2, 1976
\nnear the Hathi Park, Dayanand Marg, Allahabad. The appellant
\nwas convicted  for that\t offence under\tsection 302  of\t the
\nPenal Code  by the  learned Third Additional Sessions Judge,
\nAllahabad  and\t was  sentenced\t  to  death.  The  order  of
\nconviction and\tsentence having\t been confirmed\t by the High
\nCourt of  Allahabad by\tits judgment  dated August 23, 1979,
\nthe appellant has filed this appeal by Special Leave.\n<\/p>\n
     Vijay Bhan\t Kishore alias\tPappoo was  the\t son  of  an
\nAdvocate called\t Brij Bhan  Kishore who\t died in  about 1967
\nleaving behind\ta widow,  three daughters  and\tPappoo.\t The
\nyoungest of  the three\tdaughters was  married while the two
\nelder were  working as\tschool teachers.  Out of  those two,
\nRanjana Kishore was a teacher in the St. Anthony’s Convent.\n<\/p>\n
     The appellant,  Dudh Nath\tPandey, who  was a motor-car
\ndriver by  occupation, used  to live  as a tenant in an out-
\nhouse of a sprawling bungalow belonging to the family of the
\ndeceased, situated  at\t17,  Stanley  Road,  Allahabad.\t The
\nappellant developed  a fancy  for Ranjana  who was  about 20
\nyears of  age when  he came  to live  in the  out-house. The
\novertures  made\t  by  the   appellant  to   Ranjana  created
\nresentment in her family and its only surviving male member,
\nher brother Pappoo, took upon himself the task of preventing
\nthe appellant from pursuing his sister. As a first step, the
\nappellant was  turned out of the out-house. Soon thereafter,
\nhe  filed   an\tapplication   before  the  City\t Magistrate,
\nAllahabad, asking  for the custody of Ranjana, alleging that
\nshe was\t his lawfully  wedded  wife.  That  application\t was
\ndismissed by  the learned  Magistrate  after  recording\t the
\nstatement of  Ranjana, in  which she  denied  that  she\t was
\nmarried to  the appellant.  The appellant thereafter filed a
\nhabeas corpus  petition in the Allahabad High Court alleging
\nthat Ranjana  was detained  unlawfully by the members of her
\nfamily, including  her uncle  K. P.  Saxena, and asking that
\nshe be\treleased from  their custody. Ranjana denied in that
\nproceedings too\t that she  was married\tto the\tappellant or
\nthat she  was unlawfully  detained by  the  members  of\t her
\nfamily. The habeas corpus petition was dismissed by the High
\nCourt on  November 8, 1973. On August 1, 1975, the Principal
\nof St. Anthony’s Convent made a complaint to the police that
\nthe appellant  had made\t indecent overtures  to Ranjana. The
\nappellant was arrested as a result of that complaint.\n<\/p>\n
774<\/span><\/p>\n
     On November  1, 1976,  Ranjana was\t having\t an  evening
\nstroll\twith  her  brother,  the  deceased  Pappoo,  in\t the
\ncompound of  their house.  The appellant  came\tthere  in  a
\nrickshaw, abused Pappoo and is alleged to have threatened to
\nkill him,  if he  dared oppose his, the appellant’s marriage
\nwith Ranjana. As a result of these various incidents and the
\nfamily’s growing  concern for  Ranjana’s safety, Pappoo used
\nto escort  Ranjana every morning to the school where she was
\nteaching.\n<\/p>\n
     On the  following day, i.e. on November 2, 1976, Pappoo
\ntook Ranjana  to her  school on\t his scooter  as usual.\t The
\nclasses used to begin at 9-30 A.M. but Ranjana used to go to
\nthe school  30 to  40 minutes before time for correcting the
\nstudents’ home-work.  After dropping  Ranjana at the school,
\nPappoo started\tback for  home on  his scooter. While he was
\npassing by the Children’s Park, known as the Hathi Park, the
\nappellant is  alleged to  have fired  at him with a country-
\nmade pistol.  Pappoo fell  down from  his scooter  and\tdied
\nalmost instantaneously.\n<\/p>\n
     The occurrence is said to have been witnessed by Harish
\nChandra (P.  W. 3),  a domestic servant of the family of the
\ndeceased and  by Harish\t Chandra’s friend Ashok Kumar (P. W.\n<\/p>\n
1). Harish  Chandra used  to live  in the  out-house of\t the
\ndeceased’s bungalow  at 17, Stanley Road, while Ashok Kumar,
\nwho generally  lived at\t Kanpur, is  said to  have  come  to
\nAllahabad the  previous day  in search of employment. Almost
\nimmediately after  Pappoo and  Ranjana left the house on the
\nscooter, Ashok\tKumar and  Harish Chandra too left the house
\nas the\tformer wanted  to see the Hathi Park. They were near
\nabout the  gate of  the park, which is a few steps away from
\nthe scene  of  occurrence,  when  the  deceased\t Pappoo\t was
\npassing along  on his scooter, after dropping Ranjana at the
\nSt. Anthony’s  Convent. Ashok  Kumar and  Harish Chandra are
\nalleged to  have seen  the appellant,  who was standing near
\nthe northern  boundary of the park, firing a shot at Pappoo.
\nThe appellant  re-loaded his  pistol and is said to have run
\naway to wards the south-east.\n<\/p>\n
     Ashok Kumar  and Harish Chandra rushed to St. Anthony’s
\nConvent in a rickshaw and informed Ranjana Kishore about the
\nmurder of her brother. Ranjana went to the scene of incident
\nalong with  them and  on finding  that her brother was dead,
\nshe went  straight to the Cannington police station which is
\nabout 2\t kms. away.  She wrote\tout the report (Ex. Ka-1) in
\nher own\t hand and  submitted it\t to the officer-in-charge of
\nthe police station at 9-45 A.M. In the meantime, information
\nof the murder had reached the police station of Colonelganj,
\nwithin the  ‘jurisdiction’ of  which the  murder  had  taken
\nplace.\n<\/p>\n
775<\/span><\/p>\n
     The police\t deserve a word of appreciation because they
\ndid not,  as usual,  enter into\t a squabble  as to  in whose
\n‘jurisdiction’\tthe  offence  had  taken  place.  H.  R.  L.
\nSrivastava, the sub inspector attached to Colonelganj police
\nstation, went  within minutes  to the  scene of offence and,
\nbelieving that\tPappoo was  alive, sent him in a jeep to the
\nTej Bahadur  Sapru  hospital.  A  little  later,  P.  S.  I.
\nChandrapal Singh of the Cannington police station arrived on
\nthe scene  and started\tthe investigation. He took charge of
\nan empty  cartridge-shell and  the  bloodstained  earth\t and
\nlater, he  sent the  dead  body\t of  Pappoo  for  postmortem
\nexamination.\n<\/p>\n
     P. S.  I. Srivastava arrested the appellant at about 2-
\n30 P.M.\t while he  was standing\t near a pan-shop in front of
\nthe Indian  Telephone Industries,  Naini, where\t he used  to
\nwork. The  appellant was taken to the scene of offence where
\nhe made\t a certain  statement and  took out  a loaded pistol
\nfrom a\theap of rubbish lying on the Kamla Nehru Road, being
\nthe direction in which he had run away after killing Pappoo.
\nThe Ballistic  expert, Budul  Rai,  opined  that  the  empty
\ncartridge-shell, which\twas lying  at the  scene of offence,
\nwas fired from that particular pistol.\n<\/p>\n
     Dr.  G.   S.  Saxena,   who  conducted  the  postmortem
\nexamination found  a single gun-shot injury on the left side
\nof the\tchest of  the deceased, below the armpit. The injury
\nhad caused  seven pellet  wounds, each measuring 1\/3 inch in
\ndiameter. Seven\t pellets were  recovered from  the body. The
\ninjury, according  to Dr.  Saxena,  was\t sufficient  in\t the
\nordinary course of nature to cause death.\n<\/p>\n
     The appellant  stated in  his defence  that he  used to
\nlive in the house of the deceased as the guest of the family
\nand not\t as a  tenant and that Ranjana got intimate with him
\nduring that  period. He\t left the house because she told him
\nthat there  was danger\tto his\tlife. The  murder of Pappoo,
\naccording to  the appellant,  was engineered  by Dr.  K.  P.
\nSaxena, the  maternal uncle  of the  deceased. The appellant
\ndenied his  hand in the murder, saying that he had no reason
\nto do  so since\t the deceased’s mother and the other members
\nof the family desired that he should marry Ranjana.\n<\/p>\n
     The appellant  examined five  witnesses  to  prove\t his
\nalibi, his  contention being  that he  was on  duty  at\t the
\nIndian Telephone  Industries, right  from 8-30\tA.M. on\t the
\ndate of\t the incident  and that\t he was arrested from inside
\nthe factory at about 2-30 P.M. while on duty.\n<\/p>\n
776<\/span><\/p>\n
     The  learned   Additional\tSessions  Judge,  Allahabad,
\nexamined the  Deputy Superintendent  of Police, R. P. Bhanu,
\nand the\t General Manager  of the Indian Telephone Industries
\nas Court witnesses.\n<\/p>\n
     The prosecution examined 13 witnesses in support of its
\ncase that  the appellant had committed the murder of Pappoo.
\nAshok Kumar  (P.W. 1)  and  Harish  Chandra  (P.W.  3)\twere
\nexamined as  eyewitnesses to  the incident.  Ranjana Kishore
\n(P.W. 2)  was examined to prove the motive for the murder as
\nalso for  showing that\tthe deceased Pappoo had taken her to
\nthe school on his scooter and that, soon thereafter, she was
\ninformed by the two eye-witnesses of the murder. Ram Kishore
\n(P.W. 4)  was examined\tto prove the arrest of the appellant
\nand the\t recovery of  the loaded pistol. P. S. I. Srivastava
\n(P.W. 9) and P.S.I. Chandrapal Singh (P.W. 10) deposed about
\nthe various  steps taken during the course of investigation.
\nDr. G. S. Saxena (P.W. 11) was examined in order to show the
\nnature of  the injuries suffered by the deceased while Budul
\nRai (P.W.  12) stated  that the\t empty cartridge-shell which
\nwas lying  at the  scene  of  offence  was  fired  from\t the
\nparticular pistol  which is stated to have been recovered at
\nthe  instance\tof  the\t appellant.  The  other\t prosecution
\nwitnesses are mostly of a formal nature.\n<\/p>\n
     Were this\ta case of circumstantial evidence, different
\nconsiderations would  have prevailed  because the balance of
\nevidence after\texcluding  the\ttestimony  of  the  two\t eye
\nwitnesses is not of the standard required in cases dependent
\nwholly on  circumstantial evidence.  Evidence of recovery of
\nthe pistol at the instance of the appellant cannot by itself
\nprove that  he who  pointed out\t the weapon  weilded  it  in
\noffence.  The\tstatement  accompanying\t  the  discovery  is
\nwoefully vague\tto identify  the authorship  of concealment,
\nwith the  result that  the pointing out of the weapon may at
\nbest prove  the appellant’s knowledge as to where the weapon
\nwas kept.  The evidence\t of the Ballistic expert carries the
\nproof of  the charge  a significant step ahead, but not near
\nenough, because at the highest, it shows that the shot which
\nkilled Pappoo  was fired  from the  pistol which was pointed
\nout by the appellant. The evidence surrounding the discovery
\nof the\tpistol may  not be discarded as wholly untrue but it
\nleaves a  few significant questions unanswered and creates a
\nsense of  uneasiness in\t the mind  of a\t Criminal Court, the
\nCourt of  conscience that  it  has  to\tbe:  How  could\t the
\nappellant have\tan opportunity\tto  conceal  the  pistol  in
\nbroad-day light\t on a  public thoroughfare ? If he re-loaded
\nthe pistol  as a measure of self protection, as suggested by
\nthe prosecution,  why did  he get  rid of  it so  quickly by
\nthrowing it  near the  Hathi Park itself ? And how come that
\nthe police hit upon none better that Ram Kishore (P.W. 4) to
\nwitness the  discovery of  the\tpistol\t?  Ram\tKishore\t had
\nalready
\n777<\/span>
\ndeposed\t in   seven  different\t cases\tin   favour  of\t the
\nprosecution and\t was evidently\tat the\tbeck and call of the
\npolice.\n<\/p>\n
     But the  real hurdle in the way of the appellant is the
\nevidence of  the eye  witnesses: Ashok\tKumar (P.W.  1)\t and
\nHarish Chandra\t(P.W. 3).  Shri R.  C. Kohli who appears for
\nthe appellant  made a  valiant\tattempt\t to  demolish  their
\nevidence but  in spite\tof the\tcounsel’s able\targument, we
\nfind it\t difficult  to\thold  that  the\t eye-witnesses\thave
\nperjured themselves  by claiming  to be\t present at the time
\nand place of the occurrence. It is true that Harish Chandra,
\nwho was\t working as  a domestic\t servant with the deceased’s
\nfamily, should\tnormally have  been doing  his daily morning
\nchores. Few  masters would  permit a household servant to go
\naway on a sight-seeing spree right in the morning. But there
\nare at\tleast two  plausible reasons which lend assurance to
\nthe  claim   that  Harish  Chandra  left  the  house  almost
\nimmediately after  the deceased\t Pappoo drove  away with his
\nsister Ranjana.\t Ashok\tKumar  had  come  to  Allahabad\t the
\nprevious evening  and he  wanted to  go to  the\t Hathi\tPark
\nwhere, though  it is  called a\tchildren’s park,  adults too
\nfind  their   merriment.  There\t  is  nothing  fundamentally
\nimprobable in  Ashok Kumar  coming to Allahabad in search of
\nemployment and\tequally, nothing  inherently strange  in the
\ntwo friends  going out\ton a  frolic.  And  though  a  small
\nconsideration,\tit  is\trelevant  that\tthe  normal  morning
\nroutine of Harish Chandra was to help in the kitchen but the
\n2nd November,  1976 was an Ekadashi day and therefore, there
\nwas not much to do for him.\n<\/p>\n
     The second\t reason is  more weighty and almost clinches
\nthe issue. The evidence of Ranjana (P.W. 2) shows beyond the
\nmanner of doubt that Harish Chandra and Ashok Kumar broke to
\nher the\t news of  her brother’s murder, while she was in the
\nschool. The  events after  the murder happened in such quick
\nsuccession that\t there was  no time  for any one to contrive
\nand confabulate.  Within  ten  minutes\tof  the\t occurrence,
\nRanjana was informed of the incident by the two eyewitnesses
\nand within a few moments thereafter she went to the scene of
\nthe tragedy.  Her F.I.R.  (Ex. Ka-1)  was  recorded  at\t the
\npolice\tstation\t at  9-45  a.m.\t A  fact  of  preponderating
\nimportance is  that the story which Ranjana disclosed in the
\nF.I.R. is  precisely the  same as  the witnesses,  including
\nherself, narrated  in the  Court.  The\tF.I.R.\tis  a  brief
\ndocument of  a page  and half.\tBut it is remarkable that it
\nmentions (1)  that the appellant wanted to marry Ranjana and
\nwas harassing  her towards  that end;  (2) that\t there was a
\nquarrel\t between  the  appellant  and  Pappoo  the  previous
\nevening, in  which the\tformer gave  a threat of life to the
\nlatter (3)  that Ranjana  left for  the school on the day of
\noccurrence at 8-45 A.M.; and (4) that soon thereafter Harish
\n778<\/span>
\nChandra and  Ashok Kumar  met her at the school and conveyed
\nto her\tthat they had gone to see the Hathi Park when, while
\nPappoo was  passing along  the road,  the Appellant  fired a
\nshot at him. We consider it beyond the normal range of human
\npropensities that  Ranjana could  have built  up  the  whole
\nstory within  three quarters  of an  hour  which  intervened
\nbetween the time that she learnt of her brother’s murder and
\nthe lodging  by her  of the  F.I.R. She could not have taken
\nthe risk of creating a false witness by placing Ashok Kumar,
\nwho normally,  resided in  Kanpur, alongside Harish Chandra.
\nWith the  death of  her brother,  her  own  house  was\tleft
\nwithout a  male member. At home was an ailing mother and two
\nother sisters, more or less of her own age. There was no one
\nto advise  her upon  the hatching of a conspiracy to involve
\nthe appellant  and she could not have been in a proper frame
\nof mind\t to  do\t anything  of  the  kind  on  her  own.\t Her
\ninexperience of life, the promptness with which she gave the
\nF.I.R. and  the wealth\tof  details  she  mentioned  therein
\nafford an  assurance that  the story of the eye-witnesses is
\ntrue in\t so far\t as it\tgoes. Shri  Kohli’s submission\tthat
\nRanjana’s F.I.R.  is anti-timed\t and must have been recorded
\nlate in the evening leaves us cold.\n<\/p>\n
     Shri  Kohli   has\tpointed\t  a  defect   here  and\t  an
\nimprobability there in the evidence of the eye-witnesses but
\nit has to be borne in mind that the Trial Court and the High
\nCourt have  concurrently believed  that evidence.  We do not
\nsuggest that  the mere circumstances that two or more courts
\nhave taken  the same  view of  facts shuts  out all  further
\ninquiry into  the correctness  of that\tview.  For  example,
\nconcurrence is\tnot  an\t insurance  against  the  charge  of
\nperversity though  a strong case has to be made out in order
\nto support the charge that findings of fact recorded by more
\nthan one  court are  perverse, that is to say, they are such
\nthat no\t reasonable tribunal  could have  recorded them. The
\nmerit of  the normal rule that concurrent findings ought not
\nto be reviewed by this Court consists in the assumption that
\nit is  not likely  that two  or more tribunals would come to
\nthe same  conclusion unless it is a just and fair conclusion
\nto come\t to. In\t the instant  case, the view of the evidence
\ntaken by the Sessions Court and the High Court is, at least,
\na reasonable  view to  take and\t that  is  why\twe  are\t not
\ndisposed, so  to say, to re-open the whole case on evidence.
\nWe have\t indicated briefly  why we  consider that  the\teye-
\nwitness account\t accords with the broad probabilities of the
\ncase.\n<\/p>\n
     Counsel for the appellant pressed hard upon us that the
\ndefence evidence  establishes the alibi of the appellant. We
\nthink not.  The evidence  led by the appellant to show that,
\nat the\trelevant time,\the was on duty at his usual place of
\nwork at Naini has a certain amount
\n779<\/span>
\nof plausibility\t but that  is about  all. The High Court and
\nthe Sessions  Court have  pointed out many a reason why that
\nevidence  cannot   be  accepted\t as  true.  The\t appellant’s
\ncolleagues at  the Indian  Telephone Industries made a brave
\nbid to\tsave his  life by giving evidence suggesting that he
\nwas at\this desk  at or\t about the time when the murder took
\nplace and  further, that  he was  arrested from\t within\t the
\nfactory. We  do not want to attribute motives to them merely
\nbecause they were examined by the defence. Defence witnesses
\nare  entitled\tto  equal   treatment  with   those  of\t the
\nprosecution.   And,   Courts   ought   to   overcome   their
\ntraditional, instinctive  disbelief  in\t defence  witnesses.
\nQuite often,  they tell\t lies  but  so\tdo  the\t prosecution
\nwitnesses. Granting  that D.  Ws. 1  to 5  are right,  their
\nevidence, particularly\tin the\tlight of the evidence of the
\ntwo Court  witnesses, is  insufficient\tto  prove  that\t the
\nappellant could not have been present near the Hathi Park at
\nabout 9-00 A.M. when the murder of Pappoo was committed. The
\nplea of\t alibi postulates  the physical impossibility of the
\npresence of the accused at the scene of offence by reason of
\nhis presence  at  another  place.  The\tplea  can  therefore
\nsucceed only if it is shown that the accused was so far away
\nat the\trelevant time  that he\tcould not  be present at the
\nplace where  the crime\twas committed.\tThe evidence  of the
\ndefence witnesses,  accepting  it  at  its  face  value,  is
\nconsistent  with  the  appellant’s  presence  at  the  Naini
\nfactory at  8-30 A.M.  and at  the scene  of offence at 9.00
\nA.M. So\t short is  the distance\t between the two points. The
\nworkers punch  their cards  when they  enter the factory but
\nwhen they  leave the  factory, they do not have to punch the
\ntime of\t their exit. The appellant, in all probability, went
\nto the\tfactory at  the appointed  hour, left it immediately
\nand went  in search  of his  prey. He  knew when, precisely,
\nPappoo would  return after  dropping Ranjana  at the school.
\nThe appellant  appears to  have attempted  to go back to his
\nwork but  that involved the risk of the time of his re-entry
\nbeing punched again. That is how he was arrested at about 2-
\n30 P.M. while he was loitering near the pan-shop in front of
\nthe factory.  There is\tno truth  in the  claim that  he was
\narrested from inside the factory.\n<\/p>\n
     That settles the issue of guilt. We agree with the view
\nof the\tHigh Court  and the  Sessions Court  and uphold\t the
\nappellant’s conviction under section 302 of the Penal Code.\n<\/p>\n
     The question  of  sentence\t has  gravely  agitated\t our
\nminds. A young college-going boy was murdered because he was
\ntrying to  wean away  his sister  from the  influence of the
\nappellant who  had set his heart upon her. But there are two
\nreasons why  we\t are  not  disposed  to\t confirm  the  death
\nsentence. In the first place, the appellant was smarting
\n780<\/span>
\nunder the  insult hurled  at him by the deceased Pappoo, the
\nprevious evening.  As stated  by Ranjana in the F.I.R., when
\nthe appellant  proclaimed his  determination to\t marry\ther,
\nPappoo retorted:  “You are  a man  of two Paisa’s worth. How
\ncan you\t dare to  marry my  sister ? I will break your hands
\nand feet.”  A poor  motor-car driver that the appellant was,
\nhe must\t have been  offended enormously that his poverty was
\nbeing put  up as the reason why Ranjana would not be allowed
\nto marry  him. The dispute thus assumed the proportions of a
\nfeud over social status, the poor man fretting that the rich
\nman’s daughter\twould not  be allowed  to marry\t him for the
\nmere reason  that he  did not  belong to  an equal  class of
\nsociety. And  it is  evident that  he believed,\t rightly  or
\nwrongly, that  Ranjana was  not unwilling  to take  him as a
\nhusband. It  is in  the immediate background of the previous
\nevening’s  incident   that  the\t question  of  sentence\t has
\nperforce to be considered. That incident cannot certainly be
\nconsidered  as\t affording  “sudden”   provocation  to\t the
\nappellant for  the crime  committed by\thim the next morning
\nand, therefore, it cannot  reduce the offence of murder into
\na lesser  offence. But,\t the mental turmoil and the sense of
\nbeing socially\twronged\t through  which\t the  appellant\t was
\npassing cannot\tbe overlooked  while deciding  which is\t the
\nappropriate sentence  to pass,\tthe rule  being that for the
\noffence of  murder, the\t normal sentence  is the sentence of
\nlife imprisonment and not of death.\n<\/p>\n
     Secondly, Harish  Chandra and Ashok Kumar do not appear
\nto have\t revealed the  whole truth  to\tthe  Court.  If\t the
\nappellant had  fired a\tshot at\t Pappoo while the latter was
\ndriving along  on his scooter, and if Pappoo, as is alleged,
\ndropped dead,  his scooter  would have dragged him ahead and
\nin that\t process he  would have\t received some\tinjury.\t The
\nscooter too would have been damaged, howsoever slightly. But
\nit is strange that apart from the gun-shot wound, Pappoo had
\nno other injury on his person except an abrasion on the left
\nside of the chest which was evidently caused by the gun-shot
\nitself. The  scooter was  not dragged at all, except for the
\nmark of\t pellets. And, most importantly, the scooter was not
\nlying on  the road  but was “standing”. Pappoo seems to have
\nstopped on seeing the appellant and quite clearly, there was
\nan exchange  of hot  words between  them which culminated in
\nPappoo’s murder. The death of the brave, young lad which has
\ndeprived the  family of\t the succour of its only male member
\nis to  be  deeply  lamented.  But,  if\twitnesses  on  whose
\nevidence the life of an accused hangs in the balance, do not
\nchoose to  reveal the  whole truth, the Court, while dealing
\nwith the question of sentence, has to step in interstitially
\nand take  into account\tall reasonable possibilities, having
\nregard to the normal and natural course of human affairs.\n<\/p>\n
781<\/span><\/p>\n
Since a part of the crucial event has been screened from the
\nCourt’s scrutiny  and  the  possibility\t of  an\t altercation
\nbetween the  appellant and the deceased cannot reasonably be
\nexcluded, we consider it unsafe to sentence the appellant to
\nthe extreme penalty.\n<\/p>\n
     In\t the  result,  we  confirm  the\t conviction  of\t the
\nappellant under\t section 302 of the Penal Code but set aside
\nthe sentence  of death\timposed upon  him. We  sentence\t the
\nappellant  to\timprisonment  for   life.  The\t appeal\t is,
\naccordingly, allowed partly.\n<\/p>\n
P.B.R.\t\t\t\t     Appeal allowed partly.\n782<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Dudh Nath Pandey vs The State Of U.P on 11 February, 1981 Equivalent citations: 1981 AIR 911, 1981 SCR (2) 771 Author: Y Chandrachud Bench: Chandrachud, Y.V. ((Cj) 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. […]<\/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-29261","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDudh Nath Pandey vs The State Of U.P on 11 February, 1981 - 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\/dudh-nath-pandey-vs-the-state-of-u-p-on-11-february-1981\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dudh Nath Pandey vs The State Of U.P on 11 February, 1981 - 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