{"id":5788,"date":"1963-05-10T00:00:00","date_gmt":"1963-05-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kirpal-singh-vs-state-of-u-p-on-10-may-1963"},"modified":"2018-12-29T00:57:23","modified_gmt":"2018-12-28T19:27:23","slug":"kirpal-singh-vs-state-of-u-p-on-10-may-1963","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kirpal-singh-vs-state-of-u-p-on-10-may-1963","title":{"rendered":"Kirpal Singh vs State Of U.P on 10 May, 1963"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kirpal Singh vs State Of U.P on 10 May, 1963<\/div>\n
Equivalent citations: 1965 AIR 712, \t\t 1964 SCR (3) 992<\/div>\n
Author: S C.<\/div>\n
Bench: Shah, J.C.<\/div>\n
           PETITIONER:\nKIRPAL SINGH\n\n\tVs.\n\nRESPONDENT:\nSTATE OF U.P.\n\nDATE OF JUDGMENT:\n10\/05\/1963\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nSINHA, BHUVNESHWAR P.(CJ)\nAYYANGAR, N. RAJAGOPALA\n\nCITATION:\n 1965 AIR  712\t\t  1964 SCR  (3) 992\n CITATOR INFO :\n R\t    1968 SC1402\t (7)\n\n\nACT:\n    Criminal Law-Committal proceedings-Powers and duties  of\nthe Magistrate-Desirability to examine all the witnesses  to\nthe actual commission of the offence- Code of Criminal\tPro-\ncedure, 1898 (Act 5 of 1898), as amended by Act 26 of  1955,\nss.173, 207A (4).\n\n\n\nHEADNOTE:\n  The  appellant was convicted by the Sessions judge of\t the\noffence of murder of K and sentenced to death, and the\tcon-\nviction and sentence were confirmed by the High Court.\t The\ncommittal   proceedings\t  disclosed  that   the\t  Magistrate\ncommitted  the\taccused\t to the\t Court\tof  Session  without\nrecording  the\tevidence  of the  witnesses  to\t the  actual\ncommission of the offence.\n   Held\t that  under s. 207A of the Code  of  Criminal\tPro-\ncedure,\t 1898, as amended by Act 26 of 1955, a\tMagistrate.,\nhas\n 993\nbeen  given  a discretion in the matter\t of  examination  of\nwitnesses not produced by the prosecutor.  The prosecutor is\nexpected   ordinarily  to  examine  in\tthe  court  of\t the\ncommitting Magistrate all witnesses to the actual commission\nof the offence, but if without adequate reasons he fails  to\ndo  so,\t the Magistrate is justified and,  in  enquiries  on\ncharges of serious offences like murder, is under a duty  to\ncall  witnesses who would throw light upon  the\t prosecution\ncase.\tA  Magistrate failing to examine  witnesses  to\t the\nactual\tcommission  of\tthe offence  because  they  are\t not\nproduced, without considering whether it is not necessary in\nthe interests of justice to examine such witnesses, fails in\nthe discharge of his duties.\n  The  Magistrate  must\t apply his  mind  to  the  documents\nreferred  to  in  s. 173 of the code and  the  testimony  of\nwitnesses, if any, produced by the prosecutor and  examined,\nand  consider  whether\tin the interests of  justice  it  is\nnecessary to record the evidence of other witnesses.\n  A Magistrate in committing a person accused of an  offence\nfor  trial  has to perform a judicial function which  has  a\nvital  importance in the ultimate trial, and a\tslipshod  or\nmechanical dealing with the proceeding must be deprecated.\n  Shriram  Daya Ram v. The State of Bombay,<\/a> [1961] 2  S.C.R.\n890, considered.\n\n\n\nJUDGMENT:\n<\/pre>\n
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  54
\nof 1963.\n<\/p>\n
  Appeal by special leave from the judgment and order  dated
\nSeptember 13, 1962, of the Allahabad High Court in  Criminal
\nAppeal No. 877 of 1962 and Referred No. 79 of 1962.
\n   O. P. Rana, for the appellant.\n<\/p>\n
   G.C. Mathur and C. P. Lal, for the respondent.
\n   1963.   May 10.  The judgment of the Court was  delivered
\nby
\nSHAH  J.-The  appellant Kirpal Singh and  his  two  brothers
\nArjun -Singh and Sarwan Singh,
\n994<\/span>
\nwere tried by the Sessions judge, Pillibhit for causing\t the
\ndeath  of  one\tKaram Singh with  gunshot  injuries  in\t the
\nevening\t of  March 26, 1961 at Village\tShanti\tNagar.\t The
\nSessions  judge acquitted Arjun Singh and Sarwan  Singh\t and
\nconvicted the appellant Kirpal Singh of the offence  charged
\nagainst him and sentenced him to suffer the penalty of death
\nsubject\t to confirmation by the High Court.  The High  Court
\nof Allahabad confirmed the order of conviction and sentence.
\nWith special leave, Kirpal Singh has appealed to this Court.
\n  The case for the prosecution was as follows
\n   The\tappellant  and his father-in-law Rakkha\t Singh\twere
\nrefugees from West Pakistan.  A block of agricultural  land,
\nallotted by the Government to Rakkha Singh and the appellant
\nwas  partitioned but no boundary marks were erected  on\t the
\nline  dividing\tthe  lands.  In December 1960  there  was  a
\ndispute\t between  Rakkha  Singh\t on the\t one  hand  and\t the
\nappellant and his brothers on the other about the harvesting
\nof sugarcane planted in the land.  This dispute was  settled
\non  the\t intervention of one Sardar Ajit Singh,\t and  Rakkha
\nSingh  agreed to give seven hundred maunds of  sugarcane  to
\nthe  appellant\tand  his brothers.  The\t appellant  and\t his
\nbrothers went to the house of Rakkha Singh on March 22, 1961
\nand complained that they were not given four hundred  maunds
\nof  sugarcane  out of the seven hundred maunds\tpromised  to
\nthem.\tThere was a quarrel on that occasion  between  Karam
\nSingh  eldest  son of Rakkha Singh and\tthe  appellant,\t the
\nformer\tsaying\tthat  the appellant and\t his  brothers\twere
\n“behaving like dishonest persons’.  Rakkha Singh  intervened
\nand  nothing untoward happened on that occasion.   On  March
\n26, 1961 at about 6 p.m. when Rakkha Singh and his two\tsons
\nKaram  Singh  and Manjit Singh and  their  neighbour  Sardar
\nAnokh Singh were sitting in a thatched hut, the appellant
\n 995<\/span>
\narmed  with  a gun, and his two brothers armed\twith  lathis
\narrived\t near  the hut, and the appellant shouted  to  Karam
\nSingh  asking him to come out of the hut.  On Karam  Singh’s
\nemerging  from the hut the appellant told him that since  he
\n(Karam\tSingh)\t“did not settle the  dispute  regarding\t the
\nsugarcane he would settle his account just then”, and opened
\nfire  causing  injuries to Karam Singh on  the\tchest  which
\nresulted in death instantaneously.  On hearing the report of
\ngun fire Rakkha Singh, his son Manjit Singh and Sardar Anokh
\nSingh  came out of the thatched hut.  Manjit Singh tried  to
\ncatch  hold  of the appellant and his brothers\tbut  without
\nsuccess.   Rakkha  Singh  then went to\tthe  police  station
\nPuranpur  and lodged the first information at 7-45  a.m.  At
\nthe trial of the appellant and his brothers before the Court
\nof Session, Manjit Singh, Anokh Singh and Rakkha Singh\twere
\nexamined as persons who were present at the scene of offence
\nand witnessed the assault on Karam Singh.  Manjit Singh\t and
\nAnokh  Singh however did not support the  prosecution  case.
\nThey stated that at about 8 or 9 p.m. on March 26, 1961 when
\nthey  were in their respective houses they heard  report  of
\ngun  fire and on coming out came to learn from\tsome  person
\nthat  Karam  Singh was fired upon by ‘some  Sardar  who\t was
\nwearing\t a mask’.  The witnesses were cross-examined by\t the
\nprosecutor  with  leave of the Court in the light  of  their
\nstatements  recorded by the sub-inspector of police  in\t the
\ncourse of his investigation but they denied having made\t the
\nstatements that the appellant and his two brothers had\tcome
\nto Shanti Nagar at 6 p.m. on the day of occurrence and\tthat
\nthe appellant had killed Karam Singh by causing him  gunshot
\ninjuries.  But Rakkha Singh supported the prosecution  case.
\nHe  spoke about the dispute about sugarcane, and also  about
\nthe quarrel between Karani Singh and the appellant on  March
\n22,  1961.  He then stated that on March 26,1961 at about  6
\np.m. the appellant and his two brothers had
\n996<\/span>
\ncome  near his hut, that the appellant had called out  Karam
\nSingh  and  after  shouting  that as  Karam  Singh  was\t not
\nsettling the matter of sugarcane they “were going to  settle
\nhis   matter”\thad  fired  a  shot  killing   Karam   Singh
\ninstantaneously.   In cross-examination he stated that\tfrom
\nthe  hut in which he was sitting he could not see the  faces
\nof  the assailants but on hearing the report of gun fire  he
\ncame out of the hut and saw the assailants running away, and
\nthat  he  was  able to recognise them  by  “their  gait\t and
\nvoice”.\n<\/p>\n
   The\tlearned\t Sessions judge accepted  the  testimony  of
\nRakkha Singh and, in so for as it inculpated the  appellant,
\nconvicted  him of the offence of causing the death of  Karam
\nSingh.\t He  however  held  that the  two  brothers  of\t the
\nappellant  were\t not  proved to be  guilty  of\tthe  offence
\ncharged against them and acquitted them.  The High Court  of
\nAllahabad  agreed with the finding recorded by the Court  of
\nFirst  Instance and confirmed the sentence of  death  passed
\nagainst the appellant.\n<\/p>\n
  The conclusion recorded by the Court of First Instance and
\naffirmed  by  the High Court is based upon  appreciation  of
\nevidence and no question of law arises therefrom.   Normally
\nthis  Court  does  not proceed to  review  the\tevidence  in
\nappeals\t in criminal cases, unless the trial is vitiated  by
\nsome illegality or irregularity of procedure or the trial is
\nheld  in a manner violative of the rules of natural  justice
\nresulting  in an unfair trial or unless the  judgment  under
\nappeal has resulted in gross miscarriage of justice.  Rakkha
\nSingh  deposed\tthat  he  had been  able  to  recognise\t the
\nappellant  from his “voice and gait”.  Rakkha Singh was\t the
\nfather-in-law of the appellant, and had during the last\t few
\ndays  before  the death of Karam Singh\tseen  the  appellant
\nfrequently.  Only four days before the incident there was  a
\nquarrel between Kararn Singh and the appellant about the
\n 997<\/span>
\ndelivery  of  sugarcane\t crop  and  the\t appellant  and\t his
\nbrothers  had retired from the scene at the intervention  of
\nRakkha Singh, greatly annoyed.\tIt is true that the evidence
\nabout identification of a person by the timbre of his  voice
\ndepending  upon subtle variations in the overtones when\t the
\nperson\t recognising  is  not  familiar\t with\tthe   person
\nrecognised  may be somewhat risky in a criminal trial.\t But
\nthe  appellant was intimately known to Rakkha Singh and\t for
\nmore than a fortnight before the date of the offence he\t had
\nmet  the appellant on several occasions in  connection\twith
\nthe  dispute  about the sugarcane crop.\t  Rakkha  Singh\t bad
\nheard the appellant and his brothers calling Karam Singh  to
\ncome  out of the hut and had also heard the appellant, as  a
\nprelude\t to  the  shooting referring to\t the  dispute  about
\nsugarcane.   In the examination, in-chief Rakkha  Singh\t has
\ndeposed\t as  if\t he  had seen  the  actual  assault  by\t the
\nappellant,  but in cross-examination he stated that  he\t had
\nnot  seen  the\tface of the assailant of  Karam\t Singh.\t  He
\nasserted however that he was able to recognize the appellant
\nand his two brothers from their ‘gait and voice’.  It cannot
\nbe  said  that\tidentification of the  assailant  by  Rakkha
\nSingh,\tfrom  what he heard and observed was  so  improbable
\nthat  we would be justified in disagreeing with the  opinion
\nof the Court which saw the witness and formed its opinion as
\nto  his credibility and of the High Court  which  considered
\nthe   evidence\tagainst\t the  appellant\t and  accepted\t the
\ntestimony.\n<\/p>\n
   Manjit  Singh  and Anokh Singh have tried to\t shield\t the
\nappellant by deposing that the assault took place at about 9
\np.m. and that they were informed that the assailant had\t put
\non  a  mask.   Their statements recorded in  the  course  of
\ninvestigation  were  inconsistent with the  tenor  of  their
\nevidence in Court.  It is true that there was some delay  in
\nlodging\t the  first  information,  the\toffence\t took  place
\naccording to Rakkha Singh at 6 p.m. ,on March 26, 1961 and
\n998<\/span>
\ninformation  at\t the police station Puranpur was  lodged  at
\n7.45  a.m.  on\tMarch 27, 1961.\t The  distance\tbetween\t the
\npolice\tstation\t and the village Shanti Nagar, as  the\tcrow
\nflies, is about 15 miles but by the public transport  system
\none  has  to  take a long detour to  reach  Puranpur  Police
\nStation.   Rakkha  Singh  says that to avoid  delay  and  to
\nsecure\tthe presence of a Police Officer he secured  a\tjeep
\nfrom  Sampurna\tNagar  Union and  proceeded  to\t the  police
\nbrought the sub-inspector of police to in the same jeep.  We
\ndo  not think, station and santi Nagar having regard to\t the
\ncircumstances,\tthat there has been any such gross delay  in
\nlodging\t the  first  information  as  would  justify  us  in
\nthrowing  doubt on the truth of the story of  Rakkha  Singh.
\nIt  appears that there are two police outposts\tnear  Shanti
\nNegar-one at a distance of about two miles and another at  a
\ndistance  of  five miles but the officer in  charge  of\t the
\npolice\toutposts  had,\tit is conceded by  counsel  for\t the
\nappellant,  no\tauthority  to record  a\t first\tinformation.
\nRakkha Singh desired to lodge a complaint About the  commis-
\nsion  of the offence of murder, he was not  apprehensive  of
\nany violence at the hands of the appellant and his brothers,
\nand  if\t he  did  not contact  the  officer  at\t the  police
\noutposts,  who could not record his complaint, no fault\t can
\nbe found. against him.\n<\/p>\n
   The\tpostmortem  examination of the stomach\tcontents  of
\nKaram Singh disclosed that there was 8 ozs. of half-digested
\nfood  and that indicated that the death was caused some\t two
\nhours after the last meal was taken by Karam Singh;  Counsel
\nfor  the  appellant said that the condition of\tthe  stomach
\nsupported  the version of Manjit Singh and Anokh Singh,\t but
\nRakkha Singh has deposed that Karam Singh had taken at about
\n4  p.m.\t tea and pakadas.  That explains  the  presence\t of’
\nhalf-digested  food  in\t the  stomach.\t The  case  for\t the
\nprosecution  undoubtedly  depends for its support  upon\t the
\ntestimony  of  a single witness, who did not claim  to\thave
\nidentified
\n 999<\/span>
\nthe assailant by seeing his face.  But we do not think\tthat
\nis  a circumstance which would justify us in departing\tfrom
\nthe  rule normally followed by this Court.  The offence\t was
\ncommitted when there was sufficient daylight : the assailant
\nwas  intimately\t known to Rakkha Singh and the\twitness\t had
\nheard the appellant’s voice speaking about the dispute which
\nwas pending between him and the appellant.  We do not  think
\nthat  the  circumstance that Rakkha Singh had not  seen\t the
\nface of the appellant when the latter was running away is  a
\nground for discarding his testimony.  The conviction of\t the
\nappellant  must therefore be confirmed.\t Sentence passed  by
\nthe  Trial  Court is, in the circumstances of the  case\t the
\nonly appropriate sentence.\n<\/p>\n
   Before  parting with the case, we think it  necessary  to
\nobserve that the committing Magistrate in this case erred in
\ncommitting  the\t accused  to the Court\tof  Session  without
\nrecording  the evidence of all the witnesses to\t the  actual
\ncommission  of\tthe  offence, Under  the  Code\tof  Criminal
\nProcedure  as  amended\tby Act 26 of  1955,  the  Magistrate
\nholding\t committal  proceedings\t is  required  to  take\t the
\nevidence of such persons, if any, as may be produced by\t the
\nprosecution  as\t witnesses to the actual commission  of\t the
\noffence alleged, and if the Magistrate is of opinion that it
\nis necessary in the interest of justice to take the evidence
\nof  any\t one  or  more\tof  the\t other\twitnesses  for\t the
\nprosecution,  he may take such evidence also: s.  207A\t(4).
\nThe Magistrate has in the enquiries relating to charges\t for
\nserious offences like murder the power and indeed a duty  in
\nthe  interest  of  the accused, as well\t as  in\t the  larger
\ninterest  of  the  public to record the\t evidence  of  other
\nwitnesses  who\tthrow  light on the  case.   Examination  of
\nwitnesses to the actual commission of the offence should  in
\ninquiries,  for\t committal  on\tcharges\t for  such   serious
\noffences,  be the normal rule.\tThe prosecutor\tis  expected
\nordinarily to examine in the Court of the
\n1000<\/span>
\ncommitting Magistrate all witnesses to the actual commission
\nof  the offence: if without adequate reasons he fails to  do
\nso, the Magistrate is justified and in enquiries on  charges
\nfor  serious offences is under a duty to call witnesses\t who
\nwould  throw  light upon the prosecution case.\t Before\t the
\nCode was amended by Act 26 of 1955 it was necessary for\t the
\nMagistrate holding the inquiry to record the evidence of all
\nthe  important witnesses.  With a view to shorten delays  in
\nthe proceeding preliminary to bringing the accused to trial,
\nthe  Legislature  has  by  enacting  s.\t 207A  conferred   a
\ndiscretion upon the Magistrate in the matter of\t examination
\nof  witnesses not produced by the prosecutor.\tExercise  of
\nthat  discretion must be judical : it is not to be  governed
\nby  any set rules or standards, but must be adjusted in\t the
\nlight of circumstances of the case.  The Magistrate is again
\nnot to be guided by the attitude of the prosecutor.  He must
\nof  course  consider  the  representation  relating  to\t the
\nexamination   of  witnesses  by\t the  prosecutor,   but\t  in
\nconsidering  whether  it  is necessary in  the\tinterest  of
\njustice\t to  take evidence of any one or more of  the  other
\nwitnesses  for the prosecution, he must have due  regard  to
\nthe  nature and gravity of the offence, the interest of\t the
\naccused\t and  the  larger interest of the  public,  and\t the
\ndefence\t if  any  disclosed by the  accused.   A  Magistrate
\nfailing to examine witnesses to the actual commission of the
\noffence\t because they are not produced, without\t considering
\nwhether\t it  is\t necessary in the  interest  of\t justice  to
\nexamine\t such  witnesses,  in our  judgment,  fails  in\t the
\ndischarge of duties.\n<\/p>\n
   There is nothing in the decision of this Court in  Sriram
\nv. The State of Bombay (1), which may support the view\tthat
\nin the matter of examination of witnesses, especially in the
\ninquiry relating to serious charges like murder and culpable
\nhomicide, the Magistrate is to be guided by the\t prosecutor.
\nIt is
\n(1)  [1961]2 S.C.R. 890.\n<\/p>\n
 1001<\/span><\/p>\n
the duty of the Magistrate to examine all such witnesses  as
\nmay be produced by the prosecutor as witnesses to the actual
\ncommission of the offence alleged, but his duty does not end
\nwith  such  examination.   He must apply  his  mind  to\t the
\ndocuments  referred  to\t in s. 173,  and  the  testimony  of
\nwitnesses, if any, produced by the prosecutor and  examined,
\nand  consider  whether\tin the interest\t of  justice  it  is
\nnecessary  to re. cord the evidence of other witnesses.\t  In
\ninquiries  relating  to charges for  serious  offences\tlike
\nmurder, normally the Magistrate should insist upon the\texa-
\nmination of the principal witnesses to the actual commission
\nof  the\t offence.  Failure to examine the witnesses  may  be
\njustified only in exceptional cases.  This is so because the
\nMagistrate in committing a person accused of an offence\t for
\ntrial  has to perform a judicial function which has a  vital
\nimportance in the ultimate trial, and slipshod or mechanical
\ndealing with the proceeding must be deprecated.
\nThe appeal fails and is dismissed.\n<\/p>\n
Appeal dismissed.\n<\/p>\n
1<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kirpal Singh vs State Of U.P on 10 May, 1963 Equivalent citations: 1965 AIR 712, 1964 SCR (3) 992 Author: S C. Bench: Shah, J.C. PETITIONER: KIRPAL SINGH Vs. RESPONDENT: STATE OF U.P. DATE OF JUDGMENT: 10\/05\/1963 BENCH: SHAH, J.C. BENCH: SHAH, J.C. SINHA, BHUVNESHWAR P.(CJ) AYYANGAR, N. RAJAGOPALA CITATION: 1965 […]<\/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-5788","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKirpal Singh vs State Of U.P on 10 May, 1963 - 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\/kirpal-singh-vs-state-of-u-p-on-10-may-1963\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kirpal Singh vs State Of U.P on 10 May, 1963 - 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