Mohinder Singh vs State - 1950 Supreme(SC) 35

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1950 Supreme(SC) 35

SUPREME COURT OF INDIA
17th October 1950
FAZL ALI, B.K. MUKHERJEA AND CHANDRASEKHARA AIYAR JJ.
Mohinder Singh s/o Inder Singh. Appellant
Versus
The State.
Criminal Appeal No. 10 of 1950.
Advocates appeared
Shri Jai Gopal Sethi, Senior Advocate (Shri R. L. Kohli, Advocate with him), instructed by Shri R. S. Narula, Agent, for Appellant; Shri B. K. Khanna, Advocate-General of Punjab (I), (Shri S. M. Sikri, Advocate, with him), instructed by Shri P. A. Mehta, Agent, for the State.

Advocates:
B.K.Khanna, Jai Gopal Sethi, P.A.Mehta, R.L.Kohli, R.S.NARULA, S.M.Sikri

Headnote:Alibi-Plea of, in criminal trial-Standard of proof. Held: "Ordinarily this court will not look beyond the findings of fact arrived at by the courts below, but we find that in the present case the decision on the plea of alibi has been arrived at in disregard of the principle that the standard of proof which is required in regard to that plea must be the same as the standard which is applied to the prosecution evidence and in both cases it should be a reasonable standard."-per Fazl Ali J.- Articles 134, 136-Criminal appeals when to be entertained-Power of Supreme Court to look into evidence-Criminal Procedure Code (1898), S. 404.
       Held: (I) The Supreme Court will not entertain a criminal appeal except in special and exceptional cases where it is manifest that by a disregard of the forms of legal process or by a violation of the principles of natural justice or otherwise substantial and grave injustice has been done. The present case Comes within the rule laid down, because the appellant has been convicted notwithstanding the fact that the evidence is wanting on a most material part of the prosecution case. 1
       (2) Ordinarily the Supreme Court will not look beyond the findings of fact arrived at by the courts below, but where, as in the present case, the decision on the plea of alibi has been arrived at in disregard of the principle that the standard of proof which is required in regard to that plea must be the same as the standard which is applied to the prosecution evidence and in both cases it should be a reasonable standard, the court will go into this question. - Section 404-Constitution of India, Articles 134, 136-Criminal appeals when to be entertained-Power of the Supreme Court to look into evidence. - Section 423-Retrial when to be ordered.
       Held: "In our opinion there has been in substance no fair and, proper trial in this case, and we are constrained to allow this appeal, set aside the conviction of the appellant under Ss. 302 and 307 read with S. 34, Penal Code and direct that he be set at liberty forthwith. In ordinary circumstances we might have remanded the case for a fresh trial, but we consider that such a course would, in the present case, be unfair and contrary to settled practice, seeing that the appellant has been in a state of suspense over his sentence of death for more than a year." - Sections 101 to 103-Death by lethal weapon-Proof.
       Held: "In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at-least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of that case." (per Fazl Ali J.)

Judgement

FAZL ALI, J. : This is an appeal by special leave from the judgment of the High Court of Punjab upholding the conviction of the appellant, Mohinder Singh, under Ss. 302 and 307 read with S. 34, Penal Code, and confirming the sentence of death passed against him by the Sessions Judge of Ferozepore.

2. The case for the prosecution which has been substantially accepted by the trial Judge and the High Court is briefly as follows. Sometime in January, 1949, one Bachittar Singh brother of Dalip Singh who is said to have been murdered, lodged a complaint before the Naib Tehsildar at Zira to the effect that a tree belonging to him had been cut by 7 persons, including Mohinder Singh, the appellant. On 28-3-1940 which was the date fixed for hearing of the case before the Naib Tehsildar, Jita Singh and Dalip Singh, the two brothers of Bachittar Singh, were attacked by the appellant and one Gurnam Singh, a lad of 17, near a Gurdwara at about mid-day, when they were returning from their field. Jita Singh was then carrying a load of fodder on his head while Dalip Singh had sickles in his hand. Jita Singh was the first to be attacked near a tailor s shop by Mohinder Singh who fired at him from behind hitting him on the neck whereupon he fell down together with the bundle of fodder. Dalip Singh, who was following Jita Singh, then ran backwards and he was chased by Gurnam Singh round the outer boundary of a tank which was close-by. Mohinder Singh ran on the other side of the tank in the opposite direction and confronted him and shot him with a gun on the chest whereupon he fell down. Meanwhile Gurnam Singh had also reached the spot and he fired with his rifle from a distance of about 4 or 5 feet near about Dalip Singh s ear while he was lying sideways. The injuries proved fatal and Dalip Singh died on the spot.

3. The same day at 3 p.m. Jita Singh went to the police station at Dharamkot, which is at a distance of 3 miles from village Augur, where the occurrence had taken place, and lodged a first information report, charging Mohindar Singh with having caused injury to him, and Mohindar Singh and Gurnam Singh with the murder of Dalip Singh and the police after investigating the case sent up a charge-sheet against the two accused persons. Thereafter they were tried by the Sessions Judge of Ferozepore under Ss. 302 and 307 read with S. 34, Penal Code. The appellant was sentenced to death under S. 302 and Gurnam Singh was sentenced to transportation for life under that section in view of his youth. They were also sentenced to 3 years rigorous imprisonment each under S. 307 read with S. 34, Penal Code.

4. It appears that Dalip Singh had 6 injuries altogether which are described by the doctor who performed the post-mortem on his body in these words :

"1. An irregularly round gun shot wound on the left temporal region, 1" diameter. The wound is 2 3/4 " behind outer canthus of left eye, its upper potion is at a level with the top of the pinna of the left ear, behind it commences at the cartilages of the ear which are broken. Brain is visible in the gap of the wound. An area 4" x 4" is blackened, the wound being situated in the middle of this area.

2. A gun shot wound 3/4" x 1/8" on the back of right mastoid region, upper end of the wound is 1" behind the root of the right ear. Direction is vertically oblique. On dissection the left temporal bone under injury No 1 is hole and its petrous portion shattered A linear fracture extends upwards and backwards, from the hole into the left parietal and occipital bones. After piercing through the left temporal lobe of the brain the projectile has pierced through the brain-stem, and emerged out as injury No. 2, holding the mastoid region of the skull on the right side.

3. A gun shot wound 3/4" x 5/8" on the left side of chest 2 1/2" above and behind the left nipple and 1/2" behind the anterior axillary fold as area 1" below the wound is bruised

4. A gun shot wound 1/2" x 3/4" on the right side of chest in the

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1950 Supreme(SC) 35

Cases Referred (1)