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SUPREME COURT OF INDIA
8th October, 1953
MAHAJAN, B.K. MUKHERJEA AND JAGANNADHA DAS, JJ.
Sadhu Singh Harmam Singh, Appellant
Versus
The State of Pepsu.
Criminal Appeal No. 23 of 1953.
Advocates appeared
Shri Jai Gopal Sethi, Senior Advocate (Shri Murtaza Fazal Ali, Advocate with him), instructed by Shri Naunit Lal, Agent, for Appellant; Shri J. N. Kaushal, Advocate, instructed by Shri G. H. Rajadhyaksha, Agent for the State.
Held: Where in the statements made by the witnesses in the trial, the whole version as to the nature and character of the act of the accused has been completely changed and an act which on the facts stated in the first information report and on the statements made to the police may we/J be regarded either accidental or rash and negligent, has been deliberately made to look like an act of deliberate murder, such difference goes to the root of the case and if the High Court holds, on the basis of the evidence in the trial, that accused is guilty of the offence of murder under S. 302, Indian Penal Code, it is clearly in error and the Supreme Court can set aside the decision of the High Court under Art. 133 (1). ` - Article 136(1)-Criminal appeals-Special leave to appeal when granted.
Held: The Supreme Court will not grant special leave to appeal under Article 186(1) of the Constitution unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against and that only those points can be urged at the final hearing of the appeal which are fit to be urged at the preliminary stage when leave is asked for. It is well established that the Supreme Court does not by special leave convert itself into a court to review evidence for third time. Where, however, the court below fails in apprehending the true effect of a material change in the versions given by the witnesses immediately after the occurrence and the narrative at the trial with respect to the nature and character of the offence, in such a situation it would not be right for the court to affirm such a decision when it occasions a failure of justice.
Judgment
MAHAJAN, J.: The appeal which comes by special leave obtained by the appellant Sadhu Singh, is from a decision of a Division Bench of the High Court of Patiala dated 2-6-1952 by which the sentence of transportation for life passed against him or the murder of one Harbachan Singh was affirmed.
2. The facts are, that on 29-10-1949 Harbachan Singh deceased, went to village Bihla because he intended to borrow a camel from Nand Singh, P. W. 4. P. Ws. Chand Singh and Amar Singh accompanied him to Bihla and the party reached there between 7 and 8 P.M. On arrival at Nand Singh s house it was found that he had gone to the house of Sadhu Singh. Nand Singh s son was asked to go to Sadhu Singh s house and call Nand Singh from there. Nand Singh s son returned with a message from his father inviting the party to Sadhu Singh s house. Accordingly they all went there and found Nand Singh in the midst of a liquor party. The appellant s father Harnam Singh was also there. It is said that on the arrival of Harbachan Singh who was a Mahant, Sadhu Singh got up and received him respectfully and felt honoured by his visit to his house. The Mahant and his two companions, Chand Singh and Amar Singh were offered drinks. The deceased Mahant accepted the drink but the others did not.
Later on the deceased Mahant who was addicted to taking opium gave one rupee to a young boy who was there and asked him to get him opium worth that amount. Sadhu Singh at this remarked, that it was not proper that the Mahant should sent someone else to bring opium while he was a guest in his house. He therefore asked his father to give opium to the Mahant. This was done. When, however, the deceased took some opium from the small tin given to him by Harnam Singh and returned it to him the latter though that very little opium was left in the tin for his own use and this annoyed him and he made some remarks showing his resentment at this. The deceased Mahant did not like this and returned the opium that he had taken and got ready to leave the place along with his companions. As soon as he came out of the room he was hit by the gunshot in the chest. He was mortally wounded and fell down.
Chand Singh and Amar Singh went to the police station and lodged the first information report at 12.30 A.M. on the 30th. On the basis of this report a case was registered against the accused under S. 338, I.P.C. It was then thought by the police, that the accused was guilty of a rash and negligent act and endangering human life and personal safety. During the pendency of this case. Harbachan Singh died as a result of the injuries caused by the accused and the charge against him was then changed into one under S. 304A, I.P.C. Later on, it appears that some further change was made in the chalan and the offence was changed into one under S. 302, I.P.C. The Additional District Magistrate who heard the case, reached the confusion that there was a prima facie case against the accused under S. 304A, I.P.C. He accordingly framed a charge against him under that section. He also held that there was no prima-facie case against the accused under S. 302 and in these circumstances there was no sufficient ground for committing him to the court of session. In the result the accused was convicted under S. 304A, I. P. C. and as he had already suffered as an under trial prisoner he was directed to be released on his executing a personal bond for the amount of Rs. 5,000 and on furnishing a surety for a like amount with the undertaking that he will keep the peace and be of goods behaviour for a period of one year from the date of order.
3. Against this order an application in revision was made to the sessions Judge, Barnala, by the Public Prosecutor an another similar application was made by the heirs of Harbachan Singh. The learned Sessions Judge was not prepared to allow these applications and rejected them. Then two applications for revision were made to the High Court against both the orders of the Additi
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