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SUPREME COURT OF INDIA
2nd November 1951.
FAZL ALI, MAHAJAN AND BOSE, JJ.
Hate Singh Bhagat Singh, Appellant
Versus
State of Madhya Bharat.
Criminal Appeal No. 43 of 1951.
Advocates appeared
Shri Nanak Chand, Advocate, Amicus Curiae, for Appellant, Shri Jawala Prasad Chopra, Advocate, instructed by Shri P. A. Mehta, Agent, for the State.
Held: "Now the same eye-witnesses who implicate B also implicate R and they have both been believed. Ordinarily, therefore, there would have been no room for interference in this Court. But there are special reasons in this case why we feel the testimony of these witnesses• cannot be accepted at their face value as against
H….. We have examined the evidence at length in this case, not because it is our desire to depart from our usual practice of declining to re-assess the evidence in an appeal here but because there has been in this case a departure from the rule that when an accused person puts forward a reasonable defense which is likely to be true, and in addition is supported by two prosecution witnesses, then the burden on the other side becomes all the heavier because a reasonable and probable story likely to be true when pitted against a weak and vacillating case is bound to raise reasonable doubts of which the accused must get t he benefit." (per Bose J.) - Sections 209, 208, 287, 342-Value of statement of accused. Held: The statements of an accused person recorded under Ss. 208,
209 and 342, Cr. P.C. are among the most important matters to be considered at the trial. It has to be remembered that in this country an accused person is not allowed to enter the box and speak on oath in his own defence. This may operate for the protection of the accused in some cases but experience elsewhere has shown that it can also be a powerful and impressive weapon of defence in the hands• of an innocent man. The statements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box. They have to be received in evidence and treated as evidence and be duly considered at the trial.
This means that they must be treated like any other piece of evidence coming from the mouth of a witness and matters in favour of the accused must be viewed with as much deference and given as much weight as matters which tell against him. Nay more. Because of the presumption of innocence in his favour even when he is not in It position to prove the truth of his story, his version should be accepted if it is reasonable and accords with probabilities unless the prosecution can prove beyond reasonable doubt that it is false. - Section 342-Circumstances appearing against accused.
Held: "Both the Sessions Judge and the High Court have attached importance to the fact that both accused absconded, but at no stage of the have they been asked to explain this~ We have stressed before the importance of putting to the accused each material fact which is intended to be used against him and of affording him a chance of explaining it if he can." (per Bose J.) - Appreciation of evidence. - Section 1- Criminal trial – Evidence – Appreciation.
Held: “This is an unsatisfactory way of treating evidence in a case where the facts which the prosecution themselves do not controvert in the witness box are found to accord with the accuser’s story. But it is far worse when the Sessions Judge leads the accused to believe the version on thaw point is true and then runs round in the judgment and puts the evidence just the other way round.” (per Bose j.)
(2) As only one gun which was admitted by the accused to have been used, was found buried, and the other gun was found lying in the open, this tends to suggest that only the incriminating weapon was hidden.
Judgement
BOSE J.: Two brothers Hate Singh and Bheru Singh were convicted of the murder of one Shiv Singh and sentenced to death. The Madhya Bharat High Court confirmed the convictions and upheld the sentences. Both appealed to this Court. Bheru Singh s appeal was dismissed in limine because he admitted the shooting from the start and took all the blame on himself. He adhered to these admissions throughout the trial and also in the appeal to the High Court. There is also the testimony of two eye-witnesses against him which in view of his admissions cannot but be believed so far as he is concerned. But there appeared to be an element of doubt in the other case, so Hate Singh s appeal was admitted for hearing and that is the appeal we are now dealing with Hate Singh has denied complicity in the crime all through
2. Put very shortly the prosecution case is that there was a sudden quarrel between the deceased Shiv Singh and the accused Bheru Singh because Shiv Singh hit Hate Singh s young brother-in-law aged 12. There was some abuse & Bheru Singh fired at Shiv Singh with a gun and hit him. Shiv Singh, though wounded, rushed at Bheru Singh with a lathi. The appellant Hate Singh, who also had a gun, thereupon intervened and fired at Shiv Singh and hit him. The result was that Shiv Singh dropped death.
3. The medical evidence discloses that Shiv Singh had three gunshot wounds in his body, all in front: two on the chest and one in the stomach. All three wounds were on the left side of the front of the body. One of the shots penetrated the heart : the second was 2 1/2 inches from the left nipple and tore the spleen; the third was on the left side of the umbilicus. Dr. Shukla P. W. 16 tells us that any one of the three injuries would have proved fatal in itself. He also fells us that all three wounds could be caused by a single discharge from a gun.
4. Unfortunately, none of the shots or the bullets have been recovered. If they had been recovered we would the more easily have been able to determine whether they were fired from one gun or two. One of the guns used was a breech-loading double barrel gun with hammer action. The other two were old fashioned muzzle loaders. Presumably, the type of shot used in the more modern weapon would have been different from the crude pellets or slugs one would expect in a muzzle loader. Or these three guns we need only consider Arts. D and E as no one has suggested that the third, Article G, has anything to do with this case.
5. Now the same eye-witnesses who implicate Bheru Singh also implicate Hate Singh and they have both been believed. Ordinarily, therefore, there would have been no room for interference in this Court. But there are special reasons in this case why we feel the testimony of these witnesses cannot be accepted at their face value as against Hate Singh. We will first set out certain facts which are either admitted or are, in our opinion, established beyond doubt.
6. In the first place, Bheru Singh has admitted his guilt from the start and has taken all the blame on himself. Hate Singh on the other hand has denied throughout that he took any part in the shooting. Their story has been consistent from the outset and has not varied or changed in material particulars at any stage. Nor, if Jugar Singh, P. W. 14, is to be believed, was this a mere afterthought. It was story they gave that very day a few hour after the murder, long before the police came on the scene and long before they were apprehended. It is true they had plenty of time to think out such a defence and it is true the witness is a nephew. But the learned Sessions Judge has believed him as against Bheru Singh and has thrown no doubt upon his word.
We can therefore take it to be a fact that the accused did tell him that story that very evening and that so far as the witness is concerned he is not inventing what he was told. Of course, that does not exclude the possibility that the accused had at some stage before this agreed among t
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