Tori Singh v. the State of Uttar Pradesh

Judgment

19eI Rag/wbar D<11•l Jai l'Jaush TM Union of lndi4 AYJOlllar J. IHI [1962j to be settled ont fixed in the impugned notification •. ~ conformed to the requirement of reasonalifoness in ~rt. liJ (6) and that undel'lying the relevant provi- &1ons of tho statute, Tho petitions fail and aro dismissed with costs - on<' •mt of hearing-fees. Petitions diamissea. TORI SINGH THE STATE OF UTTAR PRADESH (K. ~- WA:>CHoo, K. C. DAS GUPTA and J. C.SUAJI, JJ.) Crim;naT Tril71-~k,fch Map-Marks placed on ba.ti8 of ,.1a1,,,,,,,,1.t nf ,,.,'fnol!'"P.' to ~ulJ-lMpr:c'1Jr-Adm1'ssibility of rod, o{Crim1°nal Proc<-l1m, 1898. (I' of 1898), •· 162. Jfurdtr-SmfnC'--Son killing at in•ligation of fatht.r ,C:en!enr.e'oj flPOth, if inappropna/t. The d•c•a•ed was i:oini:r to his field and passed by a ph•form on which T and his fathrr B were sittinl!'., T carrying a pi<tol with him. A• he passed bv the platform B instiir.ited T to shoot the derease~ dnwn and T shot him.

T and B were trie<l for the murder and were convicted on the ba.<is of the tcstimonv of eye witnesses and the dying d•claration of the deceas•d. B was 'entenced to imprisonm•nt for· life and T wa< sentenced to death. The app•llant contended that if the dcreased was at the spot marked by the Sub-Inspector on the ~ketch map he coulrl not have received the injuries ac; stated by the eye witn"'5es. It was further urged that the sentence of T should be rrduced to imprisonment for life as he had ,acted under the influence of his father. llel.cl, that, the mark! made on the sketch map by the Suh-Inspector on the b.sis of statements made by witnesses to him were inadmi<sible unJer s. 162 Code of Criminal Procedure and the appellant could not use them to found any ar~umcnt as to the improbability of the deceased being hit in the manner stated by the witncues if he was standing at the ~ sp<>t marked on the •ketch map. l r 3 S.C.R. SUPREMR COURT REPORTS Bhagirathi Ohowdhury v. King Emperor, A.LR.

1926 Cal. 550, !bra Akanda v. Emperor, A.LR. 1944 Cal. 339 and · Santa Singh v. The State of Punjab, A.LR. 19j6 S. C. 526, referred to. Held, further, that there was no reason to interfere with the sentence of death passed on T. T was a mature man of 25 and he was sitting armed with a pistol along with his father obviously having planned the murder with his father. Though he shot at the instigation of his father, he could not be considered a young boy in his teens who was completely under the influence of his father. CRIMINAL APPELLATE JuRISDl'JTION : Criminal Appeal No. 38 of 1961. Appeal by special leave from the judgment and order· dated October 28, 1960 of the Allahabad High Court in Criminal Appeals Nos. 1310 and 1389 of 1960 and Referred No. 80 of 60. C. B. Agarwala and K. P. Gupta, for the appel· lants. G. C. Mathur and C. P. Lal, for the respondent. 196L September 12.

The Judgment of the Court was delivered by WANCHOO, J.--This is an appeal by special leave against the judgment of the Allahabad High Court. The appellants are father and son and live in village Patrasi. The deceased Sohanlal also lived in the same village. He is said to have 1.Jeen murdered on the morning of December 2, 1959, after sun-rise. About two years before the incident one Sunder h'1d filed a criminal case against the deceased. In that case.the present appellants had helped Sunder against the deceased. Tho deceased was acquitted. One Chetram was a witness for the deceased in that case. Later on, Tori Singh appellant attacked Chetram with a spear and Chetram made a report in that connection against Tpri ~ingh. Sohanlal was helping him in that matter,. and in consequence ther0 was enmity between .Tori Singh and his father Budhi Singh, appe1lants, and the deceased. T(Jri Sirgh The State of i·uar Ptcde1h Tori Sirigh Th.Stai< of U1tar P1adtsh Wan<hoo ]. Q82 St1PREIIIB COt.IB'1'

REPoR1'$ It is said that on tho morning of Decembor 2f HJ.'i!J, the deceased wai;; going to the fields ouwidw the villago in order to ease himself. He passed ~ a platform which is on a cross·rca<l in the \'ill~ The appellants were sitting on the platform, Tori Singh carrying a pistol ''"ith him. As the rlcceased passed by the platform, Burlhi Singh instigated Tori Singh to shoot him down. Thereupon Tori Singh shot at Sohanlal who was hit in tho lumbar region. Sobania! thm ran towards his house while the two appellants fled away. Sobania] was thereafter taken to the police station where he made a report against the appellants. He also mado a statement before tho investigating officer and his dying declaration was recorded by a magistrate. Sohanlal died on December 3, ]()5!). Th~ appellants had absconded during investig~tion. They were prosecu terl aftor tlwir arrest.

The appellants did not dispute that thero was bad blood between them and the deceased ;<but their case was that they were not responsiblel for this murder and had nothing to do with it. The main evidence against tho appellants consisted of the statcmer.ts of four witnesses, narnelv, llabunath, Chhannu, Itwari and Khamani, and the dying declarations made by the dcce."sed before his <loath. The Additional Sessions Judgo who triod tho mise relied on the evidence of Ilabunath, Itwari and Khamani and on t.ho dying declarations ; he did not, howe\'er, place rclianco on the statement of Chhannu. He found the two appelhnta guilty under s. 302 road with s. 34 of the Indian Penal Code and sentenced Tori Singh to death as he was tho man who had shot at Sohrmlal and Burlhi Singh to imprisonment for life. There were two appeals to the High Court by f he two appellan1s and tho learned Judge also made a reference for confirmation of tho scntenco of death.

A suggestion was· made during the course of"trial that one Chhiddu was responsible for J 3 s.o.:R. V the murder, particularly as he was said to have made . a confession. Chhiddu was, however, not examined by the trial court. The High Court, therefore, in the interest of justice, examined Chhiddu and took his statement into consideration along with the prosecution evidence in order to judge the guilt of the appellants. The High Court ag1eed with the trial court in its conclusion that Babunath, Khamani and Itwari were credible witnesses and re]jance could be placed on the dying declarations made by the deceased. It further accepted the evidence of Chhannu which· had not been relied upon by the trial court. It considered the evidence of Chhiddu and was of opinion that that evidence was false. · It therefore dismi8sed the appeals and con'firmed the sentence of death passed on Tori Singh after making slight modification in the · sections under which the convictions were recorded.

The application of the appellants for leave to appeal having been di11missed, they obtained special leave from this Court ; and that is how the matter has come up before us. 'ifl The main point urged on behalf of the appellants before us . is that . if one looks at the sketch map Ex. Ka-9 on which the place where the deceased is S'lid to have been hit is markEd and compares it with the statements of the prosecution witnesses and the medical evidence, it would be extremely improbable for the injury which was received by the deceased to have been caused on that part of the body where it bas been actually caused, if the deceased was at the place marked on the map.

It bas also been urged that according to the medical evidence, the wound of exit was at a .. higher level than the wound of entry showing that the b)lllet hit obliquely and that· it was extremely improbable that the . bullet should have passed .~ from down . below upwards . through the body, considering that Tori Singh W{ls on a platform and thus at, l!<)i.ig.4er !(')vel than the deceased. J96l Tori Sil<gh The State of VIiar Pradesh Wat~hoo J. 19/Jl Tori Sttigh Th. SliU< cf (Jt•a., Pradesh W.,,dvo). [1962] We are of opinion that neither of these a.rgu· - mcnts has anv force. Lot us first take tho contention that it was most unlikely that the deceased would be hit on that part of the body wh&e tho injury was actually received by him, if he was at the spot marked in Ex:. Ka-9. The validity of this argument depends mainly on tho spot which bas been rua~kod on the sketch-map Ex. Ka-9 as the place where the deceased received his injuries.

In the first place, the map itself is not to scale but is merely a rough sketch and therefore 0110 rannot postulate that the spot marked on tho map is in exact relation to the platform. In the second place, tho mark on the skotch-map was put by the Sub-inspector who was obviously not an eye-witness to the incident. He could only have put it there after taking the statements of tho eye witnesses. The marking of the spot on tho sketch-map is really bringing on record the conclusion of the SubinspcC'tor on the basis of the statements made by the witnesses to him. This in our opinion would not be admissible in view of tho provisions of s. 162 of the Code of Criminal Procedure, for it .. is in effect nothing more than the Rtatement of the Subinspector that the e>ye-witnesses told him that the deceased wae at such ancl such placo at tho time when he wa:i hit.

The sketch·map would be admissible so far as it indicates all that the Sub-inspector saw himself at the spot; but any mark put on tho sketchmap based on the statemenl.8 ma.de by the witnesses to the Sub-inspector would be inadmissible in view of the clear provisions of s. Hi2 of tho Codo of Criminal Prnccdurc as it will be no more than a statement made to the polico during investigation. W c may in this connection re for to Rhagirathi Clwwrllmry v. King Emperor,('). where it '"ns ob. served that placing of maps before the jury containing statement-11 of witnesses or of information received by .tho investigating officer preparing the map from other persons was improper, and that the (I) A. I. II.. 1926 Cal. 5.50. ~S.C.R. investigating officer who m.ade a map in a criminal case .ought not to put anythin.£( more than what he had seen him;ielf. The same view was expressed by the Calcutta High Court again in !bra Akanda v. Emperor (1), where it was held that any information derived from witnesses during police investi. gation, and recorded in the index to a map must be proved by the witnesses concerned and not by the investigu.ting officer, and that if such information is sought to be proved by the evidence of the investigating officer, it would manifestly offend against s.

162 of the Code of Criminal Procedure. This Court had occasion to consider the admissibility of a plan drawn to scale by a draftsman in which after ascertaining from the witnesses where exactly the assailants and the victims stood at the time of the commilision of offence. the draftsman put do»n the places in the map, in Santa Singh v. The State of Punjab ('). It was held that such a plan drawn to scale was admissible if the witnesses corroborated the statement of the draftsman that they showed him the places and would not be hit by s. 162 of the Code of Criminal Procedure. In that case there W'l.S another sketch prepared by the Sub-inspector which was ruled out as inadmissible under s. 162. The sketch-map in the present c1se has been prepared by the Sub-inspector and the place where the deceased was hit and also the places where the witnesses were at the time of the in< ident were obviously marked by him on the map on the basis of the statements made to him by the witnesses.

In the circumstances these markJl on the map based on the statements made to the Sub-inspector are inadmissible under s. 162 of the Code of Criminal Procedure and cannot be used to found any argument as to the improbability of the deceased being hit on that part of the body where he was actually injured, .if he was standing at the spot marked on the sketch-map. (ti A, I. P. · 114 Cal. 339. (2) A. J, R. 10S&S. C. 526. Turi .Singh Tf,, S1at1 of UJJar Praduh [1962j We havo howover still to examine the a.rgumcnt on behalf of the appellanls that it was extremoly unlikely that the deceased would have been hit on that part of the body, leaving out of account the sketch-map and spots marked on it by tho Sub-inspector. Tho argument is that the e'.'idence of tho witnesses was that the deceased was focing or going towards cast when he was hit. and therefore it was mos~ unlikely that he would be hit on the left 8ide of the lumbar region where he was actuallv hit.

There is no doubt that if the deceased was towm:d9 the west or north-we.st of tho platform \vhen ho was hit, the .chances of his being !tit on the left side of tho lumbar r<'gion would be -.ery slight; but. if he wns to the east. or north·east cif the platform . .it. would only be a matter of chance if ho was hit on the.loft 'side .of tho lumbar region or on the right side, and the argument would Iese.all force if he was slightly towards t.he cast or north-cast. of' tho platform. Let us therefore look at the evidence of . tho witnesses in this connection. Babunath stated that tho deco1aed \tas at a distance of 5 or G paces from the plat.form towarcla tho east and was 'facing towards the east while the appellants · wero towards the west of SohnJilal. If that is so .it is only a matter of cha.nee whether the deceased would be hit .on the left side of tho lumbar r.cgion or tho· right side.

Chhannu stated that tho deceased had passed tho platform and had gone 5 or G paces beyond whell' ho waa shot and that h'e was towards the east at the time. Tho skotch-m~p shqws that there was a. pond towards the ca:st and tho deceased was obviously going towards that pond. The evidence ofChhannu therefore shciws that tho' deceased was in a,11_ probability towards · nortb,cast of the . platform when tho shot was fired and if so he could have been hit on either side of t1le .lumbar l'cgion. Itwa.ri. stated that tho dece-ased was going by the platform a.nd was hit when ho had gone some distance beyond tho platform. He did not say which way.th1r dooe&se<l a s.C.tt SUi>REl\iE dot.fRT REPORTS 58'1 was going, whether north or east. His evidence therefore cannot be used to show that the deceased could not have been struck on the left side of the lumbar region.

Khamani stated that the deceased had gone 5 or 6 paoe8 beyond the platform and was towards the east of the assailant. lf that is so there would be nothing improbable if the shot hit towards th" left side of the lumbar region. There is nothing therefore in the evidence of the witnesses which would show that it was next to impossible for the shot fired from the platfrom to have bit the deceased on the left side of the lumbar region. The whole argument on this aspect of the matter therefore based as it was on the spot marked on the mao must fail, for the evidence of the witnesses ~hioh we have noticed above, does not show that the position of the deceased was such that he could not have been hit on the left side of the lum~ar region. The other contention in this connection is that that the medical evidence Rhows that the wound of exit was higher than the wound of entry, and this means that the bullet must have travelled from down below upwards.

The witnesses are not quite. consistent as to whether the shot was fired by Tori Singh while he was sitting on the platform or while he stood on the platform or after he got down from the platform. The High Court has accepted that the shot was fired while Tori Singh was sitting on the platform and therefore accordlng to the High Court the chances were that the bullet would travel upwards through the body. But apart from this, the medical evidence is not that the bullet travelled in a straightline through the body. If the medical evidence had been that the bullet travelled in a straightline through the body· from the wound of ()ntry to the wound of exit, it might have been said that the course of the bullet was from down below upwards. However, the evidence of the doctor is that the movement of the bullet through the body w114 very i~za.~. · Therefore, it cannot be. said that Tori, Singh The Stale af Uttar Pradesh Wa11tluio J. 1H1 Tori SiRfh The St.U of Uttar Pratksh StJPRE!IIE COURT REPORTS [1962] the Hhot must necessarily have been !ired from a lower position than where it hit the body of the Jeeeased.

This is apart from tho fact that tho course of a bullet may be deflected on entering the body because of tho resistance from tissues and more particularly from bones if it moots any bone on the way. Therefore the position from wihch the s'iot was fired cannot be said to have much importanco in this case and the discrepancies which have been noticed by the High Court woukl not in our opinion affect the value of the evidence given by the witnesses. It was also urged that the witnesses ~hould not have been believed because they wern partisan or cha1H·t' witnes8es; in particular it was Htressed that the High Court has not given con\'incing reasons for helievin1t Chhannn who had not hern relied upon by tho trial court. Leaving out thll evidence of Chhannu, we ha.vo still the evidence of three other witnesses bclongiug to this very villa.go who gave reaBona why they were present near the spot though they live some distancl' away.

These three witnesses have lice!! believed by the trial court as well as by the High Court and we sec no reason to disagrl'e with tho estimate of their evidence by the two -courts; nor <lo wo see any reason to disagree with the estimate by the two courts of the value of the dying declarations in this case. As for the evidence of Chhiddu, we agree with the estimate of the High Court that he being a cousin of Tori Singh was prevailed upon to make o. confession. He could do so almost with impunity, becauBe the prosecution ca.so definitely was that the assailants were only the two appellants and no one else. The only evidence that was referred to in this eonneotion is the stakment of the dc()(>ased in ;he dyin~ declaration that Chhiddu_ was a cousin of Tori Singh (vide Ex. Ka-8). It 1s not clear why the deceased said so; but in any case it cannot be• inferred from this that the deceased was naming him because ho was the man who h~d shot him, - 3 s.c.R. SUPREME COURT .REPORTS In the · circumstances when .both the courts have accepted the evidence of three of the eyewitnesses and the dying decW,rations there is in our opinion no cause for interference with their conclusi9n that tho incident. took place iI). the manner alleged by the prosecution.

Th.e conviction of the _ .. ,appelJants must therefore be upheld. Lastly, it was urged that we might consider · reducing the sentence of Tori Singh to imprison- . ment for life on the ground that he acted as he did und~r the influence of his father. There is no doubt that Tori Singh shot at the deceased at the instigation 0£ his father; but he is a mature man of25 and the evidence shows that he was sitting with the pistol along with his father. Obviously therefore murder must have been planned between the father and the son, as they were apparently expecting that the deceased would pass that way in connection with his morning ablutions. Tori Singh cannot be considered to be a young boy in his teens who would be completely under the influence of his father, and in the circumstances we see no reason to interfere with the sentence of death passed on him by the trial court and comfirmed by the High Court. The appeal fails and is hereby dismissed. Appeal dismissed. '

1961 ' c t Ori lliifth Thi Stat• of Uttar l'tadtsh Wanchoo J.