Crown vs Karam Singh Sadhu Singh

Teja Singh, C.J.—This is a reference by the learned Ses, J., Kapurthala, for the confirmation of the sentence of transportation for life that he has awarded to Karnam Singh, a Labana of village Nangal Labana, whom he has found guilty of the murder of one Jhanda Singh and has convicted u/s 302, Penal Code.

The deceased and the accused were cousins to each other, the father of the accused being the brother of the deceased''s mother. Originally, the accused belonged to Anr. village, but it is alleged, & this fact was not denied by the accused that he had been living in a Kothri in the house of the deceased for about 20 years before the occurrence. Janda Singh had a well about 500 karams from the village Abadi and he slept there on the fateful night i.e., the night between the 8th and 9th October with a view to keep watch over his maize fields. It was discovered on the morning of the 9th that he had been attacked and killed by some one during the night. When the news spread in the village Mt. Harnam Kaur, widow of the deceased, & a number of other people collected on the spot. Jamadar Mihan Singh went to the Police Station which is about 6 Kos from the village & lodged the first information report at noon time. It was mentioned in this document that Mihan Singh had learnt from Sadhu Singh Chaukidar that Jhanda Singh had been murdered at the hands of some unknown person & since the Chaukidar had been deputed by the Panchayat to keep watch over the dead body Mihan Singh had been entrusted with the duty of reporting the matter to the Police. The Assistant Sub-Inspector who recorded the first information report reached the village about 4 in the afternoon. He found Karam Singh in the custody of the Panchayat. What had happened was that when the village people arrived on the spot & questioned Mt. Harnam Kaur, she told them that Karam Singh had murdered her husband. On this four or five men proceeded to Karam Singh''s house & brought him to the place where lay the dead body. There he was interrogated. At first he denied all knowledge of the incident but later on made a clean breast of the whole affair and admitted having killed the man with his kirpan. On being questioned about the kirpan, Karam Singh took the members of the Panchayat to his house and brought out the weapon from a Kothri. He was again brought to the spot with the kirpan and kept there till the arrival of the Police. We are also told that the shirt that Karam Singh was found wearing at the time the Panchayat got hold of him had blood marks on it. The A.S.I. took bold of both the kirpan & the shirt & put them under proper cover and seal. The shirt was later sent to the Chemical Examiner. The report of the Chemical Examiner taken together with that of the Imperial Seriologist would go to show that the stains on the shirt were those of the human blood. It may here be mentioned that the Imperial Seriologist''s report was received affect the conclusion of the trial in the Court below & accordingly could not be used as evidence at the trial. Since no blame could attach to the prosecution for the delay we allowed the Assistant to the Advocate General to tender the document as evidence in this Court.

The prosecution maintains that the reason that led Karam Singh to commit the crime was that he had contracted illicit intimacy with Mt. Harnam Kaur during Jhanda Singh''s lifetime & two or three days before the occurrence Jhanda Singh asked him to leave his house because he had come to know of the intrigue between the two & deeply resented it.

Naturally, there was no direct evidence to connect the accused with the crime. We have, however, the evidence regarding the motive and the confessional statements made by him (i) to Mt. Harnam Kaur, (ii) to members of the Panchayat, & (iii) before S. Jasjit Singh, Tehsildar and Mag. 1st Class. In addition we have the evidence regarding a number of circumstances which corroborate the confessional statements in some respects.

Mt. Harnam Kaur gave bar age as 45 years. According to the report of the Doctor, who hold the post mortem examination on the dead body, the deceased was about 55 years of age. They had a grown up son, Gian Singh, who is about 20 years old. This boy was not in the village on the fateful day. The evidence is that he had gone abroad four or five days earlier. In the statement that the accused made in the committing Mag.''s Ct. as wall as at the trial he gave his ago as 25 years. After having seen him in Court my opinion is that he must be somewhat older, i.e., about 28 years. There can, therefore, be no doubt that he was much younger than the deceased. Subedar Mal Singh, Babu Mal Singh & Dalel Singh who gave evidence about the confession of guilt that the accused made before the Panchayat all deposed that he had been residing in Jhanda Singh''s house for many years & that he had criminal intimacy with Mt. Harnam Kaur. To the same effect is the statement of Mt. Harnam Kaur herself. As I shall show hereafter, Mt Harnam Kaur''s position in this ease was more or less like that of an accomplice and for this reason I do not consider it safe to accept her testimony unless it is corroborated by independent evidence. But as regards her connection with the accused there does exist independent evidence consisting of the statements of the three witnesses mentioned above & in my judgment it must be taken as fully proved.

The first confessional statement upon which the prosecution relies is the one alleged to have been made to Mt. Harnam Kaur. Her evidence was that on the day of occurrence the deceased slept in his field at the well while the accused slept in the house. Sometime before midnight when the moon was stilt up the accused went out and returned after an hour. He was then holding the kirpan (Ex. P-2). This is the kirpan that he later on produced to the Panchayat. Afterwards the accused went out again but she could not say at what time. Then she saw him early in the morning when he was coming from outside. On that occasion too he was holding the kirpan. She asked him where he had been, but in reply he stated that he had killed her husband in his maize field. She started crying on which the accused threatened to kill her also if she cried or made any kind of noise. She then became quiet. The evidence of the other witnesses is that Mt. Harnam Kaur went to the spot sometime after sunrise after the news of the murder was known throughout the village. All this taken together leaves no doubt that she deliberately kept quiet & did not inform any one of the murder until everybody in the village had come to know of it. It may be that she was afraid of the accused & did not like to incur his wrath, but it may also be that because of her regard for him she did not like to expose him. It is true that we are told by Subedar Mal Singh, Babu Mal Singh & Ors. that when they went to the spot & found Mt. Harnam Kaur there, on being questioned by them she at once said that the murderer of her husband was Karam Singh, but in my opinion this does not alter the situation so far as Mt. Harnam Kaur''s conduct is concerned and my view is that she was no better than an accomplice and accordingly her testimony has as much value as that of an accomplice. Now, it is well-recognised rule that an accomplice''s evidence should not be relied upon unless it is corroborated by independent evidence & as regards the statement alleged to have been made to Mt. Harnam Kaur by the accused, there is no corroboration whatsoever. In the result her evidence on this point must be ignored.

As regards the confessional statement made to the Panchayat, we have the evidence of Subedar Mal Singh, Babu Mal Singh & Dalel Singh, mentioned above. [After discussing the evidence his Lordship held that the confessional statement was amply proved. The judgment then proceeded:] The third confessional statement is proved by the Magistrate before whom it was made. This witness tells us that the Sub-Inspector brought the accused to him on the evening of the 13th with an application praying that his statement be recorded. Since it had become late and the witness had just come from tour he did not do anything on that day & asked the accused to be brought on the following day. Accordingly, the accused was produced before him on the 13th. The witness swears that he told the accused that he was a Mag. and further that he was not bound to make any statement, warning him at the same time that if he did make one, the same could be used against him. After having recorded the questions put to, & the answers given by, the accused & after satisfying himself that what the accused was going to say was his voluntary statement, he set out to take down all that the accused averred. The statement, though not very lengthy, is fairly detailed. It was to the effect that Jhanda Singh deceased was the son of Karam Singh''s father''s sister & the latter had been living with him for about 20 years. Karam Singh served in the Military for about 8 years. He joined as a Sepoy but later on became a lance Naik. About two months before the occurrence he left the Army & returned to the village. Since his return he had been working with Jhanda Singh & helping him in cultivation. Daring the time he was in service be had been giving all his earnings to Jhanda Singh deceased & his wife Mst. Harnam Kaur. He contracted friendship with Mst. Harnam Kaur which lasted eight years. On the 8th October about 9 or 10 in the morning he had a verbal altercation with Jhanda Singh. The latter asked him to dear out of his house as be had illicit connections with his wife Mst. Harnam Kaur. Karam Singh replied that as he had been grabbing all his earnings he was not going to leave the house. He remained working till the evening & at night be went and slept in the maize field at the instance of Jhanda Singh''s wife. Jhanda Singh had gone to village Balia in Tehsil Hoshiarpur, which is about 3 miles from Nangal Labana, in order to condole with some one on a death. He returned between 9 and 9-30 in the night & after taking his meals came to the maize field which had been reaped. He went upto Karam Singh & asked him to go home, adding that he would himself sleep in the field. On this Karam Singh returned to the house & slept there. After the moon had set he got up & since he had been smarting over the morning dispute he took up his kirpan & proceeded to the maize field in order to put Jhanda Singh to death. On the way he could not muster courage to proceed further and returned. He again went towards the field but returned once more after he had gone some distance. Then he started for the third time with the intention of committing murder. He was intoxicated with liquor. Jhanda Singh was sleeping on a cot and had covered himself with a sheet upto the thighs, the rest of his body, namely the chest & the face, were bare. Karam Singh gave him two kirpan blows which hit him on the head and jaws. Jhanda Singh died. After this karam Singh returned home. At this stage the Mag. put a few questions to Karam Singh & this is what he stated in answer to those questions: When he set out for the murder he was wearing only a Kachhera. No instigation for the murder had been given to him by Harnam Kaur wife of the deceased. After committing the murder he cleared the kirpan near the dung-hill and after that he washed it at a well. On his return to the village he told Harnam Kaur that he had killed Jhanda Singh & warned her that in case she raised an alarm he would kill her also. He related all the true facts to the Panchayat before the arrival of the Police. In answer to Anr. question by the Mag. he said that no one else had any hand in the murder.

The record shows that Karam Singh retracted this statement by means of an application that he made in the committing Mag.''s Ct. on 1-11-05. The application is dated 28-10-05 but it appears that it was not presented in Ct. till the first of the next month. The proceedings before the committing Mag/started on 8-9-2005 & there is no explanation why the accused kept mum during all this time. It was argued that be waited till his case came up before the Mag. but it is significant that he did not make the application till about two months even after this. We are told that the confession was extracted out of him by torture and coercion. I am inclined to think that had there been any truth in this assertion the accused would have taken the earliest opportunity of ventilating his grievance & going back upon his confession, but he did nothing of the kind. In addition, it may be mentioned that the application of 28-10-2005 which contained allegations regarding torture etc was neither signed by the accused nor by his counsel. It was no doubt presented to the committing Mag. but it cannot be said who did it. All this, coupled with the fact that there was no evidence regarding torture or coercion makes me think that the statement was made voluntarily & without any inducement, threat, etc.

Two points were stressed by the learned Counsel for the accused: (1) that there was considerable delay on the part of the Police in producing the accused before the Mag. for recording his confessional statement, and (2) that they arrested two other persons, including the son of the deceased on suspicion. Though the investigating officer took the position that the accused was in a confessional mood from the very start my impression is that this is not correct. What must have happened was that by the time the Police arrived the accused had changed his mind & decided not to admit anything to them, & for this reason the Police interrogated & detained the other two men. It was only after some days that the accused made up his mind to make a confession & it was then that he was taken to the Tehsildar. Furthermore, no presumption against the genuineness of the accused''s confession can be raised from the delay in the record of that statement, because there is evidence of unimpeachable character that he had confessed his guilt before the Panchayat long before the Police arrived on the scene. That the confession before the Panchayat was not detailed is immaterial & the explanation for this is that when the accused told the Panchayat that he had committed the crime and then he also produced the weapon of offence before them, the members of the Panchayat being simple and unsophisticated village people did not consider it necessary to go into the matter further.

As regards the question relating to the effect of a retracted confession, there is abundant authority for the proposition that if the Ct. is satisfied that the statement was made voluntarily & without any kind of pressure or inducement if can be used against the maker and conviction can be recorded merely on its strength. In the present case, there is no doubt in my mind that this condition is satisfied & what is important, the statement does not stand by itself. On one hand, it is corroborated by Anr. statement that he made to the Panchayat & on the other by the existence of motive & the production of the weapon of offence by the accused himself. Accordingly, I hold that he was rightly convicted.

The only question which now remains to be determined is that of sentence. The reason given by the learned Ses, J. for not imposing the penalty of death and for awarding the lesser punishment may be given in his own words:

I think, in view of the fact that the accused felt annoyed on having been asked by the deceased to get out of his house, when be had been giving all his earnings to him & his wife & that twice he returned to the house & that he was drunk on the day of occurrence, lessor punishment u/s 302, I.P.C. would meet the ends of justice.

I cannot help saying that these reasons are altogether unsound. As regards the plea that the accused felt annoyed because the deceased asked him to leave his house, all that I wish to observe is that the man had all along been engaged in one of the moat nefarious activities & if any annoyance was caused to him because the husband of the woman whom he had been enjoying for about 8 years ultimately woke, to the sense of reality & wanted to put a stop to the mischief, it could not be regarded as an extenuating circumstance, nor could he claim any credit for the facts that he had been giving all his earnings to the deceased & his wife because this was evidently a consideration for his being allowed to carry on with the woman. After all, Mt. Harnam Kaur was the wife of the deceased & even if he had connived at the accused''s connection with her he bad every right to change his mind & when he did so the accused could not very well turn round & say that he had been unfairly treated. What, however, the learned Sea J. evidently forgot to notice was that what the accused described as a dispute was only the deceased''s request to him to leave his house & it is not even alleged that on his refusal to do so the deceased threatened to take any action against him, much less to use any violence. In addition, the manner in which the accused put his poor victim to death leaves no doubt that it was a premeditated and cold-blooded murder. It has been held by the H.Cs. in India in a large number of cases that normal punishment for an offence of murder is death and lesser punishment can be awarded only in exceptional cases when there are extenuating circumstances. The facts taken into consideration by the learned Ses. J. for awarding the sentence of transportation do not, in my opinion, mitigate the accused''s guilt & did not, therefore, justify a departure from the rule.

In view of all this, we issued notice to the accused to show cause why his sentence should not be enhanced but on further consideration we are of the opinion that though it was a case in which the Ses. J. could & should have awarded the higher of the two penalties prescribed for the offence of murder it is not desirable for us to take any action. It may be pointed out that the Crown has not considered it necessary to move in the matter & as was pointed out by a Bench of the Judicial Commissioner''s Ct., Peshawar in Mianji Khan v. Emperor AIR 1940 Pesh. 49 : 42 Cr.L.J. 254 when the Crown does not apply for the enhancement of the sentence the H.C. is always reluctant to move suo moto. It was held by a Bench of the Lahore H.C. in Uttam Singh v. Emperor AIR 1938 Lah. 260 : 39 Cr.L.J. 502 that the power to enhance sentence should be sparingly exercised by the H.C. & sentences should be enhanced only in cases where the, failure to enhance the sentence would lead to a serious miscarriage of justice & further that the mere fact that the H.C., had it been trying the case, might have imposed capital sentence is not a sufficient reason for enhancement. In Criminal Appeal No. 1026 of 1934, Ba U, J. while dealing with the lesser sentence awarded by the lower Court made the following observation: See Nga Bo Thin v. Emperor AIR 1937 Rang. 254 : 38 Cr.L.J. 1051:

Legally I can see no justification for not imposing the death penalty. It does not, however, necessarily follow that this Ct. must enhance the sentence in revision. It is recognised that a person who has, even wrongly, got the benefit of a lenient sentence at his trial, may sometimes be allowed to benefit by his good fortune, provided the sentence passed is one which is legal.

The same view was taken by the Bombay H.C. in Mangal Naran Vs. Emperor, The learned Judges held that the proper sentence in the case was that of death, but at the same time they refused to enhance the sentence of transportation which the Ses. J. had actually awarded.

This is what Crump J. said on the point:

I agree in this case that the Ses. J. would have exorcised a wider discretion had he sentenced this accused person to the extreme penalty for the case was extremely bad of its kind. At the same time I do not think that it is of such an exceptional nature that we should exercise the powers that we possess to enhance the sentence of transportation for life to a sentence of death. I should be most unwilling to do so in any but most exceptional cases. I also agree as to the practice in such matters. To make the admission on the appeal of an accused person the occasion for calling upon him to show cause why his sentence should not be enhanced is, in my opinion, undesirable. It is likely to produce an impression on the mind of an illiterate accused in jail that it is proposed to enhance the sentence because he has appealed. Further, my own experience is that this practice is likely to lead to an inconvenient result because it confounds two matters which should be kept separate. The first point on an appeal is to consider whether the conviction is right or not, and that is one matter. When that matter has been disposed of, the further question that arises is as to whether the sentence imposed is not inadequate. But that is entirely a separate question which speaking for myself, I prefer to keep distinct.

Following the above authorities, and holding that this is not one of those exceptional cases in which we should enhance the sentence suo motu, I would discharge the notice.

The result is that the sentence of transportation awarded to the accused by the Ct. below is confirmed. The reference is accepted.

Chopra, J.

I agree.