GOBIND SINGHversusKRISHNA SINGH AND ORS.

                                                      '
                                 [2008] 16 S.C.R. 1103


                                   GOBIND SINGH                                   A
                                           v.
                          · KRISHNA SINGH AND ORS.
                       (Criminal Appeal Nos. 30-31 of 2003)
                                DECEMBER 3, 2008
                                                                                  B
                [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
                               SHARMA, JJ.]

                 Penal Code, 1860 - ss. 302 rlw s. 149 - Conviction and
            sentence under as also under other Acts - Award of death C
            sentence to one of the accused - Appeal by accused persons
            - Reference for confirmation of death sentence - Disposal :
            of, by High Court - On appeal, held: Conclusions arrived at
            by High Court are not clear and contrary to the evidence on
            record - They are based on surmises and conjectures - Thus, D
            order of High Court is set aside - Matter remitted to High Court ' -
            for afresh consideration - Code of Criminal Procedure, 1973
   (
            - s. 366.
----(
                CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                  E
    (   '   Nos. 30-31 of 2003.

                · From the Judgment dated 15.2.2002 of the High Court of      1




            JudicatUre at Patna in Death Reference No.1 of 2001 with Crl.
            A. Nos. 61 and 139 of 2001.
....,,,                                                                           F
    I

                 S.B. Sanyal and S.K. Sinha for the Appellant.

               Neeraj Shekhar, Rajesh Kumar, Ambhoj ~umar Sinha and
            Gopal Singh for the Respondent.

                The Ju~gment of the Court was delivered by                        G

                  DR. ARIJIT PASAYAT, J.1. Challenge in these appeals
            is to the judgment of a Division Bench of the Patna High Court,
            accepting the appeals· filed by the accused persons who had
    '                                    1103                                     H
       ':f1b4··· .. ·sUPREME'·CGURT ....RE~QRTS··
       .·                               ,,_..,..... .
                                                      .. ·· [2o~-~J. 16 S.C.R.


  A filed two appeals before .the ~!gh · Qg~rt. qn~ W~§ ~Y th~
    ' respondents 1 tq 11 i!l Crirrif11~I App~~I Ng.§1 gf ?.QQf a.rid
       other by respqn~~m ~9: 1 in Qr!m!n~l -Agpe~I NoJ 39 of 2001
       before the. High Go4rt, which{ by the impugned judgment
       dispq~~g of the twp agg~als @;~g gy th~ ;accuseq person$ and
·B     tne  reference made L!nder Section 366 of the Code of Criminal
       Procedure, 1973 (in short the 'Code') for confirmation of death
       sentence awarded by the trial Co.urt Which was numbered as
       Death Reference No.1 of 2001. The present appeals have been
       filed by the informant. The respondents in the present two
  c    appeals excluding respondent No.1-Krishna Singh were
     . convicted for offence punishable under Section 302 read with
       Section 1'49 of the Indian Penal Code, 1860 (in short the 'IPC')
       and sentenced to undergo life imprisonment and 'we.re also
       convicted under section 17 of the criminal law amendment Acl,
       1998 and sentenced. to undergo simple imprisonment for six
  0
       months. Respondent Suresh. was further convicte._d under
       SeCtion 27 of the Arms Act, 1959 (in short 'Arms Act')      was   and
       awarded 3 years pf rigorous imprisonment. Respondent No.1-
       Krishna Singh was convicted for offence punishable under
. E, Section 302 IPC and was sentenced to be hanQ~d till (je9th.,

           2. The allegations on the ba,sis, pf which l~w was set in
       motion read as follow§;

       .A fardpayan gf @<;>~ind S.ingh (Exh.3). recorded on
•· F
   6.8.1997 at 9.45 p,rn.. at the place of occurrence itself was that
   abo~f twelve to thirteen days ago informanthad received a.letter
   from re.spondent.,Brahmdeo Paswan, a member. of M.C.C.
   Committee imposing ban upon him·from cultivating his fie.Id but
   no action was t~ken as th~ informant had :no ~nmity with the
 G said organization and again on 5.8.1997 at about .9.30 p.m.,
   four accused persons had come to the house of the informant
   and asked him to come to the orchard to have a talk with the
             '   "                                  •   .    •   ~   •   .   l



   party members which, however, wa~ avoided by the informant.
   On 6.8~ 1997 while the informant with his brother Madani Singh
   (hereinafter referred to as the 'deceased') was returning on the
 H                   '"
          GOBIND SINGH v. KRISHNA SINGHAND ORS.                  1105
                   [OR. ARIJIT PASAYAT, J.]

     same bicycle after having made some purchases at                        A
     Aurangabad and reached near Rampur bridge at 5.00 p.m. the
      informant got down and started talking to a labourer but
     deceased Madan Singh moved ahead slowly on bicycle. As
     soon as deceased Madan Singh 'reached the ~astern portion
      of the bridge upon river Adari, the accused persons who have       1   B
      been named and who were sitting in ambush, stood up and
     surrounded Madan Singh and caught hold of him. Accused-
     respondent Suresh Singh fired from revolver and accused-
     respondent .No.1 Krishna Singh started cutting the neck of
     Madan Singh with a 'Pasuli', an instrument used for tapping             C
     toddy, catching hold of the hair of deceased. The informant
      s~eing that ran away and reached Karma Village shouting
     where he told the people about the occurrence and came back
     to tht: pl~ce of occurrence with the people of that village only
     to find his deceased brother lying in a pool of blood at the            o
     bridge with the bicycle lying beside him and the accused
     persons fled away. The informant claimed t.hat persons working
     ln. ~h~ nearby field had ;;ilso witn~~~@~ the o~currence.
           $jving out the motive behind the occurrence, it was
     claimed that his relative Shanker Odyal Singh of Karma Village,         E
     a Mukhiya was on inimical terms with the M.C.C. party
     members and his 'katchery' in village Unthoo, some days back
     was demolished     oy   the Party rnembers for which two co-
     villagers of the informant were sent to jail for which the· party
     members blamed that the informant side had given out their              F
     names to the police. After investigation, charge sheet was
     submitted and ultimately the trial was held and the accused
     persons were convicted as noted above.

          The trial Court relied on the evidence of the eye-witnesses        G
     and recorded the conviction and awarded the sentences as
     noted above. In view of the imposition of death sentence a
     reference was made to the High Court for confirmation.

         3. Stand of the appellants-accused persons before the
.·                                                                           H
    1106      SUPREME COURT REPORTS                [2008] 16·S.C.R.


 A High Court was that none of the so-called two eye-witnesses          "-
    namely, Gobind Singh (PW-2) nor his father Ramraj Singh
    (PW-4) could have seen the occurrence but finding the dead
    body of the deceased they fabricated a story to implicate the
    accused persons. It was pointed out that letter Ext.-4 which was
. B stated to be.the motive of the crime has been created for the
    purpose of the ·ca.se. It was stated that none of the accused
    persons could be· said to have any grudge against the               r
    deceased so as to kill him and it was not proved by cogent
    evidence ·that the accused were members of the banned
c   organization M.C.C. On the other hand the Public Prosecutor
    referred to the evidence of PWs 2 and 4 and stated ·that the
    conviction was in order.

          4. Though the High Court has in a number of pages of the
    judgment purportedly analysed the evidence, the conclusions,
D   to say the least, are sketchy. Some of the conclusions are also
    contrary to the evidence on record. To illustrate, the High Court
     had observed that neither PW-2 nor PW-4 for a long time tili
    recording of the FIR had told anybody the details of the
    occurrence or the names of the assailants though they met large
E   number of people. Further, the High Court held that the
    informant's claim that he and the deceased were returning on
    a cycle after purchase of juggery tied with carrier of cycle and
    potatoes were kept in a bag which were scattered did not find

F
    support from the evidence of the investigating officer. This
     conclusion is patentlywrong· as the investigating officer merely
                                                                             ..
     said that he did not seize those articles. The High Court also
    noted that in Court .the cycle was found without a carrier. This
    conclusion is also wrong as in para 15 the trial Court noted that
    the cycle was produced as material Ext.I and it had a carrier.
G   Almost au the conclusion~ are essentially based on. surmises
    and co'n)ectures. We do not think it necessary to go into them
    in detail. Even in respect of th~ letter tile conclusions. are
    contrary to the evidence on record. The letters Exts. 15 to 17
    w~re proved by PW-2. One of the conclusions for doubting the
H   prosecution version was that the main assailants and two others
       GOBIND SINGH v. KRISHNA SINGH AND ORS;            1107
              . [DR ARIJIT PASAYAT, J.]

were arrested on the same night from the village and claimed .A
innocence. This can be hardly a ground to doubt the
prosecution version and to discard it. In view of the aforesaid
unsatisfactory nature of the disposal of the appeal and the.
Death Sentence, we set aside the impugned order and remit
the matter to the High Court for a fresh consideration. We make .B
it clear that we have not expressed any opinion on the merits
of the case except referring to some of the circumstances which
apparently could not have formed the foundation of the High
Court's impugned judgment.
       5. The appeals are allowed.                              c
N.J.                                        Appeals allowed.




             .,.