Material Facts
In January 1949, Dalip Singh was murdered. The deceased was the brother of Bachittar Singh and Jita Singh. Bachittar Singh had lodged a complaint against seven persons including the appellant Mohinder Singh for wrongfully cutting a tree that was in his possession. A date was fixed for hearing the said matter on 28th February 1949 before the Naib Tehsildar.

On the date of hearing, the deceased and Jita Singh were attacked by the appellant and a seventeen-year-old boy, Gurnam Singh. Both the brothers were returning from their fields when they were attacked. The deceased had sickles in his hand and his brother was carrying a load of fodder on his head. The first attack was directed towards Jita Singh. The appellant fired a bullet which hit Jita Singh and he instantly fell.

The deceased was being chased by Gurnam Singh around the outer boundary of a tank that was close by. From the opposite side, the appellant caught him and shot him in the chest. Gurnam Singh also reached the spot and fired from a distance of about 4 to 5 feet near the deceased�s ears.

The deceased died on the spot. Jita Singh went to the police station and filed a first information report against the appellant and Gurnam Singh for murdering his brother. They were charged with Section 302 and 307 read with Section 34 of the Indian Penal Code.[2][3]

Arguments on behalf of the Prosecution
The prosecution has not examined any person from the locality in supporting their argument. The entire case rests on the evidence produced by the three witnesses i.e., Jita Singh, Harnam Singh, and Buta Singh. Jita Singh asserts that he has seen the co-accused shooting his brother. At the time of the incident, Harnam Singh was coming from another village to fetch medicine for his maternal cousin when he saw the incident. Buta Singh had come to see Harnam Singh an evening before the incident took place. Thus, he was present near the crime scene. The prosecution had produced three oral witnesses to prove their claim against the appellant.

Arguments on behalf of the Defence
The defence had produced the observation made by Dr. Goyle, Director of the CID Laboratory, Phillaur on the empty cartridges. It was submitted that the guns had signs of being fired but he could not tell the exact time when they were fired last. There is ambiguity over the fact that whether cartridges were filed from P-16 or another similar gun. The appellant had denied the allegation of firing at the deceased and Jita Singh. At the time of the incident, he had gone to the Naib�s Tehsildar court.

To support his claim the counsels have examined three alibis. The first witness was Naib Tehsildar itself. He stated that around six people were present in court on the date of the hearing when the incident took place. The appellant had also submitted an application for taccavi loan which had been filed by him on the date of the incident and bears his thumb imprint. The second witness was the appellant�s brother-in-law, Joginder Singh who had stated that the appellant had signed the application (Exhibit D-C) and was present in court. The third witness was the fingerprint expert.

Sessions Courts� & High Court Judgment
The police filed a charge sheet against the said co-accused after the investigation was complete. The matter was then heard by the Sessions Judge of Ferozepur. The judge convicted the appellant under section 302 and the co-accused was sentenced to transportation of life. Both of them were also sentenced to three years� rigorous imprisonment. The post mortem report indicates that the deceased had succumbed to the gunshot injuries. There were total six injuries on his body. Jita Singh had suffered modest injuries on his back from pellets and blunt weapons.

When the investigating officer reached the crime scene, he found an empty cartridge case at the place where Jita Singh was attacked and two empty cartridge cases, and a bloodstained cartridge where the deceased�s body was lying. The police questioned the appellant whether he possessed any gun. He had a licenced 12 bore gun. The entire incident took place in the area surrounding the Gurudwara and local houses.

Both the Sessions Court and High Court have held the appellant�s alibi to be unsatisfactory and he had been convicted of the said charges.

Issues raised before the Supreme Court
This case is a special leave petition under Article 136 of the Indian Constitution.[4] The appellant had appealed against the High Courts� judgment which upheld his death penalty sentence. He had also appealed against his conviction under Section 302 and 307 read with Section 34 of the Indian Penal Code.

• Whether the special leave petition is maintainable under Article 136 of the Indian Constitution?
• Whether the High Court�s judgment confirming the death penalty can be set aside?

Supreme Courts� Judgment
The Supreme Court has criticised the Sessions and High Courts� judgment. They had convicted the appellant on the basis of three oral witnesses produced by the prosecution. The statements made by Jita Singh can be criticised as he was himself shot and was not in a position to identify the murderers. The standard of proof is not a reasonable one. Jita Singh had identified the gun on the basis of the brass plate he saw at the end of the gun. This cannot be taken as appropriate evidence in the identification of the gun.

The Supreme Court has stated that in cases where death is caused by a lethal weapon, the prosecution always must prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. In the present case, it is doubtful to ascertain whether the injuries were caused by a gun or a rifle to the deceased.

This issue could have been settled with the help of an expert but the prosecution has failed to do so. The entire prosecution�s case is based on the fact that the appellant was armed with a gun. The prosecution has failed to establish that the two shots were fired by the co-accused�s and not the appellant only.

In the case of Pritam Singh v. State, the court had held that a criminal appeal will only be allowed under special and exceptional circumstances.[5]

The three conditions are as follows:

• Where the legal process is not followed
• Principles of natural justice are violated
• A substantial and grave injustice has been done

The present case has fulfilled the said conditions. Therefore, the special leave petition under Article 136 of the Constitution is maintainable. Moreover, the prosecution is lacking on material evidence to prove their contention.

The manner in which the defence�s alibis had been disposed of is also unsatisfactory. The standard of proof must be a reasonable one applied to both the prosecution and defence evidences. The defence had produced the taccavi loan application which affirms the appellants� presence in court on the date of the incident.

The court has allowed the appeal and set aside the appellants� conviction. In normal circumstances, the court would have ordered to start a fresh trial but in the present case the appellant has been in suspense regarding his death sentence for a year and it would be unfair to him.

Analysis
The said case was a criminal trial and the appellant was charged with penal provisions. Section 302 of IPC lays down the punishment for murder. A person who has committed murder shall be punished with death or life imprisonment and a fine. It is a cognizable, non-bailable, and non-compoundable offence. Such a charge is triable in a Sessions Court. Section 307 provides the punishment for attempt to murder. Such an offender can be charged with ten years imprisonment, fine, or life imprisonment. Section 34 defines acts that are done by several persons in furtherance of a common intention.

The prosecution has lacked on material evidence. It is a settled matter of law that in cases where death is caused by a lethal weapon, the prosecution is supposed to prove by expert evidence that such injuries have been caused by the use of that particular weapon. Such injuries are likely to have been caused in a particular manner in which they have been caused. The standard of proof required in a murder trial should be a reasonable one.

The standard which is applied to the prosecution�s witnesses should be applied to defence�s alibis as well. The High Court had found a gap in the prosecution�s evidence but ended up relying on the oral witnesses. The same should have been done to the alibis presented by the defence.

A preference towards the prosecution�s witnesses can be seen which is completely wrong. The Supreme Court acknowledged the mistake and allowed the special leave petition. Thus, the prosecution was unable to prove the material claims and therefore the Court had no option other than to set aside the accused�s conviction.

End-Notes:

1. Mohinder Singh v. State, AIR 1953 SC 415
2. The Indian Penal Code, 1860 �302.
3. The Indian Penal Code, 1860 �307.
4. Indian Constitution, art. 136.
5. Pritam Singh v. State, AIR 1950 SC 169.