MANU/SC/0137/1981

Equivalent Citation: 1981()AC R165(SC ), AIR1981SC 911, 1981C riLJ618, 1981(1)SC ALE285, (1981)2SC C 166, (1981)SC C (C ri)379,
[1981]2SC R771

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 163 of 1979
Decided On: 11.02.1981
Appellants: Dudh Nath Pandey
Vs.
Respondent: State of Uttar Pradesh
Hon'ble Judges/Coram:
Y.V. Chandrachud, C.J. and A.N. Sen, J.
Counsels:
For Appellant/Petitioner/Plaintiff: R.C. Kohli, Adv
For Respondents/Defendant: O.P. Rana, K.K. Bhatta, Yogeshwar Prasad and Rani
Chhabra, Advs.
Case Note:
Criminal - conviction - Section 302 of Indian Penal Code, 1860 - appeal
filed for challenging conviction of appellant under Section 302 and death
penalty imposed upon him - from evidences and statements of eye-
witnesses commission of offence fully established - Apex Court however
observed that murder was committed by appellant in sudden provocation -
in view of above fact death sentence was reduced to life imprisonment.
JUDGMENT
Y.V. Chandrachud, C.J.
1 . A college-going boy called Vijay Bhan Kishore was shot dead on the morning of
November 2, 1976 near the Hathi Park, Dayanand Marg, Allahabad. The appellant was
convicted for that offence under Section 302 of the Penal Code by the learned Third
Additional Sessions Judge, Allahabad and was sentenced to death. The order of
conviction and sentence having been confirmed by the High Court of Allahabad by its
judgment dated August 23, 1979, the appellant has filed this appeal by Special
Leave.
2 . Vijay Bhan Kishore alias Pappoo was the son of an Advocate called Brij Bhan
Kishore who died in about 1967 leaving behind a widow, three daughters and
Pappoo. The youngest of the three daughters was married while the two elder were
working as school teachers. Out of those two, Ranjana Kishore was a teacher in the
St. Anthony's Convent.
3. The appellant, Dudh Nath Pandey, who was a motor-car driver by occupation, used
to live as a tenant in an out-house of a sprawling bungalow belonging to the family
of the deceased, situated at 17, Stanley Road, Allahabad. The appellant developed a
fancy for Ranjana who was about 20 years of age when he came to live in the out-
house. The overtures made by the appellant to Ranjana created resentment in her
family and its only surviving male member, her brother Pappoo, took upon himself

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the task of preventing the appellant from pursuing his sister. As a first step, the
appellant was turned out of the out-house. Soon thereafter, he filed an application
before the City Magistrate, Allahabad, asking for the custody of Ranjana, alleging that
she was his lawfully wedded wife. That application was dismissed by the learned
Magistrate after recording the statement of Ranjana, in which she denied that she was
married to the appellant. The appellant thereafter filed a habeas corpus petition in the
Allahabad High Court alleging that Ranjana was detained unlawfully by the members
of her family, including her uncle K.P. Saxena, and asking that she be released from
their custody. Ranjana denied in that proceedings too that she was married to the
appellant or that she was unlawfully detained by the members of her family. The
habeas corpus petition was dismissed by the High Court on November 8, 1973. On
August 1, 1975, the Principal of St. Anthony's Convent made a complaint to the
police that the appellant had made indecent overtures to Ranjana. The appellant was
arrested as a result of that complaint.
4. On November 1, 1976, Ranjana was having an evening stroll with her brother, the
deceased Pappoo, in the compound of their house. The appellant came there in a
rickshaw, abused Pappoo and is alleged to have threatened to kill him, if he dared
oppose his, the appellant's marriage with Ranjana. As a result of these various
incidents and the family's growing concern for Ranjana's safety, Pappoo used to
escort Ranjana every morning to the school where she was teaching.
5 . On the following day, i.e. on November 2, 1976, Pappoo took Ranjana to her
school on his scooter as usual. The classes used to begin at 9-30 A.M. but Ranjana
used to go to the school 30 to 40 minutes before time for correcting the students'
home-work. After dropping Ranjana at the school, Pappoo started back for home on
his scooter. While he was passing by the Children's Park, known as the Hathi Park,
the appellant is alleged to have fired at him with a country-made pistol. Pappoo fell
down from his scooter and died almost instantaneously.
6 . The occurrence is said to have been witnessed by Harish Chandra (P.W. 3), a
domestic servant of the family of the deceased and by Harish Chandra's friend Ashok
Kumar (P.W. 1). Harish Chandra used to live in the out-house of the deceased's
bunglow at 17, Stanley Road, while Ashok Kumar, who generally lived at Kanpur, is
said to have come to Allahabad the previous day in search of employment. Almost
immediately after Pappoo and Ranjana left the house on the scooter, Ashok Kumar
and Harish Chandra too left the house as the former wanted to see the Hathi Park.
They were near about the gate of the park, which is a few steps away from the scene
of occurrence, when the deceased Pappoo was passing along on his scooter, after
dropping Ranjana at the St. Anthony's Convent. Ashok Kumar and Harish Chandra are
alleged to have seen the appellant, who was standing near the northern boundary of
the park, firing a shot at Pappoo. The appellant re-loaded his pistol and is said to
have run away towards the south-east.
7 . Ashok Kumar and Harish Chandra rushed to St. Anthony's Convent in a rickshaw
and informed Ranjana Kishore about the murder of her brother. Ranjana went to the
scene of incident along with them and on finding that her brother was dead, she went
straight to the Cannington police station which is about 2 kms, away. She wrote out
the report (Ex. Ka-1) in her own hand and submitted it to the officer-in-charge of the
police station at 9-45 A.M. In the meantime, information of the murder had reached
the police station of Colonelganj, within the 'jurisdiction' of which the murder had
taken place.
8 . The police deserve a word of appreciation because they did not, as usual, enter
into a squabble as to in whose 'jurisdiction' the offence had taken place. H.R.L.

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Srivastava, the sub inspector attached to Colonelganj police station, went within
minutes to the scene of offence and, believing that Pappoo was alive, sent him in a
jeep to the Tej Bahadur Sapru hospital. A little later, P.S.I. Chandrapal Singh of the
Cannington police station arrived on the scene and started the investigation. He took
charge of an empty cartridge-shell and the blood-stained earth and later, he sent the
dead body of Pappoo for postmortem examination.
9. P.S.I. Srivastava arrested the appellant at about 2-30 P.M. while he was standing
near a pan-shop in front of the Indian Telephone Industries, Naini, where he used to
work. The appellant was taken to the scene of offence where he made a certain
statement and took out a loaded pistol from a heap of rubbish lying on the Kamla
Nehru Road, being the direction in which he had run away after killing Pappoo. The
Ballistic expert, Budul Rai, opined that the empty cartridge-shell, which was lying at
the scene of offence, was fired from that particular pistol.
10. Dr. G.S. Saxena, who conducted the post-mortem examination found a single
gun-shot injury on the left side of the chest of the deceased, below the armpit. The
injury had caused seven pellet wounds, each measuring 1/3 inch in diameter. Seven
pellets were recovered from the body. The injury, according to Dr. Saxena, was
sufficient in the ordinary course of nature to cause death.
1 1 . The appellant stated in his defence that he used to live in the house of the
deceased as the guest of the family and not as a tenant and that Ranjana got intimate
with him during that period. He left the house because she told him that there was
danger to his life. The murder of Pappoo, according to the appellant, was engineered
by Dr. K.P. Saxena, the maternal uncle of the deceased. The appellant denied his
hand in the murder, saying that he had no reason to do so since the deceased's
mother and the other members of the family desired that he should marry Ranjana.
12. The appellant examined five witnesses to prove his alibi, his contention being
that he was on duty at the Indian Telephone Industries, right from 8-30 A.M. on the
date of the incident and that he was arrested from inside the factory at about 2-30
P.M. while on duty.
1 3 . The learned Additional Sessions Judge, Allahabad, examined the Deputy
Superintendent of Police, R.P. Bhanu, and the General Manager of the Indian
Telephone Industries as Court witnesses.
14. The prosecution examined 13 witnesses in support of its case that the appellant
had committed the murder of Pappoo. Ashok Kumar (P.W. 1) and Harish Chandra
(P.W. 3) were examined as eye-witnesses to the incident. Ranjana Kishore (P.W. 2)
was examined to prove the motive for the murder as also for showing that the
deceased Pappoo had taken her to the school on his scooter and that, soon
thereafter, she was informed by the two eye-witnesses of the murder. Ram Kishore
(P.W. 4) was examined to prove the arrest of the appellant and the recovery of the
loaded pistol. P.S.I. Srivastava (P.W. 9) and P.S.I. Chandrapal Singh (P.W. 10)
deposed about the various steps taken during the course of investigation. Dr. G.S.
Saxena (P.W. 11) was examined in order to show the nature of the injuries suffered
by the deceased while Budul Rai (P.W. 12) stated that the empty cartridge-shell
which was lying at the scene of offence was fired from the particular pistol which is
stated to have been recovered at the instance of the appellant. The other prosecution
witnesses are mostly of a formal nature.
15. Were this a case of circumstantial evidence, different considerations would have
prevailed because the balance of evidence after excluding the testimony of the two
eye witnesses is not of the standard required in cases dependent wholly on

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circumstantial evidence. Evidence of recovery of the pistol at the instance of the
appellant cannot by itself prove that he who pointed out the weapon welded it in
offence. The statement accompanying the discovery is woefully vague to identify the
authorship of concealment, with the result that the pointing out of the weapon may at
best prove the appellant's knowledge as to where the weapon was kept. The evidence
of the Ballistic expert carries the proof of the charge a significant step ahead, but not
near enough, because at the highest, it shows that the shot which killed Pappoo was
fired from the pistol which was pointed out by the appellant. The evidence
surrounding the discovery of the pistol may not be discarded as wholly untrue but it
leaves a few significant questions unanswered and creates a sense of uneasiness in
the mind of a Criminal Court, the Court of conscience that it has to be : How could
the appellant have an opportunity to conceal the pistol in broad-day light on a public
thoroughfare? If he re-loaded the pistol as a measure of self protection, as suggested
by the prosecution, why did he get rid of it so quickly by throwing it near the Hathi
Park itself? And how come that the police hit upon none better than Ram Kishore
(P.W. 4) to witness the discovery of the pistol? Ram Kishore had already deposed in
seven different cases in favour of the prosecution and was evidently at the beck and
call of the police.
1 6 . But the real hurdle in the way of the appellant is the evidence of the eye
witnesses : Ashok Kumar (P.W. 1) and Harish Chandra (P.W. 3). Shri R.C. Kohli who
appears for the appellant made a valiant attempt to demolish their evidence but in
spite of the counsel's able argument, we find it difficult to hold that the eye-
witnesses have perjured themselves by claiming to be present at the time and place
of the occurrence. It is true that Harish Chandra, who was working as a domestic
servant with the deceased's family, should normally have been doing his daily
morning chores. Few masters would permit a household servant to go away on a
sight-seeing spree right in the morning. But there are at least two plausible reasons
which lend assurance to the claim that Harish Chandra left the house almost
immediately after the deceased Pappoo drove away with his sister Ranjana. Ashok
Kumar had come to Allahabad the previous evening and he wanted to go to the Hathi
Park where, though it is called a children's park, adults too find their merriment.
There is nothing fundamentally improbable in Ashok Kumar coming to Allahabad in
search of employment and equally, nothing inherently strange in the two friends
going out on a frolic. And though a small consideration, it is relevant that the normal
morning routine of Harish Chandra was to help in the kitchen but the 2nd November,
1976 was an Ekadashi day and therefore, there was not much to do for him.
17. The second reason is more weighty and almost clinches the issue. The evidence
of Ranjana (P.W. 2) shows beyond the manner of doubt that Harish Chandra and
Ashok Kumar broke to her the news of her brother's murder, while she was in the
school. The events after the murder happened in such quick succession that there
was no time for any one to contrive and confabulate. Within ten minutes of the
occurrence, Ranjana was informed of the incident by the two eye-witnesses and
within a few moments thereafter she went to the scene of the tragedy. Her F.I.R. (Ex.
Ka-1) was recorded at the police station at 9-45 a.m. A fact of preponderating
importance is that the story which Ranjana disclosed in the F.I.R. is precisely the
same as the witnesses, including herself, narrated in the Court. The F.I.R. is a brief
document of a page and half. But it is remarkable that it mentions (1) that the
appellant wanted to marry Ranjana and was harassing her towards that end; (2) that
there was a quarrel between the appellant and Pappoo the previous evening, in which
the former gave a threat of life to the latter (3) that Ranjana left for the school on the
day, of occurrence at 8-45 A.M.; and (4) that soon thereafter Harish Chandra and
Ashok Kumar met her at the school and conveyed to her that they had gone to see
the Hathi Park when, while Pappoo was passing along the road, the Appellant fired a

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shot at him. We consider it beyond the normal range of human propensities that
Ranjana could have built up the whole story within three quarters of an hour which
intervened between the time that she learnt of her brother's murder and the lodging
by her of the F.I.R. She could not have taken the risk of creating a false witness by
placing Ashok Kumar, who normally, resided in Kanpur, alongside Harish Chandra.
With the death of her brother, her own house was left without a male member. At
home was an ailing mother and two other sisters, more or less of her own age. There
was no one to advise her upon the hatching of a conspiracy to involve the appellant
and she could not have been in a proper frame of mind to do anything of the kind on
her own. Her inexperience of life, the promptness with which she gave the F.I.R. and
the wealth of details she mentioned therein afford an assurance that the story of the
eye-witnesses is true in so far as it goes. Shri Kohli's submission that Ranjana's
F.I.R. is anti-timed and must have been recorded late in the evening leaves us cold.
18. Shri Kohli has pointed a defect here and an improbability there in the evidence of
the eye-witnesses but it has to be borne in mind that the Trial Court and the High
Court have concurrently believed that evidence. We do not suggest that the mere
circumstances that two or more courts have taken the same view of facts shuts out all
further inquiry into the correctness of that view. For example, concurrence is not an
insurance against the charge of perversity though a strong case has to be made out
in order to support the charge that findings of fact recorded by more than one court
are perverse, that is to say, they are such that no reasonable tribunal could have
recorded them. The merit of the normal rule that concurrent findings ought not to be
reviewed by this Court consists in the assumption that it is not likely that two or
more tribunals would come to the same conclusion unless it is a just and fair
conclusion to come to. In the instant case, the view of the evidence taken by the
Sessions Court and the High Court is, at least, a reasonable view to take and that is
why we are not disposed, so to say, to re-open the whole case on evidence. We have
indicated briefly why we consider that the eye-witness account accords with the
broad probabilities of the case.
1 9 . Counsel for the appellant pressed hard upon us that the defence evidence
establishes the alibi of the appellant. We think not. The evidence led by the appellant
to show that, at the relevant time, he was on duty at his usual place of work at Naini
has a certain amount of plausibility but that is about all. The High Court and the
Sessions Court have pointed out many a reason why that evidence cannot be
accepted as true. The appellant's colleagues at the Indian Telephone Industries made
a brave bid to save his life by giving evidence suggesting that he was at his desk at
or about the time when the murder took place and further, that he was arrested from
within the factory. We do not want to attribute motives to them merely because they
were examined by the defence. Defence witnesses are entitled to equal treatment
with those of the prosecution. And, Courts ought to overcome their traditional,
instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the
prosecution witnesses. Granting that D.Ws. 1 to 5 are right, their evidence,
particularly in the light of the evidence of the two Court witnesses, is insufficient to
prove that the appellant could not have been present near the Hathi Park at about 9-
00 A.M. when the murder of Pappoo was committed.
The plea of alibi postulates the physical impossibility of the presence of the accused
at the scene of offence by reason of his presence at another place. The plea can
therefore succeed only if it is shown that the accused was so far away at the relevant
time that he could not be present at the place where the crime was committed.
<mpara> The evidence of the defence witnesses, accepting it at its face value, is
consistent with the appellant's presence at the Naini factory at 8-30 A.M. and at the
scene of offence at 9.00 A.M. So short is the distance between the two points. The

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workers punch their cards when they enter the factory but when they leave the
factory, they do not have to punch the time of their exit. The appellant, in all
probability, went to the factory at the appointed hour, left it immediately and went in
search of his prey. He knew when, precisely, Pappoo would return after dropping
Ranjana at the school. The appellant appears to have attempted to go back to his
work but that involved the risk of the time of his re-entry being punched again. That
is how he was arrested at about 2-30 P.M. while he was loitering near the pan-shop
in front of the factory. There is no truth in the claim that he was arrested from inside
the factory.
20. That settles the issue of guilt. We agree with the view of the High Court and the
Sessions Court and uphold the appellant's conviction under Section 302 of the Penal
Code.
21. The question of sentence has gravely agitated our minds. A young college-going
boy was murdered because he was trying to wean away his sister from the influence
of the appellant who had set his heart upon her. But there are two reasons why we
are not disposed to confirm the death sentence. In the first place, the appellant was
smarting under the insult hurled at him by the deceased Pappoo, the previous
evening. As stated by Ranjana in the F.I.R., when the appellant proclaimed his
determination to marry her, Pappoo retorted : "You are a man of two Paisa's worth.
How can you dare to marry my sister ? I will break your hands and feet." A poor
motor-car driver that the appellant was, he must have been offended enormously that
his poverty was being put up as the reason why Ranjana would not be allowed to
marry him. The dispute thus assumed the proportions of a feud over social status,
the poor man fretting that the rich man's daughter would not be allowed to marry
him for the mere reason that he did not belong to an equal class of society. And it is
evident that he believed, rightly or wrongly, that Ranjana was not unwilling to take
him as a husband. It is in the immediate background of the previous evening's
incident that the question of sentence has perforce to be considered. That incident
cannot certainly be considered as affording "sudden" provocation to the appellant for
the crime committed by him the next morning and, therefore, it cannot reduce the
offence of murder into a lesser offence. But, the mental turmoil and the sense of
being socially wronged through which the appellant was passing cannot be
overlooked while deciding which is the appropriate sentence to pass, the rule being
that for the offence of murder, the normal sentence is the sentence of life
imprisonment and not of death.
22. Secondly, Harish Chandra and Ashok Kumar do not appear to have revealed the
whole truth to the Court. If the appellant had fired a shot at Pappoo while the latter
was driving along on his scooter, and if Pappoo, as is alleged, dropped dead, his
scooter would have dragged him ahead and in that process he would have received
some injury. The scooter too would have been damaged, howsoever slightly. But it is
strange that apart from the gun-shot wound, Pappoo had no other injury on his
person except an abrasion on the left side of the chest which was evidently caused by
the gun-shot itself. The scooter was not dragged at all, except for the mark of pellets.
And, most importantly, the scooter was not lying on the road but was "standing".
Pappoo seems to have stopped on seeing the appellant and quite clearly, there was
an exchange of hot words between them which culminated in Pappoo's murder. The
death of the brave, young lad which has deprived the family of the succour of its only
male member is to be deeply lamented. But, if witnesses on whose evidence the life
of an accused hangs in the balance, do not choose to reveal the whole truth, the
Court, while dealing with the question of sentence, has to step in interstitially and
take into account all reasonable possibilities, having regard to the normal and natural
course of human affairs. Since a part of the crucial event has been screened from the

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Court's scrutiny and the possibility of an altercation between the appellant and the
deceased cannot reasonably be excluded, we consider it unsafe to sentence the
appellant to the extreme penalty.
23. In the result, we confirm the conviction of the appellant under Section 302 of the
Penal Code but set aside the sentence of death imposed upon him. We sentence the
appellant to imprisonment for life. The appeal is, accordingly, allowed partly.

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