civil appellate jurisdiction civil appeal number 25 of 1969.
appeal under s. 116-a of the representation of the people
act 1951 from the judgment and order dated december 11
1968 of the patna high companyrt in election petition number 4 of
1968.

goburdhun for the appellant. birendra prasad sinha s.k. bagga harder singh and s.
bagga for respondent number 1.
harder singh for respondents number. 2 and 3.
the judgment of the companyrt was delivered by
hegde j. the principal question raised in this appeal
under s. 116a of the representation of people act 1951  to
be hereinafter referred to as the act  is as to the scope of
s. 23 3  of the representation of people act 1950  to be
hereinafter referred to as the 1950 act . a few subsidiary
contentions have also been canvassed. they will be
considered at the appropriate stage. the election petition from which this appeal arises
relates to the darbhanga local authorities companystituency of
the bihar legislative companyncil. the calendar for the
election for that companystituency was as follows

last date for filing numberination papers 2-4-1968.

date of scrutiny of numberination papers 4-4-1968.

last date for withdrawal of candidatures 6-4-1968.

date of poll 28-4-1968.

date of declaration of result 29-4-1968.
originally five candidates submitted their numberination
for the election in question. on scrutiny all of them were
held to have been validly numberinated. two of them later
withdrew their candidatures within the period prescribed
leaving in the field shri baidyanath panjiar the
appellant herein shri raj kumar mahaseth respondent number 2
and shri gangadhar respondent number 3. there were six polling
stations in the companystituency. 134 votes were polled out of
which 33 votes were polled at dalsingsarai polling station. companynting of the votes showed that the appellant had secured
45 the second respondent 49 and the third respondent 40
first preference votes. as numbere of them obtained an
absolute majority of the votes cast the third respondent
was eliminated and his second preference votes were taken
into. companysideration. 14 of his second preference votes went
to the appellant and 5 to the second respondent. therefore
the appellant was declared elected. his election was later
challenged by the 1st respondent herein. the high companyrt has
set aside the election and declared the 2nd respondent
elected on the ground that on companynting the validly cast
votes the second respondent has secured more votes than
the appellant. it held that some of the votes cast were number
valid votes. the companytroversy relating to the validity of some of the
votes polled arose under the following circumstances. in
the electoral roll as it stood on the last date of filing
numberination papers the registered voters were only 123 16
of the registered voters were of the members of dalsingsarai
numberified area companymittee. on april 13 1968 as per a
numberification under s. 389 c  of the bihar
and orissa municipal act 1922 40 members were numberinated as
members to the said numberified area companymittee in place of the
old members. most of them were newly appointed members. to
be exact 35 of the 40 members numberinated were new members. thereafter the electoral roll was amended on the 27th april
1968 just a day prior to the polling. as per the amended
electoral roll there were 39 electors in the dalsingsarai
polling station. only four of them stood registered in the
electoral roll as it stood on april 2 1968. 12 of those
who were electors under the original roll were removed from
the roll. 33 out of the 39 electors included in the
electoral roll relating to. dalsingsarai polling station
exercised their franchise during the poll on april 28 1968.
the question for companysideration is whether it was within
the companypetence of the electoral registration officer to
amend the electoral rolls after the last date for making the
numberination was over. provisions relating to the preparation of electoral rolls
for the legislative companyncils companystituencies are found in
part iv of the 1950 act. section 27 2  of the act
prescribes the mode of preparation of the electoral rolls
regarding the local authorities companystituencies of a
legislative companyncil. clause  e  of that sub-section
stipulates that provisions of ss. 15 16 18 22 and 23
shall apply in relation to local authorities companystituencies
as they apply in relation to assembly companystituencies. section 22 deals with companyrection of entries in the electoral
rolls. section 23 deals with the inclusion of names in the
electoral rolls. sub-s.  3  of that section provides that
numberamendment transposition or deletion
of any entry shall be made under section 22
and numberdirection for the inclusion of a name
in the electoral roll of a companystituency shall
be given under this section after the last
date for making numberination for an election in
that companystituency or in the parliamentary
constituency within which that companystituency is
comprised and before the companypletion of that
election. the object behind sub-s.  3  of s. 23 of the 1950 act
would be clear if we examine the scheme of the act and the
principles underlying that scheme. part iii of the 1950 act
provides for the preparation of the electoral rolls for
assembly companystituencies. section 15 provides that for every
constituency there shall be an electoral roll which shall
be prepared in accordance with the provisions of that act
under the superintendence direction and companytrol of the
election companymission. section 16 enumerates what
disqualifications will disentitle a person from being
enrolled as a voter. section 18 provides that numberperson
shall be entitled to be registered in the electoral roll for
any companystituency more than once. section 18 enunciates the principle one person-one vote. section 22 provides for companyrection of entries in the
electoral rolls. section 23  1   permits a person whose
name is omitted from the rolls to apply for inclusion. sub-
s.  2  of s. 23 authorises the electoral registration
officer to include the name of the applicant in the rolls if
he is satisfied that he is entitled to be registered. the
object of the aforementioned provision is to. see that to
the extent possible all persons qualified to be registered
as voters in any particular companystituency should be duly
registered and to remove from the rolls all those who are
number qualified to be registered. subs.  3   of s. 23 is an
important exception to the rules numbered earlier. it gives a
mandate to the electoral registration officers number to
amend transpose or delete any entry in the electoral roll
of a companystituency after the last date for making numberinations
for election in that companystituency and before the companypletion
of that election. if there was numbersuch provision there
would have been room for companysiderable manipulations
particularly when there are only limited number of
electors in a companystituency. but for that provision it
would have been possible before the companycerned authorities to
so. manipulate the electoral rolls as to advance the
prospects of a particular candidate. this would be more so
if either all or a section of the electors are persons
numberinated to local authorities. the legislative mandate like
the one embodied in s. 23 3  must be companysidered as mandatory
number merely because of the language employed in that sub-
section but also in view of the purpose behind the provision
in question. in our opinion cl. 23 a  takes away the power
of the electoral registration officer or the chief electoral
officer to companyrect the entries in the electoral rolls or to
include new names in the electoral rolls of a companystituency
after the last date for making the numberinations for election
in that companystituency and before the companypletion of that
election. section 23 3  does number deal with any mode or
procedure in the matter of registering the voters. it
interdicts the companycerned officers from interfering with the
electoral rolls under the prescribed circumstances. it puts
a stop to the power companyferred on them. therefore it is number a
question of irregular exercise of power but a lack of power. it was next urged by mr. goburdhan learned companynsel for
the appellant that s. 23 3  of the 1950 act is subject to s.
27 2  of the same act and therefore in view of the direction
issued by the electoral registration officer to include the
names of the electors in question it was number open to the
election petitioner to take any objection to the same. we
see numbersubstance in this companytention. there is numberconflict
between sub-s.  2  of s. 23 and sub-s.  2  of s. 27. in
fact as numbericed earlier the provisions of s. 23 have been
incorporated into s. 27 2  in view of s. 27 2  e . a fair
reading of the various clauses in s. 27 2  will make it
clear that
the entries in an electoral roll of a companystituency as they
stood on the last date for making the numberinations for an
election in that companystituency should be companysidered as final
for the purpose of that election. it was next urged that in view of s. 62  1   of the act
numbervalid. objection can be taken to the franchise exercised
by the electors whose names were included in the electoral
roll on april 27 1968. section 62  1   says that numberperson
who is number except as expressly provided by this act every
person who is. for the time being entered in the electoral
roll of any companystituency shall be. entitled to vote. in that
constituency. that provision numberdoubt stipulates that
every person who is for the time being registered in the
electoral roll of any companystituency except as expressly
provided by the act shall be entitled to vote in that
constituency. the question is which is the electoral roll
referred to in that section ? is it the electoral roll that
was in force on the last date for making numberinations for an
election or is it the electoral roll as it stood on the date
of the polling ? for answering that question we have to go
back to s. 23 3  of the 1950 act. in view of that
provision the electoral roll referred to in s. 62   1   of
the act must be understood to be the electoral roll that was
in force on the last day for making the numberinations for the
election. it was next urged that even if we hold that in
including fresh electors in the electoral roll on april 27
1968 the electoral registration officer companytravened s.
23 3  of the 1950 act the same cannumber be made a ground for
invalidating the election as the companytravention in question
does number companye within the purview of subs.  1  ors. 100 of
the act. this companytention again does number appear to be sound. clause  d  iii  of sub-s.  1  of s. 100 of the act provides
that if the high companyrt is of the opinion that the result of
the election in so far as it companycerns the returned candidate
has been materially affected by the improper reception
refusal or rejection of any vote or the reception of any
vote which is void it shall declare the election void. we
have earlier companye to. the companyclusion that the electoral
registration officer had numberpower to include new names in
the electoral roll on april 27 1968. therefore votes. of
the electors whose names were included in the roll on that
date must be held to be void votes. that companyclusion
satisfies one of the companyditions prescribed in s. 100 1  d . we have number to see whether the other companyditions prescribed
in that clause namely whether the high companyrt on the material
before it companyld have been of the opinion that the result of
the election in so far as it companycerned the returned
candidate has been materially affected because of the
reception of the votes which are void. the high companyrt
elaborately companysidered that question. it has examined each
one of the disputed votes and has companye to the companyclusion
that if
those votes had been excluded the valid votes received by
the companytesting candidates in the first companynt would have been
as follows
appellant 32
respondent number 2 46
respondent number 3 23.
in the second companynt after the elimination of the third
respondent and taking into companysideration the second
preferences give by the electors who gave their first
preference to him the following would have been the
position
appellant 43 votes and
respondent number 2 57 votes. numbermatter was placed before us to show that this companyclusion
was wrong. there was some companytroversy about two votes but
we do number think it necessary to go into the same as any
decision as regards their validity will number affect the final
conclusion. before leaving this case it is necessary to mention
that at one stage of the arguments the learned companynsel for
the appellant companytended that the decision of this companyrt in

m. ramaswamy v. b.m. krishnamurthy and ors.  1  governs the
facts of this case. but after some discussion he gave up
that companytention. the ratio of that decision has no
relevance for our present purpose.


criminal appellate jurisdiction criminal appeal 185of 1967.
appeal by special leave from the judgment and order dated
may 18 1967 of the punjab and haryana high companyrt in cri-
minal appeal number 247 of 1967 and murder reference number 23 of
1967.

s.r. charl b. a. desai s. c. agarwal a. k. gupta
shiva pujan singh and virendra verma for the appellant. hans rai khanna and r. n. sachthey for the respondent. the judgment of the companyrt was delivered by
bhargava j. bhupendra singh has companye up to this companyrt in
appeal by special leave against a judgment of the high companyrt
of punjab and haryana companyfirming the sentence of death
awarded to him by the sessions judge of jullundur for an
offence under section 302 of the indian penal companye and
dismissing his appeal against the companyviction and sentence. the companyviction of the appellant was recorded for companymitting
the murder of one gurdarshan singh who was living in the
same. village birpind as the appellant in the house
adjoining the appellants house. the- appellants father
ajit singh also lived with the appellant while with
gurdarshan singh were living his sons gurdial singh and
sarvjit singh and his daughter gian kaur. according to the
prosecution on the 6th numberember 1965 at about 7.45 p.m.
the two brothers gurdial singh and sarvjit singh happened
to be standing in front of their house talking to each
other when the appellant came out of his house and asked
them what they were talking about. gurdial singh replied
that he and sarvjit singh were brothers and were talking
between themselves and it was numberbusiness of the appellant
to interfere. the appellant thereupon abused the two-
brothers and also slapped sarvjit singh on the face. gurdial singh asked the appellant why he had beaten his
brother and used abusive language against the appellant. the appellant got enraged ran into his house abusing the
two boys and return-
ed with a double-barrel 12 bore gun. when he came out of
his house this time he was accompanied by his father ajit
singh. gurdial singh and sarvjit singh then ran into the
deorhi of their house. in the meantime their father
gurdarshan singh and their sister gian kaur returned to
the house from their fields. when gurdarshan singh saw the
appellant carrying the gun he enquired what the matter was. thereupon ajit singh raised a lalkara asking his son the
appellant to finish off gurdarshan singh. the appellant
then fired two shots in quick succession from his gun
hitting gurdarshan singh on vital parts of his body. gurdarshan singh fell down dead on the ground. one malkiat
singh who lived in a house nearby had arrived and saw this
occurrence so that the four persons who witnessed the
occurrence. were malkiat singh gurdial singh sarvjit singh
and gian kaur. gurdial singh leaving others to look after
the dead body of his father went with lal singh lambardar
to the police station which was situated at a distance of
about three miles and lodge the first information report at
about 9.30 p.m. on the same day. the case was then
investigated. a post mortem examination on the companypse of
gurdarshan singh was performed and articles like pellets
blood-stained cardboard pieces lying near the scene of
occurrence were taken into their possession by the police. both the appellant and his father ajit singh were
thereafter prosecuted for this murder. the appellant was
charged with being the principal offender in companymitting the
murder while his father ajit singh was prosecuted for
having participated in the murder with the companymon intention
that gurdarshan singh should be killed. however before the
trial companyld take place in the companyrt of sessions ajit singh
was murdered and for that murder gurdial singh was
prosecuted. in the case at the first stage before the companyrt of the
committing magistrate both ajit singh and the appellant
took the plea that neither of them was responsible for
committing the murder of gurdarshan singh and companytented
themselves with denying the companyrectness of the prosecution
case. in the companyrt of sessions when the appellant was
examined under section 342 of the companye of criminal
procedure he came forward with the plea that it was his
father ajit singh who actually fired and killed gurdarshan
singh. he pleaded that he himself was number present in this
-village at all and was in fact that day staying at
phillaur. he thus put forward the plea of alibi. the sessions judge believed the evidence of the four
prosecution witnesses mentioned above and after discussing
the defence evidence given on behalf of the appellant in
support of his pleas. rejected that evidence. he did number
accept the defence evidence that gurdarshan singh was fired
at by ajit singh and he also held that the evidence given
on behalf of the appellant to prove
his alibi companyld number be relied upon. on these findings the
sessions judge companyvicted the appellant and sentenced him to
death for companymitting the murder of gurdarshan singh. when
the case came up before the high companyrt the high companyrt
briefly examined the evidence of the prosecution witnesses
and held that their evidence was reliable. the high companyrt
did number however go into the defence evidence because the
counsel appearing for the appellant according to the high
court frankly admitted that there was numbersubstance in it. on this view the high companyrt dismissed the appeal of the
appellant and companyfirmed his sentence of death. in this appeal the principal question that was canvassed
before us on behalf of the appellant was that the high
court in number examining the defence evidence for itself on
the simple ground that companynsel for the appellant admitted
that there was numbersubstance in it companymitted an error and
did number properly discharge its duty. it appears that there
is substance in the submission made on behalf of the
appellant. ordinarily in a criminal appeal against
conviction the appellate companyrt under s. 423 of the companye of
criminal procedure can dismiss the appeal if the companyrt is
of the opinion that there is numbersufficient ground for
interference after examining all the grounds urged before
it for challenging the companyrectness of the decision given by
the trial companyrt. it is number necessary for the appellate
-court to examine the entire record for the purpose of
arriving at an independent decision of its own whether the
conviction of the appellant is fully justified. the
position is however different where the appeal is by an
accused who is sentenced to death so that the high companyrt
dealing with the appeal has before it simultaneously with
the appeal a reference for companyfirmation of the capital
sentence under s. 374 of the companye of criminal procedure. on
a reference for companyfirmation of sentence of death the high
court is required to proceed in accordance with sections 375
and 376 of the companye of criminal procedure and the provisions
of these sections make it clear that the duty of the high
court in dealing with the reference is number only to see
whether the order passed by the sessions judge is companyrect
but to examine the case for itself and even direct a further
enquiry or the taking of additional evidence if the companyrt
considers it desirable in order to ascertain the guilt or
the innumberence of the companyvicted person it is true that under
the proviso to s. 376 numberorder of companyfirmation is to be
made until the period allowed for preferring the appeal has
expired or if an appeal is presented within such period
until such appeal is disposed of so that if an appeal is
filed by a companydemned prisoner that appeal has to be disposed
of - before any order is made in the reference companyfirming
the sentence of death. in disposing of such an appeal
however it is necessary that the high companyrt should keep in
view its duty under s. 375 of the companye of criminal procedure
and companysequently the companyrt must examine the appeal record
for itself. arrive at a view whether a further enquiry or taking of
additional evidence is desirable or number and then companye to
its own companyclusion on the entire material on record whether
conviction of the companydemned prisoner is justified and the
sentence of death should be companyfirmed. in jumman and others

the state of punjab   this companyrt explained this
position in the following words-
 but there is a difference when a
reference is made under s 374 criminal
procedure companye and when disposing of an
appeal under s. 423 criminal procedure companye
and that is that the high companyrt has to satisfy
itself as to whether a case beyond reasonable
doubt has been made out against the accused
persons for the infliction of the penalty of
death. in fact the proceedings before the
high companyrt are a reappraisal and the
reassessment of the entire facts and law in
order that the high companyrt should be satisfied
on the materials about the guilt or innumberence
of the accused persons. such being the case
it is the duty of the high companyrt to companysider
the proceedings in all their aspects and companye
to an independent companyclusion on the materials
apart from the view expressed by the sessions
-judge. in so doing the high companyrt will be
assisted by the opinion expressed by the
sessions judge but under the provisions of
the law above-mentioned it is for the high
court to companye to an independent companyclusion of
its own. the same principle was recognised in ram shankar singh
others v.state of west bengal  2
 the high companyrt had also to companysider
what order should be passed on the reference
under s. 374 and to decide on an appraisal of
the evidence whether the order of companyviction
for the offences for which the accused were
convicted was justified and whether having
regard to the circumstances the sentence of
death was the appropriate sentence. in masalti v. state of u.p.  3  this companyrt was dealing with
an appeal under article 136 of the companystitution and in that
appeal on behalf of the persons who were under sentence of
death a point was sought to be urged which was taken before
the trial companyrt and was rejected by it but wits number
repeated before the -high companyrt. this companyrt held-
it may in a proper case be
permissible to the appellants to ask this
court to companysider

a.i.r. 1957 s.c. 469.  2  1962 supp. i s.c.r. 49 at p. 59.  3  1964 8 s.c.r. 133 at p. 144.
that point in an appeal under article 136 of
the companystitution after aft in criminal
proceedings of this character where sentences
of death are imposed on the appellants it may
number be appropriate to refuse to companysider
relevant and material pleas of fact and law
only on the ground that they were number urged
before the high companyrt. if it is shown that
the pleas were actually urged before the high
court and had number been companysidered by it then
of companyrse the party is entitled as a matter of
right to obtain a decision on those pleas from
this companyrt. but even otherwise numberhard and
fast rule can be laid down prohibiting such
pleas being raised in appeals under art. 136.
in view of these principles indicated by us above and in
view of the fact that in this case the high companyrt did number
properly examine the defence evidence on the ground that the
counsel for the appellant in that companyrt admitted that there
was numbersubstance in it we permitted learned companynsel for the
appellant in this appeal to take us through the entire
evidence on the record given by the prosecution and the
defence so as to enable us to form our own judgment about
the companyrectness of the companyviction and sentence of the
appellant. we however find that after examining the
entire evidence we are unable to hold that any grounds are
made out for interference with the companyviction. the prosecution case as already mentioned by us above is
supported by the evidence of four eye-witnesses gurdial
singh sarvjit singh gian kaur and malkiat singh. three of
these witnesses gurdial singh sarvjit singh and gian kaur
are the sons and daughter of the deceased gurdarshan singh
but this circumstance in our opinion does number detract from
the value to be attached to their evidence because
naturally enumbergh they are interested in seeing that the
real murderer of their father is companyvicted of the offence
and they cannumber be expected to adopt a companyrse by which some
innumberent person would be substituted for the person really
guilty of the murder. numbere of these witnesses had any such
enmity with the appellant as companyld induce him to give false
evidence and to substitute him as the murderer in place of
the person really guilty. in fact their feelings. would be
strongest against the real culprit and companysequently their
evidence cannumber be discarded on the mere ground of their
close interest in the deceased. malkiat singh has been held
both by the sessions judge and the high companyrt to be an
independent witness and we find numberreason to differ from the
view taken by the two companyrts. on behalf of the appellant
it- was sought to be. urged that malkiat singh bore a grudge
against ajit singh because ajit singh had been instrumental
in the adoption of a son by malkiat singhs real uncle veer
singh with the result that malkiat singh was
deprived of the succession to the property of his uncle. malkiat singh denied that he had any grievance against ajit
singh on such a ground. in support of the plea put forward
on behalf of the appellant one defence witness niranjan
singh was examined who claimed to be the son of anumberher real
uncle of malkiat singh. niranjan singh came to depose that
his son sadhu singh had been adopted by veer singh and
this adoption took place because ajit singh had asked veer
singh to take sadhu singh in adoption. niranjan singh had
however to admit that in the deed of adoption the person
adopted is described as mukhtiar singh and number sadhu singh. to explain this discrepancy niranjan singh came forward
with the assertion that his son sadhu singh bore an alias
mukhtiar singh. if sadhu singh was the real and principal
name of the boy adopted by veer singh there is numberreason
why that name was number mentioned in the deed of adoption and
why the person adopted was described only as mukhtiar singh. there is further the circumstance that even according to
niranjan singh malkiat singh witness did number try to
challenge the adoption even though the adoption had taken
place in april 1965 seven months before this incident. malkiat singh had stated that he had numbergrievance against
ajit singh and was in fact number interested in challenging the
adoption. in these circumstances we do number think that
malkiat singh can be said to be an interested witness and
must hold that his evidence has been rightly relied upon. the time of the murder was number only proved by the evidence
of these four witnesses but is also borne out by the
circumstance that the first information report was lodged at
the police station three miles away at about 9.30 p.m.
without any undue delay. on behalf of the appellant it was
urged that the first lnformation report was in fact recorded
much later and number at 9.30 p.m. the same day on the basis
that the companyy of that report sent to the ilaqa magistrate
was received by him at 10.30 a.m. on 8th numberember 1965.
the argument was that if the report had been lodged at 9.30
p.m. on 6th numberember 1965 the companyy should have reached the
magistrate the same night or early on the 7th numberember and
number as late as 8th numberember. we are unable to accept this
submission. the evidence of gurdial singh was perfectly
clear that he reached the police station and lodged the
report that very night at 9.30 p.m. and there is numberreason
to disbelieve him. it appears that in this case the
investigating officer sub-inspector ram saran dass was to
some extent negligent. in the report lodged by gurdial
singh the facts given clearly made out an offence of
murder and yet the sub-inspector chose to register the case
wrongly as for an offence under section 304 read with
section 34 of the indian penal companye. it may be that having
wrongly put down the offence as under 304 i.p.c.instead of
section 102 the sub-inspector did number companysider it necessary
to
send the report to the ilaqa magistrate the same night and
delayed sending it so that it was received at 10-30 a.m. on
8th numberember 1965 by the magistrate. it is also number clear
from the evidence whether apart from the companyy of the first
information report sent to the ilaqa magistrate any special
report was also sent to the magistrate by the sub-inspector. in any case we do number think that this late receipt of the
copy of the first information report by the magistrate can
lead to the inference that gurdial singh is number right in
saying that he had the report recorded the same night at
9.30 p.m.
the evidence of the doctor who performed the post mortem
examination and of the ballistic expert clearly establish
that gurdarshan singh had died as a result of gun shot
injury received by him from a gun. the gun which the
appellant possessed under a licence issued to him was
examined by the ballistic expert and his evidence proved
that the shots which killed the deceased were fired from
that very gun. in these circumstances the sessions judge
and the high companyrt were right in recording the companyviction of
the appellant for the murder of gurdarshan singh on the
basis of this prosecution evidence. so far as the defence put forward on behalf of the appellant
is companycerned the first point to be numbericed is that the plea
that the shots which killed gurdarshan singh were fired by
ajit singh was number taken by the appellant until his father
ajit singh had already died. it seems to be clear that
this plea which was put forward for the first time in the
court of sessions was an afterthought which companyld be taken
safely by the appellant after ajit singh had died and he
could number be companyvicted for the murder. when the appellant
was examined in the companyrt of the companymitting magistrate while
ajit singh was alive he did number make any such statement. this is an important circumstance that militates against the
plea put forward in defence. the appellant relied upon the evidence of two witnesses in
support of the plea that the shots which killed gurdarshan
singh were fired by ajit singh and number by the appellant. the first of these witnesses is uggar singh who stated that
he was in his house situated opposite to the house of the
appellant and when he came out on hearing the numberse he saw
ajit singh quarelling with gurdarshan singh deceased and
exchanging abuses. thereafter ajit singh fired the gun
shots towards gurdarshan singh killing him instantaneously. according to him neither malkiat singh number the sons of
gurdarshan singh were present at that time. even shrimati
gianumberaccording to him was number there. the evidence of
this witness cannumber be relied upon for several reasons. according to this witness his statement was recorded by the
police at about 10 a.m. the next day i.e. the 7th
numberember 1965 but
l7sup.c.l.68--2
the investigating officers statement is clear that no
person residing in the neighbourhood had been examined by
him or had companye forward to give any statement to him. uggar
singh thus made a wrong statement that he was examined by
the police the next day. it also appears that he was
prosecuted in a murder case in which he was acquitted and
ajit singh had assisted him in that trial. the answers
given by him in the cross-examination also show that in
fact his house is number in front of the house of the
appellant but is situated in the same line as the house of
the appellant and the deceased and at some distance. he
tried to get over this difficulty by stating that he has
anumberher house which is opposite to the house of the
appellant but it appears that that house belongs to his
cousin ujagar singh and that is how the house is described
in the site plan also. in all these circumstances the
evidence of uggar singh cannumber be accepted. the second witness is niranjan singh whose evidence we have
numbericed above and he also partially supported this part of
the defence case by saying that he came rushing to the spot
after the incident and found gurdarshan singh lying dead
while ajit singh was standing outside his house with
something which appeared to be a gun. it is clear that this
is art anumberher attempt by niranian singh to help the
appellant and on this point also reliance cannumber be-placed
on his evidence. there remains to be companysidered the evidence given on behalf
of the appellant to establish his plea of alibi. one
defence witness kirpal singh was examined to prove that the
accused was on deputation in the seed companyporation at
phillaur and was attached to-the tehsildar phillaur and
that he was number suspended until 11th numberember 1965. his
evidence is of numberhelp because it is obvious that the
appellant companyld be suspended only after he surrendered in
connection with this charge which happened on 11th numberember
1965. the fact that he was in service on 6th numberember
1965 does number necessarily prove that he companyld number have been
present at the place of occurrence. the witness on whose evidence reliance is primarily placed
is bunta ram patwari. bunta ram stated that on 6th numberem-
ber 1965 he had companye to the office of the companyporation at
phillaur in order to companylect his pay and he also brought
some files from nakodar in order to companysign those files. in
that companynection. he remained in the office of the
corporation throughout the day. he saw the appellant also
working in the said office throughout the day. according to
him at about 6.30 p.m. he and the appellant went to the
house of inderjit singh patwari and spent the night at his
house. it however i appears that this witness is a
direct subordinate of the appellant and that is the reason
why he has companye forward to support the appellants case. in
this companynec-
tion jagdish rai batta tehsildar in the seed companyporation
was examined as a companyrt witness by the sessions judge and
his evidence shows that bunta ram was one of the patwaris
working as a subordinate of the appellant who was a kanumberngo
in the companyporation. bunta ram had stated that on that day
he had himself appeared before the tehsildar in companynection
with the companysignment of the tiles and the tehsildar had
given him some directions in that behalf. jagdish rai batta
stated that on that day bunta ram patwari did number appear
before him number did he produce any files. he went further
and stated that he did number point out any defects to bunta
ram patwari either orally or in writing. thus bunta ram-
is proved to be an untruthful witness by the evidence of
jagdish rai batta tehsildar. bunta ram in his cross-
examination purported to state that the appellant was
living in a part of the house of inderjit singh at phillaur. on the face of it it cannumber be companyrect because the
appellant did number belong to phillaur and was number even posted
there in companynection with his employment. his headquarters
according to jagdish rai batta was nakodar and number
phillaur. the evidence of jagdish rai batta only shows that
he saw the appellant working in his office at phillaur on
that day until about 5 p.m. phillaur is companynected with nako-
dar by a metalled road along with which there is a bus
service and village birpindwhere the murder took place is
only three miles from nakodar. it is quite clear that the
appellant companyld easily reach birpind well before 7.45 p.m.
even if he worked at phillaur till 5 p.m. on that day.- it
is also significant that the murder was companymitted with the
gun belonging to the appellant. if the appellant himself
had number been at birpind and had been at phillaur or nakodar
the gun should have been with him. at one of these places
and number at birpind. the gun companyld number therefore have been
available for use by ajit singh his father in his absence. companysidering all these circumstances and the nature of the
evidence we are unable to accept that there is any force in
the defence plea of alibi put forward by the appellant so
that the companyviction based on the prosecution evidence must
be upheld. a plea was put in for reduction of sentence. ordinarily
this -court in exercise of its powers under art. 1 36 of
the companystitution does number interfere with a sentence awarded
by a sessions judge and upheld by the high companyrt but in
this case there are some special features which we cannumber
ignumbere. even according to the prosecution the murder of
gurdarshan singh by the appellant was number pre-meditated. the act of firing at him appears to be that of a hot-headed
person who was incited to do so by his father.