S.C.R. saleable interest or interest as a tenant, ryot or under- tenure holder. S.ri Rt'lnga I agree in the conclusion reached by my learned N.tayam Rama brother. Kdshna Rao Appeals allowed.
Agent for the appellant: M .S. Krishnamoorthi Sastri. Agent for the respondents: M.S.K. Aiyangar. MOHINDEI<. SINGH v. THE STATE [SAIYID FAZL Au, MuKHERJEA and (HANDRASEKHARA AIYAR JJ.J
Criminal trial-Jfiirder–I11juries ca.'l,tSed by lethal 1l'eapo1zs- Du.ty of p1·oserution·-Ini1Jortance of c.rpert evidence-Duty to prove whufe case-Evidence 1v.1.ntin'/ o,i mrttPrial point-Inipropriety of contJirtion-Proof of :ilibi-St,inilnrd of proof-S'llpreme
Co~trt Criminal appea,l-Interfcrcn::e-Practicp_. In :t case where death is due to injuries or woun1ls caused by a leth:tl weapon, it has always been considered to be the duty of the prosecution to pr JVC by Expert cvii!ence th at it 'vas like]y or at least possible for the injuries to have been caused with the weapon V•tith \:vhich, and in the manner in which, they are allegerl to have been caused.
Where in a case of n1urder, the prosecut!on case was that the accuser] shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that tho injuries were caused by a gun, :tnd the nature of the irijuries,vas also such that the shots must have been fired by more than one person and not by one person only, and. the prosecLio:i hafl no evidence to sho\V that another person a!Ho shot, and the High Court, though realising that thel'e was thuq :t gap in the prose- cution evidence, convicted the accusec.l placing reliance on the oral evidence of 3 wiGnesses which was not disinterested:
Held, that the present case fell w'thin the rule laid down in Pritam Sin1h v. Th• State ([1950] 8.0.R. 45:3) iuasmuch as the appellant had been convicted notwithstaniing the fa,t that
evidence '\Vas wo.nting on a most materi'.11 parG of the prosecution case, and the conviction could not therefore be upheld, 10~ v. Kandrikori Ghtllayanima and Anothe,.. Oct, 17, [1950]
19~0 Held also, that the st~ndard of proof which is required in regard to the plea of alibi must be tbs same as the stundard Mohinder S1ngh which is applied to the prosecution evidence and in both cases it v.
should be a reasonable standard. Th• 8"'''· APPELLATE JURISDICTION: Criminal Appeal No. 10 of 1950. Appeal by special leave from a judgment of the High Court of Punjab (Falshaw and Soni JJ.) dated
30th December, 1949, upholding the conviction of the appellant under ss. 302 and 307 read with s. 34 of the Indian Penal Code and confirming the sentence of death passed against him by the Sessions Judge of
Ferozepore on the 20th July, 1949, in Criminal Appeal Case No. 325 of 1949. ]ai Gopal Sethi (R. L. Kohli, with him) for the appellant. B. K. Khanna, Advocate-General of the Punjab,
(S. M. Sikri, with him) for the respondent. 1950. October 17. The judgment of the court was delivered by Fall Ah J. FAZL Au J.-This is an appeal by special leave from the judgment of the High Court of Punjab up-
holding the conviction of the appellant, Mohinder Singh, under sections 302 and 307 read with section 34 of the Indian Penal Code, and confirming the sentence of death passed against him by the Sessions Judge of
Ferozepore. The case for the prosecution which has been substan- tially accepted by the trial Judge and the High Court is briefly as follows. Sometime in January, 1949, one Bachittar Singh; brother of Dalip Singh who is said
to have been murdered, lodged a complaint before the Naib Tehsildar at Zira to the effect that a tree be- longing to him had been cut by 7 persons including Mohinder Singh, the appellant. On the 28th Febru-
ary, 1949, which was the date fixed for the hearing of the case before the Naib Tehsildar, Jita Singh and Dalip Singh, the two brothers of Bachittar Singh, were attacked by the appellant and one Gumam Singh,
'I. lad of 17, near a Gurdwara at about mid-day, when s:c.R. 82'.f they were returning from their field. Jita Singh was llllilf then carrying a load of fodder on his head while Dahp
S' h h d' ' kl h' I d J't s· h h Mohtnder 81 .. flh wg a sic es m 1s rnn . 1 a wg was t e first to be attacked near a tailor's shop by Mohinder The ~tat" Singh who fired at him from behind hitting him on
the neck whereupon he fell down together with the Fail J.li J. bundle of fodder. Dalip Singh, who was following Jita Singh, then ran backwards and he was chased' by Gurnam Singh round the outer boundary of a tank
which was close by, Mohinder Singh ran on the other side of the tank in the opposite direction and confront- ed him and shot him with a gun on the chest where- upon he fell down. Meanwhile, Gurnam Singh had
also reached the spot and he fired with his rifle from a distance of about 4 or 5 feet near about Dalip Singh's ear while he was lying sideways. The injuries proved fatal and Dalip Singh died on the spot.
The same day at 3 p,m .. J ita Singh went to the police station at Dharamkot, which is at a distance of 3 miles from village Augar, where the occurrence had taken place, and lodged a first information report, charging
Mohinder Singh, with having caused injury to him, and Mohinder Singh and Gurnam Singh with the murder of Dalip Singh; and the police after investigat- ing the case sent up a charge-sheet against the two
accused persons, Thereafter they were tried by the Sessions Judge of Ferozepore under sections 302 and 307 read with section 34 of the Indian Penal Code. The appellant was sentenced to death under section
302 and Gurnam Singh was sentenced to transportation for life under that section in view of his youth. They were also sentenced to 3 years' rigorous imprisonment each under section 307 read with section 34 of the
Indian Penal Code. It appears that Dalip Singh had 6 injuries altogether which are described by the doctor who performed the post-mortem on his body in these words; – " I. An irregularly round gun shot wound on the
left tern poral region, I'' diameter. The wound is 2!" behind outer canthus of left eye, its upper portion is at a level with the top of the pinna of the left ear, ' .,, [1950] behind it commences at the cartilages of the ear which
arc broken. Brain is visible in the gap of the wound. Mohind~ Srngh An area 4" x 4" is blackened, the wound being situ- Th• Stat•. ated in the middle of this area. Fazl Ali J. 2. A gun shot wound f' x f' on the back of right
mastoid region, upper end of the wound is I" behind the root of the right ear. Direction is vertically obli"que. On dissection the left temporal bone under in jury No. 1 is, hole and its petrous portion shattered.
A linear fracture extends upwards and backwards, from the hole into the left parietal and occipital bones. After piercing through the left temporal lobe of the brain the projectile has pierced through the brain-
stem, and emerged out as injury No. 2, holding the mastoid region of the skull on the right side. 3. A gun shot wound i" X ~" on the left side of chest 2!'' above and behind the left nipple and !"
behind the anterior axillary fold as area l" below the wound is bruised. 4. A gun shot wound !"Xi" on the right side of chest in the mid axillary line. The top of the wound being Ii" from the apex of right axilla and 4£'' above
and behind the right nipple. 5. A gun shot wound!" x ;I:" on the inner aspect of the right arm, upper end of the wound is 1 ;I:'' from the top of the anterior axillary fold. 6. A gun shot wound i" x !" on the front of the
right arm. Its upper end being 2!'' from the top of the anterior axillary fold. Its distance from injury No. 5 being l" and it is inter-connected with injury No. 5 under the skin."
The doctor has stated in his evidence that in all two projectiles appeared to have hit Dalip Singh, and injuries Nos. 1 and 2 were caused by one of them, injury No. 1 being the wound of entrance and injury
No. 2 being the wound of exit. \Vith regard to the other 4 injuries, his evidence is as follows:- "Injury No. 3 is the wound of entrance of another projectile and No. 4 is the wound of its exit. Wound
S.C.R. No. 5 is the wound of its re-entrance and wound io5o No. 6 the wound of its final exit from the body." ., 1 . a 8 . .!.':i:O iin er ingh Jita Singh had 4 slight injuries on the back of the
v: neck which are said to have been caused by pellets Tize State. and two abrasions below the right elbow and right knee said to have been caused by blunt weapons. Fazt Ali J. It may be stated here that when the investigating
police officer arrived at the scene of occurrence, he found an empty cartridge case at the place where Jita Singh is said to have been fired at, and 2 empty cartridge cases and a blood-stained cap of a cartridge
case near the place where the dead body of Dalip Sin,gh was lying. Later, when Mohinder Singh appeared before the police, he was asked whether he possessed a gun and he produced a 12 bore gun
(exhibit P-16) for which he held a licence. The gun and the empty cartridges were thereupon sent to Dr. Gayle, Director of the C.I.D. Laboratory, Phil!aur, and the opinion that he submitted may be
summed up as follows :-The gun had signs of having been fired but he could not sav when it was fired last. The cartridge cases P-10 and" P-15 could have been fired through the gun P-16, but he could not say
whether they were actually fired from that particular gun or a similar gun or guns. He did not make any experiment by firing any cartridge from the gun P-16, nor did he compare the markings on the empty
cartridges P-10 and P.15. A notable feature of the case is that the occurrence is said to have taken place in the vicinity of a Gurdwara and some houses, but in spite of this fact,
not a single person of the locality has been cited or examined as a witness by the prosecution. The whole case rests on the evidence of 3 witnesses, viz., Jita Singh, Harnam Singh and Buta Singh. Jita Singh,
who had been shot at from behind, claims to have seen the two accused firing at his brother. Harnam Singh admittedly lives at a considerable distance from the place of occurrence but has stated that he
was coming from another village where he had gone to fetch some medicine for his maternal cousin, when he [1950) rnso saw the occurrence. Buta Singh, who is a tonga — . driver, belongs to a distant village and is somewhat
Mohind"' 8••gh remotely related to Harnam Singh, and accounts for Th• ;;at•. his presence near the scene of occurrence by saying that he had come to see Harnam Singh the evening Fa11 Ali J.
before. Harnam Singh admitted in his evidence that there was a dispute between him and .Mohinder Singh nearly a month before the occurrence about a wall, but he also says that the dispute "had been amicably
settled by the panchayat". There is nothing before us to show what the award of the panchayat was and whether or not it left any ill-feeling behind. But, on the arguments of the counsel and the apparently
trivial motive for which Dalip Singh is said to have been murdered, it would appear that among the class of persons with which we are concerned petty quarrels give rise to enmity which does not die soon or easily.
After the close of prosecution evidence in the Sessions Court, the appellant was examined under section 342 of the Criminal Procedure Code, and he denied that he had fired at Jita Singh and Dalip Singh
with the gun P-16 and that Gurnam Singh had fired at Dalip Singh with a rifle. He added that he was not present in village Augur ·at the time of the alleged occurrence but had gone to Zira to attend the Naib
Tehsildar's court. To establish his plea of alibi, he examined 3 witnesses in the court of the Sessions Judge, The first witness was the Naib Tehsildar before whom Bachittar Singh had lodged the complaint, and
he stated that when the case was called on the 28th February, 1949, 6 or 7·persons appeared in court. He also proved an application for a taccavi loan which purports to have been filed by the appellant on the
28th February, 1949, and bears his thumb impression. He further stated in his evidence that he had passed orders on that application on the 28th February but he did not know Mohinder Singh and therefore could not
say who had produced that application before him on that date. The second witness for the appellant was his brother-in-law, Jogindar Singh, who had written the application, exhibit D-C.
He has stated that S.C.R. Mohinder Singh himself was present in the court of the Naib Tehsildar on the 28th February, 1949, that he Moh.-;;-;:- s·ngh had signed the application (exhibit D-C) and that he
' ;. was also one of the persons who had appeared before The Bt•t•. the Tehsildar when Bachittar Singh's case was ca!ied out. The third defence witness is a hand-writing and Fa•! Ali J.
fingerprint expert. He has proved that the application (exhibit D-C) alleged to have been presented to the Naib Tehsildar on the 28th February bore the thumb impression of the appellant, and he has also given
evidence to show that certain handwritings which he was asked to compare did not tally. The evidence given by him with regard to these handwritings has a bearing on the assertion made by the appellant in a petition
filed before the committing Magistrate to the effect that the original service report of the process peon showing that the appellant also was one of the persons served for appearance before the Naib Tehsildar on the
28th February, 1949, had been suppressed and another report with forged handwriting had been substituted in its place. Both the courts below have held that the alibi has not been proved by satisfactory evidence and that
the charges against the appellant have been made out. It seems that the learned Judges of the High Court were not at all impressed by the evidence of Dr. Goy le which they characterized as unsatisfactory and they
were not also confident that the gun, exhibit P-16, had been used in causing the injuries to Dalip Singh. This appears from the following observations made by them in their judgment : –
"The gun P-16 was identified by Jita Singh as the gun with which Mohinder Singh fired at him and Dalip Singh but he identified the gun because of a brass plate at its butt end. We have seen the gun. Its
brass plate could be of no use for the identification of the gun." Again, commenting on the nature of the injuries, the learned Judges observed as follows:– [1950) "Another difficulty which is created in this case is
Mahi•;:- Si"a" the nature of injuri<.>s found on the body of Dalip v. Singh …… vVhat kind of bullet it was which, though it Th• State. had blackened the area where it entered the brain show-
ing tliat it had been fired from not far away, did not Fa•l Ali J. shatter the brain we do not know. \Vhat kind of pro- jectile it was which entered the body (which if the evidence is to be believed was fired at from a few feet
at Dalip Singh) and passed through the body without shattering the inside of the chest or causing extensive damage therein is also not kn0wn. Mr.Sethi (counsel for the accused) quoted Taylor's book on medical
jurisprudence and Hatcher's book on ballistics and argued that the firing must have bern from a place between 600 and 1,200 yards away in order that the projectile may pass through and through the
body and not shatter it. That of cuurse pre-supposes that the barrel of the gun. using the word ' gun' in a generic sense, is grooved which causes a projectile to go forward with a rotatory motion of something under
a quart<.>r of a million revolutions a minute and travel. ling at the rate of about 2,000 rniks an hour when it leaves the gun ……… \Ve do not know whether the barrel of this gun (exhibit P.16) is grooved or not. It
is a single birrelled gun and is country made. The likelihood is that the barrel is not grooved." On a careful re" ding of the judgment under appeal. it appears that 1 he learned ] uclges of the High Court
strongly felt that they had no adequate explanation in the oral evidence before them for certain puzzling features of the injuries on Dalip Singh. This is exactly what we also feel in this case, and it seems to
us that the evidence which has been adduced falls short of proof in regard to a very material part of the prosecution case. In a case where death is due to injuries or wounds caused by a lethal weapon, it has
always been considered to be the duty of the prosecu. tion to 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. It is S.C.R. elementary that where the prosecution.has a definite or positive case, it must prove the whole of that case. In the present case, it is doubtful whether the injuries Mohindor Singh which are attributed to the appellant were caused by
Th ;; 1 a gun or by a rifle. Indeed, it seems more likely that ' a'· they were caused by a rifle than by a gun-, and yet the Fa•l Ali J. case for the prosecution is that the appellant was
armed with a gun and, in his examination, it was definitely put to him that he was armed with the gun P-16. It is only by the evidence of a duly quali- fied expert that it could have been ascertained whether
the injuries attributed to the appellant were caused by a gun or by a rifle and such evidence alone could settle the controversy as to whether they could possi. bly have been caused by a fire-arm being used at such
a close range as is suggested in the evidence. It is clear, and it is also the prosecution case, that only 2 shots were fired at Dalip Singh and one of the crucial points which the prosecution had to prove was that
these shots were fired by two persons and not by one man, and both the shots were fired in such manner and from such distance as is alleged by the eye witnesses. There is, in our opinion, a gap in the
prosecution evidence on a most fundamental point and the error which has been committed by the courts below is to ignore the gap and decide the case merely upon the oral evidence of 3 witnesses, two of whom
are mere chance witnesses and not altogether independ- ent persons, and the evidence of the third witness is open to criticism on the ground of his partisanship as well as the improbability of his having been able to
see the firing at his brother after he had himself been shot at the back of the neck. The learned Judges of the High Court, after commenting upon the entire evidence, say in their judgment:-
" We are thus left with the evidence of the three witnesses of the prosecution together with the state of wounds as shown by the medical evidence and an, unsatisfactory statement of Dr. Goy le,"
[1950] They reject the evidence of Dr. Goy le and they consider the nature of the wounds to have created a Mohindtr Smghserious difficulty in the case. Having arrived at these 1'he ~1,. 1 ,.
conclusions, ·it was a serious thing to rest the appel- lant's conviction wholly upon the oral testimony in Far! Ali J. the case which has remained unchecked and uncon. firmed by expert evidence. The real position appears
to be that the prosecution case cannot be said to be wholly proved but only partly proved if it is permissi- ble to use such an expression. This Court, as was pointed out in Pritam Singh v. The State (1), will not
entertain a criminal appeal except in special and ex- ceptional cases where it is manifest that by a disregard of the forms of legal process or by a violation of the principles of natural justice or otherwise substantial
and grave injustice has been done. It seems to us that the present case comes within the rule laid down, because the appellant has been convicted notwith- standing the fact that the evidence is wanting on a
most-material part of the prosecution case. This is enough to dispose of this appeal, but we are constrained to say that we are not altogether happy about the manner in which the plea of alibi put for-
ward by the appellant has been disposed of by the courts below. Ordinarily this court will not look be- yond the findings of fact arrived at by the courts below, but we find that in the present case the deci.
sion on the plea of alibi has been arrived at in disre. gard of the principle that the standard of proof which is required in regard to that plea must be the same as the standard which is applied to the prosecution evi-
dence and in both cases it should be a reasonable standard. It is common ground in this appeal that the appellant was summoned to appear before the Naib Tehsildar on the 28th February, 1949, which
was the date fixed for dealing with Bachittar Singh's complaint. Ordinarily and without looking at any- thing else, there should have been nothing improbable about his appearance before the Naib Tehsildar on
that date, but in the present case there is positive (11 [1950] s.c,R. 453, S.C.R. evidence that an application for a tacca vi loan bearing !95o that date and also bearing the thumb impression of.
the appellant wa.s put up before the Naib Tehsildar J!ohinder Singh and that was dealt with by him on that very da.y. The ?tate. There is also affirmative evidence of a witness to prove
that the appellant was present in the Naib Tehsildar's Fail Ali J. court. This witness is undoubtedly closely related to the appellant but his evidence is supported by proba- bility and a written document. One of the points
raised by the prosecution was that the summons for appearance on the 28th February was not served upon Mohinder Singh, but such evidence as there is on the record bearing on this point has certain peculiar fea-
tures. The prosecution having cited the N aib Tehsil- dar and the Ahlrnad (Bench Clerk) as witnesses in the case gave them up and stated that the former had been won over by the appellant. This allegation could
have been substantiated in the cross.examination of the Naib Tehsildar who was examined as a defence witness, but nothing was elicited from him to support such a charge. From the evidence of the Naib Tehsil-
dar, it appears that on the 5th July, 1949, the Public Prosecutor showed him exhibit P.S. (which is an order directing the appearance of the seven persons includ- ing the appellant mentioned by Bachittar Singh in his
complaint, before the Naib Tehsildar on the 28th February, 1949), and that he told the Public Prose- cutor that 6 or 7 persons appeared in his court on that date. After this incident, on the 6th July, 1949, the
Public Prosecutor informed the Court that he would "give up the Naib Tehsildar as he has been won over ''. The evidence of the process peon is of a some- what suspicious character, because he has conveniently
forgotten every material detail. The appellant asserteci at the trial that the original report of the process peon had been suppressed and another report had been fabricated and substituted in its place.
An applica- tion to this effect was ma de by h irn before the corn rnitting Magistrate, and he also examined a hand- writing expert to prove some of his allegations. Neither of the courts below has dealt with the evidence
[1950) 19~0 of this expert. The evidence of the Investigating . — 8 . hOfficer as recorded by the Sessions Judge is to the Moh"'"" ••g f JI ff t o owmg e ec · :- The stat•. "P.B. and P.C. were obtained by me from the
headquarters. Along with P.B. and P.C. the Parvana h'a•I Ali J. P.S. was also received by me. After going through the zimnis, the witness states that the aforesaid documents P.B., P.C. and P.S. were summoned by the
committing Magistrate and were not sent for by the witness. On 16th March, 1949, a Foot Constable was certainly sent to Zira to bring the said file. But since the file had been sent to the headquarters, therefore,
the said constable returned quite blank. I never inspected this file at the headquarters." The most material document with which we are concerned is P.S. which should have contained an
endorsement of service of summons on the persons against whom Bachittar Singh had complained. It is clear from the first part of the evidence of the Investi- gating Officer that he had received the report of the
process peon which was endorsed on the back of P .S., from the headquarters, but he says later that the papers were sent for but they did not arrive. It is surprising that when a document was the subject of so
much controversy he should have said by mistake that he had received it. One of the comments made by the learned Sessions Judge in dealing with the application alleged to have been made by the appellant on the
28th February, 1949, for a taccavi loan is that after producing the application before the N aib Tehsildar on that date, Mohinder Singh could have reached his village by noon time, but on this point the learned
Sessions Judge seems to have wholly ignored the evidence of the Naib Tehsildar that he usually dealt with such applications between 12 and 4 P.M. on working days, and also the affirmative evidence of
Joginder Singh. In our opinion, there has been in substance no fair and proper trial in this case, and we are constrained to allow this appeal, set aside the conviction of the appel-
lant under sections 302 and 307 read with section 34 S.C.R. of the Indian Penal Code, and direct that he be set at 195" liberty forthwith. In crdinary circumstances, we -d- b Afohin er Singh
might have remanded the case for a fresh tnal, ut we v. consider that such a course would, in the present The State. case, be unfair and contrary to settled practice, seeing that the appellant has been in a state of suspense over
Fail Ali J. his sentence of death for more than a year . Appeal allowed. Agent for the appellant: R.S. Narula. Agent for the respondent: P.A. Mehta. MANGAN LAL DEOSHI v. MOHAMMAD MOINUL HAQUE & OTHERS.
[SHRI HARILAL KANIA C.J., PATANJALI SASTRT and DAS JJ.] Indian R<gistration Act. 1908. s. 17 (1) (bl awl (d), !. 17 (21- " Lease "-Conivromise decree c1·eatina !tnder.lea.se l.Jetw::e11 A and E on condition that A vavs a. s1t11i. of money to 0-TV!utlrnr comr'llfrorify regist1·ab
1e-Aareem£nt to lease not creatin'] i'lnm~diate interest in la~d-Whether ''lease ". An agreement for a lense, which a lease is by the Indian Registration Act declared to include, must be a document which effects an nctu•I demise and operates as a lease. It must creato a present and irn1nediate interest in land.
Where a litigation between two perrnns A and B who claimed to he tenants under C was settled by a compromise decree tho effect of which \\'RS to create a perpetual underlease between A and B which was to tako effect only on condition that A paid ll.s. 8,000 to C within a fixed period :
He,7d, that such a contingent agreement was not 11 a. lease" within cl. (d) of s. I 7 (1) of the Indian Registrotion Act, ond even though it was covered by cl. (b' of the said section it was exempt from registration under cl. (vi) of sub·s. (2) of s. 17.
Hemanta Kumari Debi v. Midnapur Zaminiari Co. (I L.R. 47 Cal. 485 P.O.) relied on. CIVIL APPELLATE j!JRISmGTION: Civil Appeal No. 94 of 1949. Dec. l,