LexDALIP SINGH AND OTHERS versus STATE OF PUNJAB.
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-) S.C.R. SUPREME COURT REPORTS DALIP SINGH AND OTHERS v. STATE OF PUNJAB. [MEHR CHAND MAHAJAN' v !VIAN BOSE and JAGANNADHA DAs JJ.] Indian Penal Code (XL V of 1860), ss. 149, 302-Conviction nnder s. 149-Conviction of less than jive persons-·when proper- Sentence for transportatio11-Enha1•cement to sentence of death, on appeal-I11terference with discretion of trial j-udge-Propriet-y- Evidence-Rclationship of witness to deceased. Before -S. 149 of the Indian Penal Code can be applied, the court must find with certainty that there w@re at least five persons sharing the common object. This does not, however, mean that five persons must always be convicted before s. 149 can be applied. If the judge concludes that five persons were unquestionably present and shared the common object, though the identity of som~ of them is in donbt, the conviction of the rest would be good; but if this is his conclusion, it behoves him, particularly in a murder case where heavy sentences have been imposed, to say so with certainty. Rameshwar v. The State of Rajasthan ([1952) S.C.R. 377) referred to. The power to enhance a sentence from transportation to d·eath should very rarely be exercised and only for the strongest reasons. It is not enough for the appellate court to say or think that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate court but to the trial judge, and the only ground on which the appellate co1ut can interfere is that the discretion has been improperly . exercised, as for instance where no reasons have been given and none can be inferred from the circumstances of the case or where the facts are so gross that no normal judicial mind would have awarded the lesser penalty. CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 22 of 1953. Appeal by special leave from the Judgment and Order dated the 19th November, 1952, of the High Court of Judicature of Punjab at Simla in Criminal Appeal No. 102of1952 and Criminal Revision Nos. 423 1953 May 15. 196J Dalip Singh and Oth~rs v. State of Punjab. 146 i J . SUPREME COURT REPORTS , [1954) and 499 of 1952 of the Court of the Sessions Judge, Jullundur, in Sessions Case No. 30of1951 and Sessions Trial No. 5 of 1951. Jai Gopal Sethi (R. L. Kohli and Deva Singh, with him) for the appellants. Gopal Singh for the respondent. 1953. May 15. The Judgment of the Court was delivered by BosE J.-Four persons appeal against sentences of death passed upon them in convictions for a double murder, the victims being two brothers, Rattan Singh and Bawa Singh. The learned Sessions Judge convict- ed three others also but s.entenced all, including the four appellants, to transportation for life. The High Court acquitted three of the seven but sustained the convictions of the four appellants and enhanced their sentences in each case to death. The prosecution story is simple. All seven accused belong to the same village and belong to the same faction or "party", as Mst. Punnan (P.W. 2) calls it. Of the seven, the appellants Dalip Singh and Battan Singh are brothers. J arnail Singh who was acquitted is a. son of Battan Singh. The remaining four, includ- ing the appellants Sadhu Singh and Kundan Singh, are not related to the other three and, except for the evidence that they belong to the same party, are not shown to have any common interest with the other three. The appellants Dalip Singh and Battan Singh are said to have assaulted the two dead men Rattan and Bawa about twenty years before the occurrence. They were prosecuted and convicted and served short terms of imprisonment. Dalip Singh and Battan Singh are also said to be dacoits and it is said.that they believed that the two dead men used to furnish information against them to the police. This is said to be the motive for the mlll'ders. Why the othern should have joined in, except on the basis that they belong to the same "party", is not disclosed. • S.C.R. SUPREME COURT REPORTS 147 The prosecution case is as follows :-On 16th June, 1951, Rattan Singh was taking some food out to a well a short distance from his house for himself and his son. This was about 2 p.m. Just as he left the house, his wife Mst. Punnan (P.W. 2) heard cries of alarm and on rushing out with her daughter Mst. Oharni (P.W. 11) saw all seven accused assaulting her husband. They beat him up till he fell to th
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