Sucha Singh Nigahia Singh vs The State

Falshaw, J.—These are two appeals by Sucha Singh and Bharat Singh who have been convicted together u/s 302 read with Section 34, Penal Code, by the Sessions Judge, Ambala, Sucha Singh being sentenced to death and Bharat Singh to transportation for life. The case of Sucha Singh is also before us for confirmation of the death sentence.

This case has arisen out of the alleged murder of one boy by two other boys the victim Kuldip Singh being aged 17 while Sucha Singh is aged 18 and Bharat Singh about 16. All of them were residents of Morinda where Kuldip Singh was living with his father Jodh Singh P.W. 12, who had come to Morinda after the partition from Kalar-Saidan in Rawalpindi district. Jodh Singh and Kuldip Singh were running separate shops though not in the same street. The way in which the events unfolded was as follows. On the evening of 22-2-1950, Jodh Singh closed his shop and wont home to have his evening meal but Kuldip Singh did not come home that evening as usual. Jodh Singh and his brother-in-law Bishen Singh P.W. 14 accordingly went to Kuldip Singh''s shop to make enquiries. They found the shop closed and were told by Rup Chand P.W. 6, who keeps a restaurant next to the shop of Kuldip Singh, that early in the evening, at about 5 P.M. according to Rup Chand''s statement at the trial, Kuldip Singh had gone away from his shop in the company of the two accused and had gone away along the road leading towards Kainaur. Later in the evening. Jodh Singh sent to the houses of Sucha Singh and Bharat Singh but did not find either of them present, and he went again later still and was told by Sucha Singh that Kuldip Singh had gone away to Ambala, this being after the evening train from Rupar to Ambala had passed through Morinda. Jodh Singh also saw Bharat Singh some time later and Bharat Singh told him that his son had come back to Morinda. No trace of the boy could be found that day and on the following morning Jodh Singh and Bishen Singh consulted the former''s cousin Nand Singh P.W. 13. All of them went to Kuldip Singh''s shop which was opened with a key which was found to fit the lock. On checking the account-book it was found that although, the cash balance should have been Rs. 58-4-6, only the odd four annas and six pies were lying in the till. Jodh Singh therefore thought that Kuldip Singh must have gone away with the fifty-eight rupees and so he went to Delhi on the 23rd of February, reaching there on the morning of the 24th. He made enquiries in various places there but could find no trace of his son, and he accordingly returned to Morinda on the morning of the 25th of February. In the meantime on 24th February the body of Kuldip Singh was discovered lying in the corner of an orchard by Natha Singh P.W. 9, a Lambardar and a former Zaildar of Morinda. Natha Singh went and reported the discovery of the body at the police station at 1-30 P.M. A bunch of keys was found lying near the body round the neck of which there was a cloth tied very tight. No money was found on the person of the deceased and a gold ring which he used to wear was also missing.

Sub-Inspector Gurdial Singh investigated the case. It is alleged that on the morning of the 25th of February Bharat Singh accused went to Natha Singh P.W. and told him that he and Sucha Singh had murdered Kuldip Singh and requested the witness to produce him before the Sub-Inspector which Natha Singh did. A five-rupee note was recovered from Bharat Singh at the time of his arrest and the same, after-noon at about 3-20 P.M. Bharat Singh was produced at the Rest-House at Morinda before Mr. V.P. Malhotra, is; Class Magistrate, who was present there on tour, and his confessional statement was recorded. It is alleged that on the 26th of February Sucha Singh accused went to the shop of Isher Singh P.W. 10 at Morinda, Isher Singh also being a Lambardar of another village and a member of the District Board. According to Isher Singh, Sucha Singh told him that he and Bharat Singh had murdered Kuldip Singh, and at his request Isher Singh produced him before the Sub-Inspector. Evidence has been led to the effect that after his production before the police Sucha Singh produced the ring of Kuldip Singh from the place of concealment in a wall at his house, and he also took the police and other witnesses to a place where two receipts Exs. P-15 and P-16, apparently the property of Kuldip Singh, were found among some bushes.

On the following day, the 27th February, Sucha Singh accused was produced in the Court of Mr. V.P. Malhotra the same Magistrate at Rupar. In this case the recording of the confession was attended by a circumstance of which I do not recollect any precedent. When the accused had been brought into Mr. Malhotra''s Court-room and the police who were with him had been turned out. Mr. Malhotra told the accused that he was a Magistrate, that he was not bound to make a statement and that if he did so, it would be used as evidence against him; but before he had time to be in recording the statement of Sucha Singh, Sardar Amar Singh, an Advocate of Rupar, who has appeared as P.W. 3, presented himself before Mr. Malhotra and put in the application Ex. P-D. This was to the effect that the relations of the accused had learnt that he was being produced before a Magistrate by the police for the purpose of making a confession and permission was sought by the Advocate for an interview with Sucha Singh before his statement was recorded. Sardar Amar Singh was then permitted to have conversation with Sucha Singh in the Court-room at a short distance from the Magistrate, and according to Mr. Malhotra he heard Sardar Amar Singh advising Sucha Singh not to make a statement which would be used against him, but in spite of this the accused persisted in his intention of making a confession and Sardar Amar Singh withdrew. The confessional statement of Sucha Singh was then recorded.

In addition to the evidence already mentioned, the prosecution has produced Hazura Singh Lambardar, P.W. 7, who has stated that on the evening of the 22nd of February shortly after sunset he passed along a foot-path in the orchard where the body of Kuldip Singh was later recovered and that he saw the three boys sitting together there, and a group of witnesses, Piare Lal, P.W. 16, 1 quor vendor, Piare Lal confectioner, P.W. 17, and Har Balab, P.W. 18 to whom Sucha Singh paid small sums of money on the 23rd of February in settlement of outstanding debts. Another witness produced was Mul Singh, a pointsman at the Railway Station of Morinda, who had stated that at about 7 or 8 P.M. on the 22nd of February he was in the passengers-shed near the Booking-office when he saw the two accused, who were counting some currency notes, from a very short distance.

The post mortem on the body of Kuldip Singh was carried out on the morning of the 25th of February. The outward marks of injury found on the body were abrasions of various sizes on the left side of the neck, the right side of the back, the right buttock, the left buttock, the left elbow and the right cheek and scratches below the left ear and on the right side of the upper lip. There was also a ligature mark 1 7/8" completely encircling the neck, and generally the signs of death by strangulation were present in the form of congestion of the conjuctive and dilation of the pupils of the eyes, swelling and cyanosis of the face, blueness of the lips and swelling of the tongue, which was dark and bitten by the teeth, and the presence of a little bloody foam in the mouth and the nostrils. According to the doctor, rigor mortis was still present in the legs and there was no decomposition and he estimated the time between death and the post mortem examination to be between 24 and 48 hours.

But accused denied their guilt. In the Court of the Committing Magistrate, Sucha Singh denied that he had robbed the deceased of his money after murdering him or that he had produced the ring of the deceased from his house and he denied pointing out the place where the two receipts were alleged to have been recovered. When questioned about his confession before the Magistrate he made the following statement. At about 10 A.M. on the morning of the 26th of February he came from his village Bhamian where he had been working with his father for one Gurnam Singh. He came to Morinda because his brother had asked him to come and help him. He was having his evening meal when the Sub-Inspector came and took him to the police station. The Sub-Inspector asked him about the murdered boy of whom he denied knowledge. He was then tortured in various ways, of which the details need not be repeated, by the Sub-Inspector during the night, and in the morning the Sub-Inspector told him that the Guru Granth Sahib was in the house and that a Granthi was reading it, who had told him that if Sucha Singh made a confession he would be released. The Sub-Inspector also told him that he had got a Pandit with him who had said that if Sucha Singh made a confession he would go straight to heaven. He was then asked by the Sub-Inspector to make a statement but he refused and was again beaten. He was then taken by train to Rupar where he was given liquor and taken to the bazar where the Sub-Inspector told him that if he did not make a confession he would be shot. The Sub-Inspector also told him that if he said that he had done it he would be released. He was then produced by the Sub-Inspector before somebody whose identity he did not know. He finished by again denying that he had killed Kuldip Singh. In the Court of the Sessions Judge, he denied all the points in the prosecution evidence which were put to him in detail and produced a copy of his school leaving certificate according to which the date of his birth was 18-3-1934.

Bharat Singh in the Court of the Committing Magistrate denied that he even knew either the deceased or his co-accused. He denied that a five-rupee note was recovered from him when he was arrested and further denied that Natha Singh P.W., was present at the time. When asked regarding his confessional statement he simply said that he know nothing, and he could not say why he had been involved in the case. In the Sessions Court ho repeated his denials of the points put to him and when asked whether he confessed before Natha Singh he denied it. No evidence in defence was produced.

At this stage the confessional statements made by the two accused before Mr. V.P. Malhotra may be mentioned. The story told by Bharat Singh was as follows. About a year ago, Sucha Singh had borrowed Rs. 3 from him, and 8 or 9 days ago he had asked for the return of his money. Sucha Singh told him that a Bhapa boy of Morinda (it is stated in the evidence that refugees from the West Punjab are described as Bhapas in this locality) had enough money and that they should kill him and share his money. Bharat Singh agreed to this suggestion. Four days before the two accused took the boy out into the fields on the pretext of getting some sugarcanes. It was about the time when the evening train comes to Morinda from Rupar. On their return Sucha Singh told him to catch hold of one arm of the boy which he did, and Sucha Singh then squeezed the throat of the boy who first cried out and then died. Thereafter Sucha Singh took off the boy''s turban and tied it round his neck. Sucha Singh then took out the money from the boy''s pocket and also took his ring. After that they went to the Railway Station where Sucha Singh gave Bharat Singh Rs. 11. The latter protested and asked for more, but Sucha Singh said "It is I who have killed the boy, not you. Why should I give you more money." Then Sucha Singh asked him not to disclose the matter to anybody and Bharat Singh agreed. He concluded by saying that the name of the boy was Harbans.

The story told by Sucha Singh to the Magistrate was as follows. He owed Rs. 3 to Bharat Singh who had asked him for the return of the money about 8 days before. Sucha Singh had no money and suggested that they should kill Kuldip Singh and share his money to which Bharat Singh agreed. Six days before Bharat Singh came to his workshop and asked him to accompany him to kill Kuldip Singh and then went to Kuldip Singh''s shop at about sunset. The three of them then went in the direction of the mango orchard. Hazura Singh Lambardar met them but they had no talk with him. In the orchard Bharat Singh caught hold of Kuldip Singh and threw him on the ground and Sucha Singh then caught hold of his legs. Bharat Singh then took the boy''s turban off and put it round his neck and the two accused, each holding one end of the turban, pulled it. After that the two accused removed the body from the path to a place at some distance, at the foot of a tree. Bharat Singh suggested that Kuldip Singh might not be dead and they tied another knot in the turban round his neck. They then ran away and went "to the Railway Station at a short distance from which Bharat Singh under the instructions of Sucha Singh threw away some papers taken from, the pocket of Kuldip Singh. Near the Booking-office they shared the money taken from the deceased. Sucha Singh said that both of them had put their hands in the pocket of the deceased. Near the Booking office Sucha Singh gave Rs. 11 to, Bharat Singh and kept Rs. 47 himself. They then parted after agreeing not to disclose the matter to anybody. Sucha Singh mentioned that an old pointsman was present near the Booking-office when they divided the money. The next day Sucha Singh went away to Batheri. He paid off his debts and spent the rest of the money in drinking. He finished by saying that two days before his confession was recorded he had come to Morinda and asked Isher Singh to produce him before the police, which he did.

Great stress was laid by the learned Counsel for both the Appellants on the differences which undoubtedly exist in the stories told by the two boys in their confessional statements. Before dealing with the differences, however, the substantial points on which the two stories are in agreement may be pointed out. These are that the scheme to murder Kuldip Singh was suggested by Sucha Singh and agreed on between the two accused boys some days before it was carried out on account of the fact that Sucha Singh owed some money to Bharat Singh which he was unable to pay, that the murder was carried out as planned in the orchard, that Rs. 58 were taken from the deceased of which, when the money was divided at the Railway Station, Sucha Singh kept Rs. 47 himself and only gave Bharat Singh Rs. 11. The main point on which the two stories differed is regarding the manner of the murder. The difference on this point was undoubtedly very great, since according to Bharat Singh Kuldip Singh was manually strangled by Sucha Singh alone while Bharat Singh merely caught hold of one arm, and the turban was only tied round the neck of the deceased after he had already been killed in this manner, whereas according to Sucha Singh the turban of the deceased was put round his neck by Bharat Singh and he was killed by each of the accused''s pulling one end of the turban. The other differences in the two stories appears to be differences of detail and do not affect any essential point. One boy has mentioned, one detail, and the other another, but they cannot be said to have contradicted each other.

Arguing the case on behalf of Sucha Singh, Mr. Sethi has strenuously contended that the differences in the confessions are sufficient proof of their fictitious and involuntary nature. His version of what happened was that after the discovery of the body of Kuldip Singh the police, having no clue to the identity of the murderer, looked around for somebody on whom to fasten the crime, and more or less in haphazard manner selected the two accused boys and thereafter proceeded to build up an artificial case against them. It is argued that the police at the time when Bharat Singh''s confession was recorded did not know how the murder had been committed but thought that Kuldip Singh had been first strangled and then the turban tied round his neck, and therefore this was method of killing which Bharat Singh related in his confession at the instance of the police. However, by the time Sucha Singh had been arrested and produced to make a confession, the post mortem report had been received, from which it appeared that Kuldip Singh had been strangled with the turban, and therefore this was the method of killing which Sucha Singh was instructed to describe in his confession. To my mind the whole of this argument is fantastic, as it implies a degree of callousness and inhumanity not only on the part of the police, but also on the part of the villagers as a whole, which to my mind is incredible. [His Lordship after going through the evidence proceeded:]

I do not think it is unfair to sum up the argument of Mr. Sethi regarding the confessions as being that there is a presumption that all confessions which are used evidence in criminal cases were not voluntarily made, and that it is for the prosecution to produce cogent evidence to prove that such confessions are voluntary. I do not, however, accept this contention, and in my opinion if the prosecution produces evidence, which is not weakened in cross-examination to show that a confession has been voluntarily made, it is for the accused to show some reason for not accepting it as such. Mr. Sethi is certainly correct in arguing that the accused has not to prove positively that the confession was involuntary, since according to the words of the Evidence Act a confession is to be rejected by the Court when it appears that it has been made as a result of some threat, inducement or promise, but this is far from raising a presumption against the voluntary nature of a confession, and the accused should at least be able to point to some circumstances which arouse suspicion, and, as in so many other matters, it is obviously a question which depends on the circumstances of each individual case. In other words much stronger reasons will be required in some cases for rejecting a confession than in others. In the present case, it seems to me that the most important point is that the accused are young boys and not hardened criminals. It would therefore not be at all surprising to me if two boys who had committed a murder of this kind should soon repent of their folly, and their willingness to confess would not be in the least surprising in the circumstances. The confession of Bharat Singh in this case was recorded, within a few hours of his arrest and that of Sucha Singh, for which he had to be taken to Rupar, was recorded without any undue delay.

In the circumstances I do not see sufficient reason for rejecting the confessions on the ground that they were not voluntarily made. Although, however, there is nothing in law to prevent a conviction from being based solely on a confession, it is customary as a rule of prudence not to base a conviction on a retracted confession even against the maker without some corroboration. The corroboration produced in the present case is, of various kinds. The first part relates to the events of the evening of the 22nd of February. In this part of the case, I do not see any reason for not believing, the evidence of Jodh Singh P.W. 12, the father of the murdered boy, whose story is that when his son did not come home as usual for his evening meal, he began making enquiries, as a result of which be found out from Rup Chand P.W. 6, that his son had left his shop in the company of the two accused earlier in the evening. In consequence of this Jodh Singh pursued his enquiries further and at a second attempt succeeded in finding the accused at home and was told by Sucha Singh that Kuldip Singh had left by the evening train for Ambala,-an obviously false story. There is also no reason for not accepting the story that on the following morning Jodh Singh and his relations Nand Singh and Bishen Singh P.WS. opened the shop of Kuldip Singh and found.(SIC)

(SIC)next to that or Kuldip Singh he must almost certainly have seen Kuldip Singh leaving and I do not consider this uncertainty regardng the exact time as sufficient ground for ruling out his evidence in the absence of any motive for telling a false story against the accused.

Another witness regarding this part of the story is Hazura Singh P.W. 7, Lambardar of Latheri, who has stated that he saw the three boys together sitting near the orchard where the body was later discovered. Hazura Singh is mentioned in the confession of Sucha Singh, but the two stories are not altogether the same since the way Sucha Singh described the encounter was "Hazura Singh Lambardar met us on the way but we had no talk with him." This certainly leaves the impression that Sucha Singh and his companions were still walking when they met Hazura Singh, but the point is one which might have been cleared up by further questions to Sucha Singh which, in the circumstances, could not be put to him, and there does not appear to me to be any intrinsic reason for rejecting the evidence of Hazura Singh.

The other witness regarding the events of the 22nd of February is Mul Singh P.W. 8, a pointsman at thet railway station, who is mentioned by Sucha Singh, though not by name, as having been present in the passengershed near the Booking-Office when the unequal division of the proceeds of the robbery took place. The only reason which has been suggested for rejecting the evidence of Mul Singh is that it had not been brought out how he was traced as the particular pointsman mentioned in Sucha Singh''s confession, there being, according to Mul Singh, three pointsmen at the station of whom another is also Sikh. The only description given in the confession of Sucha Singh is an old pointsman. It seems to me, however, that if the accused wanted to know how Mul Singh was selected, it was up to their learned Counsel to ask questions on this point, but I do not find that any questions (sic) evidence has neen produced is the payment of some debts on the 23rd of February by Sucha Singh accused. He is said to have paid Rs. 5 out of a debt of Rs. 5-5-0 to Piare Lal liquor contractor, P.W. 16, who produced his account books, and also to have paid Rs. 5 out of his debt of Rs. 5-11-0 to Piare Lal confectionner P.W. 17, who also made an entry regarding the payment in a sort of note-book which he keeps. A third payment of Rs. 10 is also said to have been made by Sucha Singh to Harbalabh, P.W. 18, but the evidence of Harbalabh has not been relied on by the lower Court, as he had contradicted himself regarding the amount of debt due to him, which he said at the trial was Rs. 7 whereas formerly he had said that it was Rs. 10. In my opinion, however, there is no reason for not accepting the evidence of the two Piare Lals. It may be mentioned that Sucha Singh chose to deny these payments rather than to say that he made payments out of money found by him as a carpenter or received by him from his father which he might well have done. It is also curious to find that Bharat Singh denied the recovery from him of the five-rupee note at the time of his arrest, although obviously it was open to him to give some innocent explanation of his possession of it.

The next piece of evidence is the confessions of the two accused to Isher Singh and Natha Singh respectively when they went to the gentlemen in order to have them produced before the police. The criticism of the evidence of these two witnesses appears to be that they are Lambardars, Natha Singh also having been the Zaildar until this position was abolished. I do not consider that the evidence of Lambardars is to be rejected merely because they happen to be Lambardars, and in my opinion their evidence stands exactly on the same footing as that of any other witness. This view has been expressed before in Nathu v. Emperor AIR 1934 Lah. 870 : 36 Cr.L.J. 475 and Emperor v. Santa Singh AIR 1944 Lah. 339 : 46 Cr.L.J. 1 F.B.

It was also urged that the accused could have no motive for presenting themselves before the Lambardars for being produced before the police, but it is a well-established practice in this part of the country for accused, persons to surrender themselves to the police under the auspices of respectable and influential persons rather than to let themselves be arrested directly by the police. Presumably the practice has arisen because of a belief, which may or may not be well-founded, that if an accused person is arrested by the police directly he will be subjected to ill-treatment, but if he is produced before the police by some respectable person, there is some implied understanding that the roughness of his treatment will be mitigated, and I do not find anything strange in the idea that the accused boys in the present case should either present them selves before the Lambardars or should confess their guilt to them.

Finally, there is the recovery of the ring of Kuldip Singh from a hiding place at the house of Sucha Singh and the recovery of the receipts connected with Kuldip Singh from the bushes where they had been thrown and near the railway station. The witnesses on these points are the Sub-Inspector, Jaswant Singh Lambardar and Isher Singh Lambardar. Their evidence has not been weakened at all in cross-examination on these matters and the only apparent discrepancies are these created by the statements of the accused themselves. Regarding the ring, its removal by Sucha Singh was mentioned by Bharat Singh, in his confestion to the Magistrate, but it was not mentioned by Sucha Singh himself. I do not, however, think that this omission seriously affects the truth of the case since there has been no suggestion that the ring was found still on the body and subsequently planted in the house of Sucha Singh. Regarding the receipts it is quite a natural part of the story that, having removed the contents of Kuldip Singh''s pocket, the accused should throw papers away clearly connected with the deceased, and the discrepancy arises from the fact that in his confession Sucha Singh said that at about half a furlong from the railway station Bharat Singh threw away some papers taken from the pocket of Kuldip Singh at his bidding, whereas according to the witnesses of the recovery Sucha Singh stated that he had thrown the papers away at the place where they were found. For the purpose of the prosecution case, however, it is immaterial which of the accused threw the papers into the bush and the apparent discovery does not affect the value of the evidence.

I now come to one point which was raised independently of tho rest of the evidence but which, it was contended, disproved the whole prosecution case. This was the statement by the doctor who performed the post mortem examination at 10 A.M. on the 25th of February that the time between death and the post mortem examination was 24 to 48 hours. According to this statement, which seems to be a general expression of the opinion based on the fact that rigor mortis was still present in the legs and that decomposition had not yet set in, it would appear that the murder had taken place at some time between 10 A.M. on the 23rd and 10 A.M. on the 24th of February, and it could not have taken place at about 7 P.M. on the 22nd of February, as has been prosecution case from the very beginning. None of the other witnesses has been questioned at all with a view to showing that Kuldip Singh did not disappear on the evening of the 22nd of February, and from the fact that no questions were put to the doctor in an effort to get him to qualify this estimate of the time of death it would seem that the persons responsible for the conduct of the trial in the lower Court, including the learned Sessions Judge, the learned Public Prosecutor and the learned Counsel for the defence, were not properly applying their minds to the facts of the case, since if they had been, they would have at once realised the effect of the doctors''s statement on the prosecution case and put further questions to him on the point. It seems to me that at any rate the learned Sessions Judge and the learned Public Prosecutor should have been awoke to the effect of the doctor''s statement, though the learned Counsel for the accused might well have been content to let matters rest where they were. It does not, however, seem that even the learned Counsel for the defence realised the effect of the statement in the lower Court, since there is no sign in the judgment of the learned Sessions judge that any use was made of the doctor''s statement in the arguments addressed to him. The prosecution case, as it stands, is that the murder took place about 61 hours before the post mortem examination, whereas the statement of the doctor would set it at the extreme limit of 48 hours, and it has therefore been seriously contended before us that on the basis of this statement alone we must find that the whole prosecution case is a fabrication. If the statement were to be takon as literally true, it would no doubt put an end to tho prosecution case, but actually the statement is only an expression of opinion which might have been modified if proper questions had been put to the doctor. It was suggested that in order to clear the point up we should call for a doctor and examine him, but since text books on Medical Jurisprudence are readily available, and it is difficult to see what any doctor whom we chose to examine could do beyond refer to the recognised authorities, we did not think that any useful purpose could be served by calling one.

Before dealing with the condition of the body as described by the doctor, it is necessary to describe, so far as they can be ascertained the conditions under which the body is allogod to have remained lying undisturbed from the evening of the 22nd to the early afternoon of 24th February. Morinda is half way between Ambala and Rupar, which is in the foot-hills, and so the temperature at Morinda is not likely to have been any higher than that at Ambala. The weather in February in this region is usually fine and dry, and the official tables issued by the Metorological Department and published in the newspapers do not show that there were any rains in this area about the period in question. The weather generally appears to have been dry and cold at night and moderately warm in the day time. The official table published in the issue of the Tribune newspaper on 24th February shows that the temperatures, at Ambala for the period ending at 8 A.M. on 23rd February were maximum 77 degrees and minimum 48 degrees. Unfortunately the tables did not appear in the Tribune for the two following days, but the table published in the issue of the 27th February for the period up to 8 A.M. on the 26th February shows the maximum temperature at Ambala as 80 degrees and the minimum as 40 degrees, and it is not likely that there was any substantial variation in between the two published tables, which show that between the morning of 22nd February and the morning of the 26th February the day temperature became slightly greater while the night temperature decreased. According to the confessions of Sucha Singh after the murder the body was left at the foot of a tree, and the plan also indicates that the body was found in close proximity to a mango tree, which is a very shady tree, and therefore it is unlikely that the body at any time while it was lying at the spot was for any considerable period exposed to the rays of the sun if at all.

The first point relied on by the learned Counsel for the Appellants was the doctor''s statement that some signs of rigor mortis were still present in the legs. Regarding rigor mortis J.P. Modi in his Text Book on Medical Jurisprudence and Toxicology at p. 120 of Edn. 9 states:

The time of onset varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates and it may take two or three hours to develop, and as regards duration in temperate regions, rigor mortis usually lasts for 2 to 3 days, though it may last several days, nine days according to Casper, and three weeks according to Taylor. In Northern India, the usual duration of rigor mortis is 24 to 48 hours in winter and 18 to 36 hours in summer.

This passage appears to be the principal basis of the doctor''s estimate of the time between death and the post mortem examination in the present case, and great reliance is also placed on it by Mr. Sethi. It is, however, clear from the subsequent remarks of Mr. Modi that it is hard to fix any definite limit. For instance, the deceased was about 17 years of age, and at p. 121 Mr. Modi states:

Age, In adolescent and healthy adult bodies the occurrence of rigor mortis is slow, but well marked, while it is feeble and rapid in the bodies of children and old people.

As regards the manner of death, he says that rigor mortis sets in early, and disappears soon in deaths from diseases causing great exhaustion and wasting of the muscle as in cholera, plague, typhus, typhoid, phthisis, cancer uraemia and chronic Bright''s disease, but its onset is delayed in deaths occurring from pneumonia, apoplexy, asphuxia and nervous diseases causing paralysis of the muscles. Perhaps most important, he further states as regards atmospheric conditions that rigor mortis commences slowly, but lasts for a long time in dry, cold air.

Regarding muscular condition he say that the onset is slower, and the duration longer, in those cases where the muscles have been healthy and at rest before death than in those cases where the muscles have been feeble and exhausted, and thus have lost a greater degree of muscular irritability.

It may be mentioned that Kuldip Singh is described by the doctor as a well built young man. Thus all the conditions in the present case, including the age muscular condition and cause of death, as well as the climatic conditions, clearly favoured the late onset and long duration of rigor mortis, and in the circumstances I do not think it impossible that the post mortem examination may have taken place 60 or 61 hours after the death in spite of the presence of rigor mortis in legs.

The next factor to be considered is decomposition, which according to the doctor had not yet set in. Here, in the table regarding the chronological sequence of putrefactive changes in the temperate region on pp. 127 and 128 of Modi''s Book, the only change which could have been expected to take place within the period in question is that numbered 1, namely, greenish coloration over the iliac fossae and the eyeballs soft and yielding, the time for which is given as from 1 to 3 days after death. The item 2 in the table is apparently only expected to be seen from 3 to 5 days after death and in the present case, even according to the prosecution, the post mortem took place well within three days of the death. Here again, the external conditions would appear to be strongly in favour of late development of putrefaction. Four factors are enumerated by Mr. Modi at p. 132, the 4th, namely, manner of burial being irrelevant in the present case as the body was left lying in the open. The other three factors are warmth, moisture and air regarding which Mr. Modi has the following to say:

Warmth.-Putrefaction commences at a temperature about 50�F., and is most favoured between 70�F. and 100�F., and even up to 115�F. The rapidity of the change considerably lessons as the temperature advances above 100�F. It is altogether arrested below 32�F., and above 112�F. A higher temperature accompanied by dry air generally retards putrefaction.

Moisture.-This is very essential for the occurrence of putrefaction, as the micro-organisms, which are the causative agents of decomposition thrive well in both heat and moisture. Hence the organs which contain water docompose more rapidly than dry ones.

Air.-The presence of air promotes and its absence retards, putrefaction. Closely fitting clothes on the body retard decomposition by excluding the air. Similarly, bodies placed in air-tight lead or zinc coffins resist putrefactive processes for a long period. Moist air favours putrefaction by diminishing evaporation, while dry air retards it. In the same way still air helps putrefaction, and air in motion retards it.

In the present case the body must have been in dry air and for not more than half the time at a temperature of over 70. The cause of death is certainly a factor in favour of the argument of the learned Counsel for the Appellant as regards putrofaction since at p. 133 Mr. Modi has observed that putrefaction is hastened after death occurring from asphyxia; but even so, it cannot be denied that the general conditions favoured the slow development of putrefaction and were entirely different from those in which the development is at all rapid.

One other point relied on by the learned Counsel for the Appellants was that some dark fluid blood was found by the doctor whereas normally one would expect the blood to have coagulated. It is, however, stated at p. 520 of vol. I, 10th Edn. of Taylor''s Principles and Practice of Medical Jurisprudence that in case of death from asphyxia the blood is found fluid for an unusually long time after death and it coagulates very slowly, owing amongst other factors to the excess of carbonic acid (c�2) contained in it, and for the same reason it is very dark in colour.

3l. In the circumstances I am of the opinion that the statement of the doctor, which should not have been allowed to pass unchallenged by the prosecution or by the learned Sessions Judge in the lower Court, is not a sufficient reason for rejecting the whole of the prosecution evidence and I consider that the evidence as a whole amply establishes the guilt of both the accused.

The only question which seems to call for consideration is the sentence of death imposed on Sucha Singh. In this connexion the first point is his age. Sucha Singh filed a copy of his school leaving certificate according to which be was born on 18-8-1934 which would make him barely 16 at the time of the, occurrence. On the other hand, he was examined by the doctor for a few minutes in the Sessions Court, and on the basis of this rather cursory examination the doctor expressed the opinion that he was between 18 and 20 years of age. Neither the doctor''s examination nor the school leaving certificate can be regarded as at all conclusive, but while a wrong date may have been given when Sucha Singh entered the school, it is not likely that this differed from his real age to the extent of 3 or 4 years as the octor''s opinion would appear to indicate and it is not likely in the circumstances that he is more than 17 or 18. The circumstances of the murder itself do not call for any leniency except possibly on account of the fact that the boys evidently repented and confessed their guilt, in spite of legal advice in the case of Sucha Singh. On the whole I am of the opinion that it is not necessary to sentence Sucha Singh to death. I would accordingly dismiss the appeal of Bharat Singh and accept the appeal of Sucha Singh to the extent of changing his sentence of death to one of transportation for life. The sentence of death is, therefore, not confirmed.

Soni, J.

I agree entirely.