Amarjit Singh vs The State of Punjab

A.D. Koshal, J.—For the murder of Tilak Raj, aged 35 years, a resident of Mahan Singh Road, Amritsar, four persons, namely, Romesh Kumar alias Billa, a shop-keeper, aged 18 or 19 years, Ashok Kumar alias Ashoki, a labourer, aged 17 years, Amarjit Singh, a contractor, aged 23 years, and Paramjit Singh, an embroiderer, aged 18 years, all residents of different parts of the same town, were jointly tried by Shri Pritam Singh Pattar. Sessions Judge, Amritsar, Romesh Kumar accused was charged with an offence u/s 302 of the Indian Penal Code, was found guilty thereof and was sentenced to imprisonment for life. Out of the other three accused who were charged with an offence u/s 302 read with Section 34 of the Code, Paramjit Singh to whom only a lalkara was attributed, was acquitted, while the other two were convicted of an offence u/s 326 read with Section 34 ibid and each one of them was sentenced to rigorous imprisonment for seven years and a fine of Rs. 500/-. the sentence is default of payment of fine being rigorous imprisonment for three months.

The judgment of the learned Sessions Judge is dated the 8th of August, 1969, against which Amarjit Singh, Romesh Kumar and Ashok Kumar convicts have filed Criminal Appeals Nos. 994, 1088 and 1158 of 1969 respectively, all of which we are hererby disposing of.

The prosecution case may be stated thus. At 9 or 10 P.M. on the 12th of October, 1968, Sulakhan Singh (P.W. 2) was present in Chowk Chhati Knui of Amritsar town when he met Tilak Raj deceased who, like himself, was a pick-pocket and was coming in the company of Nirmal Singh (P.W. 3) All these three persons then started walking together and reached that part of the Nimak Mandi Road where Gali Teliwanwali branches off it. All the four accused who were all pick-pockets and were known to them, met them there and were asked by Tilak Raj to stand him a feast on the plea that luck had favoured them in the matter of their profession. The response, however, was not a pleasant one in as much as Romesh Kumar and Paramjit Singh accused told their two co-accused that Tilak Raj should have a feast there and then. All the four accused then whipped out knives from their respective packets and the deceased was given three knife blows, one by Romesh Kumar in the left side of the chest, another by Ashok Kumar in the back and the third by Amarjit Singh, also in the back. During the course of this assault paramjit Singh accused was shouting that anybody who intervened would be killed. Tilak Raj had fallen on the ground as a result of the injuries received by him and thereafter all the four accused made good their escape. In addition to Sulakhan Singh (P.W. 2) and Nirmal Singh (P.W. 3), the occurrence was witnessed by Rajinder Parshad, a factory-worker (P.W. 10) and Piara Singh, a rickshaw-puller who was given up at the trial for the reason that he was not traceable.

Nirmal Singh (P.W. 3) at once removed Tilak Raj in the rickshaw of Piara Singh aforesaid to the V.J. Hospital, Amritsar, while Sulakhan Singh (P.W. 2) left for Police Station "C" Divison. Amritsar, where he lodged at 11-05 P.M. with Sub-Inspector Ram Parkash (P.W. 13) first information report Exhibit P.C. which disclosed an offence u/s 326 of the Indian Penal Code and was registered as such. Assistant Sub-Inspector Saudagar Singh (P.W. 11) then went to the V.J. Hospital in order to record the statements of Tilak Raj and Nirmal Singh P. Ws and there learnt that Tilak Raj had died before he arrived at the hospital. This information was passed on by him to the Sub-Inspector who then converted the offence committed by the accused to one u/s 304 of the Indian Penal Code.

At 11-55 P.M. the Sub-Inspector proceeded to the spot of occurrence and recorded that statement of Rajinder Parshad (P.W. 10). Plenty of electric light was available around the place of occurrence not only from street lamps but also from those burning outside the closed shops in the vicinity. The Sub-Inspector secured bloodstained earth from that part of Telianwali Gali where it branches off the Namak Mandi Road. Then he made a search for the accused but none of them was traceable.

After conveying information about the death of Tilak Raj to the Sub-Inspector, Assistant Sub-Inspector Saudagar Singh (P.W. 11) found the dead body lying in the dead house and prepared the inquest report which was completed after midnight.

The autopsy was performed by Dr. A. Philips (P.W. 1) on the 14th of October, 1968, from 2-10 P.M. onwards when the presence of three ante-mortem incised stab wounds was detected on the corpse.

One of the wounds had the dimansions 1 3/4"x 3/4", was located on the left side of the chest and had entered the left auricle of the heart after piercing the left lung. The other two wounds were located in the back, one of them in the chest region which had pierced the left lung and the other one in the lumber region. The two wounds in the chest (one in the front and the other in the back) were individually sufficient in the ordinary course of nature to cause death. According to the doctor, the time-gap between the injuries and the death could be "10 to.10 minutes."

Romesh Kumar and Ashok Kumar appellants were arrested in the 14th of October, 1968, and Amarjit Singh appellant a day later.

On the 16th of October, 1968, Romesh Kumar appellant made a disclosure in the presence of Gura Singh (P.W. 6) to Assistant Sub-Inspector bisshamber Nath (P.W. 14) who recovered knife Exhibit P. 1 in consequence. Another disclosure made by Ashok Kumur appellant on the same day in the presence of Gulab Singh (P.W. 7) to Assistant Sub-Inspector Saudagar Singh (P.W. 11) led to the recovery of knife Exhibit P 2 On the 17th of October. 1968. knife Exhibit P. 3 was recovered by Assistant Sub-Inspector jagtar Singh (P.W. 12) in pursuance of a disclosure made by Amarjit Singh appellant in the presence of Mohan Singh (P.W. 8).

The serologist found that the three knives just above mentioned had stairs of human blood on them.

Nineteen witnesses were produced at the trial in support of the prosecution case, four of them on affidavits. They inclulded three eyewitnesses, namely, Sulakhan Singh (P.W. 2), Nirmal Singh (P.W. 3) and Rajinder Parshad (P.W. 10), The first of these, i.e., Sulakhan Singh (P.W. 2) deposed that on the 12th of October, 1968, he met the deceased and Nirmal Singh (P.W. 3) in Chowk Chhati Khui at about 9 or 10 P.M., that the three of them then proceeded together and met the four accused, who were pick-pockets, opposite Gali Telianwali and that when the deceased asked for a feast, all the four accused whipped out their knives. Up to this point the story given by the witness is in accord with that detailed as part of the prosecution case, is also in the first information report. The witness went on to state that Amarjit Singh, Paramjit Singh and Ashok Kumar accused gave knife blows to Tilak Raj while Romesh Kumar accused ran away. Accourding to him, Tilak Raj fell down on the ground and was removed by Nirmal Singh (P.W. 3) to the hospital in the rickshaw of Piara Singh. He added that the occurrence was witnessed by himself, Nirmal Singh (P.W. 3), Rajinder Parshad (P.W. 10) and Piara Singh and that he himself went to the police station and there lodged report Exhibit P.C. with Sub-Inspector Ram Parkash (P.W. 13). At the instance of the Public Prosecutor the witness was declared hostile and was confronted with varies portions of the first information report which he then admitted to be correct and which, when read together, fully Support the prosecution case as set out above, and as detailed by the witness in his deposition before the Committing Magistrate. To different parts of that deposition also his attention was drawn when he admitted that they were correctly stated by him and that it was komesh Kumar appellant who had given the first knife blow to Tilak Raj in the left side of the chest, the witness also admitted that he had wrongly stated earlier in the witness-box that he did not see Romesh Kumar accused giving any blow to the deceased. He further did not deny that he was under detention in the Central Jail, Amritsar, in connection with an opium case and that the accused persons who were also confined in that jail had threatened him that it he appeared as a witness against them, he would be killed. The statement made by him to the Committing Magistrats was transferred to the file of the Sessions Court under the provisions of Section 288 of the Code of Criminal Procedure. When cross-examined by the defence, the witness again took a somersault and stated that he did not see the author of the fatal injury received by the deceased, that two of the assailants of Tilak Raj had run away and that he could not identify them. He added that on the day following the murder he was called to the police station where his statement was recorded and his thumb impression obtained thereon.

Nirmal Singh (P.W. 3) also refused to support the prosecution while in the witness-box. To the Committing Magistrate, however, he too had made a deposition which fully supported the prosecution case. When declared hostile at the instance of the Public Prosecutor who was allowed to cross-examine him, he denied having made the deposition just above mentioned, with various portions of which he was confronted and which was transferred as evidence to the Sessions Court''s file under the provisions of Section 288 ibid. He was further confronted with various portions of that statement of his which forms part of the inquest report (Exhibit P.E.) and is in accord with the prosecution case, That statement bears his signature which, according to him, was obtained on the 16th or 17th of October, 1968.

The house of Rajinder Parshad (P.W. 10) is situated at a distance of only one furlong from the place of occurrence. According to him he was going to Swank Mandi on the 12th of October, 1968, at about 10 P.M. on his way to see a friend when he saw the four accused quarrelling and exchanging abuses with the deceased opposite Gali Tehan-wali, The witness added that the four accused whipped out their knives when Tilak Raj tried to run away towards the Telianwali Gali but was encircled by them. He further averred that the deceased was given a knife blow in the chest by Romesh Kumar accused and a knife blow each by Ashok Kumar and Amarjit Singh accused in the back when he (Tilak Raj) fell down on the ground and the accused ranaway. The witness also stated that the deceased was put into a rickshaw by Sulakhan Singh (P.W. 2) and another person and was taken towards the hospital. The police, according to him, came to the spot during the night and not only recorded his statement but also took into possession bloodstained earth therefrom.

From the ocular account of the occurrence given by Rajinder Prashad (P.W. 30) support was sought by the prosecution before the learned sessions Judge not only on the statements made by the other two eyewitnesses to the Committing Court but also on the medical evidence and the recovery of the three knives which were found to be stained with human blood.

When examined in pursuance of the provisions of Section 342 of the Code of Criminal Procedure, the accused denied the allegations made against them by the prosecution and stated that they had been arrested from their respective houses. According to them, the prosecution witnesses had made false depositions under police pressure. They pleaded innocence but none of them produced any evidence in defence.

The learned Sessions Judge found corroboration of the statement made by Sulakhan Singh (P.W. 2) to the Committing Magistrate in the contents of the first information report which, according to him, came into existence within about an hour after the occurrence and was, therefore, promptly made. It appeared to him that the four accused being pick-pockets, like the witness himself, had been able to win him over and that that was the reason why he had not supported the prosecution case in the witness-box. The learned sessions Judge further placed reliance on the statement made to the Committing Magistrate by Nirmal Singh (P.W. 3) for which he found corroboration from that made by the witness in the inquest report. The deposition of Rajinder Parshad (P.W. 10) at the trial was also regarded by the learned Sessions Judge as truthful and corroborative of the eye-witness account given by the two eye-witnesses at the committal stage. In this connection the learned Sessions Judge noted the fact that none of the eyewitnesses had any reason to falsely implicate any of the accused persons and that sufficient electric light was available at the spot to make identification possible. The medical evidence, in his opinion, lent support to the ocular account of the occurrence which was further supported by the fact that bloodstained earth was secured by the investigating officer from that place in the Telianwali Gali where it meets the Nimak Mandi Road, Recovery of knives Exhibits P. 1 to P. 3, on which were found stains of human blood, was regarded by the learned Sessions Judge to be further proof of the guilt of the three appellants of whom Romesh Kumar was found guilty of murder inasmuch as he had given the fatal blow to Tilak Raj while the other two appellants were found to have had a common intention to inflict only grievous injuries on the deceased. The evidence about the lalkara attributed to Paramjit Singh accused was considered discrepant so that he was held entitled to the benefit of doubt.

It was in these premises that the learned Sessions Judge convicted and sentenced the three appellants as aforesaid and acquitted Paramjit Singh accused of the charge.

The first contention raised on behalf of the three appellants is that the statements of Sulakhan Singh (P.W. 2) and Nirmal Singh (P.W. 3) recorded by the Committing Magistrate and transferred to the file of the Sessions Court u/s 288 of the Code of Criminal Procedure should have been thrown out as unreliable inasmuch as according to learned counsel, they did not satisfy the two essential pre-requisites for their acceptance, namely, that they must be intrinsi -cally credible and must also receive corroboration from extrinsic evidence. With this contention we do not find ourselves at all in agreement. For one thing, it is not necessary for evidence given before the Committing Court from which the witness has resiled at the trial being accepted as good evidence that, as a matter of law, both the above stated pre-requisites must exist in a given case. It is true that such evidence has co be regarded as inherently weak, it having been made by a person who does not support its varacity at a later stage. But then a Court may have reason to be satisfied in spite of lack of corroboration of the evidence from outside sources that it was truthful in which event there would be no bar in law to its acceptance. As observed by their Lordships of the Supreme Court in Shranappa Mutyappa Halke Vs. State of Maharashtra,

Where a person has made two contradictory statements on oath it is plainly unsafe to rely implicity on his evidence. In other words, before one decides to accept the evidence brought in u/s 288 of the Code of Criminal Procedure as true and reliable one has to be satisfied that this is really so. How can that satisfaction be reached ? In most cases this satisfaction can come only if there is such support in extrinsic evidence as to give a reasonable indication that not only what is said about the occurrence in general but also what is said against the particular accused sought to be implicated in the crime is true. If there be a case-and there is such infinite variety in facts and circumstances of the cases coming before the courts that it cannot be dogmatically said that there can never be such a case-where even without such extrinsic support the Judge of facts, after bearing in mind the intrinsic weakness of the evidence, in that two different statements on oath have been made, is satisfied that the evidence is true and can be safely relied upon, the Judge will be failing in his duty not to do so.

The following observations made in Rakhu Laxman Ruthod v. The State of Maharashtra 1968 Cr. A.R. 51, on which reliance is placed by learned counsel for the appellants do not lay down any rule to the contrary and are, on the other hand, a reiteration of the principles set out in Sharnappa Muttyappa Halke v. The State of Maharashtra (supra):

It is no doubt true that the Court of Session brought the earlier statement u/s 288 of the Code of Criminal Procedure on the record of the sessions trial. It is also true that such a statement may be acted upon, but it is not necessary that it must always be acted upon In a case where the earlier statement appears to be intrinsically true or is otherwise materially corroborated, no harm is done in ignoring the contradiction of the earlier statement by the one made in the Court of Session and acting upon the earlier statement a court may reach the conclusion as to the guilt of the accused person. But where corroborating evidence is not forthcoming or is itself of not much value or validity, a difficulty may arise in accepting the earlier statement at its face value, because the witness by his own conduct renders his own testimony suspicious and, therefore, in a measure unacceptable.

It would be noted that even according to these observations, a statement brought on the record of the sessions trial u/s 288 of the Code of Criminal Procedure can be acted upon in a case in which it satisfies either of the following two tests:

(a) It appears to be intrinsically true.

(b) It is otherwise materially corroborated.

These two tests, according to their Lordships, need not be simultaneously fulfilled and even if a statement satisfies one of them, its acceptance would not be open to exception on the sole ground that it does not conform to the other.

In the second place the statements of Sulakhan Singh (P.W. 2) and Nirmal Singh (P.W. 3) made to the Committing Magistrate and accepted as good evidence by the learned Sessions Judge appear to us not only to he intrinsically true but also to he corroborated by good extrinsic evidence so that in the present case the two statements satisfy both the tests above indicated. As pointed out by the learned Sessions Judge, none of the three eye-witnesses bar boars any feelings of animosity against any of the appellants or their acquitted Co accused. and then there is nothing at all to show that the first information report (Exhibit P.C.) was not made by Sulakhan Singh (P.W. 2) to Sub-Inspector Ram Parkash (P.W. 13) within an hour of the occurrence. In these circumstances it must be held that by the time first information report came into existence, there was neither any occasion nor opportunity for Sulakhan Singh (P.W. 2) to resort to concoction First information report Exhibit P.C. must therefore be regarded as a prompt and spontaneous narration of the tragedy which, therefore, provides very important corroboration to the evidence given by Sulakhan Singh (P.W. 2) before the Committing Magistrate. The statement (Exhibit P.E./1) made by Nirmal Singh (P.W. 3) during the inquest proceedings is also at par with the first information report from the point of view of importance. It bears the signature of its author and was made to the police on the night of the occurrence itself. It, therefore lends significant corroboration to the deposition of Nirmal Singh (P.W. 3) made to the Committing Magistrate. No reason is at all forthcoming why either Sulakhan Singh (P.W. 2) or Nirmal Singh (P.W. 3) should have accused the three appellants of Tilak Raj''s murder unless they (the appellants) were really responsible for it.

And then the deposition of Rajinder Parshad (P.W. 10) provides further corroboration to the two statements transferred to the file of the Sessions Court u/s 288 ibid. Rajinder Parshad (P.W. 10) is no doubt a witness who was present at the time and place of the occurrence by sheer chance but then that is no reason at all for his testimony to be discarded as unreliable. He resides at a short distance from the Telianwali Gali and there is no reason why his claim that he was on his way to see a friend be not accepted at its face value His testimony was attacked before us on behalf of the appellants on the following grounds:

(a) From the following portion of his testimony it must be concluded that Romesh Kumar appellant was not known to him prior to the occurrence so that his identification of that appellant could not be relied upon:

I do not remember the name of the father of Romash Kumar accused I do not recollect whether in the Committing Court I had given the name of his father. I do not recollect whether in the Committing Court I had mentioned that Romesh Kumar most probably was the son of Dhani Ram. (Confronted with portion C to C of that statement where it is so recorded). I had not gone to the house of Romesh Kumar. I do not know where he resides but his house is towards the side of Lachhmansar Gali Hansali adjoins Lachhmansar. I do not recollect whether I made statement in the Court of the Committing Magistrate that Romesh Kumar lives in Gali Hansliwali. (Confronted with portion B to B of that statement, where it is so recorded). I do not know the name of any relative of any Romesh Kumar accused.

(b) The witness stated at the trial:

(b) The witness stated at the trial:

There was a dispute between them regarding the distribution of money. Paramjit Singh had told that the whole money should be distributed in 5 equal shares, but the accused were not agreeable. Tilak Raj was saying that he may be given anything they wished.

This statement goes against that part of the story for the prosecution according to which the dispute arose out of a demand for a feast.

(c) On his own showing the witness had appeared as a prosecution witness in 5 or 7 (police) cases. In one such case, which was disposed of by Shri R.P. Gaind, Judicial Magistrate 1st Class, Amritsar, on the 29th of May, 1969 (Exhibit D.E.), the accused concerned was acquitted, the evidence of Rajinder Prashad (P.W. 10) against him notwithstanding.

None of these grounds has impressed us. With regard to ground (a) it is sufficient to say that when put a straight question in a later part of his deposition the witness made this categorical averment:

Romesh Kumar was already known to me as he is the friend of my son. (Later portion volunteered). The name of my son is the friend of Romesh Kumar is Jagdish Kumar, I was not asked in the Committing Courts that how Romesh Kumar accused was known to me and, therefore, I did not state in that Court that he is the friend of my son.

And again -

I know the names of Ashok Kumar, Romesh Kumar and Paramjit Singh accused, because all these three accused used to loiter about with my son.

Merely because the witness erroneously thought that the name of the father of Romesh Kumar appellant was Dhani Ram is no reason at all why he should be regarded as a false witness on the question of his knowledge of the identity of Romesh Kumar appellant prior to the occurrence. If Romesh Kumar appellant was a friend of Jagdish Kumar (a son of the witness), the name and identity of that appellant may well have been known to the witness even though he (the witness) may not be knowing the name of the father of that appellant or may have had some hazy idea about it.

With regard to the cause of the quarrel leading to the tragedy, it may well be, as remarked by the learned Sessions Judge, that the witness was not present when the altercation started. He (the witness) stated that when he reached that part of the Nimak Mandi street which lies opposite Gali Telianwili he saw the four accused quarrelling and exchanging abuses with Tilak Raj. This means that by the time of his arrival at the place of occurrence the demand by Tilak Raj which led to the exchange of abuses had already been made and also perhaps verbally answered, and it may well be that the witness erroneously deduced from that part of the altercation which took place in his presence that the dispute between the two contending parties, who appear to be notorious pick-pockets, had arisen from a distribution of booty jointly acquired.

It is true that the witness frankly admitted that he had appeared as a prosecution witness earlier in 5 or 7 cases. It is further true that in judgment Exhibit D.E his evidence was not considered sufficient for a conviction. Neither of these factors, however, makes him an unreliable witness. The nature of his evidence in the said 5 or 7 cases is not known nor the weight which was attached there to by the Courts concerned, The case covered by judgment Exhibit D.E. was one u/s 61 (1) (a) of the Punjab Excise Act and the reasons why the learned Magistrate did not act upon the testimony of the witness for a conviction of the accused before him may be stated in his own words:

this witness has been appearing for the last two years as witness for the prosecution and he attested the recoveries made in his presence. He has admitted having appeared in three four cases as P.W. and later on increased the number of such cases to six. He did not remember if he ever appeared in the Court of Shri Kulwant Singh, the then Judicial Magistrate Ist Class, Amritsar. But layer on he admitted that fact also. Similarly he denied having appeared in the Court of Shri V.P. Dhoobe, Executive Magistrate Ist Class, Amritsar but later on when confronted with the particulars of he case he admitted the same.

He is the only so-called independent witness and there is no explanation on the file as to why any other witness was not joined. Even this witness has got a very little face value and it has to be taken with caution.

X x XX X X X X

Solitary statement of Rajinder Parshad is not convincing in spite of its corroboration by Kishan Dev. Head Constable (P.W. 1) and Bishamber Lal, Assistant Sub-Inspector (P.W. 2) and possibility of his having been falsely implicated in this case cannot be ruled out and the accused is, therefore entitled to benefit of doubt.

It is quite clear that no finding was given by the learned Magistrate against the veracity of the witness and ascribing to him any false statement. The ant cedents of the witness thus are not such as to make him all by themselves, an unreliable witness. On the other hand, we are satisfied that he witnessed the occurrence and gave on the whole a truthful version of it in Court. In this connection we may draw attention to the fact that his name appears in the first information report which was promptly made and a gist of which mentioning the names of the four accused, the weapons of offence and the name of the victim was given in entry No. 44 made on the 12th of October, 1968 in the daily diary maintained at the police station an entry which lends assurance to the promptness with which the first information report was registered.

Not only the medical evidence but also the recoveries lend further support to the ocular testimony. According to Dr. A, Philips (P.W. 1), the deceased had the fatal wound in the front of the chest and the other two injuries in the back. Further, three knives were recovered, one at the instance to each of the appellants and all three of them were found to be stained with human blood. The only objection taken to the evidence regarding the recoveries is that Gura Singh (P.W. 6) and Gulab Singh (P.W. 7) are not independent witnesses inasmuch as they have been appearing earlier as witnesses for the prosecution in criminal cases. Gura Singh (P.W. 6) admitted:

I am appearing as a prosecution witness for the last one or 1 1/2 years. Whenever any occurrence takes place in my presence then I join that investigation. I cannot give the number of cases in which I appeared as a P.W. for the last 1 1/2 years. I cannot say whether any of those accused was acquitted.

The relevant admission made by Gulab Singh (P.W. 7) was:

I gave evidence in one case for the prosecution during the last year. I have never appeared in any other case as a prosecution witness. I have never joined in any other investigation. I did not give any evidence about 4 years ago, in case ''State v. Sunder Singh.

These admissions do not at all militate against the veracity of their authors. In so far as Gulab Singh (P.W. 7) is concerned, he categorically denied that he ever appeared as a prosecution witness earlier except in one case The position is not the same with regard to Gura Singh (P.W. 6) but then there is nothing to show that his testimony in Court was ever discarded as unreliable

On behalf of Ashok Kumar and Amarjit Singh appellants it was also contended that the offence made out against them was no more serious than one u/s 324 read with Section 34 of the Indian Penal Code inasmuch as the occurrence resulted from a sudden quarrel which was wholly unpremeditated It is true that there was no pre-concert between the three appellants and that they whipped out their respective knives to attack Tilak Raj on a sudden demand made by him for a feast. All the same the manner in which they indulged in simultaneous violence and subjected Tilak Raj to a concerted attack, coupled with the type of weapons used, leaves no room for doubt that they had the common intention to cause grievous hurt to him. Amarjit Singh and Ashok Kumar appellants, therefore, were rightly convicted of an offence u/s 326 read with Section 34 ibid.

For the reasons stated, we hold that the conviction of all the three appellants before us is well based. The sentences respectively imposed upon them have also not been shown to be excessive and, in the result, we dismiss all the three appeals.