Lakhpat Singh vs State of Punjab

Gurdev Singh, J.—The Petitioner-accused, Lakhpat Singh, has preferred this revision against his conviction and sentence, recorded by Judicial Magistrate Ist Class, Patiala, and upheld by Additional Sessions Judge, Patiala, for the offence u/s 304-A IPC.

The prosecution story, in brief, is that Surinderpal Singh was posted as D.T.O., Patiala and was residing in Kothi No. D-1, Passi Road, Patiala, and was provided with two Gunmen, Lakhpat Singh-accused and Ranbir Singh. Previously, Tejinder Pal Singh Sidhu was the DTO and was residing in that house, who after his new posting, had shifted to H. No. 21-E, Model Town, Patiala. Gurmail Singh HC, PW-2, was the Gunman of Tejinder Pal Singh, who continued to live with the other Gunman in Kothi No. D-1 on account of paucity of space in the house of his officer. On 9.10.1992. the accused came to Kothi No. D-1 at about 8-00 a.m. for performing his duties. He was cleaning his service revolver No. 426189 of .455, when the same went off accidentally and the shot hit Surinderpal Singh, who was standing nearby. Gurmail Singh, HC-complainant, immediately brought that fact to the notice of Tejinder Pal Singh and removed the injured to Rajindra Hospital, Patiala, where he succumbed to his injury at about 10-00 a.m. Information about the admission of that injured was sent by the doctor to the police station and on the receipt thereof, Pakhar Ram ASI, PW-7, came to the hospital and recorded the statement of the complainant, Ex. PA. After recording his police proceedings, Ex. PA/1, he sent that statement to the police station and on the basis thereof, formal FIR, Ex. PA/2, was recorded against the accused u/s 304-A IPC. The ASI prepared the inquest report Ex. PW7/A, in respect of the dead body and sent the same for post mortem examination. He went to the place of occurrence and after inspecting the same prepared the rough site plan, Ex. PW7/C with correct marginal notes. He collected the blood stained earth from that place, which was put in a small tin box and was converted into a parcel. The same was sealed by him with his seal "PR". The sealed parcel was taken into possession, vide Memo Ex. PW5/D. One empty cartridge of .455 was recovered from that place, which was converted into a parcel and was sealed by the ASI with the same seal. That sealed parcel was taken into possession vide Memo Ex. PW7/B, Ranbir Singh produced the said service revolver and five live cartridges of the accused before the ASI. The revolver and the cartridges were converted into separate parcels and were sealed with the said seal. Those sealed parcels were taken into possession vide Memo Ex.PW5/C. The autopsy on the dead body was performed by the doctor, who found ante mortem injury on the same and gave his opinion that the cause of death was the result of hemorrhage and shock due to that injury which was sufficient to cause death in the ordinary course of nature. One bullet was recovered from the dead body, which was put in a vial and the same was duly sealed by the doctor and was handed over to the ASI. The wearing apparels, found on the dead body, were produced before the ASI, who converted those into a parcel and sealed the same with his seal. On coming back to the police station, the ASI deposited the case property with the MHC. The sealed parcels containing the revolver and the empty cartridge were sent to the Forensic Science Laboratory on 2.11.1991, through Faqir Chand, Constable and were delivered at that place with seals intact. After examination, it was opined by the Assistant Director of that laboratory that the said cartridge had been fired from that revolver. The parcel containing the blood stained wearing apparels and blood stained earth were sent to the Chemical Examiner and were delivered at that place with seals intact. After examination, it was reported by that Chemical Examiner that the same were stained with human blood. In the course of investigation, the accused was arrested and after the completion thereof, the challan was put in before JMIC, Patiala, who found sufficient grounds for presuming that the accused committed offence punishable u/s 304-A IPC. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove his guilt, prosecution examined Jangir Lal, PW-1, Gurmail Singh HC, PW-2, Tejinderpal Singh Sidhu, PW-3,Sukhdarshan Singh HC, PW-4, Harpal Singh, Constable, PW-5, Jagdish Singh ASI, PW-6 and Pakhar Ram ASI. PW-7. After the close of the prosecution evidence, the accused was examined and his statement was recorded u/s 313 Code of Criminal Procedure The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his false implication. He stated that the deceased died as a result of the shot fired by himself. The accused was called upon to enter on his defence. He examined Jasbir Singh, DW-1 and Manit Singh,DW-2, in his defence evidence. After going through that evidence and hearing Assistant PP for the State and the defence counsel for the accused, JMIC, convicted the accused of the offence u/s 304-A IPC and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-and default of payment of fine to undergo rigorous imprisonment for a period of two months. The appeal was preferred by the accused against that conviction and sentence, which was dismissed.

I have heard learned Counsel for both the sides.

It has been submitted by the counsel for the accused that the conviction of the accused could not have been recorded in the absence of any proof to the effect that the revolver from which the shot was alleged to have been fired, had been issued to the accused in his official capacity and that the shot, which killed the deceased, was actually fired from that revolver. In the absence of that evidence, no reliance could have been placed on the statement of Gurmail Singh HC, PW-2. As per the prosecution version, Ranbir Singh, Gunman, was also present at the time of occurrence, but was not examined by the prosecution, for which an adverse inference is to be drawn against the prosecution. He also referred to the defence evidence and on the basis thereof, tried to contend that the prosecution evidence stands rebutted by that defence evidence. He prayed for the acquittal of the accused.

On the other hand, it has been submitted by State counsel that direct evidence was produced in the form of statement of Gurmail Singh HC, PW-2. The other evidence, that the killer shot had been fired from the revolver of the accused, would have only corroborated the statement of that witness and in the absence of proof to that fact, it cannot be held that the conviction of the accused could not have been recorded on the basis of the statement of that witness. He also tried to contend that the Public Prosecutor and the Investigating Agency tried to help the accused, being a police official, by not producing the evidence in the form of the report of the Chemical Examiner and the report of the Forensic Science Laboratory, which were on the record and were only to be tendered in evidence.

Direct evidence was produced by the prosecution in the form of the statement of Gurmail Singh. No doubt, there is no corroboration to his statement, but there is no rule of law that before placing reliance on the statement of the solitary witness, the same must be corroborated by some other evidence. Conviction of the accused can be recorded even on the statement of the solitary witness, if the same is found to be trustworthy and reliable. It is the case of the prosecution that the revolver, from which the shot was fired, was the service revolver of the accused and that the empty cartridge recovered from the spot was found to have been fired from that revolver. However, it failed to produce any evidence in the Court for proving those facts. That was very material evidence. The question arises whether that could be produced as additional evidence. It is well settled that the production of additional evidence is permissible in case of failure of justice, though such a power is to be exercised sparingly and in exceptional cases where the Court is satisfied that the production of additional evidence would serve the purpose of justice. It is not a case where it can be said that the evidence produced by the prosecution is not sufficient for recording the conviction of the accused. However, it will be more convincing in case other evidence, which was available with the prosecution and was not produced on account of the negligence of the public prosecutor, is allowed to be produced. The allowing of that evidence by way of additional evidence in this revision itself will certainly prejudice the accused as he will be loosing his first right of challenging that evidence in the appeal, if the conviction is freshly recorded by the trial court. It is also the case of the prosecution that the shot, which killed the deceased, was fired from the service revolver of the accused. Evidence was produced before the trial court that the said revolver and the cartridges were produced before the Investigating Agency by Ranbir Singh. Evidence in the form of the copy of the Register of Distribution about the issuance of this revolver to the accused, was collected during the investigation. During the trial, the Public Prosecutor did not produce that evidence. Whether he did so intentionally or on account of negligence, is a question of fact. All that evidence will further help the trial court for coming to the conclusion regarding the guilt or innocence of the accused. It is a case which requires re-trial from the stage, the evidence of the prosecution was closed.

Accordingly, the conviction and sentence of the accused is set aside. The case is remanded to the trial court for re-trial thereof, from the stage, the evidence of the prosecution was closed. It shall give three effective opportunities to the prosecution to produce the additional evidence, as discussed above and shall decide the case in accordance with law, within a period of six months of the date of receipt of the records and copy of this order.

The accused is directed to appear before that court on 27.4.2011. Petition stands disposed of accordingly.