Tarseem Singh vs State

I.K. Kotwal, J.—The Appellant has been convicted by the learned Additional Sessions Judge, Jammu, u/s 302, R.P.C. for having

committed the murder of one Kripa Ram of village Saroda and sentenced to life imprisonment. He has come up in appeal before this Court against

his conviction and there is also a reference before us made by the learned Additional Sessions Judge, Jammu for confirmation of the sentence. This

judgment will dispose of both the appeal as well as the reference.

Briefly put, the prosecution story goes like this: On 23rd of June 1973 a verbal report was lodged with the police station Saddar by P.W. Ram

Saran, According to the first informant he was informed by P.W. Agya Ram Brahman, while returning home from Jammu, that his uncle Kripa Ram

had been seriously injured by the Appellant. P.W. Ram Saran immediately reported the matter to his father who was working at some machine

nearby and both of them there after went to the house of Kripa Ram. They found Kripa Ram lying in an injured condition and also saw marks of

injuries on his head and neck. Kripa Ram according to P.W. Ram Saran was profusely bleeding and (sic) being questioned told P.W. Ram Saran

and his father that he had been injured with the help of a Suthra (an iron instrument used by carpenters for making holes in wood etc.) by the

Appellant in presence of P.W. Ram Singh and Lal Singh when he had gone to the Haveli of Jagat Sani Pahalwan for getting his plough repaired.

P.W. Ram Saran also informed the police that the Appellant had also injured. P.Ws. Ram Singh and Lal Singh with the same Suthra. On this

report the police in the first instance registered a case u/s 307 R.P.C against the Appellant. Harnam Singh ASI immediately thereafter repaired to

the spot and recorded the dying declaration of Kripa Ram. As the injured succumbed to the injuries during the course of investigation, the offence

was converted from 307, R.P.C. into one u/s 302, R.P.C.

The prosecution examined a number of witnesses in this case including the two eye witnesses namely, Ram Singh and Lal Singh The statements

of P.Ws. Dr. R.N. Sachder and Dr. Manzoor Ahmed were also transfer red to the file of the Sessions Judge which the said two witnesses had

made before the Committing Court. The report of the Ch(sic) cal Examiner was also tendered in evidence by the Addl. Public Prosecutor.

The Appellant declined to make (sic) statement before the Committing Court (sic) in the Sessions Court he made a statement (sic) pleading his

insanity at the relevant time (sic) defence to the charge. The trial court (sic) considering the entire evidence on the (sic) rejected the plea of insanity

put forth by the Appellant and convicted him for having committed the murder of Kripa Ram and sentenced him to undergo life imprisonment as

stated above. The trial court was of the opinion that the Appellant had failed to discharge he burden of proving insanity at the relevant time.

Reliance was placed upon the statement of P.W. Ram Singh made in the committing Court which was transferred to the file of the trial court u/s

288 Cr. Code. Reliance was also placed upon the being declaration made by the deceased Kripa Ram. Besides this, failure on the part of the

Appellant to plead insanity at the earliest when his statement was recorded in the committing Court, weighed heavily against the Appellant with the

trial court. Another factor which the trial court took into consideration as that since the injuries were inflicted by the Appellant on the vital part of

the body i.e., head, it clearly indicated that an intention to kill was present in the mind of the Appellant. Again the trial court attached considerable

importance to the report of the doctor who had examined the Appellant during the course of the trial and failed to lind (sic)cy symptom or insanity

at the time of his examination. The trial Court was of the (sic) that more probability of insanity was enough to discharge; the burden of the reption

which lay squarely on the Appellant. According to the trial, court the Appellant was bound to prove insanity beyond any shadow of doubt. The

trial Court also held it in view of the direct evidence available the case, absence of motive was of no conduence.

We have heard the learned defence counsel and the Deputy Advocate General. (sic)th of them have taken care to take us tough the entire

evidence on the record.

Mr. Sethi, the learned Counsel for the Appellant has assailed the judgment of the (sic) court on a number of grounds. He has (sic)mently argued

before us that the assess(sic) of the evidence made by the trial court regard to the proof of insanity of the Appellant at the time of the occurrence

was (sic)ently erroneous. He has further argued (sic) the approach made by the trial court in (sic)ar as the burden of proving insanity was learned,

was also wrong. Lastly he has (sic)ed that the dying declaration placed on record was doubtful.

It is now well settled that the general (sic)den to prove the charge never shifts and always rests on the prosecution. But if an (sic)ption is pleaded

by the accused, the burden of proving the existence of circumstances bringing the case within the exception lies on the accused; and the court shall

presume the absence of such circumstance. The accused was to satisfy the standard of a prudent man. If the material placed before the court

satisfies the best of a 'prudent man' the accused will have discharged his burden. Nonetheless the standard of proof which is required to prove an

exception is not the same as the standard of proof which is required to prove a charge. The accused may not be able to prove the exception to the

hilt yet if he has succeeded in raising reasonable doubt in the mind of the court with regard to the existence of one or more ingredients of the

offence he shall have discharged the burden of proving the exception. In the instant case the general burden of proving the intention to commit

murder or the requisite knowledge on the part of the Appellant that his act was likely to result in the death of the deceased lay always on the

prosecution. If the accused by showing certain facts and circumstances in the evidence succeeded in raising a reasonable doubt in the mind of the

court with regard to either the requisite intention or the requisite knowledge, he would have discharged the burden of proving the exception. The

doctrine of burden of proof in the context of the plea of insanity was considered by their Lordships of the Supreme Court in Dahyabhai

Chhaganbhai Thakker Vs. State of Gujarat, where the court observed as follows (at p. 1568):

.... The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) the prosecution must prove

beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on

the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane when he committed

the crime, in the sense laid down by Section 84 of the Penal Code: the accused may rebut it by placing before the Court all the relevant evidence--

oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings; (3) Even if the

accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the

accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence,

including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof

resting on the prosecution was not discharged.

A similar view was taken by the Delhi High Court in Shanti Devi Vs. The State, .

In this legal background we shall now proceed to consider whether or not the Appellant has succeeded in discharging the burden of proving

insanity at the relevant time.

P.W. Lal Singh has stated that while he was inattentive, somebody inflicted a blow in his waist. He could not say who inflicted the blow and with

what. He became unconscious and when he regained consciousness he found himself in his own house. He however, admits that he was staying in

the shop of P.W. Ram Singh when he received injuries. This witness has been cross-examined by the Addl. Public Prosecutor. Statement made by

the witness during the investigation u/s 161 Cr. P. Code was also put to him but he denied having made any such statement. The prosecution did

not take care to get his statement made u/s 161, Cr.P. Code proved by the Investigating Officer. While being cross-examined by the Addl. Public

Prosecutor the witness has stated that after some time his brother Rashpal Singh had arrived on the spot and caught hold of the Appellant and took

him to the latter's house. When cross-examined by the defence counsel the witness has stated that 7 or 8 days before the date of occurrence, the

Appellant had gone mad and his home people had confined him in his house on account of his madness. This witness has further stated that the

Appellant bore no enmity towards Kripa Rom deceased. In court questions the witness has stated that during these 7, 8 days the Appellant would

run after the children. He also stated in reply to a court question that he made a statement before the police that the Appellant was insane.

P.W. Ram Singh who has also been examined by the prosecution has stated that 4 or 5 days before the date of occurrence the Appellant had

gone mad. On the day of occurrence also he was mad. The witness was sitting in his shop when the Appellant came there, and gave a push to the

witness as a result of which he fell down and sustained injuries on his legs. After that what happened the witness does not know. This witness has

also stated that the home people of the Appellant had confined him in his house but unfortunately some small boys opened the room and the

Appellant was let loose. When the Appellant came to his shop he was running after small children. He also created a row in the shop of the

witness. The witness was confronted by the Addl. Public Prosecutor with his earlier statements made u/s 161 Cr. P. Code and in the Committing.

Court. The witness admitted having made those statements but he explained the apparent contradictions by saying that he had made such a

statement before the police and in the Committing court due to the threat held out to him by one Raj Kumar son of Kripa Ram deceased. When

cross-examined by the learned defence counsel, the witness has stated that froth was coming out of the mouth of the Appellant and his clothes

were torn when he was chasing the small children on the day of occurrence. He has further stated that at that time the Appellant looked clearly

mad. He has also admitted that the Appellant bore no enmity either towards the deceased or towards him or P.W. Lal Singh. The witness has

further gone to the extent of saying that even on the day when he made the statement before the trial court, ASI Harnam Singh was pressurising

him to stick to the statement which the witness had made before the Committing Court. In his statement before the committing court which has

been transferred u/s 288. Code of Criminal Procedure to the trial court file the witness has stated that he was sitting in his shop and repairing

plough at that time and deceased Kripa Ram and P.W. Lal Singh were also there. The Appellant came and picked up iron 'Suthra' lying there and

injured Lal Singh, the deceased and the witness. In cross-examination the witness has stated that the Appellant bore acenemity towards the

deceased or the witness or P.W. Lal Singh He has also admitted that when the Appellant came to his shop he was saying that he would kill each

and every body living in the village. He has also admitted that the Appellant started inflicting blows indiscriminately as if he was a (sic)dog. It

appeared that the Appellant was act in his senses at that time.

P.W. Rashpal Singh who has been cross-examined by the prosecution (sic) stated that there was hue and cry in the village. The children were

shouting""...."" On hearing this the witness also ran towards the village and saw that the Appellant was lying down near a wall and froth was coming

out of his mouth. The Appellant was unconscious and was surrounded by small children. The witness bodily lifted the Appellant and took him to his

house. The witness was told by the home people of the Appellant that he had gone mad, and they therefore, tied him with the help of a rope to a

pillar in the house. In the meantime the police arrived there and the witness left the place. This witness was also confronted with his statement made

by him u/s 161 Cr. Procedure Code before the police but the prosecution did not care to get that statement proved by the Investigating Officer.

This witness has also admitted (sic)at the Appellant bore no enmity towards witness or the deceased.

P.Ws. Agya Ram and Ram Krishan P.Ws. have also admitted that a number of children were also present when the occurrence is said to have

taken place.

P.Ws. Faquir Chand and Rajkumar have proved the dying declaration of Kripa Ram deceased.

The Appellant has also examined D.Ws. Hansraj, Jagat Ram, Bishamber Singh. Bhagat Ram and Shunka all of whom have stated with one

voice that the Appellant had gone mad 7, 8 days before the occurrence.

The learned Dy. Advocate General has assailed the testimony of P.Ws. Ram Singh, Lal Singh and Rashpal Singh and argued before us that

these witnesses have gone back upon their earlier statements and are, therefore, highly unreliable witnesses. It is no doubt true that P.W. Ram

Singh had categorically stated before the Committing Magistrate that it was the Appellant who inflicted blows on him, P.W. Lal Singh and the

deceased Kripa Ram. In his statement before the trial court however he has given an entirely different version about his own injuries. We are

satisfied that this witness is not telling the truth to this extent. Nonetheless there is a glaring feature in his statement even before the Committing

Magistrate which provides a lot of indication about the state of the mind of the Appellant at the time of the occurrence. In that statement too the

witness has clearly admitted that at the time of occurrence the Appellant gave a semblance of a mad dog and that the Appellant was shouting that

he would will each and every body in the village. Thus we find a reliable clue to the effect that this witness also did not want to completely suppress

the fact of the insanity of the Appellant (sic) the time of occurrence. No doubt the statement of the witness recorded u/s 288. Cr. P. Code has

been brought on the record of the trial court, nonetheless we cannot hold that the statement made by the witness at the trial is wholly unreliable.

Before the prosecution can compel us to hold such an opinion the prosecution must show that some circumstances supervened after the witness

made his statement in the Committing Court which led the witness to resile from his earlier statement and compelled him to make a different

statement in the trial court. We find no such circumstance either in the cross-examination of the witness at the instance of the Additional Public

Prosecutor or in any other independent evidence. May be that the explanation given by the witness for the apparent contradictions in his statement

before the trial court is true; the mere fact that a witness makes a contradictory statement in the trial court is no guarantee for the inference that his

earlier statement made in the Committing Court was true and that his subsequent statement in the trial court was false. It is quite possible that in the

trial court the witness might have reverted to truth. In any event the statement made by the witness in the committing Court as already pointed out,

is clearly suggestive of the inference that there was definitely something wrong with the mental condition of the Appellant at the time of the

commission of the alleged offence.

The criticism made in respect of the statements of P.Ws. Lal Singh and Rashpal Singh is also without any force. Before the prosecution could

take advantage of contradicting the witnesses u/s 145 of the Evidence Act it was the bounden duty of the prosecution to get the statements of

those witnesses made u/s 161 of the Code of Criminal Procedure proved by the officer who had recorded those statements during the course of

investigation. No attempt having been made to get those statements proved in this manner we cannot look into these statements made by the

witnesses u/s 161 Cr. P. Code and if we cannot look into those statements, evidently there will be no contradictions made out. We are left with no

option but to believe the statements of P.Ws. Lal Singh and Rashpal Singh both of whom have frankly stated that the Appellant had gone mad 7 or

8 days before the occurrence took place, and was also mad on the day of occurrence.

Coming now to the question of dying declaration made by the deceased Kripa Ram, we are of the opinion that this statement even if believed

to be correct does not take the case of the prosecution any farther. We are not prepared to believe that the injuries on the persons of P.Ws. Lal

Singh and Ram Singh and the deceased Kripa Ram were not caused by the Appellant. What we are going to find out is whether there was any

intention on the part of the Appellant to cause these injuries and further whether the Appellant intended to cause the death of Kripa Ram by these

injuries or whether he knew that the injuries which he was going to inflict were likely to result in the death of the deceased. We do not find any

indication to this effect even in the dying declaration made by the deceased.

From the evidence which we have hereinbefore discussed, the following facts and circumstances clearly emerge.

i) That the Appellant was unarmed when he came to the shop of Ram Singh P.W.1 on the day of occurrence;

ii) That he picked up an iron ""Suthra"" belonging to P.W. Ram Singh which was lying in his shop and stalled inflicting blows with it on Ram Singh,

Lal Singh, P.Ws. and the deceased Kripa Ram indiscriminately;

iii) That before attacking P.Ws. Ram Singh, Lal Singh, and the deceased Kripa Ram, the Appellant was openly saying that he would kill each and

every person living in the village;

iv) That froth was coming out of the mouth of the Appellant when the occurrence took place;

v) That the Appellant was chasing small children of the village when he reached the shop of Ram Singh P.W.

vi) That the Appellant was bearing a close resemblance to a mad dog when the occurrence took place;

vii) That the Appellant was bodily lifted by P.W. Rashpal Singh and taken to his house and the home people of the Appellant stated that he had

gone mad;

viii) That the home people of the Appellant tied him to a pillar with the help of a rope and he remained tied until the police arrived in the village;

ix) That the Appellant had gone mad 7 or 8 days before the date of occurrence;

In our opinion all these facts and circumstances are more than sufficient for us to come to the conclusion that the Appellant was insane at the

time when the occurrence took place. The proof of the insanity of the Appellant at the nick of time is highly improbable. His insanity at the time of

occurrence has to be judged from his conduct at the time of occurrence, previous to the occurrence, and after the occurrence along with other

attendant circumstances. We are fortified in taking this view by a judgment of their Lordships of the Supreme Court in Ratan Lal Vs. The State of

Madhya Pradesh, wherein their Lordships observed:

The crucial point of time at which unsoundness of mind has to be proved is the time when the crime is actually committed The burden of proving

this can be discharged by the accused from the circumstances which preceded, attended and followed the crime.'

If the Appellant really intended to commit murder of Kripa Ram he would have in all likelihood come armed to the shop of P.W. Ram Singh.

Then again there was no point in inflicting injuries on the persons of P.Ws. Ram Singh and Lal Singh before he actually assaulted Kripa Ram. He

would have straightway inflicted injuries on the person of Kripa Ram and done him to death. Then again had he killed the deceased intentionally or

with a design, he would not have allowed himself to be tied with the help of a rope in his own house and particularly by his own people so as to

facilitate his arrest by the police. There is also nothing on the record to show that the Appellant bore any enmity either towards the injured

witnesses or towards the deceased. No doubt motive is of no consequence when there is direct evidence to prove the crime, but motive assumes

importance when the court is called upon to find out whether or not there was any intention on the part of the Appellant to commit the crime.

Motive may also assume importance when the case hinges upon circumstantial evidence. We find no reason to believe as to why the Appellant

should have intended to kill Kripa Ram deceased when he had no scores to settle with him. Again why should he have taken it into his head to

assault P.Ws. Lal Singh and Ram Singh with whom also he had no enmity. He could not have done all this just for the sake of fun.

Considering all these facts and circumstances we are firmly of the view that the Appellant clearly lacked intention to kill deceased Kripa Ram

and also lacked knowledge that the injuries which he inflicted on the deceased Kripa Ram would result; in his death. This is because in our opinion

the Appellant was in all probability insane at the time of occurrence.

In view of what has been stated here before, we are clearly of the opinion that the prosecution has failed to bring home the charge to the

Appellant. We therefore, while giving benefit of doubt to the Appellant, accept the appeal, set aside the conviction and the sentence passed on the

Appellant Tarseem Singh, and acquit him of the charge. The reference made by the learned Additional Sessions Judge, Jammu, is hereby rejected.

We may further observe that the Appellant shall not be released from the jail but shall be referred to the Mental Hospital Jammu, where he shall be

kept under observation and treatment and released only when his insanity is cured.

A.S. Anand, J.

I agree.

The learned Deputy Advocate General, immediately after the judgment was pronounced prayed for a certificate under Article 134 of the

Constitution of India for leave to file an appeal to the Supreme Court.

The case is based on appreciation of evidence and the grounds on which the appeal has been accepted are based on the law laid down by the

Supreme Court. There is no question, which is no question of law, much less any substantial question, which may re quire determination by their

Lordships of the Supreme Court. The prayer for the grant of the certificate is rejected.