Tarsem Singh vs State of Punjab

V.S. Aggarwal, J.

This is an appeal filed by Tarsem Singh directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Kapurthala. By virtue of the impugned judgment, the learned trial court acquitted the other accused but held appellant Tarsem Singh guilty of the offence punishable under Section 307 IPC. After hearing the appellant on the question of sentence, he was sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 5,000/. In default of payment of fine, the appellant was to undergo further rigorous imprisonment for six months. An amount of Rs. 2,000/ out of the amount of fine was to be paid to injured Karamvir.

The relevant facts of the proseection case are that Beant Singh and Tarlok Singh had agreed to sell about 2 killas of land for a consideration of Rs. 20,000/. They did not execute the sale deed. A suit for specific performance of the agreement was filed. It was decreed in favour of Karamvir. An appeal was filed which was dismissed. The result was that sale deed was executed and possession was delivered to Karamvir with the police help. During this period while the litigation was pending, the appellant and others had given threats to Karamvir that he would be killed. It is alleged that on one occasion some Nihangs were taken to the house of Karamvir but he was not present in his house. A complaint was filed with the police by the mother of Karamivr. Certain respectables of the village intervened. An apology had been submitted. Karamvir even had filed an application in court regarding the threats being given to him. It is also the prosecution case that through Tarsem Singh appellant a suit was filed with a view to retain possession. The said suit was pending before the learned Subordinate Judge, Sultanpur Lodhi. It was transferred to Kapurthala. On 25.7.1986 the learned Senior Subordinate Judge, Kapurthala had given last opportunity to produce and conclude the evidence. The case was adjourned to 13.8.1986.

On 7.8.1986 at about 6.00 A.M. Karamvir was present near Bhara Mal Mandir in the area of Sultanpur Lodhi. The appellant and other accused were concealing themselves. Appellant Tarsem Singh fired a shot from his pistol. It hit injured Karamvir in the right side of the chest. Tarlok Singh also fired from his pistol. Beant Singh gave a lalkara asking the coaccused to kill Karamvir. Karamvir ran towards the Bazar. Pawan Sethi met him. He went with Karamvir in the hospital at Sultanpur Lodhi. At Sultanpur Lodhi Dr. Jasbir Singh examined Karamvir and provided first aid. Karamvir was taken to Christian Medical College, Ludhiana. Dr. N. Santosh Mathew examined Karamvir and found the following injuries on his person :

"1. Eight wounds of entry distributed between the posterior exillary line and mid clavicular line on the right side of the chest from 2nd intercostal space to 8th intercostal space. There is charring around the wound irregular margin. Skin abrasion of margins. Some of these pellets have entered chest cavity and produced hemopneumo throax.

Two wounds of entry and two wounds of exit on the posterior aspect of right arm. The wounds of exit on the lateral aspect and wounds of exit on the medial aspect."

The case was investigated by Sant Singh. On receiving a telephonic message from the hospital, he made on entry in the Roznamcha and proceeds towards the hospital. Karamvir was fit to make the statement. In the presence of Sub Divisional Magistrate, Sultanpur Lodhi and the doctor, the statement of Karamvir was recorded. He signed it. On basis of it formal first information report was recorded. Sant Singh prepared the site plan after visiting the spot. On the next day supplementary statement of Karamvir was recorded. The appellant was arrested and on 10.8.1986 he was interrogated while in police custody. He made a disclosure statement that he has kept the pistol alongwith a cartridge under a kikkar tree near Gurdwara Ber Sahib at Kabirpur road. His disclosure statement was recorded. The appellant signed it. In pursuance of that disclosure statement, he led the police party and got recovered the pistol and the cartridge. The same were taken into possession vide a recovery memo. They were converted into a sealed parcel. On these broad facts, challan as against the appellant and others had been filed.

The learned trial court framed a charge against the appellant and others with respect to the offence punishable under Section 307 IPC. In support of its case the prosecution had examined injured Karamvir, the Sub Divisional Magistrate of Sultanpur Lodhi Sukhjinder Singh besides Dr. Jasbir singh who examined Karamvir at Sultanpur Lodhi. Dr. N. Santosh Mathew who exmined the injured at Ludhhiana was also examined.

All the incriminating evidence was put to the appellart in the form of different questions. He denied his involvement in the crime. No defence evidence had been produced.

The learned trial court on appraisal of the evidence held that there is no ground to discard or discredit the testimony of Karamvir. Accordingly, the appellant was held guilty of the offence punishable under Section 307 IPC. The judgment and the order of sentence referred to above were passed. Aggrieved by the same Tarsem Singh has filed the present appeal.

On behalf of Karamvir injured Criminal Revision No. 748 of 1987 had been filed asserting that Tarlok Singh and Beant Singh should not have been acquitted and the sentence of appellant Tarsem Singh should have been enhanced. A separate challan had been submitted against appellant Tarsem Singh for the offence punishable under Section 25 of the Arms Act. The learned Additional Sessions Judge held the appellant guilty of the said offence and sentenced him to undergo rigorous imprisonment for one year. The sentence was to run concurrently with the punishment awarded under Section 307 of the Indian Penal Code. As against the said judgment and the order of sentence, Tarsem Singh has filed Criminal Appeal No. 365SB of 1987. By this common judgment, all the above said appeals and the revision petition can be disposed of together.

With respect to the criminal revision that has been filed by the complainant against the acquittal of two accused Tarlok Singh and Beant Singh and regarding the sentence awarded to Tarsem Singh, learned counsel for the petitionercomplainant highlighted the fact that the trial court was in error in ignoring the statement of the injuredcomplainant. In this regard pertaining to the acquittal of Tarlok Singh and Beant Singh, in paragraph 21 the learned trial court had recorded the following reasons which are being reproduced below :

"21. It is further submitted by the learned counsel that in Ex. PA it was not mentioned that the shot fired by Tarlok Singh did not hit the injured. The learned counsel further points out that no firearm had been recovered from Tarlok Singh during the course of investigation. His submission is that the possibility could not be ruled out that the names of Beant Singh and Tarlok Singh were introduced falsely. the learned Addl.P.P. has submitted that the accused Tarlok Singh after the occurrence had given his pistol to the accused Sukhwinder Singh and that''s how, the recovery could not be made from Tarlok Singh. I have considered all these arguments. There does not appear to be any evidence on record that Tarlok Singh had given the pistol to the accused Sukhwinder Singh after the occurrence. If we have regard to the site of the injuries on the arm and the chest it appears quite propable that the two injuries could result from one and the same shot which has been attributed to the accused Tarsem Singh. In view of the previous litigation between the parties and the nature of evidence led, I come to the conclusion, that, as an abundant caution, the accused Beant Singh and the accused Tarlok Singh are entitled to get benefit of doubt. There is, however, no manner of doubt regarding the commission of the offence by the accused Tarsem Singh. Accordingly, I hereby acquit the accused Tarlok Singh and Beant Singh giving them benefit of doubt and the accused Sukhwinder Singh as there is no evidence against him."

The reasoning of the trial court would reveal that the learned Additional Sessions Judge, Kapurthala had taken the probative value of the evidence. He has considered the same and has some to a conclusion. The benefit of doubt has been awarded. The said reasoning cannot be described to be erroneous. Onec the probative value has been considered, the High Court would be slow to interfere in a criminal revision filed against acquittal at the behest of the complainant. The trial court noted that there was no evidence to show that Tarlok Singh had given the pistol to Sukwinder Singh. By way of abundant caution he did not deem it appropriate to convict Tarlok Singh and Beant Singh. There is no ground thus to interfere in the said finding.

As regards the sentence awarded to Tarsem Singh, the question of the sentence has to be considered hereinafter and no sepoarate finding is being recorded while disposing of the revision petition.

The main witness which is the solitary witness in the present case to connect appellant Tarsem Singh with the crime is Karamvir PW4. He has given a vivid and detailed discussion pertaining to the incident. He stated that 9 years before the incident Beant Singh and Tarlok Singh had executed an agreement to sell 2 killas of land for a consideration of Rs. 20,000/. The agreement was not honoured. The witness had instituted a suit for specific performance and the same was decreed. The sale deed was executed in favour of the injuredwitness through the Court. Tarlok Singh and Beant Singh in order to retain possession, got the girdawari recorded in the name of Tarsem Singh. An application was filed for exection to get possession in the year 1981. The appellant and others had come to his house but the witness was not present. The matter was reported to the police. At the intervention of the respectables, a written apology was given by Tarsem Singh. Tarsem Singh had brought a civil suit against the witness namely Karamvir in the court of Subordinate Judge, Sultanpur Lodhi. It was based as per this witness on a forged document. Some adjournments had been obtained when the incident took place on 7.8.1986.

Pertaining to the incident, he stated that on 7.8.1986 while Karamvir PW4 was passing near Bhara Mal Mandir Tarsem Singh fired on him. The shot hit him on the right side of the chest. He stated that Tarlok Singh was with him and he too fired from a country made pistol. Beant Singh had given the lalkara to kill Karamvir. He went on to state that he came to the hospital and was given the first aid by the doctors at Sultanpur Lodhi. Thereafter he was taken to C.M.C. Hospital at Ludhiana. Necessarily, he was crossexamined and added that after the occurrence he walked on foot to the Bazar where Pawan Kumar Sethi met him. From there he went to the hospital on foot. The distance of the place of occurrence from the hospital was half a kilometer. He remained in the hospital for 45 minutes at Sultanpur Lodhi and gave all the details to the police but the police officer wanted brief statement. The statement was recorded in 5 to 7 minutes. He did not give all the details in the statement which was recorded by the police.

Learned counsel for the appellant at the outset assailed the other evidence alleging that the incident could not have taken place at the time namely 6.00 A.M. as stated by Karamvir. As per the learned counsel in the opinion of Dr. Mathew who had examined the injured at 8.40 A.M. the incident had taken place 4 to 8 hours before the examination. On the strength of this fact it was highlighted that the incident took place at the dead of the night and Karamvir was not in a position to identify the assailants.

To appreciate the said argument, a reference to the other evidence on the record would be in the fitness of things. Sukhjinder Singh PW1 is the S.D.O. Civil, Sultanpur Lodhi who was posted on 7.8.1986 at that place. He deposed that at about 6.15 P.M. the newspaper vendor told him that there was a firing incident in the city and that the injured had been shifted to the civil hospital. He want to the Civil Hospital. The injured person was admitted and was being given medical aid. The officerincharge of the police station was enquiring from the injured about the incident. ASI Sita Ram was writing down the statement of the injured. During crossexamination he clarified that he had stayed in the hospital for half an hour. Corelated with his statement is the evidence of Dr. Jasbir Singh PW3 who was the Senior Medical Officer at the hospital. He stated that at 6.12 A.M. Karamvir was brought to the hospital with a gun shot injury. He informed the police on telephone. Emergency treatment was given to the injured. He further stated that he had opined that a brief statement of the injured be obtained.

Both the witnesses categorically stated that the injured reached the hospital shortly after 6.00 A.M. The said fact tallies with what PW4 Karamvir states about the time of the incident. So far as the statement of Dr. Santosh Mathew PW6 is concerned, indeed in the first instance he stated that the injures were fresh but he states during crossexamination that duration was between 4 to 8 hours. This opinion is based on the quantity of blood found in the cavity. This does not seem to be a satisfactory method.

It is well settled that the opinion evidence would not ordinarily override satisfactory and cogent oral evidence. The Sub Divisional Officer, Sultanpur Lodhi found the injured in the hospital at Sultanpur Lodhi. He went to the hospital on being informed that there was a firing incident. There is no ground to discredit the same. Otherwise also the opinion of Dr. Mathew that the duration could be satisfactorily found pertaining to the injuries, on the quantity of blood in the cavity, cannot be correct by way of mathematical formula. therefore, the said plea of the appellant cannot be accepted.

Confronted with that position it was argued that the statement of Karamvir PW4 as already pointed out above was not believed qua Tarlok Singh and Beant Singh. The learned counsel argued that the testimony and the evidence qua the appellant should be ignored. But the said argument again is devoid of any merit. Giving benefit of doubt to an accused necessarily does not imply that the testimony of the eye witness should be rejected as a whole. The statement has to be considered in light of all facts and circumstances.

It is true that Karamvir is the solitary witness but in this regard reference with advantage can be made to the decision of the Supreme Court in the case of Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614. The Supreme Court held :

"Hence, in our opinion, it is a sound and wellestablished rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be made classified into three categories, namely :

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

(12) In the first category of proof, the court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial."

The ratio of the decision of the Supreme Court prompts the learned counsel for the appellant that corroboration was required. Indeed corroboration is required so as to satisfy its conscience that the witness is telling the truth and the person accused has not been falsely implicated. It is true that old cases followed in British India Courts had led to the tendency that there is advisability of corroboration present in the mind of the Judge. But it would be impossible, indeed dangerous to formulate the kind of evidence which should be regarded as corroboration. It is not a sine qua non for holding a person guilty.

The corroboration can be by direct evidence or by circumstantial evidence. In the present case it transpires in the statement of Karamvir that there has been a long past history of litigation. The appellant had brought a civil suit against Karamvir. The case was fixed for evidence and was being adjourned. He was being threatened. It transpires in evidence that Karamvir was under a great threat. A complaint had been moved and a compromise had been arrived at. There was provocation for the appellant to attack on Karamvir. This provides the circumstantial corroboration to the statement of Karamvir.

In that event it was urged that the first statement made by Karamvir was cryptic and subsequently he made positive improvements. But it has been clarified by Dr. Jasbir Singh PW3 that he had opined that a brief statement be recorded. The reason in recording the brief statement was forthcoming.

On appraisal of the evidence of PW4 Karamvir who normally will not involve an innocent when an attack has been made on his life reveals that there is no ground to discredit or ignore the same. He must be believed. The findings of the trial court in this regard cannot be brushed aside and must necessarily be approved.

As regards the conviction of the appellant with respect to the offence punishable under Section 27 of the Arms Act, the testimony revolved around the statements of ASI Sita Ram PW1 and Sant singh, Officerincharge PW2. They both stated that appellant made a disclosure statement and in pursuance of that got recovered the pistol from under the Kikkar tree near the drain. Absence of public witness necessarily in all cases will not lead to the rejection of the testimony of the official witness. Their testimonies have to be considered on their own merits, when there are no other cogent reasons to disbelieve the same. Indeed it will be improper to reject the same merely because they are official witnesses. They clearly establish the possession of firearm without any licence.

In this regard the sole submission then made was about the sentence to be awarded. Since the time the incident took place, 11 long years have expired. Keeping in view the flow of life that has passed, the interest of justice requires that sentence be reduced to two years rigorous imprisonment with no interference with the respect to the quantum of fine and the punishment in default thereto. There is no interference in the sentence awarded with respect to Criminal Appeal No. 365SB of 1987 but the same is to run concurrently with the punishment awarded for offence punishable under Section 307 IPC.

For these reasons, criminal appeals and the revision are dismissed but the sentence as mentioned above is reduced.