Ajit Masih and anr. vs State of Punjab

S.S. Dewan, J.

The two appellants Ajit Masih and Kaka Masih along with two other accused namely Lakha Singh and Jagira were brought to trial before the Court of Session at Amritsar for committing the murder of Harbhajan Singh. Lakha Singh and Jagira accused were acquitted of the charge of murder. Ajit Masih and Kaka Masih, however, stand convicted under Section 302 read with section 34, Indian Penal Code and each of them has been sentenced to life imprisonment and a fine of Rs. 5,000/ or in default to undergo further rigorous imprisonment for two years. They appeal.

The victim of the crime is Harbhajan Singh. The prosecution case herein has no eye witness of the occurrence and rests entirely on circumstantial evidence. It emerges therefrom that Joginder Singh PW had installed a flour mill in the Haveli adjacent to his residential house in village Hardoputli. Harbhajan Singh his son used to sleep there at night in order to keep a watch over it. As usual, he went to the Haveli at about 10 p.m. on the night intervening 23/24.6.1984 after having taken his meals at his house and slept there. It is alleged that on the following morning at about 6 a.m. when Joginder Singh went to the Haveli to awake his son Harbhajan Singh, he found his dead body lying on a cot in a pool of blood. He also noticed two injuries caused with sharpedged weapon on his neck and one on right upper arm. Joginder Singh went to Police Station Ram Das and lodged the FIR Ex. PE regarding the said incident with Charan Dass Assistant Sub Inspector at 8.15 a.m. Joginder Singh had the suspicion that Lakha Singh (accused) Granthi of the Gurdwara had installed a tubewell bore to irrigate the land of Gurdwara but somehow he (Joginder Singh) had removed that bore from the area and thus Lakha Singh bore grudge against him and probably killed his son.

Charan Dass Assistant Sub Inspector (PW 7) went to the place of occurrence, held inquest and sent the dead body of Harbhajan Singh to the mortuary for autopsy. Surinder Kumar Sub Inspector (PW 8) took over the investigation from Charan Dass. He inspected the spot and lifted bloodstained earth from there. The visual plan of the place of occurrence was also prepared. Jagira accused was arrested on 27.6.1984. On the same day, the accused Ajit Masih and Kaka Masih went to Kashmir Singh at his house and they both confessed having murdered Harbajan Singh son of Joginder Singh. On the same day, Kashmir Singh produced the said accused before Sub Inspector Surinder Kumar who formally arrested them. On the same day on interrogation by Surinder Kumar, Ajit Masih suffered disclosure statement leading to the recovery of datar Ex. P. 5 from the specified place of concealment.

Dr. Rakesh Tiwari PW 1 conducted autopsy on the dead body of Harbhajan Singh on 24.6.1984 at 3.30 p.m. and found 5 incised wounds as detailed in the postmortem report Ex. PA. Death was opined to be due to shock and haemorrhage as a result of injury to carotid vessels which was sufficient to cause death in the ordinary course of nature. After necessary investigation, Ajit Singh, Kaka Masih and Jagira were challaned and committed. Since Joginder Singh had suspected Lakha Singh as one of the culprits, the Additional Public Prosecutor moved an application for summoning Lakha Singh as coaccused. That application was allowed by the learned Additional Sessions Judge, Amritsar and Lakha Singh was summoned and also charged for murder along with three other accused already committed to the Court of Session.

In support of its case the prosecution examined as many as 8 witnesses. PW 1 Swaran Singh deposed that on hearing the cries of Joginder Singh from his Haveli, he went there and found Harbhajan Singh lying dead on a cot with a number of injuries. PW 2 Joginder Singh complainant is the father of Harbhajan Singh deceased. He deposed to have lodged the FIR at Police Station Ram Das. PW 3 Kashmir Singh deposed that Ajit Masih and Kaka Masih came to him and confessed having murdered Harbhajan Singh. He claimed to have produced the said accused before the Sub Inspector Surinder Kumar who formally arrested them. PW 5 Mukhtiar Singh deposed to have arrested the disclosure statement made by Ajit Masih leading to the recovery of datar from the specified place of concealment. Charan Das Assistant Sub Inspector PW 7 and Surinder Kumar SubInspector PW 8 investigated the case. When examined under section 313, Cr.P.C., the accused denied the prosecution allegations and pleaded false implication in the case but led no evidence in defence.

The case being one entirely of circumstantial evidence and lacking in direct ocular testimony, the issue of motive, therefore, assumes some significance. Here, what meets the eye is the virtual lack of any evidence on this point. Joginder Singh PW 2 who is the father of Harbhajan Singh deceased has categorically stated at the trial that he had absolutely no dispute with the appellants. Therefore, there appears to be no option but to hold that the prosecution has singularly failed to prove and perhaps even to suggest any plausible motive for the appellants to commit the crime.

It is the common case that the heinous crime was committed on the night interventing 23/24.4.1984. It is not in dispute that the murder was committed unseen and the number and nature of injuries on the body would show that the murderers hacked the victim leisurely virtually making mince meat of him. The primary issue here, therefore, is to the identity of the culprit or culprits. The learned counsel for the parties are agreed and in fact it is patent that corner stone of the prosecution case is the extra judicial confession alleged to have been made to Kashmir Singh PW 3 on 27.6.1984. The rest of the prosecution evidence is only corroboration to buttress the main plank of the confession in the case. The core of the matter, therefore, is the acceptability of the testimony of Kashmir PW and the confession which he chooses to attribute to the appellants Ajit Masih and Kaka Masih. At the outset, it may be noticed that this confession is alleged to have been made 3 or 4 days after the date of murder and if the prosecution allegations are taken to be proved, the appellants, remained at large during all this period. Would they in such a situation, first choose to confess and further to pick up Kashmir Singh PW 3 as their confident. The answer to this question appears, to our mind, in the negative. On Kashmir Singh''s own showing, he had no intimacy or near relationship with the appellants. Kashmir Singh PW patently is a man with shady and questionable past. On his own showing, he along with Gurnam singh, Baldev Singh Sarpanch and Mukhtiar Singh had been convicted under Section 326, Indian Penal Code and sentenced to one year''s rigorous imprisonment. It therefore, seems most unlikely and indeed improbable that the appellants without having any intimacy with Kashmir Singh PW would go to a person of the latter''s antecedents for help. Be that as it may, the extrajudicial confession which was said to have been made by the appellants before Kashmir Singh cannot be accepted in evidence for the simple reason that it was a joint one. Viewed from any angle, therefore, the solitary and unsatisfactory evidence of Kashmir Singh on the point of making the alleged extrajudicial confession attributed to the appellants is devoid of credibility and has necessarily to be rejected.

Once the main plank of the prosecution case falls, very little indeed remains. However, a reference to one of the circumstances would further show that far from adding to the prosecution case, it indeed lend to erode the same. In this category falls the alleged recovery of datar at the instance of Ajit Masih appellant. There are glaring infirmities in the evidence of Charan Das Assistant Sub Inspector on the point to which detailed reference is unnecessary because the learned counsel for the State has himself not relied upon his testimony. It suffices to mention that this weapon is not bloodstained at all.

For the foregoing discussion, it is manifest that the charge levelled by the prosecution against the appellants is wholly unsustainable and their conviction and sentence are, therefore, hereby set aside. The appeal is allowed.

Apeal allowed.