Arjun Dass vs State of Punjab

V.K. Bali, J.—Three separate criminal Appeals bearing No. 456-DB of 1994,457-DB of 1994 and 507-DB of 1997 have been filed against the order of conviction and sentence recorded against the appellants Madan Gopal, Arjan Dass and Ram Dass holding them guilty of offence u/s 302 read with Section 34 of the Indian Penal Code and sentencing them to imprisonment for life and to pay a fine of Rs. 1,000/- each. In default of payment of fine, they have been ordered to further undergo R. I. for one month each.

On the statement of Ajit Raj son of Rakha Ram which was recorded by Satinder Singh ASI on 28th of January, 1994 at 10.30 a.m. F. I. R. Ex. PD came into being wherein it was mentioned that Ajit Raj was employed in the Water Supply Department and was posted at village Mamial for the last about three years. There was a place (tomb) of Baba Mehar Shah in the area of village Mamial towards the Eastern side of the bank of the canal where the general public used to come to pray according to their belief. Madal Gopal son of Durga Dass has been serving the tomb of Baba Mehar Shah by constructing a hutment there since long. Ram Dass son of Jag Jiwan Dass Bihari, Arjan Dass son of Sham Sunder Dass Brahmin, resident of Bindraban U. P. and Kaushal Dass also used to visit Madan Gopal. They used to stay together for many days. Kaushal Dass was on visiting terms with Madan Gopal resident of Awankha. Madan Gopal used to restrain Kaushal Dass from visiting his house. On this matter, quarrel had ensued so many times between Kaushal Das and Madan Gopal but the matter used to be patched up. Arjan Dass and Ram Dass used to help Madan Goal. Now, they were staying there together for many days. On 26th of January, 1994, in the evening he had gone to the tomb of Baba Ji to pay his respects. After paying his respects, he had gone inside the hutment of Madan Gopal saint. As he had been previously visiting them, so he knew all of them very well. At that time, Madan Gopal, Arjan Dass and Ram Dass were quarrelling with Kaushal Dass. He went to the tubewell leaving them quarrelling. Yesterday in the evening i.e. on 27th of January, 1994, as usual he had gone to pay his respects at the tomb of Baba Jee. After paying respects, he per chance went inside the hutment and saw the dead body of Kaushal Dass lying inside the hutment and blood was oozing out but there was no other mark of injuries on the dead body. Madan Gopal, Ram Dass and Arjan Dass had committed the murder of Kaushal Dass by causing injuries during the intervening night of 26th/27th of January, 1994 and they have fled away. He further stated that due to darkness he could not go to lodge the report and now that he was going to lodge the same that A. S. I. met him. On the basis of statement given by Ajit Raj, formal F. I. R. Ex. PD/A came to be recorded as mentioned earlier by Satinder Singh ASI who has been examined as PW-5. Special Report with regard to the incident reached the Magistrate concerned at Pathankot on 28th of January, 1994 at 1.00 p.m. which was carried by Constable Dina Nath. The prosecution besides relying upon the statement of PW-1 Dr. D. V. Pathania who conducted the post-mortem on the dead body of Kaushal Dass also relied upon the statements of Ajit Raj PW-2, Dharam Singh PW-3, Chanchal Singh PW-4 and Satinder Singh ASI PW-5.

Dr. D. V. Pathania PW-1 stated that he had conducted the post-mortem examination on the dead body of Kaushal Dass. Dead body was brought by Constables Sukhdev Singh and Suman Kumar and it identified by Som Raj and Balwant Singh. The deceased had allegedly died due to sharp edged and blunt edged weapon wounds. Doctor found the following injuries on the dead body of Kaushal Dass.-

Lacerated wound with swelling around 0.8 cm. x 0.4 cm. on middle of frontal region, 6 cm. above the root of nose. On dissection, revealed crushing of scalp and haematoma in the underlying tissues.

Lacerated wound 7 shape 3 cm. x 0.2 cm. x 1 cm. on the top of head, scalp deep.

Lacerated wound 2 cm. x 0.3 cm. in the left temporal region. Bone deep, 7 cm. above the pinna with haematoma in the underlying tissues.

Rounded depression of 3 cms. diameter on the top of the head. Underlying tissues were crushed with haematoma, 2 cm, posterior to injury No. 3. On dissection revealed fracture of underlying skull bones with laceration of meninges and brain. Haematoma was present on the surface of the brain.

Inverted shape lacerated wound scalp deep, 3 cm. x 1/2 cm. 2 cm. x 0.3 cm. 2.5 cm. x 1/2 c.m., 3 cm. posterior and lateral to injury No. 4

Lacerated wound 3 cm. x 1 cm. on right temporoparietal region. 5 cm. above the Pinna, bone deep.

Lacerated wound 3 cm. x Vi cm. on the occipital region, right side of mid line, 4 cm. above the upper crease of neck. On dissection, showed fracture of underlying occipital bone extending towards the mastoid region of both sides with haematoma in the posterior cranial fossa.

Lacerated wound 2 cm. x 0.8 cm. on all around the left little finger, fracture comminuted of underlying proximal phalanx and metacarpal 5th. left ring finger also swollen and fractured at the adjacent phalanx and metacarpal 4th.

Left forearm was swollen in its lower third with fracture of both bones, forearms along with haematoma.

In the opinion of the doctor cause of death was head injuries which were collectively sufficient to cause death in the ordinary course of nature. The probable duration of time that elapsed between injuries and death was immediate and between death and post-mortem examination was within 24 to 48 hours. In the opinion of doctor all injuries were ante-mortem in nature.

PW-4 Ajit Raj deposed in tune with the F.I.R. lodged by him. In examination-in-chief itself he stated that when he had gone there on 26th of January 1994, he had found the accused fighting with Kaushal Dass. It may be mentioned here that he did not state that the accused were causing injuries to Kaushal Dass by any weapon, be it blunt or sharp-edged. He also did not state anywhere in his examination-in-chief as to whether. the accused were armed with any weapon and if so with which weapon. He had just seen the quarrel and came back. On 27th of January 1994 when he again visited the place of worship, he found the dead body of Kaushal Dass lying in the hut. The accused were not present there. In cross-examination he stated that Kaushal Dass was not killed in his presence. He also stated that he did not know as to who had actually killed Kaushal Dass. Since the accused were inflicting injuries to Kaushal Dass on 26th of January, 1994, he thought that the accused must have committed the murder of Kaushal'' Dass. He further stated in cross-examination that he did not remember the exact time of evening when he had visited the tomb of Baba Mehar Shah. He further stated that he had not told any respectable in the village or police on 26th of January, 1994 regarding the quarrel and beatings. He, however, stated that he had narrated the fact of death of Kaushal Dass to the Sarpanch and Lambardar on 27th of January, 1994. PW-3 Dharam Singh deposed that on 26th of January, 1994, he had gone to the Samadh at about 7.00 p.m. and when he went to the hutment of Kaushal Dass, he found the accused present there. He also found that the accused were fighting with Kaushal Dass. Madan Gopal was stating as to why Kaushal Dass was visiting the house of Madan Gopal. After seeing the accused quarrelling and beating Kaushal Dass, he came back to his house. On 27th of January, 1994 he went to Samadh and found that Kaushal Dass was lying dead in the hutment. In cross-examination he stated that he has not seen any of the accused committing the murder of Kaushal Dass. It is significant to note here that statements of both the witnesses are identical yet none of them has stated that he has seen the other. In other words PW-2 Ajit Raj had not noticed the presence of Dharam Singh PW-3 either on 26th or 27th of January 1994 and so is the case with Dharam Singh PW-3 who likewise did not notice the presence of Ajit Singh PW-2 either on 26th or 27th of January, 1994. Chanchal Singh who was examined as PW-4 stated that on 27th of January, 1994, Madan Gopal along with Ram Dass and Arjan Dass accused came to his residence and told him that some dispute and quarrel had taken place of all three accused with Kaushal Dass on 26th of January, 1994. Madan Gopal, further told him that they had given danda blows on the various parts of the body of Kaushal Dass as a result of which Kaushal Dass had died. After death of Kaushal Dass, out of fear, they ran away from the Samadh. The other two accused likewise told him that they had committed the murder of Kaushal Dass. Satinder Singh ASIPW-5 deposed the way and manner he had made investigation in the case right from date and time when. he received information regarding the death of Kaushal Dass till he arrested the accused and presented the challan.

When examined u/s 313 of the Code of Criminal Procedure the accused besides denying the charge of murder, further stated that they are innocent and the murder had, in fact, been committed by Ajit Raj PW-2 with the connivance of Ram Lal Ex. M. L. A. of Narot Mehra and the police had let off the real accused and had implicated the accused at the instance of Ram Lal. They examined in defence DW-1 Head Constable Ajit Kumar who had brought the summoned application. He stated that an application was received from Smt. Asha wife of Madan Gopal on 17th of February, 1994 in his office. In the inquiry that was conducted by Shri S. S. Sekhon, D. S. P. Gurdaspur, all the accused were found guilty. It may be mentioned that the application was made by the wife of the accused complaining that her husband had been falsely implicated in this case.

Mr. R. S. Cheema, learned Counsel representing the accused-appellants vehemently contends that Ajit Raj PW-2 and Dharam Singh PW-3 have endeavoured to become eye-witness of the occurrence even though they had not seen'' Kaushal Dass being murdered by the accused. They are at the most witnesses of the quarrel between the accused and the deceased on 26th January, 1994 and therefore, it is a case of no direct evidence. He further contends that as a matter of fact, both Ajit Raj PW-2 and Dharam Singh PW-3 had not even seen the dead body of Kaushal Dass and therefore, had not visited the hut of the deceased on 27th of January, 1994. However, when they came to know about the murder of Kaushal Dass on the basis of their suspicion as accused had quarrelled with deceased on 26th of January, 1994, they were at the most given to understand" that the accused must have killed Kaushal Dass. The learned Counsel further contends that Chanchal Singh PW-4 is a made up witness and in fact and reality the accused had made no confession before him. The said witness was introduced only with a view to prop up the prosecution case. With a view to strengthen the argument aforementioned, he relies upon the proceedings recorded in zimni on 28th of January, 1994 where in para No. 8 it is recorded that this time Chanchal Singh Nambardar, resident of village Nala on inquiry told that he is Nambardar of village Nala and even though he was not present at the time of occurrence but he had heard that the three accused who were Sadhus have killed another Sadhu and in this manner they had committed a mistake and for this they should be punished. The learned Counsel further contends that the F. 1. R. is delayed and the prosecution has furnished no explanation for the same. The learned State Counsel, on the other hand, has endeavoured to defend the order of conviction and sentence recorded by the Additional Sessions Judge.

We have heard the learned Counsel for the parties and with their assistance gone through the record. We are of the considered view that the points raised by Mr. Cheema, the learned Senior Advocate representing the accused have considerable merit and therefore, the appeals preferred by the accused deserve to succeed. It is doubtful if PW-2 Ajit Raj and PW-3 Dharam Singh are even witness of the quarrel between the accused and Saint Kaushal Dass on 26th of January, 1994. It is highly improbable that PW-2 Ajit Raj did not notice the presence of PW-3 Dharam Singh as also Dharam Singh PW-3 did not notice the presence of PW-2 Ajit Raj even though they were present at the same place and at the same time. As mentioned above, their statements are identical and not only that they had seen the accused quarrelling with Saint Kaushal Dass but also heard the talk between them preceding the quarrel. In any case, these two witnesses had not seen Kaushal Dass being killed by the accused. It is so made out from their own statements made in the Court. Both the witnesses stated that on 26th of January, 1994 they had only seen the accused quarrelling with deceased Kaushal Dass and further in their cross-examination they admitted that Kaushal Dass was not killed in their presence as also that they did not know as to who had actually killed Kaushal Dass. Murder of Kaushal Dass on 26th of January, 1994 at the time when PW-2 Ajit Raj and PW-3 Dharam Singh allegedly visited the place of occurrence is ruled out as none of the witnesses stated that at that time the accused were armed and if so with which weapon as also as to which accused gave injury with which weapon to St. Kaushal Dass. It has to be held, therefore, that Kaushal Dass was not done to death on 26th of January, 1994 and he actually died some time later. If that be so, since these two witnesses thereafter only found the dead body of Saint Kaushal in his hut, it is a case where there is no direct evidence available with prosecution. Even if it is assumed that these two witnesses had seen the accused quarrelling with St. Kaushal Dass on 26th of January, 1994 that would at the most raise a suspicion against the accused and the suspicion, howsoever, strong it may be, cannot take the place of proof. The conduct of these two witnesses in not promptly lodging the F.I.R. also raises a doubt with regard to their presence. It may be recalled that in the F. I. R. Ajit Raj PW-2 stated that he had gone to the tomb of Baba Ji on 26th of January, 1994 at evening time. He also stated in the F. I. R. that he had gone to the tomb on 27th of January, 1994 in the evening time. He has not even given proximate time with regard to his visit either on 26th or 27th of January, 1994. While appearing in the witness box, he stated in cross-examination that he did not remember the exact time of the evening when he visited the Tomb of Baba Mehar Shah. It was month of January when the sun sets early. Assuming, therefore, that he had visited the tomb on 27th of January, 1994 at 6 p.m. It is not understandable as to why he did not report the matter to the police on the same day. As is clear, the F. I. R. in this case came to be lodged on 28th of January, 1997 at 9.15 a.m. If Ajit Raj PW-2 or for that matter Dharam Singh PW-3 had actually been witnesses of quarrel between the accused and Saint Kaushal Dass and had noticed dead body of Kaushal Dass on 27th of January 1994, there was no reason for them not to report the matter to the police. It appears to us that when the murder of Saint Kaushal Dass came to the notice of the people in the shrine or elsewhere, police on enquiries made from these two witnesses and from others booked the accused on the basis of suspicion alone.

Coming now to the evidence of Chanan Singh PW-4 before whom the accused are said to have made extra-judicial confession, suffice it to say that his statement contradicts the proceedings recorded in Zimni by the police on 28th of January, 1997 wherein it is recorded that Chanan Singh on enquiry had told the police that he had heard that three saints had killed another saint and for which they should be punished. It may be recalled that it is the prosecution version that the accused had made confession before this witness on 27th of January 1994 a day earlier to when the police recorded Zimni, reference of which has been given above. We are of the considered view that on the basis of evidence that was led by the prosecution in this case, at the most a suspicion can arise against the accused and for that alone no order of conviction can possibly be recorded against them. Giving them, thus, the benefit of doubt, we acquit them of the charge/charges framed against them. The order of conviction and sentence recorded by the Additional Sessions Judge vide his judgment dated 2nd of September, 1994 is set aside.