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PETITIONER: DAULAT RAM

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       29/04/1997

BENCH: MADAN MOHAN PUNCHHI, K.S. PARIPOORNAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Punchhi, J.      This appeal  has arisen  from an appellate Judgment and order of  the punjab  and Haryana    High  Court  passed  on October 19, 1987 in Criminal Appeal No. 427/DB of 1986.      The appellant was employed as a constable in the Punjab police and  at the  relevant time  was assigned  duty as the Personal Guard  of  one  Brij  Lal  Goel,  Ex-MLA,  Rajpura, District Patiala.  Smt. Pushpa,  PW was his wife. The couple had handful  of children.  They had  a single  room house to live in  a locality    at  Rajpura.  In  the  neighbourhood, Narinder Singh  deceased was  living  having  constructed  a house, quite  close to  the house  of Daulat  Ram.  Narinder Singh was  an educated unmarried young man of 25 having done his MA.  He was staying alone in his house. His father, sub- Inspector Gurbachan  Singh had  at one  time been  posted at Rajpura, but  at the  relevant time was posted in the C.I.A. Staff at  Malerkotla,  a  town  about  53  miles  away  from Rajpura. His  father’s brother,  Gurnam Singh,  PW lived  at Sunam, at  a distance  of about  55 miles from Rajpura. Both the towns were in different directions.      The case  of the  prosecution is that Gurnam singh, PW, father’s brother  of the  deceased had  visited Rajpura on a number of  occasions and  had developed  a feeling  that the deceased was  carrying on with Pushpa, P.W. Gurnam Singh, PW wanted to  disrupt the  relationship. Thus on July 23, 1985, sometime after  1.00 PM  , he came to Rajpura accompanied by Haridial Singh,  Hardial Singh, PWs and the deceased set out from the  latter’s house  for going  to Sunam. While so, the deceased told  Gurnam Singh  and Hardial  Singh, PWs that he had a message to deliver at the house of Daulat Ram followed by Gurnam  Singh and Hardial Singh PWs. They saw him talking to  Pushpa  PW.  In  the  meantime,  Daulat  Ram,  appellant arrived. Daulat  Ram shouted  that he  was going  to teach a lesson to  the deceased  for having  entered his  house  and saying so,  he fired  five shots in quick succession towards the deceased  from  his  service  revolver.  On  receipt  of injuries the  deceased fell  on a cot, which lay in the sole room. The appellant then further assaulted the deceased with a knife  on his face. Then Pushpa PW intervened. She too was

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given  some   injuries  by   the  appellant.  The  appellant thereafter  left   the  place  of  occurrence  carrying  his revolver with  him. Gurnam  Singh and  Hardial  Singh,  eye- witnesses went near the deceased and found him dead.      The prosecution  case  further  is  that  Gurnam  Singh Leaving behind  Hardial Singh near the dead body went to the local Police Station, Rajpura and lodged the FIR at 2.45 PM. The investigative machinery was set in motion. SI, Harsajjan Singh PW  12 came  to the  spot  and  prepared  the  inquest report. He  has shown therein the dead body lying on the cot in  position.   The  dead  body  was  sent  for  post-mortem examination which  was conducted  by Dr. Vinod Kumar PW.1 at 5.35 PM.  He was  also required  to examine  the injuries of Pushpa PW  at 7.00  pm the  same day.  He found on her three injuries, two  of whom  were as  a result  of a blunt weapon assault and  one by  a sharp-edged   weapon. The Post-mortem report  of   the  deceased   revealed  that  the  death  was instantaneous and  that the  time  between  death  and  post mortem was within six hours. At the trial however he amended his statement  to say  that the  probable  duration  between death and  post mortem could also be eight hours. The blood- stained clothes  of the  deceased which  were a  T-shirt and Pyjamas, were  removed and  given  to  the  police  as  case property.      After completion  of investigation,  the appellant  was tried by  the Sessions  Judge, Patiala  under Section 302 of Indian Penal  Code as also under Section 27 of the Arms Act. He was convicted for both the offences and sentenced to life imprisonment and  payment of  fine of Rs. 1000/-; in default further rigorous  imprisonment for  one year  for the former offence and   sentenced to undergo rigorous imprisonment for one year  for the  latter offence;  sentences to  be running concurrently. They  were affirmed  in appeal before the High Court.      The appellant  had a counter-version. That version came as suggestions  in the cross-examination of the witnesses as well as  deposition by PW.6 Pushpa, whom the prosecution got declared hostile  at the  very initiation of  her statement. The appellant gave the following statement under Section 313 Cr.P.C.:-      "I am innocent. I have been falsely      implicated.   On    the   day    of      occurrence in  the morning  when  I      was  away  from  my  house  to  the      market  for   making  purchase   of      vegetables etc.  deceased  intruded      into  my   house   and   tried   to      criminally assault  my wife and she      resisted.  In   the   process   she      received injuries  at her hands and      she caused injuries to the deceased      with which  he died. On my return I      found my wife absent from the house      while the dead-body of the deceased      was  there.  I  then  went  to  the      police Station  where my  wife  was      sitting  and   she   narrated   the      occurrence. I  also  requested  the      police to record her statement, but      they refused. The local police then      sent information  to Malerlotla and      Sunam  and   Gurbachan  Singh  S.I.      father of the deceased arrived, who      arranged Gurnam  Singh and  Hardial      Singh as  PWs. This  false case was

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    then concocted.  The revolver  with      live cartridges  had been  taken to      the police Station by my wife." P.W.6 Pushpa  in her  statement admitted  having killed  the deceased by  the service revolver of the appellant which she said lay  under the  pillow on the cot on which the deceased was found lying dead in position.      The appellant  in  his  defence  examined  13  official witnesses of the Punjab Police of the Wireless Department to suggest that  since the  occurrence had taken place at about 8.00 A.M.  in the morning, there had been frantic telephonic and wireless  messages by  Rajpura  Police  to  Contact  S.I Gurbachan Singh,  father of the deceased who was then posted at Malerkotla.  This effort  was to  dislodge  the  time  of occurrence as  projected by  the prosecution  and hence  the story by itself.      The learned  Sessions Judge  devoted more  than half of his judgment  in critically examining the defence version as if  it   required  the  standard  of  proof  as  that  of  a prosecution case.  The High  Court however  avoided pursuing that course  and confined itself to the prosecution case. If holes can  be picked in the defence that doesn’t lead to the prosecution   story    being   automatically   proved.   The prosecution has  to stand  on its own legs and can derive no advantage from  the weakness of the defence. Keeping that in view, we proceed further.      The time  of the  occurrence is  seriously in  dispute. According to  the prosecution  the occurrence  took place at 2.00 PM  and according to the defence it took place at about 8.00 A.M.  in the  morning. The  Situs of  the crime  is not disputed. According  to Dr.  Vinod  Kumar  PW.  1  the  time between death  and post-mortem  could be  upto eight  hours. Thus according  to the  medical opinion the crime could have been committed  eight hours  earlier to  5.30 PM, putting it around  9.00   am.  However  that  cannot  be  viewed  as  a certainty. Coming  to the  post-mortem Ex.PA, the abdomen of the deceased  when dissected showed that the stomach and its contents were  healthy and  empty. The  small intestines and their contents  were described  as healthy   and  containing small amount  of semi-digested  food. large  intestines  and their contents  were shown  to be  healthy  and  empty.  The bladder was  shown to be healthy and containing small amount of  urine.   Thus  from   the  post-mortem   report,  it  is conclusively established  that before his death the deceased had not  taken full  meals for  hours. The prosecution would have us  believe that uptil 2 PM, when he was about to leave Rajpura for  Sunam in  the company of his uncle Gurnam Singh PW, he  was not  expected to have taken regular breakfast or the noon-time meal. According to Gurnam Singh PW when he and Hardial singh  had reached  Rajpura at  about 1.00 PM,  they had not  taken tea  etc. at  the house  of the  deceased and further that  the deceased  also had not taken any food etc. in the  presence of  those two. The condition of the stomach and that  of the  intestines and  the bladder  does indicate that the  occurrence perhaps  took place much earlier to the expected time  for breakfast  and  lunch,  possibly  in  the morning hours.  The Courts  below have  totally ignored this aspect of the case.      It is  worthy  of  recall  that  the  deceased  was  an educated youngman  of 25  wanting to  set up  a business  at Rajpura. He   seemingly had done well in building a house of his   own .  He had  good parentage. Supposedly accompanying his uncle  in order  to go  to Sunam he is said to have been wearing a  T-shirt and  pyjamas, a dress uncommon to be worn for going  to  places. The top dress does not match with the

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bottom one. Having regard to the normal pattern of life, the deceased was  expected when  wearing a  T-shirt to  match it with a  pair of  trousers or  Jeans and  not  with  pyjamas. Likewise if  he was  to  be  wearing  pyjamas  he  would  be matching it  with a shirt or a kurta and not a T-shirt . The manner of hes dress was least suggestive of the fact that he was set  for  travel to another destination 55 miles away in the company  of his  uncle .  The dress  of the  deceased is therefore somewhat  intriguing. It  is  more  close  to  the theory that in morning hours he was casually dressed and had gone to the house of the accused with designs which were far from honourable.      The two supposed eye-witnesses Gurnam Singh and Hardial Singh PWs  are from Sunam and according to their own version seem to  have come  there to  take away  the deceased. Their coming to the house of the deceased is a strange coincidence orchestrataed so  as to  witness him  being  Killed.  it  is rather strange  that Gurnam  Singh PW  on his  own would  be caring  for   his  nephew   to  desist   from  his   amorous relationship with  Pushpa, PW without taking into confidence the deceased’s  father. According  to his  statement he  had kept  the   affair  to   himself.  Strangely  he  took  into confidence rather  Hardial Singh, P.W. and brought him along to Rajpura. It is difficult to under stand what  purpose had Hardial Singh  to serve  in  accompanying  Gurnam  Singh  to Rajpura to  fetch the  deceased. The  prosecution   has  not advanced any  cogent reason  as to why the presence of these witnesses be  not doubted,  especially when    the  time  of occurrence is  shrouded in doubt. In addition thereto is the defence evidence  suggesting that  both police stations i.e. at Malerkotla  an Sunam  where the  father and  uncle of the deceased lived respectively were frantically being attempted to  be   contacted  on  police  station  to  police  station connection. All  these facts  lend credence  to the  defence version that the P.W.S had come to know of the crime because the matter  had been  reported at  the police station in the first instance by P.W.6 followed by the appellant.      Lastly no  one from  the neighbourhood has come forward to support  the prosecution  even though  the  investigating officer  says   that  he   questioned  some  people  in  the neighbourhood. It  was for  him to  say as  to whom  he  had questioned and  not for the defence to elicit those names so as to  call those  persons in  defence, as  expected by  the learned Sessions Judge.      Thus on  the totality  of circumstances we have come to entertain the  doubt that  neither of the two  supposed eye- witnesses were  present at  the scene of the occurrence, nor have they  witnessed the  same. we have also entertained the doubt about  the time  of the  occurrence and  the manner in which the  prosecution would  have us  believe that  it took place. It could well be that it had taken place as suggested by the  defence. The  dress of the deceased and the contents of his abdomen suggest that he was murdered much before 2.00 PM, the time positively asserted by the prosecution.      For the  forgoing reasons,  we allow  this appeal,  set aside the  impugned judgment  and order of the High Court as also that  of the  Court of Session and acquit the appellant of all charges. The appellant is on bail. His bail bonds are discharged. Fine, if paid by him be refunded to him .