Madan Gopal and another vs The State

Chopra, J.—This is a reference by the Sessions Judge, Patiala recommending that the commitment made by Magistrate 1st Class, Patiala, by which Madan Gopal and Darshan Singh petitioners have been committed to the Sessions to take their trial for charges under Ss. 302, 201 and 302/109, 201, Penal Code respectively, be quashed.

The learned Sessions judge observes that

so far as the charge under S. 302 is concerned, there is a total want of evidence in support of the same and the case was wrongly and unnecessarily committed by the trial Magistrate.

He however, finds that a prima facie case under S. 330 or S. 331, Penal Code was made out and that the accused should have been charged for that offence. He accepts that he could, under the circumstances, himself amend the charge and proceed with the trial, but he preferred to recommend the case for quashing the commitment because the case was a lengthy one and it would mean spending an amount or Rs. 900/- as D. money to the assessors.

Realizing that a case under S. 330 or S. 331, Penal Code is also exclusively triable by a Sessions Court and could not, therefore, be tried by the Committing Magistrate, he recommends that, after quashing the commitment, the case be transferred to the file of A.D.M. Patiala (who is invested with enhanced powers under S. 30, Cr. P. C.) for trial of the two accused for an offence falling under S. 330 or S. 331. Penal Code.

The two accused in this case are police officers and were posted at the relevant times at police station Sadar Patiala. Madan Gopal accused was the S.H.O. while Darshan Singh a foot-constable. The prosecution case, in brief, is that on 6-6-1954 a report of the theft of a watch was made at the police-station Sadar Patiala against one Piara Singh, who is the deceased in the present case.

The investigation of die theft was taken over to himself by the S.H.O. (Madan Gopal) on 16th june. That very day in the evening Piara Singh was taken to Sardar Jiwan Singh''s garden on Sanaur road for interrogation. The interrogation started with slaps and proceeded on to the giving of stick blows by Madan Gopal. Blows alighted on the back and flanks of Piara Singh and made him burst into wails. Under the directions of Madan Gopal Rup Lal foot-constable, an approver in this case, took Piara Singh on a cart to Sanaur police-station.

There the latter was chained to the iron-bars of the police-lockup. Piara Singh kept on groaning during the night but nobody including the S. H. O., attended or cared for his lot. While thus in chains Piara Singh was found dead in the early hours of the following morning.

The story goes on that the two accused and the approver Rup Lal made the dead body into a bundle and removed it to the house of Alam Singh separately committed for an offence under S. 201, Penal Code - at Mardan Heri. Finally, the dead body was dropped into a dry well about half a mile from the village. On his return to Patiala Madan Gopal got reports regarding presence of Piara Singh in the lock-up at the material time and his subsequent lease under S. 169, Criminal P.C, entered in the Rozanamcha.

Three persons more are said to have met with the same fate at the hands of Madan Gopal and his associates, including the approver Rup Lal, and their dead bodies too were thrown into the same well. The four dead bodies in the well were noticed by the villagers. They created a row. Not knowing the actual facts they brought information to Police station Sadar Patiala. On this Madan Gopal proceeded to the village and took charge of the well, with the dead bodies in it.

During the night he got two of the corpses removed from the well and concealed them somewhere in the forest at some distance. The mysterious role of the police officers in causing disappearance of two of the dead bodies strengthened the suspicions. This matter was taken up by certain, respectable of the locality. They approached the higher authorities. Shri Chuni Lal Malhotra A.I.G. (C.I.D.) and other responsible officers of the police started investigation in right earnest.

The dead body of Piara Singh and one of another were removed from the well on 28-6-1954. The two others, one smoldering in a heap of ashes and the second dragged out of its place of concealment by wild beasts, were recovered on 29-6-1954 and 2-7-1954 respectively.

Rup Lal turned an approver and made a disclosure of the above facts. Madan Gopal and Darshan Singh were charge-sheeted for the murder of Piara Singh and also for causing disappearance of the evidence of murder. A separate challan for the murder of the other three persons and also for causing disappearance of evidence concerning the offence was submitted against Madan Gopal and some others.

Rup Lal figured as an approver in that case as well. The accused were charged for the murders and also under S. 201 and both the cases were committed to the Sessions Court. The accused presented separate applications in the two cases for quashing commitment before the Sessions Judge.

In the other case the learned Sessions Judge dealing with the petitioners plea that approver''s testimony was not corroborated by the medical evidence observes,

It is not proper to express a definite opinion on this point at this time and I would say that it is a casein which the evidence should be recorded and the objection of the Learned Counsel should be taken up thereafter.

He consequently rejected the petition.

The same, precaution should not haw been lost sight of in the preset case, and the learned Judge ought to have (sic) from expressing any opinion on merits at this stage. Besides the approver Rup Lal, as many as fifty-four witnesses were examined. Rup Lal gave devils of the actual incident and the other witnesses deposed to the respective events connected with the incident, which they were in a position to see or know of. With respect to this corroborative evidence, the Committing Magistrate formed the opinion that

the corroboration that has been afforded by other prosecution evidence is so over-whelming that no doubt about the genuineness of the approver''s version can with any justification be entertained.

The Magistrate therefore concluded as follows:

From the evidence available on this record it is well borne out that Madan Gopal accused gave savage blows with a stick on vital parts of Piara Singh''s body which caused his death within a few hours. These facts would lead one to the inference that he knew that his act was so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death. There was ostensibly no excuse for incurring the risk of death or the bodily injury referred to above. The offence committed by him thus meets the requirements of clause fourthly of S. 300 and amounts to murder.

The learned Sessions Judge does not, and at this stage he could not, dispute the findings that beating was administered to Piara Singh by Madan Gopal, that Piara Singh died a few hours later and that his dead body was thrown into the well where-from it was subsequently recovered. In spite of it he thinks there is absolutely no evidence on the record to connect the accused with murder and on what ground he recommends the commitment to be quashed.

What he means to say is that there is no evidence of the intention necessary to bring the case under one of the clauses of S. 300, Penal Code, therefore, the offence prima facie proved against the accused is one falling under S. 330 or S. 331, Penal Code. I shall repeat that the stage for expressing an opinion on this point had not yet arrived. It was not open to the Sessions Judge to express a view on this point before himself hearing the evidence produced in the case.

He should not have ignored that the Committing Magistrate, on hearing the evidence, had found that a prima facie case under S. 302, Penal Code was made out against the accused persons. I do not see any justification for the learned Sessions Judge''s observation that "there does not appear to be anything on the record justifying the commitment under S. 302, Penal Code." The learned Judge proceeded to remark that ail that the approver had stated was that Madan Gopal planted a few slaps and Danda blows on the flanks and back of Piara Singh. This made him conclude as follows:

It is not possible to say in view of this that accused had any intention to commit Piara Singh''s murder or to cause some such bodily injury to him which was most likely to cause death or which the accused must have known to surely result in death etc. etc. At the most an offence under S. 330 or S. 331, Penal Code can, prima facie, be said to have been committed in the case.

The main difference between the two offences is one of intention. There can he no direct evidence with respect to intention with which an offence is committed. The intention can only be gathered from ail the facts and circumstances of the case; it is a matter of inference to be drawn from the evidence on the record.

In the other case deaths were stated to have occurred as a result of strangulation. There, the learned Sessions Judge did not accept a similar argument of the defence, and held that the application of S. 302, Penal Code cannot be excluded in a case where the police officer, in the zeal of his duty to trace out an offence, commits torture on the suspect and thereby causes his death. I fail to understand why the same principle cannot be applied to the present case.

The mere fact that the learned Judge does not agree with the Committing Magistrate that an inference of the necessary intention for a charge under S. 302, Penal Code could be drawn from the circumstances of this case, cannot be regarded as a point of law on which the commitment can be quashed. There is nothing illegal in the commitment. The charge preferred was one of an offence punishable under S. 302, Penal Code and the Sessions Judge was bound to try it. It will be for him to decide at the proper stage, whether the evidence is sufficient to prove the charge or not.

Another significant fact that cannot be overlooked is that the Committing Magistrate could not try the case himself if the accused were to be charged under S. 330 or S. 331 Penal Code. Even then he was bound to commit the accused for trial to the Sessions and the commitment would not have suffered from any defect. The learned Sessions judge makes a recommendation that the case be transferred for trial to the Court of the A.D.M. and for that I see no justification.

The Sessions Judge cannot be relieved of the case simply because it would entail a good deal of his time or mean some extra expense for payment to the assessors.

It may also be mentioned that on 11-4-1955 the prosecutor presented an application for summoning certain other records and some more witnesses. The Sessions Judge accepted the prayer and ordered the records and witnesses to be summoned. The fresh evidence, as is claimed by the prosecution, may have some connection with or throw better light on the question of intention with which the offensive acts were committed.

In the commitment proceedings the Magistrate has only to consider whether there are sufficient grounds for committing the accused for trial and not whether on an appreciation of the entire evidence and other material in the case, the charge against him is proved. Where the case is found to be such and committed, the Court of Session is not entitled to express any opinion on the question of its credibility before hearing the evidence, nor is it entitled to go into the question as to whether the evidence produced in the case if believed, would or would not prove the charge or charges against the accused persons.

The evidence may or may not be finally held to be satisfactory or sufficient but where there is some legal evidence to be placed at the trial, irrespective of its ultimate probative value, the order of commitment cannot be interfered with. It is only on a point of law that a commitment can be quashed I and I do not find any in the present case.

From the above statement of facts I should not be understood to be expressing any opinion on the question of credibility of the evidence or its sufficiency to make out a charge of murder. That stage, as already observed, has yet not come, and for that reason the premature expression of opinion by the learned Sessions Judge has to be deprecated.

The reference is consequently declined, records should be returned to the Sessions Judge, Patiala, at once.