Kashmir Singh Vs. State of Punjab  INSC
30 (13 January 1997)
MUKHERJEE, S.P. KURDUKAR M.K.
appeal under Section 19 of the Terrorist and Disruptive Activities (Prevention)
Act, 1987 ('TADA' for short) is directed against the judgment and order dated July 21,1993 rendered by the Additional Judge.
Designated Court, Amritsar in Sessions case No. 300 dated October 31,1991 convicting the appellant under
Sections 302 and 307 IPC and Section 3 of TADA.
of details the prosecution case is as under:
year 1989, Swinder Singh (P.W.1) settled the marriage of his sister Surinder Kaur
with the appellant.
however, in the following year he (the appellant) joined a terrorists' organisation
Swinder Singh refused to solemnise the marriage. Such refusal enraged the
after he came out of the prison where he was detained for about a year owing to
his such activities he went to the house of Swinder Singh in village Thata and
gave out that in case Surinder Kaur was married elsewhere he would kill all the
members of their family. On being so threatened Swinder Singh the Surinder kaur
left their house and went to village Burj Raike where they started living with
the family of Major Singh, whose daughter Manjit Kaur was a class mate and
close friend of Surinder Kaur.
a week later- in the dead of night between may 20 and 21,1991 to be precise-
when Swinder Singh was sleeping the courtyard of the house of Major singh, the
appellant and one Swinder Singh appeared there after scaling its boundary wall.
While accused Swinder Singh went to the roof of the house the appellant stayed
back in the courtyard. He (the appellant) then menacingly told Swinder Singh
that his would he wife Surinder Kaur should be presented before him. In the
meantime Major Singh, the member of his family and Surinder kaur, who were
sleeping inside the house, got up. The appellant then started firing from the
AK 47 rifle which he was carrying, aiming each of them as a consequence whereof
Major singh and the other four members of his family comprising his two
daughters and two sons and Surinder Kaur, sister of Swinder Singh, fell down
dead. Swinder singh was also fired at as a result of which he received injuries
on right eye, chest, neck and other parts of his body.
the appellant and the other accused fled away.
Singh was taken to the Primary Health Centre, Sirhali for treatment in the
following morning; and on receipt of a report from its senior Medical Officer
in that regard sub inspector Balkar Singh (P.W.7), of Sirhali police station
went there and recorded the statement of Swinder Singh (Ext. PA). On that
statement a case was registered and S.I. Balkar Singh took up investigation. he
went to the house of Major Singh in village Burj Raike and after holding
inquest on the six dead bodies lying there sent them for post-mortem
examination. From that house he recovered 28 cartridges of AK-47 rifle and made
them into a sealed parcel. He also seized blood-stained earth from beneath the
dead bodies and prepared a separate parcel in respect thereof. On completion of
investigation he submitted charge sheet against the appellant only, as the
other accused, namely, Swinder Singh had died in the meantime.
appellant pleaded not guilty to the charges levelled against hem and stated,
while being examined under Section 313 Cr.P.C., that he was arrested prior to
the date of the alleged offence, namely, May 21,1991 from his village Jand by the police
and since then he was kept in police custody wherein he was brutally tortured.
Thereafter he was falsely shown arrested in the instant case. In support of
their respective cases the prosecution examined seven witnesses while the
appellant examined two.
Major Singh, his two sons and two daughters and Surinder Kaur met with
homicidal deaths owing to fire-arm injuries in his (Major Singh's) house stood
established by overwhelming evidence on record. Indeed this part of the
prosecution case was not challenged by the defence. The evidence of the
Investigating Officer (P.W.7) and that of Jagtar Singh (P.W.2), a brother of
Major Singh, clearly prove that the dead bodies of the earlier mentioned six
person with injuries thereon were found in the house of Major singh. The
evidence of P.W.2 further proves that Swinder Singh was also lying injured
there. Dr. Haripal Kaur Dhariwal (P.W.5) who held autopsy testified that all
the injuries that she found on the six dead bodies were caused by fire-arms.
From the evidence of Dr. Mohan Singh (P.W.6) the Medical Officer of Sirhali
Primary Health Centre we get that Swinder Singh (P.W.1) had a number of
injuries on his person and that he was referred to the S.G.T.B. Hospital, Amritsar for better treatment where he was
kept as an indoor patient for one and a half month. He further stated that the
right eye ball of Swinder Singh was totally damaged.
next and the crucial question that falls for our determination is whether the
appellant was the author of the above six gruesome murders and attempted murder
of Swinder Singh as alleged by the prosecution. To prove this part of its case
the prosecution relied, needless to say, solely upon the evidence of Swinder
Singh (P.W.1), for consequent upon the death of all the other inmates of the
house there was none, nor there could be any, other eye-witness to the murders
that took place in the house at the unearthy hour of 2 A.M. P.W.1 detailed the
entire incident as stated earlier including the motive behind the murder of his
sister. We have carefully gone through the evidence of this witness and find no
reason to disbelieve him, more so, when we find that this presence in the house
of Major Singh at the material time is corroborated by the evidence of P.W.2.
also D.W.2, another brother of Major Singh, (both of whom lived in different
houses in the same village) who testified that on the following morning they
found him lying injured in the house of their brother. besides, as noticed
earlier, the appellant had a strong motive to kill the sister of P.W.1. The
other fact which lends strong corroboration to the evidence of P.W.1 is that
the F.I.R that he lodged the following morning contains the substratum of the
entire prosecution case including the motive.
was, however, contended on behalf of the appellant that on reliance should be
placed on the testimony of P.W.1 as he did not disclose the name of the
appellant as the culprit at the earliest opportunity. In support of this
submission the learned counsel for the appellant drew our attention to the
cross-examination of P.W.1 whrein he stated that some residents of village Burj
Raide including Jagtar Singh (P.W.2) came to the place of occurrence at or
about 7 pr 7.30 A.M. but he did not mention the name of the appellant to any of
them. We cannot lose sight of the fact that P.W.1 not only saw six ghastly
murders being committed before his won eyes but he himself sustained multiple
gunshot injuries. In such circumstances it can be safely presumed that he was
so dumbfounded and terror stricken that he could not and dared not disclose the
needs of the assailants to those people but as soon as he met the police he
mustered courage to narrate the entire incident as would be evident from the
F.I.R. It was next contended that in view of the testimony of Pritam Singh
(D.W.2) that Major singh was earlier threatened by the terrorists and that
P.W.1 did not disclose the name of the appellant before him on the ground that
the could not identify the miscreants, the trial court ought to have held that
it was not unlikely that the murders were committed by some unknown terrorists.
not find any merit in this submission also; firstly because, P.W.1
categorically stated that he could identify the appellant and the other
miscreants by the electric light of the house then burning and secondly
because, thee is not an iota of material on record to indicate that P.W.1 had
any reason to falsely implicate the appellant.
given our anxious consideration to the entire evidence on record we are in
complete agreement with the trial court that the prosecution has been able to
conclusively prove that the appellant committed the six murders and attempted
to commit the murder of P.W.1. His convictions under Section 302 and 307 IPC
and sentences therefore must be upheld. We are however of the opinion that the
trial court was not justified in convicting the appellant under Section 3 of
TADA for the accusation levelled against him (the appellant) does not by any
stretch of imagination answer the definition of 'terrorist act' under TADA. We,
therefore set aside the appellant's conviction and sentence under Section 3 of
TADA. The appeal is thus disposed of.
we part with this record we wish to mention that the trial court ought to have,
considering the magnitude of the crime and the brutal manner of its commission,
sentenced the appellant to death instead of imprisonment for life but as the
State did not choose to prefer any appeal for enhancement of sentence, we feel,
now that about six years have elapsed since the offences were committed by the
appellant, no suo motu interference in respect thereof is called for.