Sucha
Singh Vs. State of Punjab [2001] Insc 164 (22 March 2001)
K.T.
Thomas & R.P. Sethi Thomas, J.
L.I.T.J
During
the months when insurgency in the State of Punjab was at its peak two
striplings were knocked off from their house on a dark night by armed
assailants in the very sight of their old parents, despite the importunes made
by their mother. Those abducted youngsters were finished off within a shortwhile
by firing them with AK-47 rifles, a little away from their house. The abductors
were indicted for the murder of those two young Sikhs. Appellant Sucha Singh,
the sole survivor of the criminal conspiracy hatched, is now challenging the
conviction and sentence of life imprisonment passed on him by a designated
court, for the offence under Section 302 read with Section 34 of the Indian
Penal Code.
Shri
U.R. Lalit, learned senior counsel pleaded for reconsideration of the ratio
laid down by this Court in State of West Bengal vs. Mir Mohammad Omar & ors. {2000 (8) SCC 382} wherein
it is held that the court would be justified in appropriate cases to draw the
presumption that the abductors themselves could be the killers of the abducted
victim, unless they explained otherwise as to what they did with the prey.
Learned
senior counsel submitted that the said ratio is discordant with the criminal
jurisprudence thus far enunciated that the burden is entirely on the
prosecution to prove the case. He further submitted that the ratio in the said
decision cannot at any rate be applied for fastening an accused with the aid of
Section 34 IPC. As we heard Shri U.R. Lalit in extenso on the above submission,
besides other points convassed by him on the merits of the case, we are bound
to deal with them now.
The
synopsis of the case is this. The incident happened on the night of 22.2.1991.
PW-3 Diwan Singh and his wife PW-4 Dalbir Kaur had five sons. The elder three
were working in the grain market at Amritsar. Among the remaining sons Narinder Singh was in the army and he came
home for a furlough and stayed with his parents. The other son Surinder Singh
was also staying in the same house. The militancy in Punjab had armed terrorists on its cadre
who were prowling for preys during those days. Diwan Singh and his family were
targeted by the militants as they suspected him to be conduit for the police
who were out to crush the insurgency.
On the
night of occurrence Diwan Singh, his wife and their two sons (Narinder Singh
and Surinder Singh) were in their house at Rupawali, which is situate on the
outskirts of Amritsar City. The inmates of the house retired to their rooms in
the night, presumably after their supper. Four assailants including the
appellant went to that house armed with AK-47 rifles at about 10 P.M., and knocked at the door.
Diwan
Singh switched on the light in the courtyard and he immediately understood the
danger ahead of him. He then scampered to the roof of the house and hid
himself, but he could see what was happening on the courtyard. The assailants
caught the two deceased sons and took them away despite the entreaties
persistently made by their mother.
Though
she made a bid to follow them she could reach only up to the end of their
courtyard as she was tweaked aside forcefully with the butt end of a rifle. The
two sons taken away by the assailants were never seen thereafter by the
parents.
After
a shortwhile the parents of the deceased heard the sound of gunshots from a
distance. The terror stricken parents somehow whiled away their time in the
night without even gazing outside. On the next morning Diwan Singh went to his
brother Gurna Singh, who was living nearby, and with him a search was made for
their abducted sons. They came across the dead bodies of the deceased lying on
the roadside studded with gunshot injuries.
Police
after investigation charge-sheeted only two persons as accused, one the
appellant Sucha Singh and the other Sarbjit Singh. According to the police the
remaining two assailants could not be apprehended despite all the steps adopted
by the police. The case was sent up to a designated court as some of the
offences included in the charge fell within the purview of the Terrorist and
Disruptive Activities (Prevention) Act (TADA). The judge of the designated
court convicted both the accused under Section 302 read with Section 34 IPC
though they were acquitted of the offences under TADA. We are told that the
other convicted person died subsequently. This appeal pertains only to the
appellant Sucha Singh.
There
is no dispute that the deceased were shot dead on the said night by somebody
with AK-47 rifles. Hence the only point is whether the appellant was one of the
murderers. The evidence against the appellant is the testimony of PW-3 Diwan
Singh and PW-4 Dalbir Kaur. As for them, they only testified that the two
deceased were taken away by armed assailants from the house on that ill-fated
night and such assailants included the two convicted persons and that the
corpses of the deceased were spotted next morning lying on the roadside a
little away from their house.
Shri
U.R. Lalit, learned senior counsel first focussed on a contention that PW-3 Diwan
Singh and PW-4 Dalbir Kaur were living with their elder sons at Amritsar City
and that they learnt about the death of the deceased only when somebody informed
them about it on the following morning.
In
other words, according to the learned senior counsel, the truth of the
testimony of PW-3 and PW-4 will depend upon the question whether they were
actually staying in the house where the deceased stayed on the night.
Three
witnesses were examined on the defence side to say that the old parents were
actually living at Amritsar for about six months prior to the occurrence. They
are: DW-1 a member of the Panchayat, DW-3 and DW-4. True, those three witnesses
said like that. But their evidence would not help the defence to show that the
old parents were living differently from the house where the deceased stayed on
that night. All that the witnesses could say was that PW-3 and PW-4 were
staying at Amritsar. That expression Amritsar could encompass even areas lying
on the periphery of the city limit also. This is clearly discernible from the
manner in which DW-1 Senga Singhs address was described in his deposition. He
is described as resident of Rupawali Village in Amritsar.
Learned
counsel made a futile endeavour to create some doubt that PW-3 and PW-4 would
have been staying with the elder sons at Amritsar City. One such attempt was
based on a fact that PW-3 himself was convicted in a murder case earlier, and
hence he would have known the value of prompt reporting to the police.
According to the counsel, PW-3 did not choose to go to the police station even
by next early morning. What PW-3 said on that score is that after the sons were
taken away he remained in the house during the entire night as he was
fear-stricken and when the morning broke he collected his brother Gurnam Singh
and went in search of his sons and came across the body at Village Phirni
(which is close to their residence). He then left the spot after leaving his
brother to remain near the dead bodies, and went to Amritsar city on a bicycle
for informing his elder sons about the occurrence. On his way back from the
city he came across the police. He furnished to them the details of the
occurrence as he knew. In the above narration there is nothing to show that
PW-3 and PW-4 were residing away from their house at Rupawali.
Another
attempt made by learned counsel is based on the fact that the abductors did not
catch PW-3 who was considered to be a police tout. According to the learned
counsel the assailants would not have left the house without him and the fact
that they took away his two sons would further show that PW-3 was not available
in the house. This argument proceeded on an assumption that the sons were not
the target of the assailants at all. We dont have any material to assume that
the assailants did not count the sons also as touts of the police along with
their father.
It
must be remembered that the assailants took away all the male members of the family
whom they could see in the house.
As
PW-3 went to the roof hiding himself from the assailants they would have
decided to be satisfied for the present with what they got, i.e. the two sons.
Whatever it be, the fact that the accused succeeded in taking away the two sons
of the two deceased alone is not enough, in the circumstances of this case, to
doubt the presence of PW-3 and his wife PW-4 in the house on the crucial night.
That
apart, the two younger sons, including Narinder Singh who came from army for a
furlough to be with his parents, were actually staying in their house at Rupawali
on the fateful night. There would be no logic in assuming that their parents
would have kept away from their own house leaving those two sons alone on that
night. Why should they do so.
Thus
we too are inclined to believe the version of PW- 3 and PW-4. On their
testimony the circumstances against the appellant are the following:
(1)
The incident happened during a period when Punjab was boiling with terrorist activities.
(2)
The house of the deceased was treated by the terrorists as the home of police
touts against terrorists.
(3)
Appellant and three others reached the house during the dead of night armed
with AK-47 rifles (which is described as assault rifle) and caught the two
sons. Even in spite of entreaties made by their mother PW-4, the abductors
forcibly took away the two sons into the darkness outside.
(4)
Within a shortwhile they heard the sound of gunshots.
(5)
The two abducted sons did not return to the house during that night.
(6) On
the next morning their dead bodies were spotted on the roadside at a place
situated only a short distance away from the house.
(7)
They were killed with AK- 47 rifles as the empties of the bullets of such
firearm were lying near the dead bodies.
(8)
Appellant did not tell the court as to what happened to the two sons after they
abducted them.
The
abductors alone could tell the court as to what happened to the deceased after
they were abducted. When the abductors withheld that information from the court
there is every justification for drawing the inference, in the light of all the
preceding and succeeding circumstances adverted to above, that the abductors
are the murderers of the deceased.
Shri
U.R. Lalit, learned senior counsel raised his contention on the above score
that even assuming that the appellant was one among the persons who took away
the deceased that circumstance alone is not sufficient to hold him to be one of
the killers of the deceased. According to the senior counsel a finding beyond
abduction cannot be fastened on the appellant.
Recently
this Court has held in State of West Bengal vs. Mir Mohammad Omar (supra) that
the principle embodied in Section 106 of the Evidence Act can be utilised in a
situation like this. Shri U.R. Lalit pleaded for reconsideration of the said
legal position. According to him, the ratio laid down in that decision is not
in tune with the well accepted principle of criminal law that the accused is
entitled to keep his tongue inside his mouth as the burden is always on the
prosecution to prove the guilt of the accused. To meet the said contention it
is appropriate to extract the following observations from that decision:
The
pristine rule that the burden of proof is on the prosecution to prove the guilt
of the accused should not be taken as a fossilised doctrine as though it admits
no process of intelligent reasoning. The doctrine of presumption is not alien
to the above rule, nor would it impair the temper of the rule. On the other
hand, if the traditional rule relating to burden of proof of the prosecution is
allowed to be wrapped in pedantic coverage, the offenders in serious offences
would be the major beneficiaries and the society would be the casualty.
Learned
senior counsel contended that Section 106 of the Evidence Act is not intended
for the purpose of filling up the vacuum in prosecution evidence. He invited
our attention to the observations made by the Privy Council in Attygalle and anr.
vs. The King (AIR 1936 PC 169) and also in Stephen Seneviratne vs. The King
(AIR 1936 PC 289). In fact the observations contained therein were considered
by this Court in an early decision authored by Vivian Bose, J, in Shambhu Nath Mehra
vs. State of Ajmer (AIR 1956 SC 404).
The
statement of law made by the learned Judge in the aforesaid decision has been
extracted by us in State of West Bengal
vs. Mir Mohammad Omar (supra). It is useful to extract a further portion of the
observation made by us in the aforesaid decision:
Presumption
of fact is an inference as to the existence of one fact from the existence of
some other facts, unless the truth of such inference is disproved. Presumption
of fact is a rule in law of evidence that a fact otherwise doubtful may be
inferred from certain other proved facts.
When
inferring the existence of a fact from other set of proved facts, the court
exercises a process of reasoning and reaches a logical conclusion as the most
probable position.
The
above principle has gained legislative recognition in India when Section 114 is
incorporated in the Evidence Act.
It
empowers the court to presume the existence of any fact which it thinks likely
to have happened. In that process the court shall have regard to the common
course of natural events, human conduct etc. in relation to the facts of the
case.
We
pointed out that Section 106 of the Evidence Act is not intended to relieve the
prosecution of its burden to prove the guilt of the accused beyond reasonable
doubt, but the section would apply to cases where prosecution has succeeded in
proving facts for which a reasonable inference can be drawn regarding the
existence of certain other facts, unless the accused by virtue of special
knowledge regarding such facts failed to offer any explanation which might
drive the court to draw a different inference.
We
have seriously bestowed our consideration to the arguments addressed by the
learned senior counsel. We only reiterate the legal principle adumbrated in
State of West Bengal vs. Mir Mohammad Omar (supra) that when more persons than one
have abducted the victim, who was later murdered, it is within the legal
province of the court to justifiably draw a presumption depending on the
factual situation, that all the abductors are responsible for the murder.
Section 34 of the IPC could be invoked for the aid to that end, unless any
particular abductor satisfies the court with his explanation as to what else he
did with the victim subsequently, i.e. whether he left his associates en-route
or whether he dissuaded others from doing the extreme act etc. etc.
We are
mindful of what is frequently happening during these days. Persons are
kidnapped in the sight of others and are forcibly taken out of the sight of all
others and later the kidnapped are killed. If a legal principle to be laid down
is that for the murder of such kidnapped there should necessarily be
independent evidence apart from the circumstances enumerated above, we would be
providing a safe jurisprudence for protecting such criminal activities.
India cannot now afford to lay down any
such legal principle insulating the marauders of their activities of killing
kidnapped innocents outside the ken of others.
Lastly,
learned counsel invited our attention to a note which was recovered by the
police from the scene of murder.
That
note contained the scribbling purported to have been authored by a group styled
as Babbar Khalsa, owning the two murders of the deceased. We do not know how
the said note would help the appellant unless he shows that he has nothing to
do with that self styled Babbar Khalsa, even assuming that the note was left by
the murderers without any intention to mislead the investigation. At any rate,
we are not persuaded to change our conclusion on the strength of the said note.
In the
result, we confirm the conviction and sentence and dismiss this appeal.
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