Prithipal Singh Etc.
Vs. State of Punjab & ANR. Etc.
J U D G M E N T
Dr. B.S. CHAUHAN, J.
the above appeals have been preferred against the common judgment and order dated
8.10.2007 passed by the High Court of Punjab & Haryana at Chandigarh in
Criminal Appeal Nos. 864-DB of 2005, 2062-SB of 2005, 2073-SB of 2005, 2074-SB
of 2005, 2075-SB of 2005 and order dated 16.10.2007 in Crl. R.P. No. 323 of
2006, whereby the High Court has dismissed the appeals of the appellants filed
against the conviction and sentences awarded to them by the Additional Sessions
Judge, Patiala, in Sessions Case No. 49-T of 9.5.1998/30.11.2001 vide
judgment and order dated
18.11.2005, whereby he had convicted Jaspal Singh, DSP - appellant in Criminal Appeal
No. 528 of 2009 and one Amarjit Singh, ASI, under Sections 302/34 of Indian Penal
Code, 1860 (hereinafter referred as `IPC'), and sentenced them to undergo
imprisonment for life and to pay a fine of Rs.5,000/- each, in default of payment
of fine, to further undergo Rigorous Imprisonment (hereinafter called `RI') for
five months. Both were also convicted under Section 120-B IPC and sentenced to
undergo RI for five years and to pay a fine of Rs.2,000/-, in default of payment
of fine, to further undergo RI for two months.
They were further convicted
under Sections 364/34 IPC and sentenced to undergo RI for seven years and to
pay a fine of Rs. 5000/- each, in default of payment of fine, to further undergo
RI for five months. They were also convicted under Sections 201/34 IPC and
sentenced to undergo RI for two years and to pay a fine of Rs.2,000/-, in
default of payment of fine, to further undergo RI for two months. Prithipal Singh,
Satnam Singh, Surinderpal Singh and Jasbir Singh, appellants, were convicted under
Section 120-B IPC and sentenced to undergo RI for five years and to pay a fine of
Rs.2,000/- each, and in default of payment of fine, to further undergo RI for two
These four accused/appellants
were also convicted under Sections 364/34 IPC and sentenced to undergo for
seven years RI and to pay a fine of Rs.5,000/- each, in default of payment of
fine, to further undergo RI for five months. The High Court while dismissing
the Criminal Appeals filed by appellants, allowed the Criminal Revision
Petition No. 323 of 2006 filed by Smt. Paramjit Kaur (PW.2), wife of the
deceased, vide order dated 16.10.2007 and enhanced the sentence of the four
appellants from seven years RI to imprisonment for life under Section 364 IPC.
A. Shri Jaswant Singh Khalra,
a human right activist, having allegiance to Shiromani Akali Dal, was alleged to
have been abducted from his residential house No. 8, Kabir Park, Amritsar, on
6.9.1995 at 1.00 O'Clock. Shri Rajiv Singh (PW.15) was present in the house of Shri
Khalra at the time of abduction, Kirpal Singh Randhawa (PW.7) had seen
appellants, namely, Jaspal Singh, DSP, Surinderpal Singh, Jasbir Singh and
Satnam Singh alongwith other accused persons rushing through Kabir Park with the
deceased Jaswant Singh Khalra inside a Maruti van.
B. Smt. Paramjit Kaur
(PW.2) wife of the deceased, came to her house from the University, where she was
working, on being informed by Rajiv Singh (PW.15). She made a search for her
husband but in vain. She made a complaint on the same day at 4.00 PM making a
statement to SI Baldev Singh at Kabir Park that her husband had been kidnapped at
1.00 O'Clock by some persons in police uniform in Maruti van of white colour bearing
No. DNB-5969. On the basis of the said statement, an FIR No. 72 (Ex.PA) was
registered on 7.9.1995 at P.S. Islamabad, District Amritsar, at 9.30 AM under Section
365 IPC. However, no progress in investigation could be made and whereabouts of
Jaswant Singh Khalra could not be known.
C. Smt. Paramjit Kaur (PW.2),
wife of the deceased, filed Criminal Writ Petition No. 497 of 1995 before this
Court, wherein this Court vide order dated 5.11.1995 transferred the
investigation to the Central Bureau of Investigation (hereinafter referred as `CBI').
The CBI registered R.C.No. 14/S/95/SCB-I/Delhi dated 18.12.1995 (Ex.PO) under
Sections 365, 220 and 120-B IPC. In spite of best efforts made by the CBI,
whereabouts of said Jaswant Singh Khalra could not be traced. Even an award of
Rs.1 4lakh was announced for anyone giving information regarding his
D. Kulwant Singh (PW.14)
in his statement recorded by the CBI under Section 161 Cr.P.C. revealed that he
had been detained in a case under the Narcotic Drugs and Psychotropic Substances
Act, 1985 (hereinafter called `NDPS Act') on 4.9.1995 by the police officials of
Police Station Jhabal. Shri Jaswant Singh Khalra was also brought to the said
Police Station on 6.9.1995 and Shri Khalra had disclosed his identity to the said
witness and told him that he was not knowing as to why he had been brought to
the police station by the appellants Satnam Singh and Jaspal Singh, DSP.
E. After completion of the
investigation, the chargesheet was filed in the court of Special Judicial
Magistrate (CBI Cases), Patiala, against the appellants and other accused persons
under Sections 120-B, 365 and 220 IPC. The matter was committed to Sessions
Court. It was revealed before the Sessions Judge that there was some evidence that
Jaswant Singh Khalra had been murdered by the appellants and other accused
persons secretly and his dead body had been thrown in the canal near Harike at
midnight just after Diwali in the year 1995. So, the prosecution was directed to
file supplementary report under Section 173 (8) of Criminal Procedure Code,
1973 (hereinafter referred as `Cr.P.C.').
F. It was on 2.3.1998, i.e.,
after filing of the charge-sheet that Kuldip Singh (PW.16) revealed the facts to
the CBI (New Delhi Office) in respect of abduction and murder of Jaswant Singh
Khalra. Kuldip Singh (PW.16), made voluntary statement to the CBI that he was a
privy to all that happened with Shri Jaswant Singh Khalra from the time he was
brought to the Police Station, Jhabal till his death. He was Special Police Officer
(hereinafter called `SPO') attached to Satnam Singh, SHO, Police Station Jhabal,
and was promised to be inducted into the Punjab Police permanently.
Shri Jaswant Singh
Khalra had been detained in a room in Police Station Jhabal and the witness had
been assigned the duty by Satnam Singh, SHO, to serve him meals etc. He had been
directed to keep the matter most secret and not to disclose anything to
anybody. He had been serving the meals to Shri Khalra who had become very weak
and fragile and was having scratch marks on his body. After 4-5 days, Ajit Singh
Sandhu, SSP, Jaspal Singh, DSP, alongwith his bodyguard Arvinder Singh came in
a Maruti car without having any registration number at 7.00 PM.
After sometime, Satnam
Singh, SHO, Jasbir Singh, SHO and Prithipal Singh also came in another Maruti
car. They all went to the room where Shri Khalra had been detained and Ajit Singh
Sandhu, SSP, asked him to stop his activities. Shri Khalra was beaten by them
and, thereafter, they left 6the said place. After about 3 days of the said incident,
in the afternoon, Satnam Singh, SHO, had taken Shri Khalra alongwith the said
witness to Taran Taran at the residence of Ajit Singh Sandhu, SSP. Some high officials
of police including the then Director General of Police, Punjab, came there and
they talked to Shri Jaswant Singh Khalra in a closed room.
After sometime, Shri
Khalra was brought back to Jhabal Police Station. On one day, at about 7.00 PM,
Jaspal Singh, DSP, came there with his bodyguard Arvinder Singh and after
sometime, Surinderpal Singh, Jasbir Singh and Prithipal Singh also came. They
all went to the room where Shri Jaswant Singh Khalra had been detained and started
beating him. The witness had been asked to bring hot water. As he went out of
the room for arranging the same, he heard slow noise of gun firing twice.
The life of Shri
Khalra came to an end. His dead body was kept in a dicky of the van while blood
was oozing from his body. All of them including the witness went in three cars to
village Harike. The dead body of Shri Khalra was thrown in the canal and all three
vehicles came back to the rest house of village Harike. Subsequently, at about midnight,
the witness alongwith some appellants came back to police station Jhabal. He could
not reveal the incident to anybody because of fear till Ajit Singh Sandhu, SSP,
was alive as he was apprehending about the safety of his own life in 7case he
discloses the gruesome murder of Shri Khalra committed by the police.
G. The prosecution examined
22 witnesses to prove its case against the appellants and other accused
persons. The defence also examined 12 witnesses to rebut the allegations of the
CBI. Learned Additional Sessions Judge, Patiala, vide judgment and order dated
18.11.2005 convicted all the appellants and some other accused persons under Sections
364/34 IPC and convicted the appellant Jaspal Singh and one Amarjit Singh under
Sections 302/34 IPC and under Sections 201/34 IPC and awarded the sentences as
H. Being aggrieved, the other
accused Amarjit Singh filed Criminal Appeal No. 863-DB of 2005 and other
appellants filed the criminal appeals as mentioned hereinabove. Smt. Paramjit Kaur
(PW.2) filed Criminal Revision No. 323 of 2006 for enhancement of the sentences
of the four appellants.
I. All the matters were
heard together. The High Court vide its impugned judgment and order dated 8.10.2007
acquitted Amarjit Singh, however, the conviction of other appellants was
maintained. Notices were issued to the four appellants for enhancing the
sentences awarded to them while dismissing their appeals. On 816.10.2007, the High
Court enhanced the sentence of four appellants, namely, Satnam Singh,
Surinderpal Singh, Jasbir Singh and Prithipal Singh from seven years RI to life
imprisonment. Hence, these appeals.
Sushil Kumar, learned senior counsel appearing for the appellants in Crl.
Appeal Nos. 523-527/2008, has submitted that in the instant case, an FIR had been
lodged under Section 365 IPC without naming any person. The charge-sheet was filed
under Sections 365/220 read with Section 120B IPC and the sanction dated 19.8.1996
had been obtained by the prosecution from the Competent Authority to prosecute the
accused persons under Sections 365/220 read with Section 120B IPC.
The appellants stood
convicted under Section 364 read with Section 34 IPC and were awarded 7 years
RI each. In case, the appeals of these appellants had been dismissed by the
High Court, there was no justification for enhancing the punishment in exercise
of the power under Section 386(e) Cr.P.C. The High Court committed error in
observing that it was a fit case for enhancement of punishment though charges
had never been framed for the offences providing more rigorous punishment.
In case, there had been
no material at the time of framing of the charges for a more serious offence,
the High Court 9erred in enhancing the punishment suo motu. The prosecution
witnesses failed to identify the abductors. Moreover, there had been inordinate
delay in investigation and thus, there were a lot of improvements and
manipulations in the record.
Jaspal Singh, learned Senior counsel appearing for appellant Jaspal Singh, DSP,
contended that none of the alleged eye-witnesses, namely, Paramjit Kaur (PW.2),
Rajiv Singh (PW.15) and Kirpal Singh (PW.7), witnesses of first part of incident,
i.e., kidnapping of Jaswant Singh Khalra from his house, is a reliable witness,
for the reason, that Paramjit Kaur (PW.2) was examined in the court after 8
years of occurrence and, first time, she had named the appellant Jaspal Singh
as one of the persons whom she had seen present outside her house on 6.9.1995,
i.e., the date of kidnapping, but she could not furnish any explanation as to why
the appellant had not been named in the FIR lodged on 6/7.9.1995.
She deposed that she
had disclosed the entire incident to Shri D.R. Bhati, D.I.G., who was not examined
in the court. She did not even name the appellant in the writ petition filed under
Article 32 of the Constitution of India, 1950 (hereinafter called as `Constitution')
before this Court. She did not name the appellant when her statement was
recorded by the CBI on 2.1.1996 under Section 161 10Cr.P.C. Rajiv Singh (PW.15)
filed affidavit in the writ petition before this Court, however, he also did
not name the appellant. His statement was recorded by the CBI on 6.2.1996, but
he did not name the said appellant.
exist between his statement in the court and before the CBI under Section 161
Cr.P.C. He had also accompanied Paramjit Kaur (PW.2) when she met Shri D.R.
Bhati, D.I.G. but he has not stated before the CBI that he had accompanied her.
Kirpal Singh (PW.7) also did not disclose in his statement under Section 161
Cr.P.C. the name of the appellant or any other person. So far as the second
part of the incident is concerned, i.e., detention of Shri Jaswant Singh Khalra,
Kulwant Singh (PW.14) is the only material witness.
No reliance could be
placed on his evidence as he has been an opium addict and mostly spent his time
in jail. He is a criminal and had escaped from judicial custody while he stood
convicted in a case under the NDPS Act. He did not name the said appellant for years
together and disclosed the same first time while his statement was recorded in
court. No explanation could be furnished by the prosecution why the witness had
not named the appellant Jaspal Singh, DSP when his statement was recorded by
the CBI under Section 161 Cr.P.C. So far as the third part of the incident,
i.e. elimination of Jaswant Singh Khalra is concerned, Kuldip Singh (PW.16) has
been described as a star witness of the incident. His deposition requires corroboration
for various reasons.
The said witness had
strong grievances against the police officers in general and the accused
persons in particular. There is nothing on record to show that he had been appointed
permanently or temporarily as Special Police Officer (hereinafter called `SPO')
and had been assigned the duty of bodyguard to Satnam Singh, SHO. His conduct
throughout the proceedings could not be above board. He lodged several
complaints giving different versions. One of the complaints had been against the
complainant herself. Therefore, the question of reliance on his deposition does
More so, Kuldip Singh
(PW.16) has been an accomplice in the crime and over and above, he being a solitary
witness, his evidence cannot be relied upon without corroboration. Jaspal Singh,
DSP, appellant had been charged under Sections 302/34 IPC alongwith two others.
In case of discharge of one by the trial court and acquittal of other
co-accused of the said charges by the High Court, question of convicting the
appellants under Sections 302/34 IPC could not arise. Kuldip Singh (PW.16) had
never disclosed any name for long-long time. The dead 12body of Shri Jaswant
Singh Khalra was not recovered. The appeals have merit and deserve to be
the other hand, Shri Mohan Jain, learned ASG, Ms. Kamini Jaiswal and Shri R.S.
Bains, learned counsel appearing for respondents, have submitted that the facts
of the case do not warrant any interference by this Court with the impugned
judgment. There are concurrent findings of facts. The witnesses were reliable
under the facts and circumstances of the case. Most of the witnesses have
rightly identified the appellants in court. Their testimonies corroborate with each
other and are important to comprehend the chain of events.
The eye-witness had
always been threatened by the appellants who happened to be the police
officials. The eye-witness had falsely been implicated in serious criminal cases.
There had been FIR against Paramjit Kaur (PW.2) and Kirpal Singh Randhawa
(PW.7). In fact, the offence could be unearthed because of directions issued by
this Court in the writ petition filed by Smt. Paramjit Kaur (PW.2).
The High Court was
justified in enhancing the punishment so far as the appellants other than Jaspal
Singh, DSP are concerned considering the gravity of the offence committed by
them. The Police Force in India has always been known for its notorious
activities. Recovery of the dead body in a crime is not a 13condition precedent
for conviction. Once the case of abduction by the appellants stands proved, the
burden of proof is shifted on the respondents to disclose as what happened to Shri
Jaswant Singh Khalra. The appeals lack merit and are liable to be dismissed.
have considered the rival submissions made by learned counsel for the parties
and perused the record.
atrocities in India had always been a subject matter of controversy and debate.
In view of the provisions of Article 21 of the Constitution, any form of torture
or cruel, inhuman or degrading treatment is inhibited. Torture is not
permissible whether it occurs during investigation, interrogation or otherwise.
The wrong-doer is accountable and the State is responsible if a person in
custody of the police is deprived of his life except in accordance with the
procedure established by law.
However, when the
matter comes to the court, it has to balance the protection of fundamental
rights of an individual and duties of the police. It cannot be gainsaid that freedom
of an individual must yield to the security of the State. Latin maxim salus populi
est suprema lex - the safety of the people is supreme law; and salus
reipublicae suprema lex - safety of the State is supreme law, co-exist.
However, the doctrine of the welfare of an individual must yield to that of the
community. The right to life has rightly been characterised as "`supreme' and
`basic'; it includes both so-called negative and positive obligations for the
obligation means the overall prohibition on arbitrary deprivation of life. In this
context, positive obligation requires that State has an overriding obligation
to protect the right to life of every person within its territorial
jurisdiction. The obligation requires the State to take administrative and all other
measures in order to protect life and investigate all suspicious deaths. The
State must protect victims of torture, ill-treatment as well as the human
rights defender fighting for the interest of the victims, giving the issue
serious consideration for the reason that victims of torture suffer enormous consequences
The problems of acute
stress as well as a post-traumatic stress disorder and many other psychological
consequences must be understood in correct perspective. Therefore, the State
must ensure prohibition of torture, cruel, inhuman and degrading treatment to any
person, particularly at the hands of any State agency/police force.
addition to the protection provided under the Constitution, the Protection of Human
Rights Act, 1993, also provide for protection of all rights to every individual.
It inhibits illegal detention. Torture and custodial death have always been
condemned by the courts in this country. In its 113th report, the Law
Commission of India recommended the amendment to the Indian Evidence Act, 1872
(hereinafter called "Evidence Act"), to provide that in case of
custodial injuries, if there is evidence, the court may presume that injury was
caused by the police having the custody of that person during that period. Onus
to prove contrary is on the police authorities.
Law requires for
adoption of a realistic approach rather than narrow technical approach in cases
of custodial crimes. (Vide: Dilip K. Basu v. State of W.B. & Ors., AIR 1997
SC 3017; N.C. Dhoundial v. Union of India & Ors., AIR 2004 SC 1272; and
Munshi Singh Gautam (D) & Ors. v. State of M.P., AIR 2005 SC 402).
Court in Raghubir Singh v. State of Haryana, AIR 1980 SC 1087 while dealing
with torture in police custody observed: "We are deeply disturbed by the diabolical
recurrence of police torture resulting in a terrible scare in the minds of common
citizens that their lives and liberty are under a new peril when the guardians
of the law gore human rights to death.
The vulnerability of human
rights assumes a 16 traumatic, torture some poignancy (when) the violent violation
is perpetrated by the police arm of the State whose function is to protect the
citizen and not to commit gruesome of fences against them as has happened in
this case. Police lock-up if reports in newspapers have a streak of credence, are
becoming more and more awesome cells. This development is disastrous to our human
rights awareness and humanist constitutional order."
in Gauri Shanker Sharma etc. v. State of U.P. etc., AIR 1990 SC 709, this Court
held : "....it is generally difficult in cases of deaths in police custody
to secure evidence against the policemen responsible for resorting to third degree
methods since they are in charge of police station records which they do not
find difficult to manipulate as in this case. .....
The offence is of a serious
nature aggravated by the fact that it was committed by a person who is supposed
to protect the citizens and not misuse his uniform and authority to brutally
assault them while in his custody. Death in police custody must be seriously
viewed for otherwise we will help take a stride in the direction of police raj.
It must be curbed with a heavy hand. The punishment should be such as would deter
others from indulging in such behaviour. There can be no room for leniency."
Munshi Singh Gautam (Supra), this Court held that peculiar type of cases must
be looked at from a prism different from that used for ordinary criminal cases for
the reason that in a case 17where the person is alleged to have died in police custody,
it is difficult to get any kind of evidence. The Court observed as under: "6.
Rarely in cases of police torture or custodial death, direct ocular evidence is
available of the complicity of the police personnel, who alone can only explain
the circumstances in which a person in their custody had died.
Bound as they are by
the ties of brotherhood, it is not unknown that police personnel prefer to remain
silent and more often than not even pervert the truth to save their colleagues.......
7. The exaggerated adherence to and insistence upon the establishment of proof beyond
every reasonable doubt by the prosecution, at times even when the prosecuting
agencies are themselves fixed in the dock, ignoring the ground realities, the fact
situation and the peculiar circumstances of a given case, .............often
results in miscarriage of justice and makes the justice-delivery system suspect
In the ultimate analysis
society suffers and a criminal gets encouraged.......The courts must not lose sight
of the fact that death in police custody is perhaps one of the worst kinds of
crime in a civilised society governed by the rule of law and poses a serious
threat to an orderly civilised society. Torture in custody flouts the basic rights
of the citizens recognised by the Indian Constitution and is an affront to
human dignity. Police excesses and the maltreatment of detainees/undertrial prisoners
or suspects tarnishes the image of any civilised nation and encourages the men in
"khaki" to consider themselves to be above the law and sometimes even
to become a law unto themselves.
Unless stern measures
are taken to check the malady of the very fence eating the crop, the foundations
of the criminal justice-delivery system would be shaken and civilisation itself
would risk the consequence of heading towards total decay resulting in anarchy and
authoritarianism reminiscent of barbarism. The courts must, therefore, deal with
such cases in a realistic manner and with the sensitivity which they deserve, otherwise
the common man may tend to gradually lose faith in the efficacy of the system
of the judiciary itself, which if it happens, will be a sad day, for anyone to
reckon with."(See also: State of Madhya Pradesh v. Shyamsunder Trivedi
& Ors., (1995) 4 SCC 262).
The State of U.P. v. Mohd. Naim, AIR 1964 SC 703, State of U.P. filed an appeal
before this Court for expunging the following remarks made by the Allahabad
High Court: "That there is not a single lawless group in the whole of the
country whose record of crime comes anywhere near the record of that organised unit
which is known as the Indian Police Force.'' ".....Where every fish barring
perhaps a few stinks, it is idle to pick out one or two and say that it
This Court held that such
general remarks could not be justified nor were they necessary for disposal of
the said case. The Court expunged the aforesaid adverse remarks. (See also:
People's Union for Civil Liberties v. Union of India & Anr., AIR 2005 SC
2419). Undoubtedly, this Court has been entertaining petition after petition
involving the allegations of fake encounters and rapes by police personnel of States
and in a large number of cases transferred the investigation itself to other
agencies and particularly the CBI. (See : Rubabbuddin Sheikh v. State of Gujarat
& Ors. (2010) 2 SCC 200; Jaywant P.Sankpal v. Suman Gholap & Ors. (2010)
11 SCC 208; and Narmada Bai v. State of Gujarat & Ors., (2011) 5 SCC 79).
in view of the above, in absence of any research/data/ material, a
general/sweeping remark that a "substantial majority of the population in the
country considered the police force as an institution which violates human rights"
cannot be accepted. However, in a given case if there is some material on record
to reveal the police atrocities, the court must take stern action against the
erring police officials in accordance with law. SCOPE OF SECTION 386(e) Cr.P.C.
Eknath Shankarrao Mukkawar v. State of Maharashtra, AIR 1977 SC 1177, this
Court held : "6. We should at once remove the misgiving that the new Code of
Criminal Procedure, 1973, has abolished the High Court's power of enhancement of
sentence by exercising revisional jurisdiction, suo motu. The provision for
appeal against inadequacy of sentence by the State Government or the Central Government
does not lead to such a conclusion.
High Court's power of
enhancement of sentence, in an appropriate case, by exercising suo motu power of
revision is still extant under section 397 read with Sec. 401 Criminal
Procedure Code, 1973, inasmuch as the High Court can "by itself'' call for
the record of proceedings of any inferior criminal court under its
jurisdiction. The provision of Section 401 (4) is a bar to a party, who does not
appeal, when appeal lies, but applies in revision. Such a legal bar under Section
401 (4) does not stand in the way of the High Court's exercise of power of revision,
suo motu, which continues as before in the new Code."
Surendra Singh Rautela @ Surendra Singh Bengali v. State of Bihar (Now State of
Jharkhand), AIR 2002 SC 260, this Court reconsidered the issue and held: "It
is well settled that the High Court, suo motu in exercise of revisional
jurisdiction, can enhance the sentence of an accused awarded by the trial Court
and the same is not affected merely because an appeal has been provided under
Section 377 of the Code for enhancement of sentence and no such appeal has been
preferred." (See also: Nadir Khan v. The State (Delhi Administration), AIR
1976 SC 2205; Govind Ramji Jadhav v. State of Maharashtra (1990) 4 SCC 718; and
K. Pandurangan etc. v. S.S.R. Velusamy & Anr. AIR 2003 SC 3318).
Jayaram Vithoba & Anr. v. The State of Bombay, AIR 1956 SC 146, this Court held
that the suo motu powers of enhancement under revisional jurisdiction can be exercised
only after giving notice/opportunity of hearing to the accused.
view of the above, the law can be summarised that the High Court in exercise of
its power under Section 386(e) Cr.P.C. is competent to enhance the sentence suo
motu. However, such a course is permissible only after giving opportunity of hearing
to the accused. EVIDENCE OF AN ACCOMPLICE - Not put on trial:
accomplice is a competent witness and conviction can lawfully rests upon his
uncorroborated testimony, yet the court is entitled to presume and may indeed, be
justified in presuming in the generality of cases that no reliance can be
placed on the evidence of an accomplice unless the evidence is corroborated in material
particulars, which means that there has to be some independent witness tending to
incriminate the particular accused in the commission of the crime. (Vide:
Rameshswar S/o Kalyan Singh v. The State of Rajasthan, AIR 1952 SC 54; and Sarwan
Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637).
K. Hasim v. State of Tamil Nadu, AIR 2005 SC 128, this Court examined the issue
while taking into consideration the provisions of Section 133 read with Section
114 Illustration 22(b) of the Evidence Act and held that the provision of
Section 114 Illustration (b) embodies a rule of prudence cautioning the court that
an accomplice does not generally deserve to be believed unless corroborated in material
The legislature in its
wisdom used the word `may' and not `must' and, therefore, the court does not have
a right to interpret the word `may' contained therein as `must'. The court has to
appreciate the evidence with caution and take a view as to the credibility of the
evidence tendered by an accomplice. In case evidence of an accomplice is found credible
and cogent, the court can record the conviction based thereon even if
uncorroborated. The Court further explained that the word
"corroboration" means not mere evidence tending to confirm other evidence.
Firstly, it is not necessary
that there should be an independent corroboration of every material
circumstance in the sense that the independent evidence in the case, apart from
the testimony of the accomplice, should in itself be sufficient to sustain
conviction. All that is required is that, there must be some additional
evidence rendering it probable that the case of the accomplice is true and it is
reasonably safe to act upon it.
Secondly, the evidence
on record must reasonably connect or tend to connect the case with the crime by
confirming in some material particular the testimony of an accomplice. Thirdly,
the circumstances involved in the case must be such as to make it safe to dispense
with the necessity of corroboration, though, such evidence may be merely circumstantial
evidence to show connection of the case with the crime. (See also: Suresh
Chandra Bahri v. State of Bihar, AIR 1994 SC 2420).
issue was again considered by this Court in Chandran alias Manichan alias Maniyan
& Ors. v. State of Kerala, (2011) 5 SCC 161, wherein the Court had an
occasion to appreciate the evidence of a person who had not been put on trial, but
could have been tried jointly with accused and found his evidence reliable in
view of the law laid down by this Court in Laxmipat Choraria & Ors. v.
State of Maharashtra, AIR 1968 SC 938.
The Court held as
under: "78. The argument raised was that this evidence could not be taken
into consideration and it would be inadmissible because this witness, though
was an accomplice he was neither granted pardon under Section 306 CrPC nor was he
prosecuted and the prosecution unfairly presented him as a witness for the
The contention is
clearly incorrect in view of the decision of this Court in Laxmipat Choraria
(supra). While commenting on this aspect, Hidayatullah, J. observed in AIR para
13 that there were a number of decisions in the High Courts in which the
examination of one of the suspects as the witness was not held to be legal and accomplice
evidence was received subject to safeguards as admissible evidence in the case.
The Court in Laxmipat Choraria (supra) held: "
13. On the side of the
State many cases were cited from the High Courts in India in which the
examination of one of the suspects as a witness was not held to be illegal and accomplice
evidence was received subject to safeguards as admissible evidence in the case.
In those cases, Section 342 of the Code and Section 5 of the Oaths Act were considered
and the word `accused' as used in those sections was held to denote a person
actually on trial before a court and not a person who could have been so
tried... .... the evidence of an accomplice may be read although he could have been
tried jointly with the accused.
In some of these cases
the evidence was received although the procedure of Section 337 of the Criminal
Procedure Code was applicable but was not followed. It is not necessary to deal
with this question any further because the consensus of opinion in India is
that the competency of an accomplice is not destroyed because he could have
been tried jointly with the accused but was not and was instead made to give evidence
in the case. Section 5 of the Oaths Act and Section 342 of the Code of Criminal
Procedure do not stand in the way of such a procedure."
view of the above, the law on the issue can be summarised to the effect that the
deposition of an accomplice in a crime who has not been made an accused/put to trial,
can be relied upon, however, the evidence is required to be considered with care
and caution. An accomplice who has not been put on trial is a competent witness
as he deposes in the court after taking oath and there is no prohibition in any
law not to act upon his deposition without corroboration.
ACCUSED NAMED FIRST
TIME IN THE COURT :
Rudrappa Ramappa Jainpur & Ors. v. State of Karnataka, AIR 2004 SC 4148, this
Court considered the issue at length and held that in case the witness does not
involve a particular accused in a crime at the time of recording his statement under
Section 161 Cr.P.C., and names him first time in his deposition in the court, the
accused becomes entitled to benefit of doubt. A similar view has been re-iterated
in State represented by Inspector of Police, Tamil Nadu v. Sait alias
PERSON CHARGED UNDER SECTION
302/34 IPC - OTHER ACCUSED PERSONS STAND ACQUITTED :
Prabhu Babaji Navle v. State of Bombay, AIR 1956 SC 51, this Court held that it
is impossible to reach a conclusion that the appellant/accused shared the common
intention with other co-accused in case other accused stand acquitted, unless it
is shown that some other unknown persons were also involved in the offence. It is
permissible in law to charge an accused in the alternative for being shared the
common intention with another or others unknown, but even then the common intention
would have to be proved either by direct evidence or by legitimate inference.
Sukhram v. State of Madhya Pradesh, AIR 1989 SC 772, this Court re-iterated the
similar view observing that in case a co-accused is acquitted giving the benefit
of doubt the other accused would also be entitled to acquittal. (See also: Madan
Pal v. State of Haryana, (2004) 13 SCC 508; and Koppula Jagdish alias Jagdish v.
State of A.P. (2005) 12 SCC 425).
Court in Sanichar Sahni v. State of Bihar, AIR 2010 SC 3786, while considering a
similar situation and considering the earlier judgments of this Court, particularly
in Willie (William) Slaney v. State of M.P., AIR 1956 SC 116, State of A.P. v. Thakkidiram
Reddy & Ors., AIR 1998 SC 2702; Ramji Singh & Anr. v. State of Bihar,
AIR 2001 SC 3853; and Gurpreet Singh v. State of Punjab, AIR 2006 SC 191, held that
in case the charges have not properly been framed unless it is established that
the accused persons were in any way prejudiced due to the errors or omissions in
framing the charges against them, the appellate court may not interfere with
has to establish that he was not informed as what was the real case against him
and that he could not defend himself properly. Intervention by a superior court
on such technicalities is not warranted, for the reason that conviction order, in
fact, is to be tested on the touchstone of prejudice theory. A Three-Judge
Bench judgment of this Court in Lok Pal Singh v. State of M.P., AIR 1985 SC
891, observed that such argument is irrelevant in case the involvement of the accused
is proved beyond reasonable doubt.
EVIDENCE OF THE SOLE
Court has consistently held that as a general rule the Court can and may act on
the testimony of a single witness provided he is wholly reliable. There is no
legal impediment in convicting a person on the sole testimony of a single
witness. That is the logic of Section 134 of the Evidence Act. But if there are
doubts about the testimony, the court will insist on corroboration. In fact, it
is not the number or the quantity, but the quality that is material.
The time-honoured principle
is that evidence has to be weighed and not counted. The test is whether the evidence
has a ring of truth, is cogent, credible and trustworthy or otherwise. The
legal system has laid emphasis on value, weight and quality of evidence, rather
than on quantity, multiplicity or plurality of witnesses. It is, therefore,
open to a competent court to fully and completely rely on a solitary witness
and record conviction.
Conversely, it may
acquit the accused in spite of testimony of several witnesses if it is not
satisfied about the quality of evidence. (See: Vadivelu Thevar v. The State of
Madras, AIR 1957 SC 614; Sunil Kumar v. State Govt. of NCT of Delhi, (2003) 11 SCC
367; Namdeo v. State of Maharashtra, (2007) 14 SCC 150; and Bipin Kumar Mondal v.
State of West Bengal, AIR 2010 SC 3638).
demand extraordinary remedies. While dealing with an unprecedented case, the
Court has to innovate the law and may also pass unconventional order keeping in
mind that extraordinary fact situation requires extraordinary measures. In B.P.
Achala Anand v. S. Appi Reddy & Anr., AIR 2005 SC 986, this Court observed:
"Unusual fact situation posing issues for resolution is an opportunity for
innovation. Law, as administered by Courts, transforms into justice." Thus,
it is evident that while deciding the case, the Court has to bear in mind the
peculiar facts, if so exist, in a given case.
DELICTI - Recovery of : In Mani Kumar Thapa v. State of Sikkim, AIR 2002 SC
2920, this Court held that in a trial for murder, it is neither an absolute
necessity nor an essential ingredient to establish corpus delicti. The fact of
the death of the deceased must be established like any other fact. Corpus
delicti in some cases may not be possible to be traced or recovered.
There are a number of
possibilities where a dead body could be disposed of without any trace,
therefore, if the recovery of the dead body is to be held to be mandatory to
convict an 30accused, in many a case, the accused would manage to see that the
dead body is destroyed to such an extent which would afford the accused complete
immunity from being held guilty or from being punished.
What is, therefore,
required in law to base a conviction for an offence of murder is that there should
be reliable and plausible evidence that the offence of murder like any other
factum of death was committed and it must be proved by direct or circumstantial
evidence albeit the dead body may not be traced.(See also: Ram Chandra &
Anr. v. State of Uttar Pradesh, AIR 1957 SC 381; Ashok Laxman Sohoni & Anr.
v. The State of Maharashtra, AIR 1977 SC 1319; and Rama Nand & Ors. v. The
State of Himachal Pradesh, AIR 1981 SC 738)
Therefore, in a
murder case, it is not necessary that the dead body of the victim should be found
and identified, i.e. conviction for offence of murder does not necessarily
depend upon corpus delicti being found. The corpus delicti in a murder case has
two components - death as result, and criminal agency of another as the means. Where
there is a direct proof of one, the other may be established by circumstantial
OF PROOF UNDER SECTION 106
In State of West
Bengal v. Mir Mohammad Omar & Ors. etc. etc., AIR 2000 SC 2988, this Court held
that if fact is especially in the knowledge of any person, then burden of
proving that fact is upon him. It is impossible for prosecution to prove certain
facts particularly within the knowledge of accused. Section 106 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 the prosecution has succeeded in proving facts from which
a reasonable inference can be drawn regarding the existence of certain other facts,
unless the accused by virtue of his special knowledge regarding such facts, failed
to offer any explanation which might drive the Court to draw a different
Section 106 of the
Evidence Act is designed to meet certain exceptional cases, in which, it would be
impossible for the prosecution to establish certain facts which are particularly
within the knowledge of the accused. (See also: Shambhu Nath Mehra v. The State
of Ajmer, AIR 1956 SC 404; Sucha Singh v. State of Punjab, AIR 2001 SC 1436;
and Sahadevan @ Sagadevan v. State rep. by Inspector of Police, Chennai, AIR
2003 SC 215)
OF THE INSTANT CASE: In the instant case, the incident occurred on 6.9.1995. In
spite of the fact that the matter had been brought to the notice of the
superior authorities, no action was taken by the police at all. Ultimately, the
complainant, Smt. Paramjit Kaur (PW.2) who could not even know whether her
husband was alive or dead and, if alive, where he had been and none of the higher
authorities in administration helped her or disclosed the whereabouts of her
husband, approached this Court by filing a Habeas Corpus Petition i.e. Writ
Petition (Crl.) No. 497 of 1995.
As no information
could be furnished by the State about the whereabouts of Shri Jaswant Singh
Khalra, this Court transferred the investigation to the CBI. The CBI during the
course of investigation, realised that it was not possible to conduct the investigation
fairly and properly unless some of the police officers involved in the case were
transferred from the districts of Amritsar and Taran Taran.
Thus, the CBI requested
this Court to issue direction to transfer Jaspal Singh, DSP, Taran Taran,
Surinderpal Singh, SHO, Satnam Singh, SHO. This Court vide order dated
15.3.1996 directed the Director General of Police, Punjab, to transfer the said
officials out of those districts with a further direction that they should not
be posted in adjoining districts also. This Court further directed the State
Administration to provide full protection/security to all the witnesses who
were assisting the CBI in the investigation.
order dated 22.7.1996 passed by this Court reveals that the CBI in its interim report
informed this Court that 984 dead bodies had been cremated as `Lavaris' in the district
Taran Taran alone and a large number of innocent persons had been killed by the
police for which there was sufficient material to register criminal cases against
the police officials. This Court directed the CBI to register the criminal cases
for causing such heinous crimes. Considering a large number of cremations done as
`Lavaris', this Court asked the people at large to furnish information/material
to the CBI so that the matter may be investigated properly.
While passing the order
dated 7.8.1996, this Court had taken note that Kulwant Singh (PW.14), a convict
under the NDPS Act, was detained in Amritsar jail and the CBI had expressed
certain doubts regarding his involvement in the said case. This Court directed the
Jail Superintendent, Amritsar to file an appeal on behalf of Kulwant Singh
(PW.14) before the High Court. It may be pertinent to note here that the appeal
filed before the High Court was allowed and Kulwant Singh (PW.14) was acquitted
vide order dated 8.12.1997.
dated 7.8.1996 further reveals that there was sufficient material to prosecute
Ajit Singh Sandhu, SSP, District Taran Taran, Ashok Kumar, DSP and Jaspal
Singh, DSP and it was made clear that in spite of the fact that the CBI was continuing
further investigation regarding the whereabouts of Jaswant Singh Khalra, it
could not be known upto 7.8.1996 as to whether he was alive or not. The State
of Punjab was directed to pay a sum of Rs.10 lacs as an interim compensation to
complainant Smt. Paramjit Kaur.
Court in its order dated 28.8.1996 took note of the fact that the witnesses had
been provided protection/security of Central Reserve Police Force/Border
Security Force and counsel appearing for the State assured the Court to grant necessary
sanction under Section 197 Cr.P.C., if so required for the prosecution of the
The investigation was
monitored by this Court. This Court's order dated 12.12.1996 reveals that
according to the CBI, it was about 2097 bodies which had been cremated as
unidentified and the press note issued by Shri Khalra in this respect was found
to be correct. It was in view of the above orders passed by this Court from
time to time and monitoring the case for years together, the investigation
conducted by the CBI could be completed. INSTANT CASE:
case requires to be examined by taking into consideration the aforesaid facts
and settled legal propositions.
to the prosecution, Shri Jaswant Singh Khalra was a human rights activist and had
been General Secretary, Human Rights Wing of Shiromani Akali Dal. He had been working
on abduction and cremation of unclaimed/unidentified bodies during the
disturbed period in Punjab, particularly in districts Amritsar and Taran Taran.
The police had been eliminating
the young persons under the pretext of being militants and was disposing of
their dead bodies without maintaining any record and without performing their
last rites. Shri Jaswant Singh Khalra raised the voice against the same. The local
police did not like it and hatched a conspiracy to abduct him and in furtherance
of that criminal conspiracy, he had been abducted by the local police officials
on 6.9.1995 about 9.00 a.m. from his residence and after keeping him in the illegal
detention, killed him and thrown his body into a canal in Harike area.
investigating the matter in pursuance of orders passed by this Court, the CBI
filed charge-sheet on 13.10.1996 in the court of Magistrate at Patiala against nine
police officers, wherein the 36main accused was Ajit Singh Sandhu, the then SSP
of Taran Taran District. However, the trial court vide order dated 25.7.1998
framed the charges against eight persons, namely, Ashok Kumar, Satnam Singh, Rachpal
Singh, Jasbir Singh, Amarjit Singh, Surinderpal Singh, Prithipal Singh and
Jaspal Singh, DSP. Charges could not be framed against Ajit Singh Sandhu, SSP, for
the reason that he committed suicide before framing of the charges.
The charges had been that
all of them agreed to abduct and eliminate Shri Jaswant Singh Khalra. Thus, all
of them stood charged under Section 120-B IPC. All of them were charged under
Sections 364 read with 34 IPC. Three of them, namely, Jaspal Singh, DSP,
appellant, Amarjit Singh and Rachpal Singh, as a result of criminal conspiracy,
committed murder of Shri Khalra. Thus, they were charged under Sections 302
read with 34 IPC. Further for causing the corpus of Shri Jaswant Singh Khalra
disappeared with the intention of screening themselves from legal punishment,
the said three persons were charged under Sections 201 read with 34 IPC.
During the course of
trial, Ashok Kumar died, Rachpal Singh was discharged before his statement under
Section 313 Cr.P.C. could be recorded as no incriminating material appeared against
him. Amarjit Singh has been acquitted by the High Court. Thus, we are concerned
with only remaining five appellants.
are concurrent findings of facts by two courts that all the appellants are guilty
of abducting Shri Jaswant Singh Khalra with an intent to eliminate him. The findings
so recorded are based on appreciation of evidence which had been recorded after
eight years of the incident. In spite of the best efforts of this Court, and
passing order after order in the Writ Petition for Habeas Corpus, it could not
be known as to whether Shri Jaswant Singh Khalra was dead or alive. Had this
Court not issued directions and transferred the case to the CBI for
investigation, perhaps the mystery of death of Shri Jaswant Singh Khalra could not
There is sufficient
evidence on record to show that the appellants and other co-accused remained posted
in the districts of Taran Taran and Amritsar and they stood transferred from
those districts only on the directions of this Court as the CBI had pointed out
that it would not be possible to conduct a fair investigation till the appellants
and other co-accused remain posted in those two districts. The witnesses had been
threatened and implicated in false cases. They could muster the courage to speak
only after getting proper security/protection under the orders of this Court
passed in the Writ Petition filed by the complainant Smt. Paramjit Kaur Khalra.
material has been placed before the courts below as well as before this Court to
show that Shri Jaswant Singh Khalra was a human rights activist and had raised
the voice against Shri Ajit Singh Sandhu, the then SSP of Taran Taran District,
about the killing of innocent persons and cremation of thousands of
unidentified bodies unceremoniously. Ajit Singh Sandhu directly and indirectly
tried that Shri Khalra could desist from exposing the illegal activities of the
police in those districts.
However, he did not
deter and therefore, there was a motive on behalf of the police department to
kidnap and make him understand the consequence that he would face and, ultimately,
to eliminate him. Shri Khalra persisted in pursuing the truth and fighting for
human rights. The motive of the accused police officers to abduct and kill Shri
Jaswant Singh Khalra comes out clearly from the testimonies of Smt. Paramjit Kaur
(PW.2), Justice Ajit Singh Bains (PW.5), Satnam Singh (PW.6), Satwinderpal Singh
(PW.8), Jaspal Singh Dhillon (PW.11), Surinderpal Singh (PW.12), Rajiv Singh (PW.15)
and K.S.Joshi (PW.19).
Some of these
witnesses had deposed that Shri Khalra had been receiving death threats in reference
to his investigations into illegal encounters and cremations. There is nothing on
record to discredit the testimonies of either of these 39witnesses in this regard,
rather their testimonies had been consistent with each other and inspired
accused had been identified correctly in the court by various witnesses. Smt. Paramjit
Kaur (PW.2) identified Jaspal Singh, Surinderpal Singh and Jasbir Singh; Kirpal
Singh Randhawa (PW.7) identified Satnam Singh; Kulwant Singh (PW14) identified
Jaspal Singh and Satnam Singh; Rajiv Singh (PW.15) identified Jaspal Singh,
Satnam Singh and Prithipal Singh; and Kuldip Singh (PW.16) identified Jaspal
Singh, Satnam Singh, Surinderpal Singh, Jasbir Singh and Prithipal Singh.
Paramjit Kaur (PW.2) had testified that she had been threatened by the accused
persons on telephone for pursuing the case of her missing husband. Punjab Police
officials persistently made attempts to exert undue pressure on the witnesses throughout
the investigation and trial.
The police also
registered fake criminal cases against Smt. Paramjit Kaur (PW.2), Kirpal Singh
Randhawa (PW.7), Kulwant Singh (PW.14) and Rajiv Singh (PW.15). Kikkar Singh
(PW.1) turned hostile because of threats in spite of the fact that he was provided
sufficient security and protection. Kirpal Singh Randhawa (PW.7) and Rajiv
Singh (PW.15) had been involved in a case allegedly threatening to implicate
the witnesses in a rape case. Kirpal Singh Randhawa (PW.7) was falsely enroped
in a rape case in the year 2004. The police implicated Rajiv Singh (PW.15) in
four cases during the trial.
He had been detained
in July 1998 for allegedly forming a terrorist organisation, which was subsequently
found to be totally fake on investigation by other agency. Kulwant Singh (PW.14)
had been falsely involved and convicted in a case under NDPS Act, who was subsequently
acquitted by the High Court. It may also be pertinent to mention here that in
the said case, the appeal could be filed before the High Court only on the
direction issued by this Court while entertaining the criminal Writ Petition
filed by Smt. Paramjit Kaur (PW.2).
Singh (PW.16) kept quiet till Ajit Singh Sandhu, SSP, committed suicide. He had
been changing his version during the investigation as well trial of the case. He
had also filed complaint against Smt. Paramjit Kaur (PW.2) allegedly paying him
a sum of Rs.50,000/- as a bribe for deposing against the police authorities.
Kuldip Singh (PW.16) was SPO and Bodyguard of Satnam Singh, SHO,
accused/appellant. He was having several grievances against the police officers
in general and accused persons in particular.
recorded regarding detention of Shri Khalra by the police did not get any corroboration
from any corner including record of police station, log books of police
vehicles. No employee/person of the place where Shri Khalra had been detained or
from the guest house where his body was taken before throwing away in the
canal, has been examined to corroborate the testimony of Kuldip Singh (PW.16). There
are some improvements also in his deposition in the court from statements
recorded under Section 161 Cr.P.C.
However, all these
issues/aspects have been considered by the courts below and taking into consideration
the entire fact-situation in which the incident had taken place and whereabouts
of Shri Khalra could not be known in spite of the best efforts of this Court,
case of the prosecution cannot be brushed aside. The Court has to take into consideration
the ground realities referred to hereinabove, particularly that it is very difficult
to get evidence against the policemen responsible for custodial death.
a case where the
person is alleged to have died in police custody, it is difficult to get any
kind of evidence. "Rarely in cases of police torture or custodial death,
direct ocular evidence is available of the complicity of the police personnel,
who alone can only explain the circumstances in which a person in their custody
had died. Bound as they are by the ties of brotherhood, it is not 42unknown that
police personnel prefer to remain silent and more often than not even pervert
the truth to save their colleagues"
In view of the persistent
threats hurled by the accused and other police officials to the complainant and
witnesses throughout the investigation and trial, variation in his version from
time to time is natural. However, it can be inferred that deposition to the
extent of illegal detention, killing and throwing away the dead body of Shri
Khalra, can safely be relied upon as the same stand corroborated by other
circumstantial evidence and the deposition of other witnesses. As we have
referred to hereinabove, there is trustworthy evidence in respect of abduction
of Shri Khalra by the appellants; as well as his illegal detention.
view of the law referred to hereinabove, same remains the position in case a solitary
witness deposed regarding the illegal detention and elimination of Shri Jaswant
of the appellants had taken alibi for screening themselves from the offences. However,
none of them could establish the same. The courts below have considered this issue
elaborately and in order to avoid repetition, we do not want to re-examine the same.
However, we would like
to clarify that the conduct of accused subsequent to the commission of crime in
such a case, may be very relevant. If there is sufficient evidence to show that
the accused fabricated some evidence to screen/absolve himself from the offence,
such circumstance may point towards his guilt. Such a view stand fortified by judgment
of this Court in Anant Chintaman Lagu v. The State of Bombay, AIR 1960 SC 500.
the courts below have found that the accused/appellants have abducted Shri
Jaswant Singh Khalra. In such a situation, only the accused person could
explain as what happened to Shri Khalra, and if he had died, in what manner and
under what circumstances he had died and why his corpus delicti could not be
accused/appellants failed to explain any inculpating circumstance even in their
respective statements under Section 313 Cr.P.C. Such a conduct also provides for
an additional link in the chain of circumstances. The fact as what had happened
to the victim after his abduction by the accused persons, has been within the special
knowledge of the accused persons, therefore, they could have given some
explanation. In such a fact-situation, the Courts below have rightly drawn the
presumption that the appellants were responsible for his adduction, illegal
detention and murder.
Jaspal Singh, learned senior counsel appearing on behalf of Jaspal Singh, DSP,
appellant, has vehemently submitted that only three persons had been charged
under Sections 302/34 IPC. Rachpal Singh stood discharged by the trial court before
recording his statement under Section 313 Cr.P.C., and Amarjit Singh has been
acquitted by the High Court. Law does not permit to convict Jaspal Singh, appellant,
alone for the offence punishable under Sections 302 read with 34 IPC in view of
law referred to hereinabove.
The arguments so
advanced seem to be very attractive but cannot be accepted for the reason that
the case is required to be considered in the factual backdrop mentioned hereinabove.
This Court has consistently held that even otherwise "it is possible for
the appellate or the revisional court to convict an accused for offence in
which no charge was framed unless the Court is of the opinion that the failure
of justice could be, in fact, occasioned. In order to judge whether a failure
of justice has been occasioned, it will be relevant to examine whether the
accused was aware of the basic ingredients of the offence for which he is being
convicted and whether the main facts sought to be established against him, were
explained to him clearly and whether he got a fair chance to defend himself."
The Court cannot lose
sight of the fact that Jaspal Singh, appellant, had also been charged and convicted
under Sections 364/34 IPC alongwith all other appellants. He was not arrayed as
a party/respondent in the Criminal Revision filed by Smt. Paramjit Kaur (PW.2),
complainant for enhancement of punishment as he had already been given life imprisonment
for the offences punishable under Sections 302/34 IPC. Had he been acquitted for
the said offences and convicted under Sections 364/34 IPC, his sentences could
also have been enhanced by the High Court as it so happened in the cases of other
In addition thereto,
admittedly, at the initial stage of the proceedings, main accused had been Ajit
Singh Sandhu, SSP, who committed suicide before framing of the charges. Jaspal Singh,
DSP, appellant, cannot succeed on mere technicalities. In view of the
provisions of Section 464 Cr.P.C., and in the peculiar facts of this case, this
argument is not worth acceptance. Be that as it may, the contention raised on behalf
of Jaspal Singh, DSP, appellant, does not require further consideration in view
of judgment of this Court in Lok Pal Singh (supra), wherein a similar
contention stood rejected.
the charges had been framed prior to the statements recorded by Kuldip Singh (PW.16)
and in such a fact-situation, the trial court ought to have altered the charges,
but it 46failed to do so. The offence proved against the appellants has been
abducting Shri Khalra so that he could be murdered. The High Court is justified
in enhancing the punishment particularly in the peculiar facts of this case.
The court cannot be a
silent spectator where the stinking facts warrant interference in order to
serve the interest of justice. In the fact-situation of a case, like instant,
if the court remains oblivious to the patent facts on record, it would be tantamount
to failure in performing its obligation under the law.
appreciating the evidence on record, and considering the judgments of the courts
below, we approve their following conclusions:
Singh Khalra, being a human right activist, had taken the task to expose the
mis-deeds of police in Districts Amritsar and Taran Taran killing innocent people
under the pretext of being terrorists and cremating them without any identification
and performing any ritual.
Police authorities did not like such activities of Shri Khalra and tried to
desist him from the same. Shri Khalra was being threatened over the telephone by
the police officials.
Singh Khalra informed a large number of persons about the threats and being watched
by unidentified suspicious persons, who had been wandering around his house and
had been followed by such elements.
Singh Khalra was able to generate public pressure against the police authorities
which was a source of anger and pressure upon the police.
Singh Sandhu, SSP, hatched a conspiracy with appellants and some other police
personnel to abduct Jaswant Singh Khalra and eliminate him or to put him in
danger of being murdered.
the time of abduction, the accused did not permit Jaswant Singh Khalra even to change
his clothes. One of the witnesses, namely, Rajiv Singh (PW.15) was pushed away
Singh (PW.15) immediately informed various persons including Smt. Paramjit Kaur
(PW.2) and Justice Ajit Singh Bains (PW.5) about the incident of kidnapping.
spite of the best efforts made by Smt. Paramjit Kaur (PW.2), wife of the
deceased and others particularly, Rajiv Singh (PW.15) who went from pillar to
post, whereabouts of Jaswant Singh Khalra were not made known to them.
police authorities did not cooperate in helping the complainant, though the
witnesses had named the persons involved in the abduction of Shri Khalra.
(Ex.PA) dated 6.9.1995 submitted by Smt. Paramjit Kaur had not properly been
recorded by the SHO Police Station, Islamabad. The version therein had been
different from what she had reported. It so happened because of connivance of
accused in the case had been high police officials and there was every
possibility that statement of the complainant Smt. Paramjit Kaur (Ex.PA) had
not been recorded as reported by her.
approaching this Court by filing a Habeas Corpus Writ Petition, Smt. Paramjit Kaur
(PW.2) had approached the National Human Rights Commission at New Delhi in
respect of the incident. However, she was advised to approach this Court.
Court passed several orders in a writ petition filed by Smt. Paramjit Kaur, wife
of the deceased, but whereabouts of Jaswant Singh Khalra could not be known and
in view thereof, investigation of the case was transferred to the CBI.
spite of transfer of the investigation of the case to the CBI, the Punjab
police officials did not cooperate with the CBI and were not lending proper support
in conducting the investigation. The police officials of Punjab united in an unholy
alliance as their colleagues were involved and the case was going to tarnish the
image of Punjab police. The witnesses named the police officials in their statements
before the CBI and they identified the accused persons in the court.
order to find out the whereabouts of Shri Khalra, the CBI made public appeal by
putting his photographs in electronic media. A large number of posters having
his photograph had been affixed on the walls of the cities particularly in Taran
Taran, Majitha and Amritsar and made a declaration that person giving information
about him, would be rewarded with a sum of Rs.1 lakh.
witnesses were so scared/terrified of the action of the police
atrocities/criminal intimidation that they could not muster the courage to reveal
the truth. The witnesses could not name the accused while filing affidavits in this
Court in the writ petition.
appellants and other accused police officials attempted to prevent the
testimony of the witnesses by threatening, harassing and involving them in
false criminal cases and physical intimidation. A large number of false documents
had been created by one of the witnesses because of police threats and fear put
by the accused.
witnesses had been acquitted by the courts as they had falsely been involved in
criminal cases of a very serious nature. This was so done only to prevent them to
support the prosecution. The witnesses suffered with criminal intimidation at the
hands of the police officials. Even the complaints filed by the witnesses
against other witnesses had been found to be false.
depositions made by the witnesses in the court had been consistent with their
statements recorded under Section 161 Cr.P.C.
depositions of all the witnesses including Kulwant Singh (PW.14) and Kuldip
Singh (PW.16) are worth acceptance in spite of all the discrepancies pointed
out by the accused/appellants.
the accused had taken the plea of alibi to show that none of them was present
at the place of occurrence on the relevant date. However, none of them could
successfully prove the same and the plea of alibi taken by them was found to be
false. This points towards their guilt.
had been framed prior to recording the statements of Kuldip Singh (PW.16) and in
such a fact-situation the trial court ought to have altered the charges.
evidence is available on record in respect of abduction of Shri Jaswant Singh Khalra
and the witnesses, particularly, Smt. Paramjit Kaur (PW.2), Rajiv Singh (PW.15)
and Kirpal Singh Randhawa (PW.7) have identified the appellants as the persons who
have abducted Shri Khalra. Kulwant Singh (PW.14) has deposed about his illegal detention
in Police Station Jhabal. In such a fact-situation, the burden shifts on the
respondents to disclose as what happened to Shri Jaswant Singh Khalra.
the dead body of Shri Jaswant Singh Khalra could not be recovered from the
canal as the investigation commenced after a long time, recovery of the dead
body is not a condition precedent for conviction of the accused for murder.
atrocities are always violative of the constitutional mandate, particularly, Article
21 (protection of life and personal liberty) and Article 22 (person arrested must
be informed the grounds of detention and produced before the Magistrate within
24 hours). Such provisions ensure that arbitrary arrest and detention are not made.
Tolerance of police atrocities, as in the instant case, would amount to
acceptance of systematic subversion and erosion of the rule of law. Therefore,
illegal regime has to be glossed over with impunity, considering such cases of
view of the above, we do not find any reason to interfere with the well
reasoned judgment and order of the High Court. The facts of the case do not
warrant review of the findings recorded by the courts below.
appeals lack merit and are accordingly dismissed.
(Dr. B.S. CHAUHAN)