Prithipal Singh Etc vs State Of Punjab & Anr. Etc

Prithipal Singh Etc. ...

Appellants

Versus

State of Punjab & Anr. Etc. ...Respondents

WITH

CRIMINAL APPEAL NO. 528 of 2009

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. All 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

2

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 months. 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.

2. FACTS:

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

3

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

4

lakh was announced for anyone giving information regarding his

whereabouts.

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.').

5 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

6

the 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

7

case 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 mentioned

hereinabove.

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

8

16.10.2007, 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.

3. Shri 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

9

erred 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.

4. Shri 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 10

Cr.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. Material improvements/contradictions 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.

11 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 not arise. 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

12

body of Shri Jaswant Singh Khalra was not recovered. The appeals

have merit and deserve to be allowed.

5. On 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

13

condition 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.

6. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

LEGAL ISSUES:

POLICE ATROCITIES :

7. Police 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,

14

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 State". The negative 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 psychologically. 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.

15 8. In 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).

9. This 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, torturesome 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."

10. Similarly, 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."

11. In 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

17

where 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 and

vulnerable. 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

18

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).

12. In 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 stinks.''

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

19

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).

13. Thus, 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.

14. In 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

20

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."

15. In 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).

16. In 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.

21 17. In 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:

18. An 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).

19. In 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 particulars. 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.

23 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).

20. The 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

24

the prosecution. 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."

25

21. In 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 :

22. In 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

Krishnakumar, (2008) 15 SCC 440.

PERSON CHARGED UNDER SECTION 302/34 IPC

-

OTHER ACCUSED PERSONS STAND ACQUITTED :

26 23. In 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.

24. In 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).

25. This Court in Sanichar Sahni v. State of Bihar, AIR

2010 SC 3786, while considering a similar situation and

27

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 conviction. The accused/appellant 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.

28 EVIDENCE OF THE SOLE EYE-WITNESS :

26. This 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).

29 27. EXTRAORDINARY CASE:

Extraordinary situations 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.

28. CORPUS 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

30

accused, 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 evidence.

29. BURDEN OF PROOF UNDER SECTION 106

31

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 inference. 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)

30. INVESTIGATION OF THE INSTANT CASE:

32 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

33

protection/security to all the witnesses who were assisting the CBI

in the investigation.

31. The 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.

34 32. Order 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.

33. This 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 police

officials. 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.

35 INSTANT CASE:

34. The case requires to be examined by taking into consideration

the aforesaid facts and settled legal propositions.

35. According 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.

36. After 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

36

main 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.

37 37. There 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 have surfaced. 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.

38 38. Sufficient 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

39

witnesses in this regard, rather their testimonies had been consistent

with each other and inspired confidence.

39. The 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.

40. Smt. 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

40

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).

41. Kuldip 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. His

narration recorded regarding detention of Shri Khalra by the police

41

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.

In 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

42

unknown 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.

42. In 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 Singh Khalra.

43. Most 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

43

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.

44. Both 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 recovered. All the

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.

44 45. Shri 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

45

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 accused/appellants. 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.

46. Undoubtedly, 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

46

failed 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.

47. After appreciating the evidence on record, and considering the

judgments of the courts below, we approve their following

conclusions:

(i) Jaswant 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.

(ii) The 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.

47

(iii) Jaswant 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.

(iv) Jaswant Singh Khalra was able to generate public pressure

against the police authorities which was a source of anger and

pressure upon the police.

(v) Ajit 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.

(vi) At 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 .

(vii) Rajiv 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.

(viii) In 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.

48

(ix) The police authorities did not cooperate in helping the

complainant, though the witnesses had named the persons involved

in the abduction of Shri Khalra.

(x) Report (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 police officials.

(xi) The 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.

(xii) Before 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.

(xiii) This 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.

(xiv) In 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

49

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.

(xv) In 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.

(xvi) The 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.

(xvii) The 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.

50 (xviii) The 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.

(xix) The depositions made by the witnesses in the court had been

consistent with their statements recorded under Section 161 Cr.P.C.

(xx) The 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.

(xxi) All 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.

(xxii) Charges 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.

51 (xxiii) Sufficient 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.

(xxiv) Though 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.

48. Police 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

52

the rule of law. Therefore, illegal regime has to be glossed over with

impunity, considering such cases of grave magnitude.

49 In 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.

50. The appeals lack merit and are accordingly dismissed.

....................................J.

(P. SATHASIVAM)

...................................J.

(Dr. B.S. CHAUHAN)

New Delhi;

November 4, 2011

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