Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1303 of 2005

Baldev Singh …… Appellant

Versus

State of Punjab ….. Respondent

WITH

CRIMINAL APPEAL No. 1380 of 2005

Balwinder Singh …… Appellant

Versus

State of Punjab ….. Respondent

J U D G M E N T

A. K. PATNAIK, J.

These are appeals by way of special leave under Article

136 of the Constitution against the common judgment dated

Page 2 06.04.2005 of the High Court of Punjab and Haryana in

Criminal Appeal No.221-DB of 1998.

Facts of the case:

2. The facts very briefly are that Inder Singh sent an

application dated 19.01.1992 by registered post with A.D. to

the Director General of Police, Punjab, for releasing seven

members of his family. In the application, Inder Singh

alleged that on 29.10.1991 at 5.00 a.m. Baldev Singh,

Deputy Superintendent of Police, and Balwinder Singh, Police

Constable (the appellants herein) and other police men

raided their house and picked up seven members of his

family. They are Sadhu Singh (his father), Hardev Singh (his

son), Gurdip Singh and Amanjit Singh (his brothers),

Sharanjit Singh (son of his younger brother Sajjan Singh) and

Davinder Singh and Sukhdev Singh (two sons of his younger

brother Khazan Singh). Inder Singh further stated in the

aforesaid application that he has seen his family members,

who were picked up, in Fatehgarh Churian, Police Station

Kalanaur, Dera Baba Nanak and Police Station Kathu Nangal

2

Page 3 and on 08.01.1992, his son Sarwan Singh has seen these

persons in the police vehicle in Amritsar. In the application,

Inder Singh stated that he had fear that the appellant-Baldev

Singh may kill his family members or may implicate in some

case and he requested that they be released from illegal

detention of the police at the earliest. By Memo dated

21.03.1994, the Inspector General of Police, Crime Branch

directed the Senior Superintendent of Police, Majitha, to get

the case registered and accordingly a formal FIR was

registered under Section 364 of the Indian Penal Code (for

short ‘IPC’) on 23.03.1994 in Police Station, Kathunangal,

District Majitha. After investigation, charges were framed

against nine accused persons including the appellants and

as per the amended charges, nine accused persons were

tried for offences under Sections 120-B, 148, 452, 364, 365,

302 read with Section 120-B and 201, IPC.

3. At the trial, fourteen prosecution witnesses were

examined. Inder Singh was examined as PW-3 and he stated

that on 29.10.1991 the two appellants accompanied by

3

Page 4 twenty to twenty five persons came in vehicles to the house

and took away the seven members of his family. PW-3 has

further deposed that he and his other relatives had

approached the higher authorities but all his efforts to get

the seven persons released did not yield any result. The

evidence of PW-3 was corroborated by his brother Sajjan

Singh who was examined as PW-4 as well as Jarnail Singh, a

relation of PW-3, who was examined as PW-5. Sarwan Singh,

the son of PW-3, was also examined as PW-6 and he stated

that on 08.01.1992 he happened to be present at the shop

near the bus stand at Amritsar when he noticed a Police

Gypsy going on the road and saw that his brother Hardev

Singh was sitting in the vehicle and even he gave a signal by

raising his hand. He also stated that there were other

persons sitting in the vehicle but he did not see them and

made an attempt to chase the vehicle but he could not do

so. The appellants also examined as many as eleven

witnesses in their defence that they have not taken anybody

in their custody as alleged by the prosecution.

4

Page 5 4. The trial court rejected the defence of the appellants

and convicted the appellants under Sections 452, 364, and

302 read with Section 120-B, IPC, by its judgment dated

30.03.1998. The trial court thereafter heard the appellants

on the question of sentence and sentenced the appellants to

three years rigorous imprisonment and a fine of Rs.3,000/-

for the offence of house trespass for wrongful restraint under

Section 452, IPC, five years rigorous imprisonment and a fine

of Rs.4,000/- for the offence of abduction of Sadhu Singh,

Gurdip Singh, Hardev Singh, Amanjit Singh, Sharanjit Singh,

Davinder Singh and Sukhdev Singh in order to murder under

Section 364, IPC and rigorous imprisonment for life and a

fine of Rs.50,000/- for the offence of murder of Sadhu Singh,

Gurdip Singh, Hardev Singh, Amanjit Singh, Sharanjit Singh,

Davinder Singh and Sukhdev Singh under Section 302 read

with Section 120-B, IPC. Aggrieved, the appellants filed

Criminal Appeal No.221-DB of 1998 before the High Court

and by the impugned judgment dated 06.04.2005, the High

Court dismissed the appeal.

5

Page 6 Contentions on behalf of the Appellants:

5. Mr. Amarendra Sharan, learned senior counsel

appearing for the appellants, submitted that while the

incident was alleged to have taken place on 29.10.1991, the

FIR was registered on 19.01.1992 and there was, thus, a

delay of two months and twenty one days in lodging the FIR.

He submitted that this delay is sought to be explained by the

prosecution by saying that the complainant approached the

Senior Superintendent of Police and the Director General of

Police and thereafter the Courts and even a writ petition

before this Court and only thereafter the complaint was

registered as an FIR. Mr. Sharan submitted that PW-3

belonged to a family of prosperous farmers and his son PW-6

was serving in the police and his friend PW-5 was also a

member of Punjab State Congress Committee and had easy

access to the Chief Minister of the State and, therefore, the

explanation given by the prosecution for the delay of two

months and twenty one days in lodging the FIR cannot be

accepted by the Court. He cited the decision in Meharaj

Singh (L/Nk.) v. State of U.P. [(1994) 5 SCC 188] in which this

6

Page 7 Court has held that delay in lodging the FIR often results in

embellishment as well as introduction of a coloured version

or exaggerated story and the FIR loses its value and

authenticity.

6. Mr. Sharan next submitted that there was enough

evidence to show that there was enmity between the

complainant and the appellants. In this regard, he referred

to the evidence of PW-3, the complainant himself, that the

brother of the appellant-Baldev Singh was earlier kidnapped

by the terrorists on 18.10.1991 and the appellant-Baldev

Singh was under the impression that Gurdip Singh (brother

of PW-3) was responsible for getting Kuldip Singh kidnapped

and earlier Kundan Singh, who was a co-accused with the

appellants but acquitted by the trial court, had asked the

family of PW-3 to accept some girl for marriage with the son

of PW-3 Hardev Singh, but Hardev Singh rejected the

proposal. He submitted that as there was enmity between

the family of PW-3 and the appellants, PW-3 has lodged the

false complaint against the appellants.

7

Page 8 7. Mr. Sharan next submitted that the evidence of PW-3

and PW-4 on which the trial court and the High Court relied

on for holding the appellants guilty, is not reliable because

the statements were recorded under Section 161, Cr.P.C., for

the first time in July, 1994 more than two years after the

incident and this fact has been admitted by the Investigating

Officer (PW-10), who recorded the statements. He cited

the decisions of this Court in Jagjit Singh alias Jagga v. State

of Punjab [(2005) 3 SCC 689] and State of Andhra Pradesh v.

S. Swarnalatha & Ors. [(2009) 8 SCC 383] for the proposition

that the delay in examination of a witness in the course of

investigation if not properly explained creates a serious

doubt about the reliability of the evidence of the witness.

8. Mr. Sharan referred to several improvements in the

deposition of PW-3 over his statements recorded during

investigation under Section 161, Cr.P.C. He cited Ashok

Vishnu Davare v. State of Maharashtra [(2004) 9 SCC 431],

Radha Kumar v. State of Bihar (now Jharkhand) [(2005) 10

SCC 216] and Sunil Kumar Sambhudayal Gupta (Dr.) & Ors.

8

Page 9 v. State of Maharashtra [(2010) 13 SCC 657], in which this

Court has not believed the evidence of prosecution

witnesses on account of improvements in the deposition of

the witnesses made over their statements recorded under

Section 161, Cr.P.C.

9. Mr. Sharan submitted that police personnel, namely,

SSP Sita Ram and SSP Hardeep Singh Dhillon, whose names

find place in the evidence of PW-3, PW-4 and PW-5, were

material witnesses and yet have not been examined by the

prosecution. He submitted that similarly, Sukhbans Kaur

Bhinder, Member of Parliament, and Beant Singh, Chief

Minister of the State, whose names also find place in the

evidence of PW-3, were material witnesses, but have not

been examined. He submitted that their evidence would

have thrown sufficient light on the prosecution case and the

Court should draw adverse inference against the prosecution

for non-examination of these material witnesses.

9

Page 10 10. Mr. Sharan submitted that there is no evidence

whatsoever on record to show that the seven persons

alleged to have been abducted by the police have been

killed by the appellants. He cited the decision of this Court

in State of Karnataka v. M.V. Mahesh [(2003) 3 SCC 353] in

which it has been held that in the absence of definite

evidence to indicate that Beena had been done to death, the

accused could not have been convicted merely on the

circumstance that the accused and Beena were last seen

together. He submitted that in this case, PW-3, PW-4 and

PW-5 have stated that they had seen the seven persons in

Fatehgarh Churian Police Station and Kalanaur Police Station

and PW-6 has further stated that he saw and identified his

brother Hardev in a Police Van on 08.01.1992 at Amritsar.

Mr. Sharan submitted that on these facts, therefore, Section

106 of the Indian Evidence Act was not attracted and the

burden was not on the appellants to prove that they had not

killed the seven persons who were abducted by them. He

cited Sahadevan and Another v. State of Tamil Nadu [(2012)

6 SCC 403] in which this Court has held that the last seen

10

Page 11 theory should be applied while taking into consideration the

prosecution case in its entirety and keeping in mind the

circumstances that precede and follow the point of being so

last seen. He submitted that if the aforesaid principle as laid

down by this Court in Sahadevan and Another v. State of

Tamil Nadu (supra) is applied then the appellants could not

be held guilty of the offence of murder of the seven persons.

11. Mr. Sharan next submitted that there is no evidence

whatsoever before the court that the seven persons are

dead and are not alive and the trial court has erroneously

drawn the presumption that the seven persons are dead by

applying Section 108 of the Indian Evidence Act. He cited the

judgment of this Court in LIC of India v. Anuradha [(2004) 10

SCC 131 in which the principle behind Section 108 of the

Indian Evidence Act is explained. He submitted that in any

case, if there was any evidence against the appellants for

the offence of murder of the seven persons under Section

302, IPC, the same should have been put to the appellants

by the Court under Section 313, Cr.P.C., but this has not

11

Page 12 been done in this case. He vehemently argued that the

conviction of the appellants for the offence of murder of

seven persons under Section 302, IPC is without any

evidence whatsoever.

Contentions on behalf of the State:

12. Mr. V. Madhukar, learned counsel appearing for the

State of Punjab, in his reply, submitted that in this case

though the complaint was filed by PW-3 on 19.01.1992

nothing was done for quite sometime and, therefore, PW-3

approached this Court in a habeas corpus petition to secure

the release of the seven members of his family and on

15.09.1994 this Court passed an order directing that an

inquiry should be conducted by the Central Bureau of

Investigation. He submitted that pursuant to the said order

of this Court, the Director of the Central Bureau of

Investigation submitted his report dated 15.12.1994 and

thereafter the investigation was carried out by the Crime

Branch of the Punjab Police and the charge-sheet was filed

12

Page 13 against the two appellants and others. He submitted that

the delay in lodging the FIR in this case on the part of PW-3

must be on account of the fact that the complaint was

against the police personnel themselves and PW-3 must be

contemplating whether or not to lodge such a complaint. He

submitted that this was, therefore, an extra-ordinary case

and this Court has held in Prithipal Singh & Ors. v. State of

Punjab & Anr. [(2012) 1 SCC 10] that in such an extra-

ordinary situation, the Court has to bear in mind the peculiar

facts and innovate the law accordingly. He submitted that

in the extra-ordinary facts in which PW-3, had to lodge the

FIR, the delay in lodging the FIR should be ignored by the

Court.

13. Mr. Madhukar next submitted that the evidence of

PW-3, PW-4 and PW-5 on material aspects of the case are

that the appellants took into custody seven persons, who

were members of the family of PW-3, on 29.10.1991 and this

was the case of PW-3 in the complaint filed by him on

19.01.1992 as well as in his statement recorded under

13

Page 14 Section 161, Cr.P.C., in the course of the investigation. The

omissions in the statements recorded under Section 161,

Cr.P.C., which have been supplied during the evidence of the

witnesses in Court, do not detract from this basic

prosecution story and, therefore, are not “contradictions”

covered by the Explanation under Section 162, Cr.P.C. He

further submitted that the delay in recording the statements

under Section 161, Cr.P.C. in this extra-ordinary case should

not be held fatal to the prosecution case as the main

prosecution story that the appellants abducted seven

members of the family of PW-3 has been consistently

reiterated all throughout, from the date of the complaint

made on 19.01.1992 to the dates of the examination of

witnesses by the Court. He submitted that the motive of the

appellants to abduct the seven members of the family of PW-

3 obviously was revenge as will be clear from the evidence

of PW-3 and thus the trial court and the High Court rightly

believed the evidence of PW-3, PW-4 and PW-5.

14

Page 15 14. Mr. Madhukar submitted that seven other police

personnel who went along with the appellants to abduct the

seven members of the family of PW-3 were not examined as

prosecution witnesses as they were also accused persons

and these seven persons, namely Kundan Singh, Sukhwinder

Singh, Balwinder Singh, Gurmukh Singh, Amrik Singh, Nirmal

Singh and Randhir Singh, have been acquitted by the trial

court. He submitted that the only evidence which has come

on record regarding Sita Ram, SSP, Batala, is that a message

was received from him that seven persons will be collected

from the office of Sita Ram, SSP. He submitted that if Sita

Ram, SSP, would have been examined he would have only

denied that he had given such message and hence non-

examination of Sita Ram, SSP, as a witness in court should

not be held against the prosecution.

15. Mr. Madhukar vehemently submitted that the

appellant-Baldev Singh was a DSP in the Police Department

and had control over all the Police Stations under him and if

this fact along with the fact that the appellant-Baldev Singh

15

Page 16 abducted the seven members of the family of PW-3 are

taken into consideration, then the burden of proving as to

what happened to the seven persons abducted by him was

on him under Section 106 of the Indian Evidence Act. He

submitted that as the appellants have not discharged this

burden of proving facts especially within their knowledge,

the trial court and the High Court rightly held that the seven

abducted persons have been murdered by the appellants. In

support of this argument, he cited the decisions of this Court

in Ram Gulam Chaudhary & Ors. v. State of Bihar [(2001) 8

SCC 311] and Badshah & Ors. v. State of Uttar Pradesh

[(2008) 3 SCC 681]. He submitted that in these two cases it

was held that even though the dead-body of a person

alleged to have been murdered was not discovered,

conviction for murder under Section 302, IPC, can still be

recorded if there exists strong circumstantial evidence and if

the accused is unable to offer any explanation regarding

facts especially within his knowledge as provided under

Section 106 of the Indian Evidence Act. He submitted that

this is, therefore, not a fit case where this Court should

16

Page 17 interfere with the concurrent findings of fact recorded by the

trial court and the High Court against the appellants and

should dismiss the appeal.

Findings of the Court:

16.The first question that we have to decide is whether the

delay of 2 months and 21 days in lodging the FIR could make

the prosecution case one which is not believable. There

cannot be any doubt that delay in the lodging of the FIR

often results in embellishment as well as the introduction of

a distorted version of what may have actually happened, but

the facts of each case have to be examined to find out

whether the delay in lodging the FIR is fatal for the

prosecution case. In the present case, we find from the

evidence of PW-3 that the terrorists were active in the State

of Punjab and the police was taking action against the

terrorists and in such a state of affairs, PW-3 was

apprehensive of the consequences of lodging an FIR against

appellants, one of whom was a Deputy Superintendent of

Police in control of several police stations and the other was

a police constable. Hence, after seven members of his

17

Page 18 family were picked up on 29.10.1991, PW-3 waited for 2

months and 21 days with the hope that they would be

released by the police and only after all his efforts to get

them released failed, he lodged the complaint on 19.01.1992

(Ex.PB). The fact that the complainant addressed the

complaint (Ex. PB) not to the police station but to the

Director General of Police, Punjab, is enough evidence of the

fact that PW-3 was afraid of lodging the complaint to the

local police station which was under the control of the

appellant Baldev Singh.

17.To illustrate this point, we may refer to Gauri Shanker

Sharma vs. State of U.P. [1990 (Supp) SCC 656]. In this

case, the facts were that Ram Dhiraj died of injuries received

by him after his arrest while he was in police custody. The

prosecution version was that he was beaten in police

custody on 19.10.1971 by accused no.1 and his two

companions after he was arrested from his residence and

brought to the police station. Even though the High Court

came to the conclusion that the deceased was beaten after

18

Page 19 his arrest, the High Court refused to place reliance on the

direct testimony of three witnesses insofar as involvement of

the Station House Officer of Police Station was concerned

and one of the grounds for rejecting the evidence of the

three prosecution witnesses was that the telegram was sent

by PW-5 who had requested the Station House Officer not to

beat the deceased on 23.10.1971, where as the prosecution

case was that the injuries on the person of the deceased

were caused on the evening of 19.10.1971. This Court held

that the High Court has failed to appreciate that everyone

thinks twice before deciding to make so serious a complaint

against a police officer and there was no serious delay as to

throw out the evidence of the three witnesses on the ground

of delay. In our view, considering the fact situation, the

delay of 2 months and 21 days on the part of PW-3 to lodge

the complaint to the Director General of Police, Punjab, had

been explained by PW-3 and this is not a case where the

prosecution case could be disbelieved on the ground of delay

in lodging the FIR.

19

Page 20 18.We may next consider the contention of Mr. Sharan that

the trial court and the High Court should not have relied on

the evidence of witnesses when their statements under

Section 161, Cr.P.C. were recorded for the first time in July,

1994, almost more than two years after the incident and

lodging of the FIR. In Jagjit Singh alias Jagga v. State of

Punjab (supra) cited by Mr. Sharan, the relevant facts were

that PW-6, who was a young girl of 7 years age and resided

in a different village than that of Jagjit Singh did not say in

her earlier statements that she knew him, but in her

statement recorded by the Investigating Officer under

Section 161, Cr.P.C. she claimed to have known him and on

these facts this Court held that in her earlier statements she

did not name him and the delay in examining her in course

of investigation also creates a serious doubt in the absence

of any explanation for her late examination after 3 days and

further held that though she may have witnessed the

occurrence, she did not know Jagjit Singh and she had no

opportunity of knowing or seeing him earlier and she has

involved him at the instance of her father when her

20

Page 21 statement was recorded by the Investigating Officer. In the

facts of the present case, on the other hand, PW-3 and PW-4,

who have stated in their evidence before the court that on

29.10.1991 the appellants Baldev Singh and Balvinder Singh

came in 3-4 vehicles and took the seven members of their

family in the Gypsy and knew the two appellants who lived in

village Ram Diwali which was at a small distance from the

village of PW-3 and PW-4. Further, in the very first complaint

lodged by PW-3 on 19.01.1992, PW-3 has named the

appellants Baldev Singh and Balvinder Singh as the persons

who raided their house and picked up seven members of his

family. Hence, the fact that there was considerable delay of

two years from the date of lodging the FIR and recording of

statements of PW-3 and PW-4 and other witnesses does not

make their evidence, that the appellants picked up seven

members of their family on 29.10.1991 at 5.00 a.m.,

doubtful.

19.In State of Andhra Pradesh v. S. Swarnalatha & Ors

(supra) also cited by Mr. Sharan, the prosecution relied on

21

Page 22 the evidence of PW-3, a taxi driver, who claimed to have

taken the accused persons to the house where the two

persons died homicidal death and he also said that the

accused persons entered into the house and asked him to

stay on at that place and after half an hour all of them came

out of the house and asked him to drop them at Ring Road,

Dilsukhnagar. This Court found that PW-3 in his statement

under Section 161, Cr.P.C. had mentioned the names of only

two accused persons, but in his deposition before the Court,

he took the names of six accused persons and further PW-3

was not taken by the Investigating Officer to the house in

question to identify the house where the incident has taken

place. On these facts, this Court held that the statement of

PW-3 which was recorded by the Investigating Officer only

on 31.01.1999 when the murder of the deceased had taken

place on 03.12.1997 was not reliable, particularly when his

statement was also recorded under Section 164, Cr.P.C.

before the recording of his statement under Section 161,

Cr.P.C. Thus, considering the peculiar facts of this case, the

delay in recording the statement of witnesses by the

22

Page 23 Investigating Officer under Section 161, Cr.P.C. was held

against the prosecution by this Court. In the facts of the

present case, the investigation was against the Deputy

Superintendent of Police and several other police persons

and the investigation was being conducted by the

Investigating Officer of the Crime Branch of the State Police.

There was, therefore, resistance within the police against the

investigation and it was only on account of intervention of

this Court in Writ Petition (Criminal) No. 221 of 1994 that

there was progress in the investigation and the statements

of witnesses came to be recorded by the Investigating

Officer. This being explanation for the delay in examining

the witnesses under Section 161 Cr.P.C., we are not inclined

to accept the statement on behalf of the appellants that the

prosecution witnesses should not be relied on because of

delay in recording the statements under Section 161, Cr.P.C.

20.We are also unable to accept the submission of Mr.

Sharan that the evidence of PW-3 and PW-4 ought not to be

relied on by the trial court and the High Court when there

23

Page 24 was evidence to show that there was enmity between PW-3

and PW-4 on the one hand and the appellants on the other

hand. Where there is previous enmity between the witness

and the accused, the evidence of the witness has to be

carefully scrutinized by the Court before it is accepted, but

only on account of such enmity the Court cannot discard the

evidence of the witness altogether [See State of U.P. vs.

Kishanpal and Others (2008) 16 SCC 73]. Moreover,

witnesses who are not related to a victim of an offence are in

some situations difficult to find. This is one such situation

where the appellants have come to the house of the

complainant (PW-3) early in the morning at 5.00 am on

29.10.1991 and picked up seven members of his family and

it is difficult to find persons witnessing this incident at 5.00

a.m. during the last part of October. Moreover, one of the

appellants was a Deputy Superintendent of Police and

therefore even if some one had witnessed the incident, he

would prefer not to narrate the incident either before the

Investigating Officer or before the Court. In such a situation,

the Court has to consider carefully and cautiously the

24

Page 25 evidence of witnesses who may have had enmity with the

accused. On such careful and cautious consideration, it is

difficult to discard the evidence of PW-3 that the appellants

picked up seven members of his family on 29.10.1991 at

5.00 a.m. from his house particularly when it is corroborated

by the evidence of PW-4 as well as the complaint dated

19.01.1992 (Ext. PB) of PW-3 which had been registered as

the FIR. In our considered opinion, therefore, the trial court

and the High Court could not have rejected the evidence of

PW-3 and PW-4 on the ground of enmity between PW-3 and

PW-4 on the one hand and the appellants on the other hand.

21.We may now consider the submission of Mr. Sharan

that there were improvements in the deposition of PW-3 over

his statements recorded during the investigation under

Section 161 Cr.P.C. The Explanation under Section 162,

Cr.P.C. provides that an omission to state a fact or

circumstance in the statement recorded by a police officer

under Section 161, Cr.P.C. may amount to contradiction if

the same appears to be significant and otherwise relevant

having regard to the context in which such omission occurs

25

Page 26 and whether any omission amounts to a contradiction in the

particular context shall be a question of fact. Thus, unless

the omission in the statement recorded under Section 161,

Cr.P.C. of a witness is significant and relevant having regard

to the context in which the omission occurs, it will not

amount to a contradiction to the evidence of the witness

recorded in court. The evidence of PW-3 is that on

29.10.1991, the appellant Baldev Singh accompanied by the

appellant Balwinder Singh accompanied by twenty to twenty

five persons came in three to four vehicles to his house and

Sadhu Singh (his father), Hardev Singh (his son), Gurdip

Singh (his brother), Amanjit Singh (his son), Sharanjit Singh

(son of his brother, Sajjan Singh), Davinder Singh and

Sukhdev Singh (sons of his brother Khazan Singh) in all

seven persons were made to sit in the Gypsy and the

appellants took these seven persons with them. There is no

omission with regard to these facts about the picking up of

seven members of his family from his house on 29.10.1991

and the names of these seven members of his family in the

statement of PW-3 recorded under Section 161 Cr.P.C. The

26

Page 27 omissions in the statement of PW-3 recorded under Section

161 Cr.P.C. are with regard to the nature, number and colour

of the vehicles and the number of men who had come as

well as what happened after the aforesaid incident on

29.10.1991. In our view, the trial court and the High Court

had rightly considered these omissions as not material

omissions amounting to contradictions covered by the

Explanation under Section 162, Cr.P.C. In our view,

therefore, the High Court rightly maintained the conviction of

the appellants under Sections 364 and 452 IPC.

22.We may now come to the submission of Mr. Sharan that

there is no evidence whatsoever on record to show that the

seven persons alleged to have been abducted by the

appellants have been killed by the appellants.

23.We find that PW-3 has stated in his evidence:

“All our men who kidnapped, were found

present in PS Fatehgarh Churian and they

were kept there for 10 days. We kept on

meeting them during this period. Their

condition was very bad. We used to go to

them to supply food and articles and

clothing to meet their needs. Then these

27

Page 28 persons were shifted from Fatehgarh

Churian to Kalanaur. I and my relatives

Jarnail Singh, Kuldip Singh, Sajjan Singh

used to go to meet our men in the said

police station also. We found that all these

persons had been given severe beatings

and out of them Gurdip Singh my brother

and Amanjit Singh, his son, had received

more serious injuries as compared to

others. The conditions of these persons

were very bad. After keeping our men at

PS Kalanaur for ten days, then they were

kept in PS Fatehgarh Churian.

Subsequently, 3 persons were taken to PS

Dera Baba Nanak and 4 were taken to PS

Kahnuwal. Sadhu Singh, Gurdip Singh and

Amanjit Singh had been kept in PS Dera

Baba Nanak, where as the other 4 were

kept in PS Kahnuwal. We continued

meeting them from time to time in these

police stations also. On 08.12.1991 4

persons, namely, Hardev Singh, Davinder

Singh, Sukhdev Singh and Sharanjit Singh

were shifted to PS Sadiq Faridkot from

Kahnuwal Police Station.”

“I mentioned that we kept on meeting our

men during the period of 10 days when

they were detained in Police Station

Fatehgarh Churian and also that their

condition was very bad and we used to go

there to supply food and articles and

clothing to meet their needs.”

“In my statement in court I had mentioned

that we had been meeting our men at

various Police Stations at Kalanaur,

Fatehgarh Churian etc. and we had also

been supplying food articles to them.”

28

Page 29 Thus, as per the evidence of PW-3, after the seven members

of his family were abducted, he had met them at different

police stations and was supplying them food and articles and

clothing to meet their needs.

24.We also find that PW-4 in his statement has stated:

“We again approached Baldev Singh

accused and he told us that our men will

be sent back after his brother was traced.

Thereafter, we continued to contact SSP of

Batala for getting our men released

because accused Baldev Singh was

working as DSP under his control. SSP Sita

Ram, however, continued postponing the

matter promising that he would get our

men released. Our men were kept from

time to time at Police Station Fatehgarh

Churian, Kalanaur, again Fatehgarh

Churian and then to Kahnuwal and Dera

Baba Nanak. We had been meeting our

men from time to time in these Police

Stations and we used to provide our men

with food and clothes and other eatables.

Subsequently 4 persons were sent to PS

Sadiq.”

“Our men used to be kept in the residential

quarters near the Police Station and we

used to meet them there. Other men from

public were not present there on these

occasions. I had mentioned in my police

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Page 30 statement that our men were taken to

Police Station Fatehgarh Churian because

our men had been subsequently seen by

us.”

Hence, the evidence of PW-4 also is that the seven persons

picked up by the appellants were kept at different places

including Police Stations and residential quarters near the

Police Station and their family members used to provide

them with food and clothes and other articles and used to

meet them.

25.We further find that PW-5 has stated in his evidence:

“I then went to Gurdaspur. Then I learnt

that our men were kept in Police Station

Kahnuwal. I went there and I could find

only 4 persons present there. The other 3

persons namely Sadhu Singh, his son

Gurdip Singh and Son of Gurdip were not

there.”

“I had also disclosed that I, Inder Singh,

Sajjan Singh and wife, brother of Sajjan

Singh has gone to PS Kalanaur and had

met 7 persons.”

“I had mentioned in my statement before

Police about our going to PS Kahnuwal and

meeting 4 persons there.”

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Page 31 “I did not meet the SHO of PS Kalanaur as

the SHO could never permit us to meet our

men. Voluntarily explained that I had met

them in a stealthy manner, when a Head

Constable who had earlier remained

posted at Quadian, had helped us in seeing

them. I cannot tell his name. Head

Constable had taken our 7 men, out of the

particular room, so that we may meet

them. All this, however, happened in the

premises of the Police Station. We had

gone there during the day. There were

other police officials and guard there. It is

incorrect that I have given false evidence.”

“We had gone to PS Kahnuwal. There was

MHC there. I told him that I wanted to see

my men who were detained there in the

adjoining room in the Police Station and

the said MHC told me that I could meet

them hurriedly and go away as there was

lot of strictness in the quarters.”

Thus, the evidence of PW-5 is also that he had met the seven

persons after they were abducted by the appellants in

different Police Stations where there were other police

officials and guards.

26.We also find that PW-6, who was the son of PW-3 and

working as Police Constable at Amritsar has said in his

evidence:

31

Page 32 “On 08.01.1992 I happened to be present

near the shops near Bus Stand. I noticed a

police gypsy going on the road. I noticed

that in the body of that vehicle my brother

Hardev Singh was sitting. He also gave me

a signal with his hand. There were other

persons also in that vehicle, but I could see

only my brother. I tried to pursue that

vehicle but due to rush I could not reach

the vehicle, and it slipped away. On the

same day I sent a message to my father

that I had seen my brother being taken

away in a vehicle. Police also recorded my

statement during investigation.”

Hence, PW-6 also had seen his brother sitting in a police

gypsy at Amritsar.

27.We, therefore find that the evidence adduced by PW-3,

PW-4, PW-5 and PW-6 is that the seven persons abducted by

the appellants were found in different police stations and

also in residential quarters near the police station. On this

evidence, the court cannot hold that the two appellants have

killed the seven abducted persons only because the seven

persons have not been traced or are found missing. Learned

counsel for the State submitted that the appellant Baldev

Singh was in control of all the police stations in his area but

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Page 33 no material has been placed before the court to show which

were the police stations which were under the control of the

appellant Baldev Singh. No material has been placed before

the Court to establish that the last police station in which the

seven persons or any of the seven persons were kept was

under the control of the appellant Baldev Singh and the

other appellant Balwinder Singh. From the evidence of PW-

3, we find that terrorism was prevailing in the State of

Punjab at the time when the seven persons were abducted

and action was being taken by the police against the

terrorists. When the seven persons abducted by the

appellants did not go missing immediately after their

abduction and were found in different police stations in the

State of Punjab and one of them was also found going in a

Gypsy at Amritsar, the Court cannot hold that the seven

abducted persons were last in the custody of the appellants

and hence they must discharge the burden under Section

106 of the Evidence Act and must explain what they did to

the seven abducted persons. The prosecution should have

examined witnesses from amongst the police personnel or

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Page 34 the Police Station to establish that the seven abducted

persons were last seen in the custody of the appellants. In

absence of such evidence, the finding of guilt recorded by

the trial court and the High Court under Section 302 IPC

against the appellants, in our view, was not correct either on

facts or on law.

28.We, therefore, set aside the conviction of the two

appellants under Section 302 read with Section 120-B, IPC

but maintain the conviction of the appellants under Sections

364 and 452, IPC. The trial court has imposed a punishment

of three years rigorous imprisonment and a fine of Rs.3000/-

for the offence under Section 452, IPC and five years

rigorous imprisonment and a fine of Rs.4000/- for the offence

under Section 364, IPC, and the High Court has maintained

the aforesaid sentences for the two offences. We maintain

the sentence and fine under Section 452, IPC. But so far as

the sentence and fine under Section 364, IPC is concerned,

we find from illustration (h) under Section 220 of the Cr.P.C.

that where an accused commits the same offence against

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Page 35 three persons, then he can be charged with three offences.

As seven persons had been abducted by the appellants, the

appellants were guilty of seven offences under Section 364,

IPC, and they should be punished for each of these offences

under Section 364, IPC. We, therefore, direct that the fine

amount as imposed by the trial court will be Rs.4000/- for

each of the seven offences of abduction and the period of

rigorous imprisonment will be five years for each of the

seven offences of abduction and these five years rigorous

imprisonment for each of the seven offences of abduction

will not run concurrently but consecutively. In case, the fine

amount of Rs.4,000/- is not paid, the appellants will have to

undergo one more year of rigorous imprisonment. The

appeals are allowed to the extent indicated above.

.……………………….J.

(A. K. Patnaik)

……………………… ..J.

(Gyan Sudha Misra)

New Delhi,

September 20, 2013.

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