Case: Esher Singh Vs. State Of Andhra Pradesh


Decision:
0[ds]So far as the appeal filed by accused Esher Singh is concerned, the basic question is that even if the confessional statement purported to have been made by A-5 is kept out of consideration, whether residuary material is sufficient to find him guilty. Though it is true as contended by learned counsel for the accused-appellant Esher Singh that some statements were made for the first time in Court and not during investigation, it has to be seen as to what extent they diluted the testimony of Balbeer Singh and Dayal Singh (PWs 16 and 32) used to bring home the accusations. A mere elaboration cannot be termed as discrepancy. When the basic features are stated, unless the elaboration is of such nature that it creates a different contour or colour of the evidence, the same cannot be said to have totally changed the complexion of the case. It is to be noted that in addition to the evidence of PWs 16 and 32, the evidence of S. Narayan Singh (PW-21) provides the necessary links and strengthens the prosecution version. We also find substance in the plea taken by learned counsel for the State that evidence of Amar Singh Bungai (PW-24) was not tainted in any way, and should not have been discarded and dis-believed only on surmises. Balbeer Singh (PW-3) the son of the deceased has also stated about the provocative statements in his evidence. Darshan Singh (PW-14) has spoken about the speeches of the accused Esher Singh highlighting the Khalistan movement. We find that the trial Court had not given importance to the evidence of some of the witnesses on the ground that they were relatives of the deceased. The approach is wrong. Mere relationship does not dis-credit the testimony of a witness. What is required is careful scrutiny of the evidence. If after careful scrutiny the evidence is found to be credible and cogent, it can be acted upon. In the instant case, the trial Court did not indicate any specific reason to cast doubt on the veracity of evidence of the witnesses whom it had described to be the relatives of the deceased. PW-24 has categorically stated about the provocative speeches by A-1. No definite cross-examination on provocative nature of speech regarding Khalistan movement was made, so far as this witness is concerned3. It is manifest that Article 136 is of composite structure, is power-cum-procedure - power in that it vests jurisdiction in this Court and procedure in that it spells a mode of hearing. It obligates the exercise of judicial discretion and the mode of hearing so characteristic of the court process with the avowed purpose of averting miscarriage of justice. In the instant case, both the State and Balbir Singh (son of the deceased) have questioned correctness of the impugned judgment. Appeal filed by Balbir Singh is first in point of time. We are of the view that on the facts of the case, there is no question of holding the appeal filed by Balbir Singh to be not maintainable34. The aspects highlighted by learned counsel for the State and Balbir Singh do not disturb the positive conclusions of the trial Court about the absence of any positive and cogent evidence so far as the respondents except accused Esher Singh is concerned. None of the witnesses examined on behalf of the prosecution stated anything about the descriptive particulars of the assailants. There was also no evidence of A-1 indulging in any manner armed with firearms of explosives. The evidence of witnesses goes only to the extent of showing, as noted earlier that A-1 was giving provocative speeches for formation of khalistan and inciting the Sikhs for violence fanning the religious feelings. The evidence shows that A-1 was inciting the Sikhs to form separate Khalistan State and making Hyderabad as base for khalistan movement.Merely because the accused A-1 was holding the deceased, as alleged, to be responsible for the killing of six Sikh students that per se does not prove conspiracyen in the light of the principles highlighted above when the evidence is tested, the inevitable conclusion is that the trial Court was justified in holding that accusations under Section 120B were not made out so far as the offences under IPC are concerned. So far as the motive for the killing is concerned, the evidence is clear to the extent that A-1 wanted removal of the deceased from the bodies of various trusts and educational institutions and not his removal from this world. In the absence of adequate material to establish commission of offences punishable under Section 302 or 302 read with Section 120B and Section 3(3), 5 and 6 of TADA and Section 27 of the Arms Act, as rightly held to have been not established by the trial Court, the appeals filed by the State and Balbir Singh are without merit.