MURDER REFERENCE NO.6 OF 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. MURDER REFERENCE NO.6 OF 2007 AND CRIMINAL APPEAL NO.731-DB OF 2007 DECIDED ON - OCTOBER 12, 2010 Central Bureau of Investigation ……Prosecutor Versus Jagtar Singh Hawara and Balwant Singh ……Accused-Respondent AND Jagtar Singh Hawara and others ..........Appellants Versus State through Central Bureau of Investigation ......Respondent Coram HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE ARVIND KUMAR Present: Mr.Baldev Singh, Sr. Advocate with Mr. Sudhir Sharma, and Sh.Deepender Singh,Advocates for the appellants. Mr.S. K. Saxena, Advocate and Mr. R. K. Handa, Advocates for C.B.I Mr. R.S. Bains, Advocate. MEHTAB S.GILL, J We will be deciding Murder Reference No. 6 of 2007 of Jagtar Singh Hawara and Balwant Singh and Crl. Appeal No. 731-DB of 2007 of Jagtar Singh Hawara, Lakhwinder Singh @ Lakha @ Hero, Gurmit Singh @ Meeta and Shamsher Singh by a common judgment as the evidence of the prosecution is the same in all the cases. On 31.8.1995 at 5:10 pm, a bomb blast took place in the Punjab MURDER REFERENCE NO.6 OF 2007 2 and Haryana Civil Secretariat, in which 17 persons were killed namely the then Chief Minister S.Beant Singh, Yashpal Bali, Kultar Singh, Jagjit Singh Kotana, Laxman Dass, Swaran Singh, Rajinder Parshad, Balbir Singh, Dr. Anil Kumar Duggal, Tota Ram, Ajaib Singh, Jagdish Singh son of Dayal, Mukhtiar Singh, Chamkaur Singh, Ranjodh Singh Mann,Dhanwant Singh and Baldev Singh (MLA). In this blast, the human bomb Dilawar Singh also perished and a number of persons were injured namely Manojit Pal Singh (PW56), Bakshish Singh (PW143), Kulwant Singh (PW142), Kesar Dumra (PW57), SI Amar Singh (PW42), Varinder Rana (PW141), D. K. Tripathi (PW78), Satinder Kumar (PW58), Upkar Singh (PW129), Joginder Pal Singh (PW128) and complainant Constable Pala Ram (PW 77). The witnesses who were not examined but were injured were Manmohan Singh, Mahavir Parshad, Constable Durga Dass and Pushpinder Kumar. After the occurrence, on the statement Ex. PW30/3 of C Pala Ram, FIR Ex. PW30/4 was registered on 31.8.1995, at 8:45 pm in Police Station, Sector 3, Chandigarh. Constable Pala Ram PW77 stated that he was posted as a Constable in Haryana Police(HAP) Ist B.N. In the year 1995, his unit was posted at Punjab Civil Secretariat, Chandigarh. On 31.8.1995, he was on duty on the VIP main gate from 2 pm to 5 pm. Alongwith him was HC Ajaib Singh. There were other officials of the Punjab police at the VIP gate. At about 5:05 pm, S. Beant Singh (Former Chief Minister) was to go and a motor cavalcade had lined up in the porch, under the security cover of the Punjab Police, National Security Guard ( hereinafter called NSG) and other security personnel. At about 5:10 pm, S.Beant Singh came down at the VIP MURDER REFERENCE NO.6 OF 2007 3 gate, accompanied by security personnel. The other security personnel took their positions. The then Chief Minister came to sit in his vehicle and thereafter a powerful blast took place whereby the car of the Chief Minister and other vehicles caught fire. The Chief Minister was killed at the spot alongwith a number of other persons. This blast was done by terrorists with the common object of killing S.Beant Singh and other personnel. Constable Pala Ram further stated that he was also injured in the explosion. This case, on the same day i.e on 31.8.1995, was transferred to the Central Bureau of Investigation who registered another FIR Ex.247-2. The FIR by Central Bureau of Investigation was the same as registered by the U. T Police and as stated by Constable Pala Ram. For the murder of the above persons, Jagtar Singh Tara, Navjot Singh, Nasib Singh, Shamsher Singh, Balwant Singh and Jagtar Singh Hawara were put on trial. The other accused Wadhawa Singh, Mehal Singh, Jagroop Singh, Manjinder Singh, Resham Singh, Harjit Singh who were also allegedly involved in the conspiracy, were declared proclaimed offenders. Jagtar Singh Tara during the course of trial escaped and was thereafter declared a proclaimed offender. Paramjit Singh, who was initially declared a proclaimed offender, was arrested and was now facing trial. Navjot Singh was acquitted by the ld. trial Court. Jagtar Singh Hawara and Balwant Singh were sentenced to death. Nasib Singh was sentenced to 10 years rigorous imprisonment under the Explosive and Substances Act 1884. Shamsher Singh was sentenced to life imprisonment. The following was the sentence awarded to the appellants. MURDER REFERENCE NO.6 OF 2007 4 Name of the accused Under Section Sentenced to 1.Nasib Singh 5(b) of Explosive Substances Act To undergo RI for 10 years and to pay a fine of Rs.10,000/- failing which to further undergo simple imprisonment for three year 2.Balwant Singh and Jagtar Singh Hawara 1.302 r/w s. 120-B IPC 2. 307 r/w S. 120-B IPC 3. 306 r/w s.109 r/w S 120-B IPC 4. 3(b) r/w S,6 of Explosive Substances Act. 5. 4(b)(ii) r/w S.6 of Explosive Substances Act 6. 5(b) r/w S.6 of Explosive Substances Act Sentenced to death and both of them be hanged by neck till they are dead. They are also sentenced to pay a fine of Rs.7,000/- each, and in default of payment of fine, to further undergo simple imprisonment for a period of three years each. RI for 10 years and to pay a fine of Rs.5,000/- each, and in default of payment of fine, to further undergo simple imprisonment for a period of three years each. R.I for 10 years and to pay a fine of Rs.5,000/- each, and in default of payment of fine, to further undergo simple imprisonment for a period of three years each. R.I for life and and to pay a fine of Rs.5,000/- each, and in default of payment of fine, to further undergo simple imprisonment for a period of three years each. R.I for 10 years and and to pay a fine of Rs.5,000/- each, and in default of payment of fine, to further undergo simple imprisonment for a period of three years each. R.I for 10 years and and to pay a fine of Rs.5,000/- each, and in default of payment of fine, to further undergo simple imprisonment for a period of three years each. MURDER REFERENCE NO.6 OF 2007 5 3.Gurmit Singh, Lakhwinder Singh and Shamsher Singh 1.302 r/w 120-B IPC 2.307 r/w S.120-B IPC 3. 306 r/w S.109 r/w S 120-B IPC 4. 3(b) r/w S.6 of Explosive Substances Act. 5. 4(b)(ii) r/w S. 6 of Explosive Substances Act 6. 5(b) r/w S. 6 of Explosives Substances Act Imprisonment for life each and to pay a fine of Rs.10,000/- each, and in default of payment of fine to further undergo simple imprisonment for three years each. R.I for 10 years and to pay a fine of Rs.5,000/- each and in default of payment of fine, to further undergo simple imprisonment for a period of three years each. R.I for 10 years and to pay a fine of Rs.5,000/- each and in default of payment of fine, to further undergo simple imprisonment for a period of three years each. R.I for life and to pay a fine of Rs.5,000/- each and in default of payment of fine, to further undergo simple imprisonment for a period of three years each. R.I for 10 years and to pay a fine of Rs.5,000/- each and in default of payment of fine, to further undergo simple imprisonment for a period of three years each. R.I for 10 years and to pay a fine of Rs.5,000/- each and in default of payment of fine, to further undergo simple imprisonment for a period of three years each. All the sentences awarded to the appellants were to run concurrently. Balwant Singh son of Malkiat Singh did not file an appeal, but since there is a murder reference before us of Balwant Singh also, evidence against him will also have to be re-appreciated. MURDER REFERENCE NO.6 OF 2007 6 Learned counsel for CBI Mr. S.K. Saxena has argued that a wireless message Ex. P23/1 was sent by Constable Kartar Singh PW23 that a fire had broken out and the Fire Brigade be sent. Another message was sent at 17:16 pm on 31.8.1995 by the Senior Superintendent of Police to all concerned, that a bomb blast had taken place at the Punjab and Haryana Secretariat. Constable Subhash Chander PW27 sent a wireless message at 17:25 pm that a magnum (Fire Brigade) be sent as bomb blast had taken place. Similarly another message was sent at 17:28 pm that all suspicious vehicles be checked. Constable Rajinder Kumar PW28, the Operator in the Control Room proved the entries in the Log Book Ex. P28/1 and also sent a wireless message at 17:11 hours, to send an ambulance at the Civil Secretariat. Constable of the Traffic Police Gautam Singh PW29 send a wireless message Ex.P29/1 at 17:15 pm that all suspicious vehicles be checked. P. Ganpati PW35 of UNI Services received a message through fax mark “AAA” from Pakistan sent By Wadhawa Singh (P.O) and Mahal Singh (P.O) claiming responsibility of the bomb blast. Similarly K. N. Parashar PW38 of the Hind Samachar Newspaper group received a message through fax mark “DDD”, “EEE” and “FFF” from the Babbar Khalsa International, a terrorist organization (hereinafter called as BKI ) claiming responsibility of the bomb blast. Dilbagh Singh PW100 has elaborately explained what the BKI as an organization was. He has proved posters Ex. P137 to Ex.P150. Poster Ex.P150, he had got from a member of a Jatha which had gone to Pakistan, which shows the picture of Dilawar Singh, the human bomb and also of Sukhdev Singh Babbar, the head of the BKI organization. He brought on MURDER REFERENCE NO.6 OF 2007 7 record the constitution of the BKI. He stated that he collected the press note dated 2.9.1995 from his sources in Pakistan. Learned CBI counsel further argued that it is not the case of the defence that the originals of documents Ex.P137 to Ex.P150 were not available. The motive for the commission of the offence was that the BKI wanted to assert their superiority over the Indian State. They want to impose their own Constitution. They wanted to undermine the authority of the Punjab State and the Government of India. The BKI wants to promote the cause of Khalistan, which was the objective of the BKI, by adopting the .path of violence. This is not acceptable in a secular, democratic state. Further the BKI wanted to destabilize the elected Government of India in the Centre and the State Government. In their statement under Section 313 Cr. P. C, Balwant Singh who has not filed an appeal, has confessed in his answer to question No.953 put to him that he had committed the offence alongwith Dilawar Singh. Jagtar Singh Hawara denied everything. Learned counsel has further argued, that from the judicial confessional statements of Shamsher Singh Ex. PW103/F, Balwant Singh Ex. PW65/F and Jagtar Singh Tara (Proclaimed Offender) Ex.PW86/6 given under Section 164 Cr. P.C, it comes out that the assassination of S. Beant Singh was the handy work of a conspiracy hatched by the appellants. Appellant Shamsher Singh before giving his confessional statement was told by PW103 Dinesh Kumar Sharma, Metropolitan Magistrate, New Delhi, that he was not under any compulsion to give the confessional statement and also Shamsher Singh was asked as to whether he had been tortured or coerced into making the statement. Shamsher Singh MURDER REFERENCE NO.6 OF 2007 8 appellant gave his statement voluntarily after Dinesh Kumar Sharma PW103 was fully satisfied. It is, thereafter, confessional statement Ex.PW103/G was recorded. Application Ex. PW103/C was moved by the Deputy Superintendent of Police, (CBI) for recording of statement on 15.12.1995 at 11 pm. Shamsher Singh was produced before the Court on 16.12.1995 at 11 pm and his statement was recorded at 3:30 pm on the same day. From the confessional statement of Shamsher Singh accused, it comes out that he was a driver, his job was to procure the RDX from a village in Ajnala Sub Division, which had been sent by Wadhawa Singh (PO) from Pakistan. This, he did, on the instructions of appellant Jagtar Singh Hawara. Learned counsel has argued that it is not the case of the defence that the confessional statement was recorded by Dinesh Kumar Sharma, PW103 Metropolitan Magistrate, New Delhi. To question no.330 given in his statement under Section 313 Cr. P. C, that the confessional statement Ex. PW103/F was recorded by Dinesh Kumar Sharma, Metropolitan Magistrate, New Delhi, PW103 the answer given by appellant Shamsher Singh is that he did not know. There is no clear denial that the confessional statement was not recorded by the Metropolitan Magistrate, New Delhi infact he has accepted that the confessional statement is true. Balwant Singh accused was arrested on 14.1.1996 and produced before the Chief Judicial Magistrate, Ambala. In his confessional statement Ex. PW65/E, he has confessed his offence and also that Wadhawa Singh(PO), Mahal Singh(PO), Jagtar Singh Tara(PO) and Shamsher Singh were involved with him. An application was moved by the Special Public MURDER REFERENCE NO.6 OF 2007 9 Prosecutor, CBI, Ex.PE65/C on 22.1.1996 before the Metropolitan Magistrate Mr. M. P. Maheshwari, New Delhi. The Metropolitan Magistrate sent Balwant Singh to Judicial Custody till 23.1.1996, these orders being Ex.PW86/4 and Ex. PW86/5. It is, thereafter that the confessional statement of Balwant Singh was recorded on 23.1.1996 . It is clear from the Statement of Balwant Singh that the conspiracy was hatched in Pakistan to eliminate S. Beant Singh. The fax message mark “AAA” sent by Wadhawa Singh(P.O) from Pakistan has been proved by Har Charan Singh PW207. Har Charan Singh has stated that he knows Wadhawa Singh(P.O). He identifies his signatures on the posters and the fax message. He has further stated that he has studied with Wadhawa Singh in the Primary School of village Sandhu Jatha. Wadhawa Singh was a member of the Cooperative Agricultural Society of the village alongwith him and he recognizes his signatures. The signatures being the same on the posters and the fax messages sent to Sh. P. Ganpati mark “AAA” and Sh.K. N. Parbhakar mark “DDD”. These had been sent on the same day i.e on 31.8.1995. Inspector Gurdeep Singh PW232 who was the Station House Officer of Police Station Sadar, Kapurthala from 06.10.1995 for about 10 months has stated that Wadhawa Singh (PO) shifted to Pakistan and has a number of FIRs registered against him and has been declared as proclaimed offender in all the cases. Tara Singh PW209 identified the signatures of Mahal Singh (P.O) on documents mark “AAA”, mark AAA/1 mark “DDD” and mark DDD/1. He further stated that Mahal Singh was in the Army and they studied in the same class. They belong to the same village i.e village Desuwal. MURDER REFERENCE NO.6 OF 2007 10 Appellant Lakhwinder Singh was a constable in the Punjab police. This was proved by Constable Balwinder Singh PW59, C Sukhwinder Pal Singh PW162, C Ranjit Singh PW197, C Driver Darshan Singh PW199 and Surinder Sharma Painter PW51. They have all stated, that appellant Lakhwinder Singh was working in the Motor Transport Department of the Punjab Police in the Punjab Civil Secretariat. He was a resident of village Kansal. Balwant Singh was a constable attached with Bhushan Sirhindi. Raju Tamirhaan PW60 has stated that Balwant Singh served as a P.S.O with his grand father Bhushan Sirhindi. Taking the confessional statements of Shamsher Singh, Balwant Singh and Jagtar Singh Tara in totality, a deep rooted conspiracy comes out to eliminate the former Chief Minister. Learned counsel for the CBI has further argued that Arvind Kumar Prashar PW64 has proved the attendance register Ex.PW64/A and the entries for the month of August and September Ex.PW64/B and Ex. PW64/C of Gurmeet Singh appellant, who was working alongwith Arvind Kumar Prashar in B. P. L. Engineering Ltd. He has also proved the leave card of appellant Gurmeet Singh Ex. PW64/D. The initials of Gurmeet Singh are in the register which are Ex. PW64/C-1 and Ex. PW64/B-1 for the month of August and September. Leave Card Ex. PW64/D shows that Gurmeet Singh was absent and was on leave on 31.08.1995, on the day of the occurrence. He was present on September 1 and 2 of 1995 in his office. Appellant Gurmeet Singh was a Diploma Holder in Mechanical Engineering. The belt which was tied around the waist of Dilawar Singh was prepared in the room of Gurmeet Singh at Mohali. RDX also was MURDER REFERENCE NO.6 OF 2007 11 recovered from his house. Appellant Shamsher Singh is an agriculturist by profession, as stated by Sapinder Singh PW107. In his statement under Section 164 Cr. P.C Ex. PW107/1 of Sapinder Singh which was recorded on 15.11.1995 by Mr. D. K. Sharma, Metropolitan Magistrate, Delhi, he has stated that he is making his statement voluntarily. Appellant Jagtar Singh Hawara is the Co-ordinator and the king pin between Mahal Singh and Wadhawa Singh (Proclaimed Offenders) and the appellants. The confessional statement of his co-accused Balwant Singh Ex. PW65/F reveals everything as to the part played by Jagtar Singh Hawara. Jagtar Singh Tara (Proclaimed Offender), before he ran away from Burail Jail, Chandigarh had recorded his confessional statement Ex. PW86/6 to 13. Mohan Rajesh Shekhar PW25 had employed Jagtar Singh Tara as he knew the brothers of Jagtar Singh Tara. Jagtar Singh Tara worked for Mohan Rajesh Shekhar PW25 from the year 1993 as a driver of his car. He paid him Rs.3,000/-. Jagtar Singh Tara (Proclaimed Offender ) absented himself from duty from 24.08.1995 to 31.08.1995. He came back on duty on 01.09.1995 as stated by Mohan Rajesh Shekhar PW25. Manjinder Singh accused(Proclaimed Offender) met Balwant Singh at Shish Ganj Gurdwara. As of today, he is in the United Kingdom. His handwriting has been identified on documents Ex.PW123/2, Ex. PW123/3, Ex. PW123/5 and Ex.PW123/6. The photographs of Manjinder Singh have also been identified on Ex.PW123/8. Dr. Jagjiv Sharma, PW1 conducted post mortem on the body of Chamkaur Singh ASI on 01.09.1995, report is Ex.PW1/3. He conducted MURDER REFERENCE NO.6 OF 2007 12 the post mortem on Jagjit Singh ASI Ex.PW1/6 on 01.09.1995. Post mortem on Tota Ram, the Gate Keeper Ex.PW1/9 was conducted on 02.09.1995. Post mortem on Dhanwant Singh Ex.PW1/12 was conducted on 10.09.1995 by this witness. Dr. J. R. Chauhan, PW2 conducted the post mortem on Swaran Singh, P.A to the then Chief Minister on 01.09.1995 which is Ex.PW2/3. He conducted the post mortem on Kultar Singh, the Commander of NSG, report is Ex.PW2/11. Dr. P. L. Goyal, PW3 conducted the post mortem on Jagdish Singh Ex. PW3/9 on 01.09.1995. Dr. J. K. Kalra, PW4 conducted postmortem on Ajaib Singh Ex.PW4/10 on 01.09.1995. He conducted the post mortem on Rajinder Parshad, a Commando of the NSG Ex.PW4/22. PW5 Dr. Deepak Bakshi conducted the postmortem on Balbir Singh, the Commando of NSG Ex.PW5/11 on 01.09.1995. A board of doctors headed by Dr. Inderjit Diwan was constituted. Dr. Inderjit Diwan came to the witness box as PW6 and proved post mortem report Ex.PW6/5 of S. Beant Singh. The post mortem on his body was conducted on 01.09.1995. Further the board conducted the post mortem Ex.PW6/26 on Anil Kumar Duggal on 01.09.1995. This board also examined the two legs and skull and gave report Ex.PW6/43 on 05.09.1995 of being of one and the same person. DNA test on these parts was conducted. They were sent for examination after taking the blood samples of the brother Chamkaur Singh, father Harnek Singh and mother Surjit Kaur of Dilawar Singh. The DNA of the two legs and skull matched with those of the brother and father of Dilawar Singh, the human bomb. The board MURDER REFERENCE NO.6 OF 2007 13 also conducted the post mortem on Baldev Singh MLA Ex. PW6/91 on 11.09.1995. Dr.Sandeep Singh PW16 conducted the post mortem on Yashpal Bali Ex.PW16/12 on Ranjodh Singh Ex.PW16/38, on Lachman Dass Ex.PW16/15 and Mukhtiar Singh Ex.PW16/27. The post mortem reports on all the dead bodies, as conducted by different doctors came to a definite conclusion that the deceased had been killed by a bomb. There were lacerated wounds on all the deceased and injures which showed that there were sharpnel inside the bomb. These sharpnel could not be that of the car as they were colorless. Learned counsel for the CBI has argued that there was no security lapse in guarding the then Chief Minister. Sh. Hem Chand PW41 has stated that he was the Deputy Superintendent of Police Security, in the year 1995 with the Chief Minister, Punjab. The officials were detailed by him at various security points in the Civil Secretariat i.e at the office of the then Chief Minister. The officials who worked till 5 pm used to continue working after that also, till the Chief Minister left his office. It was the duty of Hem Chand PW41 and his staff to lock up the office of the Chief Minister. Further, this witness has stated that after the blast, the second floor where the office of the Chief Minister was, it was secured and searched, but nothing incriminating was found. Chander Mohan Bakshi PW39, Superintendent of Police Security (Punjab) of CRPF. He has stated that the VIP convoy of S. Beant Singh Chief Minister consisted of nine vehicles. These included three ambassador cars out of which one or two were bullet proof. The other vehicles being a pilot and escort of the CRPF and also vehicles of the MURDER REFERENCE NO.6 OF 2007 14 Punjab Police and NSG. The NSG had separate vehicles. The last vehicle was an ambulance. All the vehicles were subjected to anti sabotage check in the morning. On the fateful day, the Chief Minister had to go to U. T. Guest House, Chandigarh. As the Chief Minister had to go to U. T. Guest House, Chandigarh, Chander Mohan Bakshi PW39 left a bit early but as he reached the High Court crossing, he heard a bomb explosion. He came back to the Civil Secretariat and saw the car of the Chief Minister in flames. Head Constable Salamat Masih PW40 of the Punjab Police has stated, that his duty was alongwith Constable Raghubir Singh and Deputy Superintendent of Police Ved Pal for the purposes of anti sabotage check in the Chief Minister's residence. He had training in bomb disposal. He has further stated that on 31.08.1995, on checking the cars of the cavalcade, he did not find any bomb or any objectionable article implanted in any vehicle of the Chief Minister's convoy. After checking the cars, they were handed over to the drivers. Checking was done at about 7:30/8:30 am on 31.08.1995. Gurdeep Singh PW79, Superintendent Police, Commandant Ist IRD, Patiala was also incharge of the Chief Minister's security. This witness has stated that overall incharge of security was with Sh. S. M. Sharma, D.I.G on the fateful day i.e on 31.08.1995. After Sh. S. M. Sharma, Sh. M. M. Kapoor, D.I.G took over. On 31.08.95, Mr. D. K. Tripathi (Superintendent of Police) was on duty with the Chief Minister. Chief Minister left his office at 5 pm and thereafter in a short time, there was an explosion. Car No. PB-08-3469 was in flames. This car was standing in the VIP porch. Dead bodies were lying around all over. The VIP gate of the Civil Secretariat for security purposes was being managed by the Punjab MURDER REFERENCE NO.6 OF 2007 15 Police, Punjab Armed Police, C.I.D, Haryana Police and lady police officials. There was an x-ray machine also installed. The flames had also affected car No. PB-27-6516 and car No.PB-27-6514. He has also stated that once the cavalcade of the Chief Minister reached the Civil Secretariat, the three ambassador cars were parked in the VIP area and that area was always cordoned off. Sq.Commander P. K. Joshi (Manesar ) PW31 of the NSG has stated that two detachments were provided in Chief Minister's security, one in the day and one in the afternoon. The detachments consisted of