Case: Ashwani Kumar @ Ashu &amp; Another Vs. State of Punjab

of accused inside the courtroom at the trial can be safely relied upon. We are of the view that if the witnesses are trustworthy and reliable, the mere fact that no test identification parade was conducted, itself, would not be a reason for discarding the evidence of those witnesses….” 18. The prosecution had made the witness available for test identification but the concerned accused had refused to participate in the test. Though there was no reason for such refusal and adverse inference could be drawn against the accused, we still looked for other corroborating material which is available in the form of extra judicial confession as deposed to by PW-7 Jasbir Singh and the incident which had happened at the dhaba of pahlwan as spoken by PW-5 Jagdeep Singh and PW-6 Harjeet Singh. The fact that a photograph of Jassi (Ext.P-38) was recovered pursuant to disclosure statement by Ashwani Kumar is another circumstance. That photograph (Ext.P-38) was recovered from Bolara Farm which was under the control of Anil Kumar. The description of Jassi in Gurumukhi on the back side of the photograph is crucial. Refusal on part of Ashwani Kumar to give his specimen hand writing must lead to adverse inference against him. The recovery of weapon, namely, kirpan which according to the doctor could have resulted in the injuries suffered by PW-15 Sukhwinder Singh and Jassi and the blood-stained seat cover are other circumstances lending complete corroboration. The communication by Ashwani Kumar and Anil Kumar with the number in Canada which itself was the source for the fax-message Ext.PAO is another circumstance. All these circumstances stand proved and clearly point in the direction of the guilt of Ashwani Kumar and Anil Kumar and additionally lend complete support to the testimony of and identification by PW 15 Sukhwinder Singh. The courts below were therefore perfectly justified in finding Ashwani Kumar and Anil Kumar guilty of the offences under Sections 364/307 and 302 IPC. 19. We now deal with the case of the other appellants. The submission advanced by Shri Tulsi that the subsequent judgment will operate as issue estoppel is not correct. First and foremost the offences are different and distinct. The rule regarding issue estoppel relates to admissibility of evidence in subsequent proceedings which is designed to up-set a finding of fact recorded on the previous occasion and mandates that the finding so rendered on earlier occasion must operate as issue estoppel in subsequent proceedings. It makes it impermissible to lead any such evidence at a subsequent stage or occasion. The attempt on part of Mr. Tulsi is just the opposite. He seeks to rely on the finding at a subsequent stage to up-set a finding of fact recorded on a previous occasion. The law on the point was succinctly stated by this Court in Sangeetaben Mahendrabhai Patel v. State of Gujarat (2012) 7 SCC 621 )in following words: “23. This Court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue…” We therefore reject the submission. 20. As per deposition of PW-8 Bhagwan Singh and other material on record, the tempo in question bearing No.PB-10/9719 was under the control of Joginder Singh. It was this tempo which was used by Ashwani Kumar as stated by PW-5 Jagdeep Singh and PW 6 Harjeet Singh. The telephonic conversations between Joginder Singh, a serving police officer and Ashwani Kumar and Anil Kumar just before and soon after the incident are extremely crucial. No explanation has been offered on part of Joginder Singh. The record further indicates that Joginder Singh was also in touch with the same number from Canada, in respect of which again there is no explanation. In the extra judicial confession deposed to by PW-7, there is clear assertion that parents of Jassi had given money through Joginder Singh. In the circumstances we fully agree with the assessment made by the courts below in finding Joginder Singh guilty of the offences under Sections 364, 302 and 367 IPC with the aid of Section 120B IPC. His conviction and sentence, in our considered view, is completely justified.21. However, as regards Darshan Singh all that the prosecution has produced is the record of telephonic conversations. No doubt that there have been communications with Ashwani Kumar, Anil Kumar, Joginder Singh and the number from Canada but such communications are from a landline number which stands in the name of the brother of Darshan Singh. There is no evidence on record that the said landline number was under the exclusive control of Darshan Singh. Secondly, given the fact that his daughter is married with the son of Surjeet Singh from Canada, the conversations with the number in Canada are explainable. It is true that suspicion against Darshan Singh was expressly stated in the first statement of PW-15 Sukhwinder Singh itself. However, apart from telephonic conversations nothing has been placed on record by the prosecution.We, therefore, give benefit of doubt to Darshan Singh and acquit him of the charges leveled against him.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Though there was no reason for such refusal and adverse inference could be drawn against the accused, we still looked for other corroborating material which is available in the form of extra judicial confession as deposed to by PW-7 Jasbir Singh and the incident which had happened at the dhaba of pahlwan as spoken by PW-5 Jagdeep Singh and PW-6 Harjeeton part of Ashwani Kumar to give his specimen hand writing must lead to adverse inference against him. The recovery of weapon, namely, kirpan which according to the doctor could have resulted in the injuries suffered by PW-15 Sukhwinder Singh and Jassi and the blood-stained seat cover are other circumstances lending complete corroboration. The communication by Ashwani Kumar and Anil Kumar with the number in Canada which itself was the source for the fax-message Ext.PAO is another circumstance. All these circumstances stand proved and clearly point in the direction of the guilt of Ashwani Kumar and Anil Kumar and additionally lend complete support to the testimony of and identification by PW 15 Sukhwinder Singh. The courts below were therefore perfectly justified in finding Ashwani Kumar and Anil Kumar guilty of the offences under Sections 364/307 and 302rule regarding issue estoppel relates to admissibility of evidence in subsequent proceedings which is designed to up-set a finding of fact recorded on the previous occasion and mandates that the finding so rendered on earlier occasion must operate as issue estoppel in subsequent proceedings. It makes it impermissible to lead any such evidence at a subsequent stage or occasion.As per deposition of PW-8 Bhagwan Singh and other material on record, the tempo in question bearing No.PB-10/9719 was under the control of Joginder Singh. It was this tempo which was used by Ashwani Kumar as stated by PW-5 Jagdeep Singh and PW 6 Harjeet Singh. The telephonic conversations between Joginder Singh, a serving police officer and Ashwani Kumar and Anil Kumar just before and soon after the incident are extremely crucial. No explanation has been offered on part of Joginder Singh. The record further indicates that Joginder Singh was also in touch with the same number from Canada, in respect of which again there is no explanation. In the extra judicial confession deposed to by PW-7, there is clear assertion that parents of Jassi had given money through Joginder Singh. In the circumstances we fully agree with the assessment made by the courts below in finding Joginder Singh guilty of the offences under Sections 364, 302 and 367 IPC with the aid of Section 120B IPC. His conviction and sentence, in our considered view, is completely justified.21. However, as regards Darshan Singh all that the prosecution has produced is the record of telephonic conversations. No doubt that there have been communications with Ashwani Kumar, Anil Kumar, Joginder Singh and the number from Canada but such communications are from a landline number which stands in the name of the brother of Darshan Singh. There is no evidence on record that the said landline number was under the exclusive control of Darshan Singh. Secondly, given the fact that his daughter is married with the son of Surjeet Singh from Canada, the conversations with the number in Canada are explainable. It is true that suspicion against Darshan Singh was expressly stated in the first statement of PW-15 Sukhwinder Singh itself. However, apart from telephonic conversations nothing has been placed on record by the prosecution.We, therefore, give benefit of doubt to Darshan Singh and acquit him of the charges leveled against him.