Case: Esher Singh Vs. State Of Andhra Pradesh

Nine persons were alleged to be responsible for homicidal death of one Joga Singh (hereinafter referred to as the deceased). Five of them faced trial and one of them Nishan Singh (A-3) died during the trial and therefore the case abated so far he is concerned. The accused persons who faced trial were Esher Singh (A-1), Nanak Sigh Nishter (A-2), Nishan Singh (A-3), Dilbagh Singh (A-4) and Rajender Singh Dhingra (A-6). Ram Singh (A-9) absconded. Charge sheet was filed against A-1 to A-9 for offences punishable under Sections 120 B and 302 read with Section 120B of the Indian Penal Code, 1860 (in short the IPC), Section 3(3) of TADA and Section 27 of the Indian Arms Act, 1959 (in short the Arms Act), read with Sections 5 and 6 of TADA3. The trial Court found that accused Esher Singh, (appellant in Crl. A. No.1363/2003) was guilty of offence punishable under Section 4 of TADA and while further holding that the other allegations were not established so far as appellant Esher Singh and other co-accused are concerned. Esher Singh was convicted as afore-noted and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- with default stipulation. While Esher Singh questions legality of the conviction and sentence imposed, the State of Andhra Pradesh has questioned acquittal of the accused persons who faced trial, and their non-conviction for the charged offences4. The States appeal is numbered as Criminal Appeal No. 1524/2003. Balbir Singh son of deceased Joga Singh has filed Criminal Appeal No. 1523/2003 with grievances similar as that of the State of Andhra Pradesh5. Accusations which led to the trial of the accused persons are essentially as follows:6. Accused persons conspired to kill deceased Joga Singh, to abet terrorist and disruptive activities. Deceased had established many educational institutions to serve Sikh community like Gurunanak Hospital in 1969, Gurunanak Public School Bidar in 1975, Gurunanak School at Hyderabad in 1978 and could successfully establish Gurunanak Dev Engineering College at Bidar in August, 1980. Accused persons intended to take over the said institutions and make a base for Khalistan movement. After Operation Blue Star which wounded the religious feelings of Sikhs, the Pro-Khalistan militant Sikh Students Organisation had its watchful eyes on Sikh student population of Bidar to establish its base. Dilbagh Singh (A-4) an activist of all India Sikh Students Federation (AISSF) who was studying in II year in the Gurunanak Dev Engineering College came in contact with Deepender Singh (A-5) who was student of Regional Engineering College, Balky. Others involved were some wanted activists of AISSF. After proposed move of the Government of India to have a comprehensive legislation for all Gurudwaras, the deceased Joga Singh created a trust in the name of Shree Nanak Jheera Sahib Trust (Foundation) and transferred all the Educational Institutions to the trust while delinking religious activities of the Gurudwara to Gurudwara Nanak Jheera Sahib and Mai Bhago. Deceased continued to be the head of both the trust and Gurudwara7. Esher Singh (A-1) who was working as Sub-Inspector of Central Reserve Police Force left the service after Operation Blue Star and started moving about in Hyderabad City wearing Bhindranwale type garments and organised processions carrying Bhindranwale pictures and held Bhog ceremony at Gowlinguda Gurudwara, Hyderabad. He was making efforts to inject hatred and disaffection among the Sikhs and could successfully take over the Barambala Gurudwara at Rajendranagar, Attapur in Sikh Chavani and successfully tried to bring some militant youth under his fold and indoctrined Pro-Khalistan ideology by imparting training to them in Shastra Vidya and Karate at Sikh Chavani Attapur and Gowliguda. He also attempted to advocate the said ideology in Bidar among the students. Nanak Singh Nishter (A-2) who was president of Central Gurudwara, Gowliguda and also in Executive Member of Shree Nanak Jhira Sahib, Bidar, and Gurudwara Mai Bhago at Janwada was actively assisting the deceased in his religious activities, felt disappointed and aggrieved by his non-inclusion as member of the Trust of Prabhandak Committee, Nanak Jheera Trust in 1987. Nishan Singh (A-3) was residing in Bidar since September, 1987 as representative of Baba Charan Singh who was incharge of Karseva of Kurukshetra Gurudwara. Attempts to pursue deceased Joga Singh to transfer the Kar Seva agreement in his name cancelling the earlier agreement of Baba Charan Singh did not yield any result. A-1 to A-3 developed hatred against the deceased, and launched tirade against the deceased with a view to take over the seat of the deceased. Dilbagh Singh (A-4) a native of Amritsar and active member of All India Sikh Student Federation, Punjab, sought his admission in Gurunanak Dev Engineering College, Bidar, and started enlisting students from North India into his Pro-Khalistan activities and became close associate of A-3, Deepender Singh (A-5), resident of Nabha, Patiala, and student of Rural Engineering College, Bhalki which is at a distance of 40 kms. from Bidar came in contact with A-1 and A-3 and was frequently visiting Dhera of Karseva, A-1 and others were rigorously pursing their plan and propagating Pro-Khalistan ideology among Sikh students of Bidar Rajender Singh Dhingra (A-6) of Hind Motor Driving School and Sony Travels and relative of A-2 is staunch supporter of A-1. Mohinder Singh (A-7) a native of Haryana, a proclaimed offender and terrorist of Punjab who was involved in number of terrorist cases was also close associate of A-3. Gurmail Singh (A-8) of Punjab is also a terrorist of Punjab and participated in various crimes alongwith A-5, A-7 and A-9. Ram Singh (A-9) also is a wanted terrorist of Punjab who participated in the present occurrence8. A-1 and A-2 who were entertained for their religious affiliation misused the same by collecting donations from students seeking admissions in Gurunanak Dev Engineering College, Bidar. On coming to know of the same, deceased discarded them. Movement started by deceased to start a Medical College heightened the tensions which was building up with the arrival of some Sikh boys from North India. Several non-Sikh educational institutions joined hands to organise an agitation against granting of permission to start medical college, because they feared that it would be further increasing the number of Sikhs to about 1200, of which 1000 from North India having anti-established stands. There was organised violence and riots in September, 1988, in which six Sikh students were killed, besides many were injured and houses and shops of Sikhs were damaged and burnt, besides religious institutions. A-1 to A-3 who were waiting for an opportunity to make their inroads to contain the growing influence of the deceased Joga Singh and also to occupy his position, made number of visits to Bidar, contacted A-3, A-4 and A-5 and other militant Sikhs having Pro-Khalistan ideas for starting tirade against the deceased Joga Singh. They also started an active propaganda that contributions made by the Sikh community to the educational trust were misused with a view to deprive the Sikh community. They also accused the deceased of many improprieties including indifference to the security of Sikhs. At the instance of A-1 and A-2, a meeting of Sikh community was convened on 22.9.1988 at Sikh Hostel Narayanguda, Hyderabad to pay homage to departed souls of students who were killed in Bidar riots. In the meeting A-1 and A-2 proposed to hold Deewan-E Aam on 2.10.88 at Bidar Gurudwara with an ulterior motive of defaming and excommunicating the deceased and trustees and usurp the control of Gurudwara and the trust. A-1, A-2, A-3, A-4, A-6 and others marshalled their associates, and mustered their strength having successfully augmented majority among the students who attended. A-1 and A-2 gave highly inflammatory speeches making wild allegations against the deceased and levelling allegations of mal-administration of religious funds of the community, made the deceased responsible for the misery to Sikh students and accused him of having failed in his responsibility to protect the Sikhs at Bidar. In that way A-1 to A-3 could successfully make a dent in establishing a base for Pro-khalistan movement and trying to get support of those who were openly opposing the deceased Joga Singh. A-1 and A-2 made their own henchmen as Punj Pyaras and imposed punishment of Thankayya on the deceased and four others holding them responsible for the death of Sikh students and for their religious impropriety. The deceased and his supporters resisted the said move and the matter was referred to Thakhat Such Khand Shri Hazur Saheb, Nanded, which is considered as Southern region religious head of the Sikh community. Hazura Singh (DW-36) who is one of the Punj Pyaras of Nanded Gurudwara made enquiries from A-1 and deceased, disapproved the move of A-1 of ex-communication and imposition of punishment on the deceased. A-1 questioned the propriety of decision taken by Hazura Singh (DW-36), but latter obeyed the religious order. Accused persons proclaimed that they will retaliate if the culprits are not booked before 23rd November, 1988 (i.e. Guru Nanak Jayanthi) as a part of terrorist activity to create terror in the minds of moderate Sikhs9. On 28.12.1988, two vehicles bearing Nos. AHS 9424 AHA 1168 which were carrying sixty ceiling fans were burnt by mob of students in Gurudwara premises. In that regard a case i.e. Cr. No. 422/88/ U/Ss. 143, 211, 136 r/w 149 IPC was registered at Gandhigunj P.S. of Bidar District against unknown students in which the complicity of A-4 was strongly suspected. A-1 and A-2 started printing, publishing and circulating highly inflammatory, defamatory propaganda against the deceased Joga Singh, instigating student community against the deceased with a view to bring them under their fold and propagate Pro-Khalistan among Sikh community and organise an organisation, calling itself as SIKH COMMANDO FORCE. They threatened the Government with dire consequence under the pretext of championing the cause of Sixh Community10. Deceased was apprehensive of A-1 and his associates and made earnest appeal to the authorities concerned requesting to contain the anti-national activities, for protection and also to take steps to contain the Pro-Khalistan activities. As a security measure, check post was established on the outskirts of Bidar to check the vehicles in which the Sikhs were entering into Bidar and systematically check and numbers noted with a view to prevent inflow of wanted Pro-Khalistan activities and arms and ammunition. Another check post was established at the entrance of Gurdwara, Bidar, besides various other major steps for tightening security at Bidar Gurudwara under charge of M. Srivastava, Superintendent of Police, Bidar. One officer was also posted as Personal Security Officer to the deceased with a service revolver and ammunitions11. A-1 to A-3 intensified their war against the deceased by abusing, threatening, intimidating him. By the end of 1988 A-1 to A-3 could successfully establish contact with the underground dreaded terrorist Mohinder Singh (A-7) in Nanded who was taking shelter there. Thereafter A-7 shifted to Bidar alongwith his family and took shelter with A-3 in his Dhera as a Kar Sevadar. A-5, A-8 and A-9 used to frequently move in the company of Kar Sevadar alongwith A-3, A-4 and A-7, A-8 approached Dayal Singh (PW-32), Avtar Singh (PW-26) and other residents of Hyderabad and requested them to join hands with them in removing deceased from being a religious head. A-7 shifted to Hyderabad and got accommodation through PW-26 at Hyderabad. A-1 and A-2 held secret meetings in Kishan Bagh Chavani and made efforts to enlist services of Sikh Youth to liquidate deceased Joga Singh. A-1, A-2, A-3, A-4, A-5 to A-9 held number of meetings in the house of A-212. In the month of February 1989, during the examination of B.E. II year at G.N.D.E. College, numbers of students including A-4 were caught while they were indulging in mal-practices. At that time deceased refused to interfere with the enquiry in the matter. At that time, A-3 and A-4 nourished hatred against the deceased. A-1 to A-9 entered into criminal conspiracy to do away with deceased. A-1 was mastermind of conspiracy for liquidating the deceased. A-5 and A-7 were entrusted with the job of securing weapons. A-2 and A-3 provided shelter and finance for the operation, A-1 was entrusted to select youth for operation of annihilation, while A-6 was to provide information and conveyance. A-8 and A-9 were entrusted with execution of annihilation of deceased. In pursuance of said conspiracy, A-5 and A-9 went to Punjab and Secured A.K. 47 rifles, one .32 revolver and 200 rounds of ammunition. The accused persons surveyed the topography of proposed scene of offence and were noticed late in the night of 29.3.89. On 24.3.89 A-1, A-7, A-8 and A-9 alongwith Professor Darshan Singh Ragi visited Bidar when the latter attended Keertan arranged by some devotees. At that time, the plan of action proposed to liquidate Joga Singh could not be executed. A-8 through A-6 secured a red colour Maruti Car bearing Registration No. AEY 222 belonging to PW-11 on payment of Rs. 64,000/-, A-7, A-8 and A-9 visited Bidar on 28.3.1989 in the said Maruti Car and contacted A-3, A-4 to A-5 to track down the movements of deceased Joga Singh. In pursuance of said criminal conspiracy, A-5, A-7, A-8 and A-9 went to the house of deceased in the red colour Maruti Car while A-5 was waiting in the Car. A-8 armed with a .32 Revolver was guarding at the scene. A-7 and A-9 entered the house armed with AK. 47 assault rifle. On 30.3.89 at about 21.05 hours, while PW-1 was serving dinner while other family members of deceased were witnessing the T.V. in the drawing-cum-dining hall, A-7 and A-9 entered into the drawing cum dinning hall, opened fire with A.K. Assault rifle, pumped bullets on Joga Singh who succumbed to gun shot injuries and on seeing the same Devender Singh (PW-1) and Balwanth Singh (PW-2) raised cries, tried to chase them, but the A-7 and A-9 while retreating fired at them in-discriminatively to scare them away. PW-1 chased them upto main road and came to know through P. Satyanarayan (PW-8) that 4 to 5 persons fled away in a red Maruti Car towards Darussalam while scaring the public by opening fire in the air. A-5, A-7 and A-9 returned to the house where they were staying and tried to quit the house immediately. Meanwhile Darshan Singh (PW-14) and others surrounded the house in which A-5, A-7 and A-9, tried to apprehend them, but they fled away into the dark, A-8 who made attempt to escape on Luna bearing Registration No. AEA 1326 was surrounded by them. He left the Luna and took to heels and he was chased by them and on finding no way to escape, he fired in the air to scare them and finally shot himself dead with his Revolver13. On receipt of the complaint a case (Cr. No. 63/89) under Section 302 IPC and Sections 254 and 27 of the Arms Act was registered, inquest was conducted over the dead body, and it was sent for post mortem. Blood stained clothes of the deceased, empty cartridges and spent bullets were seized under panchanamas. Residential portion of house of A-7 was searched and a driving license, a receipt, H.P. Gas cyclinder, clothes, utensils and other household articles were seized. Naganath (PW-15) identified A-7 to be Mohinder Singh alias Satwender Singh @ Satta involved in number of terrorist cases in Punjab and Haryana. C. Narasingha Rao (PW-47) seized the application form, reservation slip written by A-5 from himself and A-9 for their return journey from Delhi to Hyderabad, Subsequently A-7 was killed in an encounter in the intervening night of 16/17-5-1989. In that regard also one A.K. rifle was seized from his possession which was deposited in the Court of Judicial Magistrate of First Class, Sangrur, A-3, A-6, and A-5 were arrested on 3.4.1989, 7.4.1989 and 20.4.1989 respectively. Confessional statement of A-5 was recorded under TADA and A-2 and A-1 were arrested on 27.4.1989 and 11.5.1989 respectively14. The trial Court on the basis of evidence tendered by PWs 16 and 32 as corroborated by the confessional statement of A-5 held that the accused appellant Esher Singh had committed the offence punishable under Section 4 of TADA. It was concluded that A-1 was giving provocative speeches for formation of Khalistan and was inciting violence fanning the religious feelings. Therefore the accusations clearly established commission of offence punishable under Section 4 of TADA. It further came to hold that the other accusations were not established. It was noted that the two assailants who fired the guns leading to the death of the deceased were not identified. Since some of the statements made in Court were not stated during investigation, the trial Court did not attach any importance thereto.

Reasoning:
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.