Prithipal Singh Etc vs State Of Punjab & Anr. Etc

The High Court while dismissing the Criminal Appeals filed by appellants, allowed the Criminal Revision Petition No. 323 of 2006 filed by Smt. Paramjit Kaur (PW.2), wife of the deceased, vide order dated 16.10.2007 and enhanced the sentence of the four appellants from seven years RI to imprisonment for life under Section 364 IPC.

B. Smt. Paramjit Kaur (PW.2) wife of the deceased, came to her house from the University, where she was working, on being informed by Rajiv Singh (PW.15). She made a search for her husband but in vain. She made a complaint on the same day at 4.00 PM making a statement to SI Baldev Singh at Kabir Park that her husband had been kidnapped at 1.00 O'Clock by some persons in police uniform in Maruti van of white colour bearing No. DNB-

5969. On the basis of the said statement, an FIR No. 72 (Ex.PA) was registered on 7.9.1995 at P.S. Islamabad, District Amritsar, at 9.30 AM under Section 365 IPC. However, no progress in investigation could be made and whereabouts of Jaswant Singh Khalra could not be known.

D. Kulwant Singh (PW.14) in his statement recorded by the CBI under Section 161 Cr.P.C. revealed that he had been detained in a case under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called `NDPS Act') on 4.9.1995 by the police officials of Police Station Jhabal. Shri Jaswant Singh Khalra was also brought to the said Police Station on 6.9.1995 and Shri Khalra had disclosed his identity to the said witness and told him that he was not knowing as to why he had been brought to the police station by the appellants Satnam Singh and Jaspal Singh, DSP.

E. After completion of the investigation, the chargesheet was filed in the court of Special Judicial Magistrate (CBI Cases), Patiala, against the appellants and other accused persons under Sections 120-B, 365 and 220 IPC. The matter was committed to Sessions Court. It was revealed before the Sessions Judge that there was some evidence that Jaswant Singh Khalra had been murdered by the appellants and other accused persons secretly and his dead body had been thrown in the canal near Harike at midnight just after Diwali in the year 1995. So, the prosecution was directed to file supplementary report under Section 173 (8) of Criminal Procedure Code, 1973 (hereinafter referred as `Cr.P.C.').

F. It was on 2.3.1998, i.e., after filing of the charge-sheet that Kuldip Singh (PW.16) revealed the facts to the CBI (New Delhi Office) in respect of abduction and murder of Jaswant Singh Khalra.

Kuldip Singh (PW.16), made voluntary statement to the CBI that he was a privy to all that happened with Shri Jaswant Singh Khalra from the time he was brought to the Police Station, Jhabal till his death. He was Special Police Officer (hereinafter called `SPO') attached to Satnam Singh, SHO, Police Station Jhabal, and was promised to be inducted into the Punjab Police permanently. Shri Jaswant Singh Khalra had been detained in a room in Police Station Jhabal and the witness had been assigned the duty by Satnam Singh, SHO, to serve him meals etc. He had been directed to keep the matter most secret and not to disclose anything to anybody. He had been serving the meals to Shri Khalra who had become very weak and fragile and was having scratch marks on his body. After 4-5 days, Ajit Singh Sandhu, SSP, Jaspal Singh, DSP, alongwith his bodyguard Arvinder Singh came in a Maruti car without having any registration number at 7.00 PM. After sometime, Satnam Singh, SHO, Jasbir Singh, SHO and Prithipal Singh also came in another Maruti car. They all went to the room where Shri Khalra had been detained and Ajit Singh Sandhu, SSP, asked him to stop his activities. Shri Khalra was beaten by them and, thereafter, they left 6 the said place. After about 3 days of the said incident, in the afternoon, Satnam Singh, SHO, had taken Shri Khalra alongwith the said witness to Taran Taran at the residence of Ajit Singh Sandhu, SSP. Some high officials of police including the then Director General of Police, Punjab, came there and they talked to Shri Jaswant Singh Khalra in a closed room. After sometime, Shri Khalra was brought back to Jhabal Police Station. On one day, at about 7.00 PM, Jaspal Singh, DSP, came there with his bodyguard Arvinder Singh and after sometime, Surinderpal Singh, Jasbir Singh and Prithipal Singh also came. They all went to the room where Shri Jaswant Singh Khalra had been detained and started beating him.

The witness had been asked to bring hot water. As he went out of the room for arranging the same, he heard slow noise of gun firing twice. The life of Shri Khalra came to an end. His dead body was kept in a dicky of the van while blood was oozing from his body.

G. The prosecution examined 22 witnesses to prove its case against the appellants and other accused persons. The defence also examined 12 witnesses to rebut the allegations of the CBI. Learned Additional Sessions Judge, Patiala, vide judgment and order dated 18.11.2005 convicted all the appellants and some other accused persons under Sections 364/34 IPC and convicted the appellant Jaspal Singh and one Amarjit Singh under Sections 302/34 IPC and under Sections 201/34 IPC and awarded the sentences as mentioned hereinabove.

H. Being aggrieved, the other accused Amarjit Singh filed Criminal Appeal No. 863-DB of 2005 and other appellants filed the criminal appeals as mentioned hereinabove. Smt. Paramjit Kaur (PW.2) filed Criminal Revision No. 323 of 2006 for enhancement of the sentences of the four appellants.

I. All the matters were heard together. The High Court vide its impugned judgment and order dated 8.10.2007 acquitted Amarjit Singh, however, the conviction of other appellants was maintained.

3. Shri Sushil Kumar, learned senior counsel appearing for the appellants in Crl. Appeal Nos. 523-527/2008, has submitted that in the instant case, an FIR had been lodged under Section 365 IPC without naming any person. The charge-sheet was filed under Sections 365/220 read with Section 120B IPC and the sanction dated 19.8.1996 had been obtained by the prosecution from the Competent Authority to prosecute the accused persons under Sections 365/220 read with Section 120B IPC. The appellants stood convicted under Section 364 read with Section 34 IPC and were awarded 7 years RI each. In case, the appeals of these appellants had been dismissed by the High Court, there was no justification for enhancing the punishment in exercise of the power under Section 386(e) Cr.P.C. The High Court committed error in observing that it was a fit case for enhancement of punishment though charges had never been framed for the offences providing more rigorous punishment. In case, there had been no material at the time of framing of the charges for a more serious offence, the High Court 9 erred in enhancing the punishment suo motu. The prosecution witnesses failed to identify the abductors. Moreover, there had been inordinate delay in investigation and thus, there were a lot of improvements and manipulations in the record.

witnesses, namely, Paramjit Kaur (PW.2), Rajiv Singh (PW.15) and Kirpal Singh (PW.7), witnesses of first part of incident, i.e., kidnapping of Jaswant Singh Khalra from his house, is a reliable witness, for the reason, that Paramjit Kaur (PW.2) was examined in the court after 8 years of occurrence and, first time, she had named the appellant Jaspal Singh as one of the persons whom she had seen present outside her house on 6.9.1995, i.e., the date of kidnapping, but she could not furnish any explanation as to why the appellant had not been named in the FIR lodged on 6/7.9.1995. She deposed that she had disclosed the entire incident to Shri D.R. Bhati, D.I.G., who was not examined in the court. She did not even name the appellant in the writ petition filed under Article 32 of the Constitution of India, 1950 (hereinafter called as `Constitution') before this Court. She did not name the appellant when her statement was recorded by the CBI on 2.1.1996 under Section 161 10 Cr.P.C. Rajiv Singh (PW.15) filed affidavit in the writ petition before this Court, however, he also did not name the appellant. His statement was recorded by the CBI on 6.2.1996, but he did not name the said appellant. Material improvements/contradictions exist between his statement in the court and before the CBI under Section 161 Cr.P.C. He had also accompanied Paramjit Kaur (PW.2) when she met Shri D.R. Bhati, D.I.G. but he has not stated before the CBI that he had accompanied her. Kirpal Singh (PW.7) also did not disclose in his statement under Section 161 Cr.P.C. the name of the appellant or any other person.

5. On the other hand, Shri Mohan Jain, learned ASG, Ms. Kamini Jaiswal and Shri R.S. Bains, learned counsel appearing for respondents, have submitted that the facts of the case do not warrant any interference by this Court with the impugned judgment. There are concurrent findings of facts. The witnesses were reliable under the facts and circumstances of the case. Most of the witnesses have rightly identified the appellants in court. Their testimonies corroborate with each other and are important to comprehend the chain of events. The eye-witness had always been threatened by the appellants who happened to be the police officials. The eye-witness had falsely been implicated in serious criminal cases. There had been FIR against Paramjit Kaur (PW.2) and Kirpal Singh Randhawa (PW.7). In fact, the offence could be unearthed because of directions issued by this Court in the writ petition filed by Smt. Paramjit Kaur (PW.2). The High Court was justified in enhancing the punishment so far as the appellants other than Jaspal Singh, DSP are concerned considering the gravity of the offence committed by them. The Police Force in India has always been known for its notorious activities. Recovery of the dead body in a crime is not a 13 condition precedent for conviction. Once the case of abduction by the appellants stands proved, the burden of proof is shifted on the respondents to disclose as what happened to Shri Jaswant Singh Khalra. The appeals lack merit and are liable to be dismissed.

etc. etc., AIR 2000 SC 2988, this Court held that if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for prosecution to prove certain facts particularly within the knowledge of accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused.

36. After investigating the matter in pursuance of orders passed by this Court, the CBI filed charge-sheet on 13.10.1996 in the court of Magistrate at Patiala against nine police officers, wherein the 36 main accused was Ajit Singh Sandhu, the then SSP of Taran Taran District. However, the trial court vide order dated 25.7.1998 framed the charges against eight persons, namely, Ashok Kumar, Satnam Singh, Rachpal Singh, Jasbir Singh, Amarjit Singh, Surinderpal Singh, Prithipal Singh and Jaspal Singh, DSP. Charges could not be framed against Ajit Singh Sandhu, SSP, for the reason that he committed suicide before framing of the charges. The charges had been that all of them agreed to abduct and eliminate Shri Jaswant Singh Khalra. Thus, all of them stood charged under Section 120-B IPC. All of them were charged under Sections 364 read with 34 IPC.

17. In view of the above, the law can be summarised that the High Court in exercise of its power under Section 386(e) Cr.P.C. is competent to enhance the sentence suo motu. However, such a course is permissible only after giving opportunity of hearing to the accused.

INSTANT CASE:

Three of them, namely, Jaspal Singh, DSP, appellant, Amarjit Singh and Rachpal Singh, as a result of criminal conspiracy, committed murder of Shri Khalra. Thus, they were charged under Sections 302 read with 34 IPC. Further for causing the corpus of Shri Jaswant Singh Khalra disappeared with the intention of screening themselves from legal punishment, the said three persons were charged under Sections 201 read with 34 IPC.

could be recorded as no incriminating material appeared against him. Amarjit Singh has been acquitted by the High Court. Thus, we are concerned with only remaining five appellants.

37. There are concurrent findings of facts by two courts that all the appellants are guilty of abducting Shri Jaswant Singh Khalra with an intent to eliminate him. The findings so recorded are based on appreciation of evidence which had been recorded after eight years of the incident. In spite of the best efforts of this Court, and passing order after order in the Writ Petition for Habeas Corpus, it could not be known as to whether Shri Jaswant Singh Khalra was dead or alive. Had this Court not issued directions and transferred the case to the CBI for investigation, perhaps the mystery of death of Shri Jaswant Singh Khalra could not have surfaced. There is sufficient evidence on record to show that the appellants and other co-accused remained posted in the districts of Taran Taran and Amritsar and they stood transferred from those districts only on the directions of this Court as the CBI had pointed out that it would not be possible to conduct a fair investigation till the appellants and other co-accused remain posted in those two districts. The witnesses had been threatened and implicated in false cases. They could muster the courage to speak only after getting proper security/protection under the orders of this Court passed in the Writ Petition filed by the complainant Smt. Paramjit Kaur Khalra.

39. The accused had been identified correctly in the court by various witnesses. Smt. Paramjit Kaur (PW.2) identified Jaspal Singh, Surinderpal Singh and Jasbir Singh; Kirpal Singh Randhawa (PW.7) identified Satnam Singh; Kulwant Singh (PW14) identified Jaspal Singh and Satnam Singh; Rajiv Singh (PW.15) identified Jaspal Singh, Satnam Singh and Prithipal Singh; and Kuldip Singh (PW.16) identified Jaspal Singh, Satnam Singh, Surinderpal Singh, Jasbir Singh and Prithipal Singh.

However, all these issues/aspects have been considered by the courts below and taking into consideration the entire fact-

42. In view of the law referred to hereinabove, same remains the position in case a solitary witness deposed regarding the illegal detention and elimination of Shri Jaswant Singh Khalra.

43. Most of the appellants had taken alibi for screening themselves from the offences. However, none of them could establish the same. The courts below have considered this issue elaborately and in order to avoid repetition, we do not want to re-

46. Undoubtedly, the charges had been framed prior to the statements recorded by Kuldip Singh (PW.16) and in such a fact-

situation, the trial court ought to have altered the charges, but it 46 failed to do so. The offence proved against the appellants has been abducting Shri Khalra so that he could be murdered. The High Court is justified in enhancing the punishment particularly in the peculiar facts of this case.

47. After appreciating the evidence on record, and considering the judgments of the courts below, we approve their following conclusions:

(xv) In order to find out the whereabouts of Shri Khalra, the CBI made public appeal by putting his photographs in electronic media.

A large number of posters having his photograph had been affixed on the walls of the cities particularly in Taran Taran, Majitha and Amritsar and made a declaration that person giving information about him, would be rewarded with a sum of Rs.1 lakh.

(xvi) The witnesses were so scared/terrified of the action of the police atrocities/criminal intimidation that they could not muster the courage to reveal the truth. The witnesses could not name the accused while filing affidavits in this Court in the writ petition.

(xvii) The appellants and other accused police officials attempted to prevent the testimony of the witnesses by threatening, harassing and involving them in false criminal cases and physical intimidation. A large number of false documents had been created by one of the witnesses because of police threats and fear put by the accused.

(xix) The depositions made by the witnesses in the court had been consistent with their statements recorded under Section 161 Cr.P.C.

(xx) The depositions of all the witnesses including Kulwant Singh (PW.14) and Kuldip Singh (PW.16) are worth acceptance in spite of all the discrepancies pointed out by the accused/appellants.

(xxi) All the accused had taken the plea of alibi to show that none of them was present at the place of occurrence on the relevant date.

However, none of them could successfully prove the same and the plea of alibi taken by them was found to be false. This points towards their guilt.

(xxii) Charges had been framed prior to recording the statements of Kuldip Singh (PW.16) and in such a fact-situation the trial court ought to have altered the charges.

(xxiv) Though the dead body of Shri Jaswant Singh Khalra could not be recovered from the canal as the investigation commenced after a long time, recovery of the dead body is not a condition precedent for conviction of the accused for murder.

48. Police atrocities are always violative of the constitutional mandate, particularly, Article 21 (protection of life and personal liberty) and Article 22 (person arrested must be informed the grounds of detention and produced before the Magistrate within 24 hours). Such provisions ensure that arbitrary arrest and detention are not made. Tolerance of police atrocities, as in the instant case, would amount to acceptance of systematic subversion and erosion of 52 the rule of law. Therefore, illegal regime has to be glossed over with impunity, considering such cases of grave magnitude.

49 In view of the above, we do not find any reason to interfere with the well reasoned judgment and order of the High Court. The facts of the case do not warrant review of the findings recorded by the courts below.

50. The appeals lack merit and are accordingly dismissed.

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