SUCHASINGH

STATE OF PUNJAB

MARCH 22, 2001

[K.T. THOMAS AND R.P. SETHI, JJ.]

Penal Code, 1860 :

Sections 302, 362 and 34-Abduction and murder-Appellant and three others forcibly took away the deceased during the days of militancy in Punjab as their father was suspected to be a police tout-Father of the deceased had sensed danger and hid in tile same house-Bodies of deceased discovered next morning and the father infom1ed the police after contacting. his other sons staying at another City-Special Court awarded life imprisonment-On appeal Held, a series of circumstances especially in the backdrop of terrorism in Punjab prove that the deceased were murdered to pursue a specific motive- Parents of the deceased we're present in the house when they were taken away, their father could have been the reai target but was saved as he was hiding- Defence witnesses have not been able to prove that parents of the deceased were not present at the time of occurrence-Conviction upheld.

Sections 302, 364 an.d 34-Abduction and murder-Absence of any direct evidence-Abductors dutybound to tell the court what happened to the victim after abduction-Inference of murder could be drawn unless the court is satisfied to the contrary.

Evidence Act, 1872-Section 106-Burden of proving fact especially within knowledge of accused-Yet prosecution not relieved from proving the guilt of the accused beyond reasonable doubt.

Appellant along with three others has allegedly conspired to murder two sons of P as they suspected him to be a police tout during the days of militancy in punjab. They took his sons from his house, ignoring the protest of his wife, though at house P was hiding himself. After a short while, gunshots were heard and on the next morning P discovered their bodies. He did not inform the police immediately. He went to Amritsar City on a bicycle to inform his elder sons and later on furnished details to the police. Only two ot' the conspirators were charged under Terrorist and 644

SUCHA SINGH v. STATE OF PUNJAB 645

Disruptive Activities (Prevention) Act and Section 302 read with Section A 34 J.P.C. as the other two were absconding. They were acquitted of the offences under TADA, however, sentenced to life imprisonment for the offences under I.P.C. Only one or the convicts filed this appeal.

Appellant contended that P and his wife were staying with their elder sons in Amritsar aty on the fateful night and were not present at the time of occurrence; that there was delay in informing the police; that no attempt was made to catch P.W. 3 who should have been the actual target which, proves his absence from the scene of occurrence;; that even if the deceased were taken away by the conspirators it would be inappropriate to assume that the appellant was one of the killers; and that the purpose of Section 106 of the Evidence Actis not to fill up the vacuum in the prosecu tion evidence; and that the burden to prove the guilt is always on the prosecution, and the accused has a right to remain tightlipped.

Dismissing the appeal, the Court

HELD : 1. Three witnesses were examined on the defence side to say that the old parents were actually living in Amritsar for about six months prior to the occurrence, but that would not help to show that they were living differently from the house where the deceased stayed on that night as the expression "Amritsar'' could encompass even areas lying on the periphery of the city limit also. [ 649-C-D]

2. There is no material to assume that the assailants did not count the sons also as touts of the police along with their father. In fact all the visible male members of the family were taken away and P was left out as he was

hiding due to fear. The fact that the accused succeeded in taking away the F two sons alone is not enough to doubt the presence of P and his wife in the house on the crucial night. [650-B-C]

3. On the testimony of P and his wife the circumstances against the appellant are that the incident happened during the period of terrorism in Punjab; that the house of the deceased was considered as the home of police touts; that the appellant and three others reached the house during the dead of night, armed with AK-47 rifles and caught the deceased and forcibly took them away; that within a shortwhile they heard the sound of gunshots; that the deceased did not return to the house during that night; that on the next morning their dead bodies were spotted on the roadside at

SUPREME COURT REPORTS

(2001) 2 S.C.R.

A a place situated only a short distance away from the house; that they were killed with AK-47 riOes as the empties or the bullets or such Rrearm were lying near the dead bodies; and that the appellant did not tell the Court as to what happened to the deceased after they abducted them. ( 650EH)

4. The abductors alone could tell the court as to what bad happened to the deceased after they were abducted. When they withheld that Inform&· tlon there Is every justiRcatlon for drawing the inference, In the light of all the preceding and succeeding circumstances, that the abductors are the murderers of the deceased. When more persons than one have abducted the victim, who was later murdered, it is within the legal province oC the court to justifiably draw as presumption depending on the factual situation, that all the abductors are responsible for the murder. Section 34 IPC could be invoked for tbe aid to that end, unless any particular abductor satisfies the Court with his explanation as to what else be did with the victim subsequently, i.e. whether he left his associates en-route or whether he dissuaded others from doing the extreme act etc. etc. (650-H; 651-AB; 652-F-G]

State of West Bengal v. Mir Mohammad Omar, (2000) 8 SCC 382, alTU'llled.

5. Section 106 of, the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reason. able doubt. The section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence or certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference. (652-DE]

Shambhu Nath Mehra v. State of Ajmer, AIR (1956) SC 404, relied on.

Attygalle and Anr. v. The King, AIR (1936) PC 169 and Stephen A Seneviratne v. The King, AIR (1936) PC 289, referred to.

G CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 24 of 2001.

From lhe Judgment and Order dated 23.1.96 of lhe Designated Court at Amritsar, in S.C. No. 50 of 1993.

H U.R. Lalit, M.K. Michael and Parminder Singh for lhe Appellant.

SUCHA SINGH v. STATB OF PUNJAB [THOMAS, J.] 647

Ranbir Yadav, Rajeev Shanna, Ms. Jayshree Anand and Addi. Genel.

A ._ Punjab for the Respondent.

The Judgment of the Court was delivered by

THOMAS, J. During the months when insurgency in the State of Punjab was at its peak, two striplings were knocked off from their house on B a dark night by armed assailants in the very sight of their old parents, despite the importunes made by their mother. Those abducted youngsters were

-~ finished off within a shortwhile by firing them with AK-47 rifles, a little away

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from their house. The abductors were indicted for the murder of those two young Sikhs. Appellant Sucha Singh, the sole survivor of the criminal C conspiracy hatched, is now challenging the conviction and sentence of life imprisonment passed on him by a designated court, for the offence under Section 302 read with Section 34 of the Indian Penal Code.

Shri U.R. Lalit, learned •enior counsel pleaded for reconsideration of the ratio laid down by this Cowt in State of West Bengal v. Mir Mohammad Omar & Ors., [2000] 8 SCC 382 wherein it is held that the court would be justified in appropriate cases to draw the presumption that the .abductors themselves could be the killers of the.abducted victim, unless they explained otherwise as to what they did with the prey.

Learned senior counsel submitted that the said ratio is discordant with the criminal jurisprudence thus far enunciated that the burden is entirely on the prosecution to prove the case. He further submitted that the ratio in the said decision cannot at any rate be applied for fastening an accused with the aid of Section 34 !PC. As we heard Shri U.R. Lalit in extenso on the above

submission, besides other points canvassed by him on the merits of the case,

F we are bound to deal with them now.

The synopsis of the case is this. The incident happened on the night of 22.2.1991. PW-3 Diwan Singh and his wife PW-4 Dalbir Kaur had five sons. The elder three were working in the grain market at Amritsar. Among the remaining sons Narinder Singh was in the army and he came home for a furlough and stayed with his parents. The other son Surinde! Singh was also staying in the same house. The militancy in Punjab had anned terrorists on its cadre who were prowling for preys during those days. Diwan Singh and his family were targeted by the militants as they suspected him to be conduit for the police who were out to crush the insurgency.


[2001] 2 S.C.R.

A On the night of occurrence Diwan Singh, his wife and their two sons (Narinder Singh and Surinder Singh) were in their house at Rupawali, which ,.

is situate on the outskirts of Amritsar City. The inmates of the house retired to their rooms in the night, presumably after their supper. Four assailants including the appellant went to that house anned with AK-47 rifles at about

B 10 P.M., and knocked at the door. Diwan Singh switched on the light in the courtyard and he immediately understood the danger ahead of him. He then scampered to the roof of the house and hid himself, but he could see what was happening on the courtyard. The assailants caught the two )'"' deceased sons. and took them away despite the entreaties persistently made by their mother. Though she made a bid to follow them she could reach c only up to the end of their courtyard as she was tweaked aside forcefully with the butt end of a rifle. The two sons taken away by the assailants were never seen thereafter by the parents.

After a shortwhile the parents of the deceased heard the sound of - gunshots from a distance. The terror stricken parents somehow whiled away D their time in the night without even gazing outside. On the next morning Diwan Singh went to his brother Guma Singh, who was living nearby, and with him a search was made for their abducted sons. They came across the dead bodies of the deceased lying on the roadside studded with gunshot

injuries.

"I ...

Police after investigation charge-sheeted only two persons as accused, one the appellant Socha Singh and the other Sarbjit Singh. According to the police the remaining two assailants could not be apprehended despite all the steps adopted by the police. The case was sent up to a designated court as some of the offences included in the charge fell within the purview of the F Terrorist and Disruptive Activities (Prevention) Act (TADA). The judge of the designated court convicted both the accused under Section 302 read with

~ Section 34 !PC though they were acquitted of the offences under TADA. We are told that the other convicted person died subsequently. This appeal pertains only to the appellant Socha Singh.

G There is no dispute that the deceased were shot dead on the said night by somebody with AK-47 rifles. Hence lbe only point is whether lbe appellant was one of the murderers. The evidenc.e against the appellant is the testimony of PW-3 Diwan Singh and PW-4 Dalbir Kaur. As for them, they only testified

J( • th.at the two deceased were taken away by armed assailants from the house H on that ill-fated night and such assailants included the two convicted persons

and that the corpses o, f the deceased were spotted next morning lying on the roadside a little away from their house.

Shri U.R. Lalit, learned senior counsel first focttsl!ed on a contention that PW-3 Diwan Singh and PW-4 Dalbir Kaur were living with their elder sons at Amritsar City and that they learnt about the death of the deceased only when somebody informed them about it on the following morning. In other words, according to the learned senior counsel, the truth of the testimony of PW-3 at(d PW-4 will depend upon the question whether they were actually staying in the house where the deceased stayed on the night.

Three witnesses were examined on ibe defence side to say that the old parents were actually living at Amritsar for about six months prior to the occurrence. They are: DW-1 a member of the Panchayat, DW-3 and DW-4.

True, those three witnesses said like that. But their evidence would not help the defence to show that the old parents were living differently from ibe house where the deceased stayed on that night. All that the witnesses could say was that PW-3 and PW-4 were staying at Amritsar. That expression "Amritsar" could encompass even areas lying on the periphery of the city limit also. This is clearly discernible from the manner ifl which DW-1 Senga Singh's address was described in his deposition. He is described as resident of Rupawali Village "in Amritsar". '

Learned counsel made a futile endeavour to create some doubt that PW- 3 and PW-4 would have been staying with the elder sons at Amritsar City.

One such attempt was based on a fact that PW-3 himself was convicted in a murder case earlier, and hence he would have known the value of prompt reporting to the police. According to the counsel, PW-3 did not choose to go to the police station even by next early morning. What PW-3 said on that score is that after the sons were taken away he remained in the house during the entire night as he was fear-stricken and when the morning broke he collected his brother Gumam Singh and went in search of his sons and came across the body at Village Phirni ·(which is close to their residence). He then left the spot aftedeaving his brother to remain near the dead bodies, and went to Amritsar city on a bicycle for informing his elder sons about the occurrence. On his way back from the city he came across the police. He furnished to them the details of the occurrence as he knew. In the above narration there is nothing to show that PW-3 and PW-4 were residing away from their house at Rupawali.


B assumption that the sons were not the target of the assailants at all. We don't have any material to assume that the assailants did not count the sons also as touts of the police along with their father. It must be remembered that the assailants took away all the male members of the family whom they could ..,... see in the house. As PW-3 went to the roof hiding himself from the assailants they would have decided to be satisfied for the present with what they got, c i.e. the two sons. Whatever it be, the fact that the accused succeeded in taking away the two sons of the two deceased alone is not enough, in the circumstances of this case, to doubt the presence of PW-3 and his wife PW-4 in the house on the crucial night.

+ ' That apart, the two younger sons, including Narinder Singh who came D from army for a furlough to be with his parents, were actually staying in their house at Rupawali on the fateful night. There would be no logic in assuming that their parents would have kept away from their own house leaving those two sons alone on that night. Why should they do so?

E Thus we too are inclined to believe the version of PW- 3 and PW-4.

On their testimony the circumstances against the appellant are the following: ., -

(I) The incident happened during a period when Punjab was boiling with terrorist activities. (2) The house of the deceascci was treated by the terrorists as the home of police touts against terrorists. (3) Appellant and three . .

F others reached the house during the dead of night armed with AK-47 rifles (which is described as "assault rifle") and caught the two sons. Even in spite of entreaties made by their mother PW-4, the abductors forcibly took away :i. the two sons into the darkness outside. (4) Within a shortwhile they heard the sound of gunshots. (5) The two abducted sons did not return to the house

G during that night. (6) On the next morning their dead bodies were spotted on the roadside at a place situated only a short distance away from the house.

(7) They were killed with AK- 47 rifles as the empties of the bullets of such firearm were lying near the dead bodies. (8) Appellant did not tell the court as to what happened to the two sons after they abducted them.

Al. .

H The abductors alone could tell the court as to what happened to the

deceased after they were abducted. When the abductors withheld that infor- A ' mation from the court there is every justification for drawing the inference, "" in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murderers of the deceased.

Shri U .R. Lal it, learned senior counsel raised his contention on 'the above score that even assuming that the appellant was one among the persons B

who took away the deceased that circumstance alone is not sufficient to hold him to be one of the killers of the deceased. According to the senior counsel a finding beyond abduction cannot be fastened on the appellant.

Recently this Court has held in Slate of West Bengal v. Mir Mohammad c Omar (supra) that the principle embodied in Section 106 of the! Evidence Act can be utilised in a situation like this. Shri U.R. Lalit pleaded for reconsideration of the said legal position. According to him, the ratio laid down in that decision is not in tune with the well accepted principle of criminal law

~ that the accused is entitled to keep his tongue inside his mouth as the burden is always on the prosecution to prove the guilt of the accused. To meet the D said contention it is appropriate to extract the following observations from that decision:

"The pristine rule that the burden of proof is on the prosecution to , prove the guilt of the accused should not be taken as a fossilised E f

doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the F casualty."

Learned senior counsel contended that Section 106 of the Evidence Act is not intended for the purpose of filling up the vacuum in prosecution evidence. He invited our attention to the observations made by the Privy G Council in Allygalle and Anr. v. The King, AIR (1936) PC 169 and also in Stephen Seneviratne v. The King, AIR (1936) PC 289. In fact the observations contained therein were considered by this Court in an early decision authored

)..

by Vivian Bose, J, in Shambhu Nath Mehra v. State of Ajmer, AIR (1956) - SC 404. The statement of law made by the learned Judge in the" aforesaid decision has been extracted by us in State of Wesl Bengal v. Mir Mohammad H


(2001] 2 S.C.R.

A Omar (supra). It is useful to extract a further portion of the observation made by us in the aforesaid decision: -

"Presumption of.fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such

B inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 c is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court _shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case."

We pointed out that Section 106 of the Evidence Act is not intended f D 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 prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer

E any explanation which might drive the court to draw a different inference.

We have seriously bestowed our consideration to the arguments ad- 1

dressed by the learned senior counsel. We only reiterate the legal principle adumbrated in State of West Bengal v. Mir Mohammad Omar (supra) that when more persons than one have abducted the victim, who was later F murdered, it is within the legal province of ihe court to justifiably draw a presumption depending on the factual situation, that all_ the abductors are responsible for the murder. Section 34 of the !PC could be invoked for the aid to that end, unless any particular abductor satisfies the court with his explanation as to what else he did with the victim subsequently, i.e. whether

G he left his associates en-route or whether he dissuaded others from doing the extreme act etc. etc.

We are mindful of what is frequently happening during these days.

Persons are kidnapped in the sight of others and are forcibly taken out of the sight of all others and later the kidnapped are killed. If a legal principle to ,( ~.

H be laid down is that for the murder of such kidnapped there should necessarily

be independent evidence apart from the circumstances enumerated above, we would be providing a safe jurisprudence for protecting such criminal activities. India cannot now afford to lay down any such legal principle insulating the marauders of their activities of killing kidnapped innocents outside the ken of others.

Lastly, learned counsel invited our attention to a note which was recovered by the police from the scene of murder. That note contained the scribbling purported to have been authored by a gronp styled as "Babbar Khalsa", owning the two murders of the deceased. We do not know how the said note would help the appellant unless he shows that he has nothing

to do with that self styled "Babbar Khalsa", even assuming that the note C was left by the murderers without any intention to mislead the investigation.

At any rate, we are not persuaded to change our conclusion on the strength of the said note.

In the result, we confirm the conviction and sentence and dismiss this appeal.

A.Q.

Appeal dismissed.