ASHWANI KUMAR @ ASHU & ANR.versusSTATE OF PUNJAB

                   [2015] 3 S.C.R. 1039


          ASHWANI KUMAR @ ASHU & ANR.                        A

                            v.
                    STATE OF PUNJAB

        (Criminal Appeal Nos. 1041-1042 of 2008)             B

                     APRIL 16, 2015

  [MADAN B. LOKUR AND UDAY UMESH LALIT, JJ.]

     Penal Code, 1860 - ss. 36413021307 fW s. 120 B - C
 Murder and kidnapping - Prosecution case that accused
hatched a conspiracy and committed murder of the victim-
 wife and caused injuries to the prosecution witness- ·
husband - Allegation that the marriage of the parties was
                                                              0
not to the liking of the mother and maternal uncle of the
victim - Trial court convicted seven out of the eleven
charged and acquitted four of them - High Court acquitted
three more, however, upheld the order of conviction and
sentence of the appellants-AS, AK, JS and OS uls. 3021 E
3641307 rw s. 120 B - On appeal, held: All the
circumstances stand proved and clearly point in the
direction of the guilt of AS and AK and lend complete
support to the testimony of and identification by the
husband - Thus, the courts below justified in finding AS F
.and AK guilty of the offences u/ss. 3641307 and 302 - As
regards accused JS, in view of the evidence on record and
the extra judicial confession that parents of the victim had
given money through JS, the courts below justified in finding
JS guilty of the offences u/ss. 36413021367 read with s. G
 1208 - As regards OS apart from telephonic conversations,
nothing on record by the prosecution, thus, by giving benefit
of doubt, he is acquitted.

                           1039                              H
1040       SUPREME COURT REPORTS             (2015] 3 S.C.R.


 A      Doctrines/Principles - Principle of issue estoppel -
   Explanation of - Held: Principle 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
 B 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.

 C         Dismissing Crl A Nos.1041-1043 of 2008 and
       allowing Crl A No.1814 of 2009, the Court

          HELD: 1.1 The evidence of PW-15 regarding the
     occurrence that took place was fully supported by the
 o   medical evidenc~ on record. His assertion regarding
     the pla"e of incident and the manner in which the
     occurrence took place was also supported by another
     witness PW-14. Though said witness failed to identify
     the assailants as he had watched the incident from a
 E   distance, he lends complete support to PW-15 as
     regards other material particulars. Considering the
     nature of injuries suffered by him and the fact that J-
     victim was forcibly taken by the assailants the entire
     incident could certainly have afforded sufficient time
 F   and opportunity to PW-15 to recollect and identify the
     assailants. The law is well-settled that if the witness
     is trustworthy and reliable, the mere fact that no test
     identification parade was conducted would not be a
     reason to discard the evidence of the witness. The
 G   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
 H   against the accused, still other corroborating material
  ASHWANI KUMAR @ASHU v. STATE OF PUNJAB               1041


is looked for which is available in the form of extra A
judicial confession as deposed to by PW-7 and the
incident which had happened at the dhaba as spoken
by PW-5 and PW-6. · Photograph of J was recovered
pursuant to disclosure statement by AS is another
circumstance. That photograph was recovered from . B
Farm which was under the control of AK. The
description of J in Gurumukhi on the back side of the
photograph was crucial. Refusal on part of AS to give
his specimen hand writing must lead to· adverse
inference against him. The recovery of weapon, namely, C
kirpan which according to the doctor could have
resulted in the injuries suffered by PW-15 and J and
the blood-stained seat cover were other circumstances
lending complete corroboration. The communication by
                                                          0
AS and AK with the number in Canada which itself was
the source for the fax-message was another
circumstance. All these circumstances stand proved
and clearly point in the direction of the guilt of AS and
AK and additionally lend complete support to the E
testimony of and identification by PW 15. The courts
below were therefore, perfectly justified in finding AS
and AK guilty of the offences u/s. 364/307 and 302 IPC.
[Para 17, 18] (1056-F-H; 1056-A-B,G-H; 1058-A-F]
                                                         F
    1.2 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 G
estoppel in subsequent proceedings. It makes it
impermissible to lead any such evidence at a
subsequent stage or occasion. The submission that the
subsequent judgment will operate as issue estoppel is
not correct. The offences are different and distinct. The H
1042      SUPREME COURT REPORTS             (2015] 3 S.C.R.


 A attempt on part of counsel is just the opposite. He
   seeks to rely on the finding at a subsequent stage to
   up-set a finding offact recorded on a previous
   occasion. [Para 19] "[1058-G-H; 1059-A]

 B     1.3 As per deposition of PW-8 and other material
   on record, the tempo was under the control of JS. It
   was this tempo which was used by AS as stated by PW-
   5 and PW 6. The telephonic conversations between JS,
   a serving police officer and AS and AK just before and
 C soon after the incident are extremely crucial. No
   explanation has been offered on part of JS. The record
   further indicates that JS was also in touch with the
   same number from Canada, in respect of which again
   there was no explanation. In the extra judicial
 D confession deposed to by PW-7, there was clear
   assertion that parents of J had given money through
   JS. In the circumstances, the assessment made by the
   courts below in finding JS guilty of the offences u/
   ss.364, 302, 367 read with s.1208 IPC is concurred
 E with. [Para 20] [1059-G-H; 1060-A-O]
        1.4 As regards OS all that the prosecution has
   produced is the record of telephonic conversations. No
   doubt that there have been communications with AS,
 F AK, JS and the number from Canada but such
   communications are. from a landline number which
   stands in the name dfthe brother of OS. There is no
   evidence on record that the said landline number was
   under the exclusive control of OS. Secondly, given the
 G fact that his daughter is married with the son of SS
   from Canada, the conversations with the number in
   Canada are explainable. It is true that suspicion against
   OS was expressly stated in the first statement of PW-
   15 itself. However, apart from telephonic conversations
 H
  ASHWANI KUMAR @ ASHU v. STATE OF PUNJAB                       1043


nothing has been placed on record by the prosecution. A
Therefore, benefit of doubt is given to OS and he is
acquitted of the charges leveled against him. [Para 21]
[1060-E-H; 1061-A]

    Ashok Debbarrna v. State of Tripura 2014 (4) SCR 287: 8
(2014) 4 SCC 747; Sangeetaben Mahendrabhai Patel v.
State of Gujarat 2012 (3) SCR 1155: (2012) 7 SCC 621-
referred to.
                   Case Law Reference
                                                                 c
    2014 (4) SCR 287           referred to.      Para 17
   2012 (3) SCR 1155           referred to.      Para 19
   CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal Nos. 1041-1042 of 2008.                                   D

    From the Judgment and Order dated 15.02.2008 of the
High Court of Punjab and Haryana at Chandigarh in
Criminal Appeal No. 921cDB.pf 2005.
                        WITH                                     E

    Crl. A. Nos. 1043 of 2008 and 1814 of 2009

    K. T. S. Tulsi, R. K. Dash, R. K. Kapoor, Kheyali Sarkar,
Rama, Priyanka Agarwal, Mandakini Singh, Maheen,                 F
Shweta Kapoor, Anis Ahmed Khan, V. Sushant Gupta, R.
N. Keshwani, Ram Lal Roy for the Appellants.
    Jayant K. Sud, Addi. AG, Jasleen Chahal, Asstt. AG,
Vishal Dabas, Ajay P. Tushir, Kuldip Singh, for the
Respondent.                                             G

    The Judgment of the Court was delivered by

   UDAY UMESH LALIT, J. 1. These appeals          by
special leave challenge the judgment and order dated             H
1044        SUPREME COURT REPORTS                (2015] 3 S.C.R.


 A 15.02.2008 passed by the High Court of Punjab and
   Haryana. Criminal Appeal Nos.1041-1042 of 2008 are by
   Ashwani Kumar @ Ashu and Joginder Singh, Criminal
   Appeal No.1043 of 2008 is by Anil Kumar while Criminal
   Appeal No.1814 of 2009 is by Darshan Singh. The
 B appellants stand convicted under Sections 364/302/307
   read with Section 1208 IPC. Since these appeals arise
   from the same judgment, they are being dealt with and
   disposed by this common judgment. Initially eleven
   persons were sent for trial while two absconding accused
 C were marked as proclaimed offenders. The trial court
   convicted seven out of those eleven accused and acquitted
   four accused. In the appeals by the convicted accused, the
   High Court acquitted three more accused, confirming the
   conviction and sentence of the present appellants. Since
 0
   the acquittal of others has attained finality, the facts
   narrated hereafter are confined to the appellants herein.

            2. One Jaswinder Kaur @ Jassi, normally residing with
       her parents in Canada, married PW-15 Sukhwinder Singh
 E     resident of village Kaoka Khosa, District Sangroor, Punjab
       on 15.04.1999. It was a court marriage and against the
       wishes of her parents and her maternal uncle. Jassi
       thereafter went to Canada on 02.05.1999 and while she
 F     was there, on the basis of a fax ITlE!,ssage (Ext.PAO)
       allegedly under her signature, FIR No.38dated 23.02.2000
       was registered with Police Station Sadar Jagraon against
       PW 15 Sukhwinder Singh under Sections 342, 467, 468,
       471 and 506 of the IPC. When Jassi got to know about
 G     this, she came back to India and appeared before the
       police. Her statement was recorded that she had married
       PW 15 Sukhwinder Singh out of her free will, that the
       alleged signature on the fax message was not hers and
       that the marriage was not to the liking of her parents and
 H     maternal uncle. Her statement under Section 164 Cr.P.C.
  ASHWANI KUMAR @ASHLI v. STATE OF PUNJAB                     1045
            [UDAY UMESH LAUT, J.]

was also recorded and thereafter closure in respect of said A
crime was ordered. Jassi then started living with her
husband in the house of PW 20 Sukhdev Singh, maternal
uncle of her husband, in village Narike.

     3. On 08.06.2000 PW 15 Sukhwinder Singh and Jassi B
were coming back on a scooter from Malerkotla to· their
village and when they had reached village Sykhe at 'about
9.30 PM, four persons armed with hockey sticks and
swords got down from a white Maruti car and attacked
them. PW 15 Sukhwinder Singh received number of C
injuries. Leaving him in injured condition, those persons
forcibly took away Jassi in that car. PW 15 Sukhwinder
Singh somehow managed to reach the house of PW 20
Sukhdev Singh who got him admitted in the Civil Hospital,
Malerkotla, where PW-1 Dr. Amit Modi found him to have D
suffered the following injuries:-

     1. 2 X 1cm incised wound over left side of face 2 cm
     below ear pinna.
                                                               E
     2. Swelling and tenderness over left side of mandible.

     3. 10 X .5 cm wound over left side of scalp 8 cm over
     left pinna.

     4. 4X .5 cm incised wound over left side of scalp in      F
     temporal area 2 cm above ear pinna.

     5. 3 X .5cm incised wound over left side of scalp 3
     cm above ear pinna in temporal area 2 cm from injury
     No. 4.                                               G

    6. 4.5 X .5cm incised wound over left side of scalp 6
    cm above ear pinna 1cm away from injury No. 4 and
    2cm away from injury No. 5
                                                               H
1046        SUPREME COURT REPORTS                 (2015] 3 S.C.R.


 A          7. 4 X 3cm lacerated wound with this much of it
            hanging and attached to remaining scalp by superficial
            layer of skin only 1cm from injury No. 6. For injuries
            No. 1 to 7 X-ray was advised.

 B          8. 8 X 4cm incised wound from web space between
            middle and ring finger proximally towards wrist joint-
            cutting all structures from skin to skin from dorsal to
            ventral aspect of hand, cutting, skin, nerves, tenden
            and bone.
 c
            9. 2 x .5cm incised wound over right little finger
            proximal phalanx over the dorsal aspect.

            10. Right ring finger amputated obliquely at middle
            phalanx. Wound margins sharp clean cut.
 D
            For injuries No. 8 to 10 X-ray was advised. In all the
            injuries except injury No. 2 fresh bleeding was
            present. Injuries No. 1 to 8 were kept under
            observation, whereas injuries No. 9 and 10 were
 E          grievous. Probable duration of injuries was within six
            hours. The kind of weapon used for injuries No.
            1,3,4,5,6,8,9 and 10 was sharp, whereas for injuries
            No. 2 and 7 was blunt."
 F         4. PW-1 Dr. Amit Modi sent intimation or ruqa Ext.PB
       to the police who recorded the statement of PW 15
       Sukhwinder Singh, in which it was stated as under:-

          ".... I was coming back alongwith my wife Jaswinder
 G        Kaur on scooter from Malerkotla to Village Narike and
          when we reached the Village of Syhke, a white Maruti
          car was parked near the bridge of the drain and when
          we reached nearby, then 4 persons came out of said
          Maruti car who were arn:ied with hockeys and swords
 H        and attacked us. I received many injuries and I was
  ASHWANI KUMAR @ASHU v. STATE OF PUNJAB                     1047
            [UDAY UMESH LAUT, J.]

    thrown and my wife was forcibly kidnapped with A
    intention to kill her. I, on my scooter in staggering
    condition, reached the house of my maternal parents.
    Sukhdev Singh, 'my maternal uncle got me admitted
    in the Civil Hospital, Malerkotla. You have written my
    statement and it is correct. I have doubts against B
    Hardev Singh @ Mintu etc. s/o Darbara Singh, Village
    Kaonke Khosa who have done this. I can identify
    others when brought before i•le."

     5. FIR No. 48 was accordingly registered with police     C
station Amargarh under Sections 307, 364 and 34 IPC at
about 1.50 AM on 09.06.2000. PW 15 Sukhwinder Singh
was then referred and taken to Christian Medical College,
Ludhiana for further treatment where he was attended to
by PW 2 Dr. Deepak Bansal and PW 4 Dr. Subhasish Das.         D
On 09.06.2000 at about 10.00 AM one Bahadur Singh of
Village Bolara while going to his agricultural field found
dead body of a young lady aged about 22-23 years lying
in water on the edge of minor canal. He reported the
matter to the police, pursuant to which FIR No.197 dated      E
09.06.2000 under Section 302 IPC was registered with the
police station Sadar Ludhiana. The body was identified to
be that of Jassi. In the post mortem conducted by a Board
of three doctors on 10.06.2000 at about 4.00 PM, following    F
injuries were noticed on the body of Jassi:-

     a. An incised wound 7Y, inch x 2 Y, inch into muscle
     deep in front of the neck.

     b. An incised wound just below the chin 4 Y, inch x 2 G
     Y, inch was cutting the skin, sub coetaneous tissue
     and muscles.

     c. An incised wound 6" x Y, " x skin deep on the front
     of chest placed horizontally.                          H
1048      SUPREME COURT REPORTS                [2015] 3 S.C.R.


 A       The post mortem further indicated:-

         ".:The cause of death in this case in our opinion was
         due to shock and hemorrhage as a result of injury to
         the vital organs, which were sufficient to cause death
 B       in the ordinary course of nature. All the injuries were
         ante~mortem in nature .... "

        6. On 09.06.2000 itself a supplementary statement of
   PW-15 Sukhwinder Singh was recorded in which he gave
 c the number of said Maruti car as DNJ 4862 and also stated
   his firm belief that the occurrence had been committed in
   connivance with Hardev Singh @ Mintu, Surjeet Singh,
   Malkiat Singh, Darshan Singh and Gurnek Singh @ Bhatti.
   It appears that despite such clear assertions no arrests
 D were effected. The matter was being investigated by PW
   38 Sub-Inspector Hardeep Singh who had gone to the spot
   on 09.06.2000 and prepared the site plan and was able to
   recover one sandal, a handle of cricket bat and upper
   portion of a hockey stick. Under the orders of the Special
 E Superintendent of Police, investigation was taken up by PW
   40 Inspector Swarn Singh on 20.06.2000. Hardev Singh
   whose .name was mentioned in the FIR as well as
   supplementary statement was arrested on 21.06.2000 while
   Darshan Singh was arrested on 22.06.2000.               On
 F 28.06.2000 Anil Kumar was arrested, while six others
   including Ashwani Kumar @ Ashu were arrested on
   30.06.2000.

        7. While he was in custody, statement of Anil Kumar
 G was recorded which led to the discovery of a pistol, three
   live cartridges and one Maruti car bearing no. DNJ 4862
   from which a mobile having No.9814011272 and an
   additional SIM having No.9814038404 were recovered.
   Blood stained portion of back seat of the car was cut and
 H seized. The statement of Ashwani Kumar led to the
   ASHWANI KUMAR @ ASHU v. STATE OF PUNJAB               1049
             [UDAY UMESH LAUT, J.]

 discovery of a kirpan and a photograph of Jassi (Ext.P-38) A
 from a farm named Bolara Farm. On the back side of the
 photograph, in Gurumukhi was written her name, p~ysical
 description including complexion and the clothes that she
 would normally wear. The description was meant to enable
 a stranger to identify with clarity the person in the B
 photograph. It was a full photograph taken out from the
 collection of someone known to her or the family. From the
 house of Ashwani Kumar mobiles were seized with
 numbers 9814014562 and 9316053404.
                                                           c
       8. On 05.07.2000 statement of PW 5 Jagdeep Singh
  was recorded under Section 164 Cr. P. C to the effect that
  about one and a half months before, one Gurwinder Singh
  and Ashwani Kumar had taken him and PW6 Harjeet Singh
  to the dhaba of one pahlwan in a tempo. They were told D
  to give beating to PW 15 Sukhwinder Singh as he had
  contracted marriage with a girl related to Ashwani Kumar
  without the consent of her family. Said PW 5 Jagdeep
  Singh and PW 6 Harjeet Singh not having agreed to, they
  left the dhaba .. ·Later in the newspaper he saw the E
  photograph of PW 15 Sukhwinder Singh and his wife and
  therefore had appeared before the Investigating Officer to
  get the statement recorded before the Magistrate. To the
. similar effect was the statement of PW 6 Harjeet Singh F
  which was also recorded under Section 164 Cr.P.C. on
  05.07.2000.

     9. On 12.07.2000 a request was made to PW 23 Shri
B.S. Deol, Judicial Magistrate, First Class, Malerkotla to
conduct Test Identification Parade in respect of accused G
Anil Kumar, Ashwani Kumar and other named accused.
However, he received letters (Ext. PO, Ext. P0-5 and
Ext.P0-6) from the concerned Jail Superintendent that the
accused were not willing to subject themselves to the such H
1050        SUPREME COURT REPORTS               [2015] 3 S.C.R.


 A test.

            10. On 18.07.2000 statement of PW-7 Jasbir Singh
       under Section 164 Cr.P.C. was recorded that Anil Kumar,
       Ashwani Kumar, Ginder and Tony were his friends and they
 B     would often assemble on the farm of Anil Kumar for drinks
       and meals. It was further stated that on 16.06.2000 when
       they had so assembled, Anil Kumar asked him if he had
       read the newspaper of the day and upon his answering in
       the negative Anil Kumar stated that news regarding the
 C     murder of Jassi had appeared in the newspaper of that day
       which murder was committed by them. Anil Kumar further
       stated that Joginder Singh Thanedar was with them and
       the parents of the girl had given them money through
       Joginder Singh, Thanedar for the said murder. On
 D     22.07.2000 PW-8 Bhagwan Singh produced one tempo
       bearing No.PB-10/9719 before the police. This was the
       tempo stated to have been used by Ashwani Kumar and
       Gurwinder Singh for taking PW-5 Jagdeep Singh and PW-
 E     6 Harjeet Singh to the dhaba of pahlwan.

        11. On 26.07.2000 Joginder Singh, serving police
   officer was arrested but was released on bail, the same
   day. He was later re-arrested on 19.01.2001 after his bail
   was cancelled. On 29.08.2000 an application was moved
 F by the police for taking specimen hand-writing of Ashwani
   Kumar wh_o was then confined in District Jail, Sangroor to
   compare with the writing found on the back side of the
   photograph of Jassi (Ext.P-38). PW-23 Shri S.S. Deol,
   Judicial Magistrate asked the Superintendent of Jail to take
 G the specimen hand-writing of Ashwani Kumar. However,
   Ashwani Kumar vide Ext. DK dated 05.09.2000 refused to
   submit his specimen hand-writing.

        12. After completion of investigation charge-sheet was
 H filed against eleven persons while Surjeet Singh, maternal
  ASHWANI KUMAR @ ASHU v. STATE OF PUNJAB                     1051
            [UDAY UMESH LAUT, J.]

 uncle and Malkiat Kaur, mother of Jassi were declared A
 proclaimed offenders. It was the case of the prosecution
 that the accused had hatched the conspiracy to commit the
 murder of Jassi and had caused injuries to PW-15
 Sukhwinder Singh and thus committed the offences with
 which they were charged. It was alleged that the marriage B
 of Jassi with PW 15 Sukhwinder Singh, who was simply a
 three wheeler driver, was not to the liking of the mother
 and the maternal uncle of Jassi. The prosecution in support
 of its case examined 45 witnesses and produced number
 of documents on record while 42 witnesses were examined C
 in defence. The gist of the testimony of the witnesses
.examined by the prosecution, inter alia, was as under:-

     i) PW-3 Dr. Jasbir Singh who was one of the doctors
     conducting the post-mortem on the body of Jassi,          D
     stated about her injuries and the cause of death and
     that kirpan Ext. P-12 recovered pursuant to disclosure
     statement could have caused those injuries.

     ii) PW-1 Dr. Amit Modi, PW-2 Dr. Deepak Bansal and        E
     PW-4 Dr. Subhasis Das deposed about the injuries
     of PW-15 Sukhwinder Singh and the treatment given
     to him by them.

     iii) PW-5 Jagdeep Singh and PW-6 Harjeet Singh F
     stated about their meeting with Ashwani Kumar and
     Gurwinder at the dhaba of a pahlwan and that they
     did not agree to the proposal of beating PW-15
     Sukhwinder Singh. They identified the tempo and
     stated about having given statements under Section G
     164 Cr.P.C.

     iv) PW-7 Jasbir Singh deposed thatAshwani Kumar,
     Anil "Kumar, Ginder and Tony were his friends, that
     they had met at a farm on 16.06.2000 when Anil H
1052   SUPREME COURT REPORTS                 (2015) 3 S.C.R.


 A     Kumar had asked him whether he had read
       newspaper of the day. He further deposed thatAnil
       Kumar stated that they had committed the murder of
       Jassi, that Joginder Singh Thanedar was with them
       and that the money was paid through said Joginder
 B     Singh. He stated about having given a statement
       under Section 164 Cr.P.C.

       v) PW-8 Bhagwant Singh deposed that his tempo
       PB-10/9719 was impounded by CIA staff of which
 c     Joginder Singh was in-charge and that the tempo was
       released on 07.06.2000 after he had paid money as
       demanded. This version was corroborated by PW-9
       Jagir Singh.

 D     vi) PW-14 Barjinder Singh stated that on 08.06.2000
       he saw a car of white colour with four persons
       standing close by. Later he heard the voice of a
       woman asking for help and that those persons had
       forcibly taken her away. Though he failed to identify
 E     the persons, his version supported the case as
       regards the location and the time of incident.

       vii) PW-15 Sukhwinder Singh deposed that he was
       married with Jassi on15.03.1999, that it was against
 F     the wishes of her parents, that Malkiat Kaur and
       Surjeet Singh viz. mother and maternal uncle of Jassi,
       used to give him threats and stated how the incident
       occurred on 08.06.2000. He had shown his
       willingness and capacity to identify the assailants and
 G     did identify Ashwani Kumar and Ahil Kumar in court.

       viii) PW-20 Sukhdev Singh, uncle of PW-15
       Sukhwinder Singh who had taken him to the hospital,
       supported the version of PW-15 Sukhwinder Singh.
 H
ASHWANI KUMAR @ASHLI v. STATE OF PUNJAB                  1053
          [UDAY UMESH LAUT, J.]

  ix) PW-23 B.S. Deol, Judicial Magistrate spoke about A
  the refusal on part of Anil Kumar and Ashwani Kumar
  to participate in test identification parade and refusal
  by Ashwani Kumar to give his specimen handwriting.

  x) PW-24 constable Bikkar Singh deposed about the       B
  recoveries effected from Bolara Farm pursuant to the
  disclosure statement of the accused.

  xi) PW-27 Charan Preet Singh stated that he knew
  Ashwani Kumar and Anil Kumar and that they used         c
  to call from their telephone numbers.

  xi) PW-32 Jaswinder Singh deposed that at the
  request of ADGP, Punjab, Intelligence his company
  had supplied copies of print outs of telephone
                                                      0
  Nos.9814014562, 9814031374, 9814011272,
  9814090919, 9814075614 and 9814036765. PW-34
  Ved Prakash Julka produced the record pertaining to
  telephone No.605219 installed in the name of
  Joginder Singh.                                     E

  xii) PW-37 SI Harjinder Singh deposed about the FIR
  No.38 dated 23.02.2000 which was registered
  pursuant to fax message Ext.PAO and that he had
  recorded the statement of Jassi. He further stated      F
  about the statement of Jassi under Section 164
  Cr.P.C. and that he had recommended cancellation
  after having found the case to be false.

  xiii) PW-38 SI Hardeep Singh spoke about the
  registration of FIR in the present case and the G
  investigation conducted by him till it was handed over
  to PW-41 Inspector Swaran Singh who in turn
  deposed about various stages of investigation
  including the arrests of the accused, disclosure H
1054        SUPREME COURT REPORTS                [2015] 3 S.C.R.


 A          statements made by the accused and the recoveries
            made pursuant thereto and various other aspects.

             13. The trial court after considering the material on
       record and hearing rival submissions, vide its judgment
 B     dated 21.10.2005 found that the prosecution had
       successfully proved its case against seven accused
       persons including the appellants.      It found them guilty
       under Section 302/364/307 read with Section 1208 IPC.
       Accused Anil Kumar, Ashwani Kumar @ Ashu, Gurwinder
 C     Singh @ Ginder and Gursharan Singh @ Tony were
       sentenced under Section 302 IPC to undergo life
       imprisonment, under Section 364 IPC to undergo RI for 10
       years and under Section 307 IPC to undergo RI for seven
       years with separate sentences of fine and sentences in
 D     default. Three other accused, namely, Joginder Singh,
       Hardev Singh and Darshan Singh were convicted with the
       aid of Section 1208 IPC and sentenced to suffer similar
       imprisonment on the aforesaid three counts. However
       benefit of doubt was given to other four accused, namely,
 E     Jaswant Singh @ Soni, Ravinder Singh @ Lilu, Kamaljeet
       Singh @ Kamal and Gurnek Singh @ Bhatti and they were
       acquitted of all the charges. All seven convicted accused
       filed Criminal Appeal Nos.836-DB/2005 and 921-DB/2005
 F     before the High Court, which gave benefit of doubt to
       Hardev Singh, Gurwinder Singh and Gursharan Singh @
       Tony and acquitted them, while it confirmed the conviction
       and sentence of the present appellants, which judgment is
       now under challenge in the present appeals.
 G      14. As regards appellants Ashwani Kumar and Anil
   Kumar, the trial court as well as the High Court have
   principally relied .upon the evidence regarding assault on
   PW-15 Sukhwinder Singh as stated by him and the fact
 H that he identified them to be part of the group cif assailants.
   ASHWANI KUMAR @ASHU v. STATE OF PUNJAB                        1055
             [UDAY UMESH LAUT, J.]

The extra judicial confession, as stated by PW-7 Jasbir A
Singh and the recoveries effected pursuant to the
disclosure statements were relied upon. The testimony of
PW-5 Jagdeep Singh and PW-6 Harjeet Singh as well as
the communications between the accused soon before and
after the incident of assault on PW-15 Sukhwinder Singh B
and kidnapping of Jassi were also relied upon. The other
two appellants were found guilty with the aid of Section
1208 IPC as conspirators. The telephonic communications
between them and Ashwani Kumar and Anil Kumar were
relied upon as against Joginder Singh and Darshan Singh. C

       15. Appearing for Ashwani Kumar and Anil Kumar, Mr.
  R.K. Kapoor, learned Advocate submitted that identification
  by PW-15 Sukhwinder Singh for the first time in court could
· not be taken as conclusive evidence. The evidence in the        D
  form of extra judicial confession was also not conclusive
  inasmuch as certain other accused, though named in such
  confession were acquitted by the courts below. Shri K.T.S.
  Tulsi, learned senior Advocate appearing for Joginder Singh
  submitted that in a subsequent trial initiated against          E
  Joginder Singh on the allegation of demand of bribe for
  releasing the same tempo bearing No.PB-10/9719, he was
  honourably acquitted and as such said judgment would
  operate as issue estoppel. Shri Ratnakar K. Dash learned        F
  senior Advocate appearing for Darshan Singh submitted
 that the landline telephone'number in question stated to
  be that of Darshan Singh was actually in the name of his
  brother installed at the residence of said brother and there
  was no evidence to suggest that it was exclusively under        G
 the control of Darshan Singh. In any case daughter of
 Darshan Singh was married to the son of Surjeet Singh,
 maternal uncle of Jassi and as such calls from the said
 landline number to the number in Canada were completely
 justified and no inference could be drawn that said Darshan      H
1056         SUPREME COURT REPORTS                 [2015] 3 S.C.R.


 A     Singh was one of the conspirators.

            16. Appearing for State of Punjab Shri Jayant K. Sud,
       Additional Advocate General assisted by Ms. Jasleen
       Chahal, Assistant Advocate General took us through the
 B     entire record. It was submitted that the offence in the
       present case was an act of conspiracy which was clear
       from the fact that fax message Ext.PAO had originated from
       the same number in Canada with which the accused
       Ashwani Kumar @ Ashu and Anil Kumar were constantly
 C     in touch, that the backside of the photograph (Ext.P-38)
       and the conversations deposed to by PW-5 Jagdeep Singh
       and PW-6 Harjeet Singh lend complete corroboration, that
       identification by PW-15 Sukhwinder Singh was completely
       trustworthy and fully reliable, that the record of telephonic
 D     conversations show all the four appellants were in touch
       with each other as well as with the number in Canada soon
       before and immediately after the occurrence, that the
       recoveries of kirpan, blood-stained seat cover and
       photograph (Ext.P-38) corroborated the prosecution case
 E     and that the extra judicial confession as stated by PW-7
       Jasbir Singh further clinched the issue.

         17. The evidence of PW-15 Sukhwinder Singh
   regarding the occurrence that took place on 08.06.2000 is
 F fully supported by the medical evidence on record. He was
   immediately taken for medical attention and found to have
   suffered 10 injuries, some of which were by sharp cutting
   weapon. His assertion regarding the place of incident and
   the manner in which the occurrence took place is also
 G supported by another witness PW-14 Berjinder Singh.
   Though said witness failed to identify the assailants as he
   had watched the incident from a distance, he lends
   complete support to PW-15 as regards other material
 H particulars. Considering the nature of injuries suffered by
  ASHWANI KUMAR @ASHU v. STATE OF PUNJAB                        1057
            [UDAY UMESH LAUT, J.)

him and the fact that Jassi was forcibly taken by the A
assailants the entire incident could certainly have afforded
sufficient time and opportunity to PW-15 to recollect and
identify the assailants. The law on the point is well-settled
that if the witness is trustworthy and reliable, the mere fact
that no test identification parade was conducted would not B
be a reason to discard the evidence of the witness. It was
observed by this Court in Ashok Debbarma Vs. State of
Tripura 1 as under:-

    "21 The abovementioned decisions would indicate that         C
    while the evidence of identification of an accused at a
    trial is admissible as substantive piece of evidence, it
    would depend on the facts of a given case as to
    whether or not such a piece of evidence can be relied
    upon as the sole basis of conviction of an accused. In       D
    Malkhansingh V. State of M.P., this Court clarified that
    the test identification parade is not a substantive piece
    of evidence and to hold the test identification parade
    is not even the rule of law but a rule of prudence so
    that the identification of accused inside the courtroom      E
    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      F
    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 G
drawn against the accused, we still looked for other
corroborating material which is available in the form of extra
judicial cbnfession as deposed to by PW-7 Jasbir Singh
1 (2014) 4 sec 747                                               H
1058      SUPREME COURT REPORTS                 [2015) 3 S.C.R.


 A 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
 B (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
 C 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
 0
   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
 E 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.
 F
        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
 G 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 previO!JS occasion
   and mandates that the finding so rendered on earlier
   occasion must operate as issue estoppel in subsequent
 H proceedings. It makes it impermissible to lead any such
  ASHWANI KUMAR @ASHU v. STATE OF PUNJAB                         1059
            [UDAY UMESH LAUT, J.]

evidence at a subsequent stage or occasion. The attempt A
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 Gujarat2 in following B
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               C
    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         D
    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      E
    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            F
    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.
                                                                  G
    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.

2 (2012) 1 sec e21                                                H
1060        SUPREME COURT REPORTS                 [2015] 3 S.C.R.


 A It was this tempo which was u.sed 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.
 B 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
 C 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 1208 IPC. His conviction
 D
   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
 E     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
 F     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
 G     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
 H     benefit of doubt to Darshan Singh and acquit him of the
  ASHWANI KUMAR @ASHLI v. STATE OF PUNJAB                     1061
            [UDAY UMESH LAUT, J.]

charges leveled against him.                                   A

     22. In the circumstances Criminal Appeal Nos.1041-
1042 of 2008 preferred by Ashwani Kumar @ Ashu and
Joginder Singh and Criminal Appeal No.1043 of 2008 by
Anil Kumar are dismissed affirming the orders of conviction B
and sentence recorded against them. The appeal of
Darshan Singh, namely, Crl. Appeal No.1814 of 2009 is
allowed and he is acquitted of l'lll the charges. The bail
bonds furnished by him stand cancelled. Ashwani Kumar
@ Ashu, Anil Kumar and Joginder Singh who were not C
granted bail, must undergo the sentences awarded.

Nidhi Jain                             Appeals disposed of.