Supreme Court of India
PRITHIPAL SINGH ETCversusSTATE OF PUNJAB & ANR. ETC.
- Citation
- 2011 INSC 784
- Decided
- 4 November 2011
- Disposal
- Dismissed
- Bench
- P SATHASIVAM
Holding
The Supreme Court upheld the High Court’s enhancement of sentences, finding that the evidence established the appellants’ participation in the abduction, illegal detention and murder, and that the High Court was empowered to enhance punishment suo motu under s.386(e) after a hearing.
Summary
The Supreme Court considered appeals by five police officials convicted for the abduction, illegal detention and murder of human‑rights activist Jaswant Singh Khalra. The trial court and High Court had found the appellants guilty based on the testimony of several witnesses, including an accomplice, despite the absence of the victim’s body. The High Court, exercising suo motu power under CrPC s.386(e), enhanced the sentences of four appellants from seven years rigorous imprisonment to life imprisonment. The Court held that the evidence was sufficient to sustain the convictions, that corpus delicti is not a prerequisite for a murder conviction when circumstantial evidence establishes death and criminal agency, and that the High Court was competent to enhance sentences after giving a hearing. Consequently, the appeals were dismissed.
Issues considered
- The propriety of the High Court enhancing sentences suo motu under CrPC s.386(e) without a fresh charge framing
- Whether conviction for murder can stand without the recovery of the victim's body (corpus delicti)
- The admissibility and sufficiency of uncorroborated testimony of an accomplice and of a sole eye‑witness
- The presumption of common intention when co‑accused are acquitted
- The application of the burden of proof under Evidence Act s.106 in cases involving police custody deaths
- The liability of the State under Articles 21 and 22 of the Constitution for police atrocities
Legislation cited
- Code of Criminal Procedure, 1973s. 161, s. 197, s. 313, s. 386(e), s. 464
- Constitution of Indias. Article 21, s. Article 22
- Indian Evidence Act, 1872s. 106, s. 114(b), s. 133, s. 134
- Indian Penal Code, 1860s. 120-B, s. 134, s. 201, s. 220, s. 302, s. 364, s. 365
- Protection of Human Rights Act, 1993
Subjects
human rights activistcustodial deathpolice tortureabductionmurdercorpus delictisingle witnessaccomplice testimonysentence enhancementSection 386(e) CrPCArticle 21police accountability
Judgment
[2011) 14 (ADDL.) S.C.R. 862
A PRITHIPAL SINGH ETC.
v.
STATE OF PUNJAB & ANR. ETC.
(Criminal Appeal Nos. 523-527 of 2009)
NOVEMBER 04, 2011
B
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Penal Code, 1860 - ss. 302134, 364134 and 20114 -
Conviction and sentence under - Abduction and murder of
C human right activist by police officials - Activist working on
abduction and cremation of unclaimed/unidentified bodies
during the disturbed period in Punjab - Senior
Superintendent of Police and other police persons hatched
conspiracy and abducted the activist - Activist kept under
o illegal detention, killed and thereafter, thrown in a canal - No
investigation carried out and whereabouts of the activi. not
known - Writ petition filed by the wife of the activist -
Supreme Court transferred investigation to CBI - Charges
framed against the appellant and accused (police officials) -
E Conviction of DSP and AS/ u/ss. 302134 and imposed life
imprisonment and also convicted and sentenced u/ss. 120-
8, 364134 and 201134 - Conviction of four appellants u/ss.
120-8 and 364134 and sentenced· to RI for five years and
seven years respectively - High Court acquitted AS/,
F however, appeal by the appellants were dismissed - On
revision filed by the wife of the activist, the High Court
enhanced the sentence of four appellants from 7 years
rigorous imprisonment to life imprisonment - Interference with
- Held: It is vel}' difficult to get evidence against the policemen
'esponsible for custodial death - Court cannot be a silent
G spectator where the facts warrant interference in order to serve
the interest of justice - There was motive on behalf of the
police department to kidnap and ultimately to eliminate him
- Testimonies of the witnesses had been consistent with each
H . 862
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 863
ANR. 'ETC.
other and they identified the accused correctly in the court - A
Minor variation in the version from time to time is natural since
the witnesses were threatened and implicated in false cases
· ~ There is trustworthy evidence in respect of abduction of the
activist as well as his illegal detention - Courts below found
that accused/appellants abducted the activist - In such a s
situation only accused could explain as to what happened to
deceas~d and why his corpus delicti could not recovered -
All the accused failed to explain any inculpating circumstance
even in their respective statements u/s. 313 Cr.P.C. - Such
a conduct provides for an additional link in the chain of c
circumstances - Courts below rightly drew the presumption
that the appellants were responsible for his abduction, illegal
detention and murder - More so, accused could not establish
plea of alibi - A/so, since the charges had been framed prior
to the statements recorded by PW 16, trial court ought to have
0
altered the charges but it failed to do so - Thus, order of the
High Court was justified.
s.302134 - Person charged uls.302134, other accused
persons stand acquitted - Effect of - Held: It is impossible to
hold that accused shared the common intention with other co- E
accused who is acquitted unless it is shown that some other
unknown persons were a/so involved in the offence - Accused
can be charged for being shared the common intention with
another or others unknown, if either by direct evidence or by
legitimate inference F
Murder case - Corpus Delicti - Recovery of - Held:
Conviction for offence of murder does not necessarily depend
upon corpus delicti being found - Corpus delicti in a murder
case has two components-death as result, and criminal G
agency of another as the means - Where there is a direct
proof of one, the other may be established by circumstantial
evidence.
. Constitution of India, 1950 - Articles 21 and 22 - Police
H
864 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A atrocities, torture, custodial death and illegal detention -
Protection of victim against - Held: State must ensure
prohibition of torture, cruel, inhuman and degrading treatment
to any person particularly at the hands of any State agency!
police force - Such victims suffer enormous consequences
B psychologically - If there is some material on record to reveal
the police atrocities, the court must take stern action against
the erring police officials in accordance in law.
Code of Criminal Procedure, 1973 - s.386(e) - Scope
C of - Power of High Court u/s. 386(e) to enhance the sentence
suo motu - Held: High Court is competent to enhance the
sentence suo motu - However, it is permissible only after
giving opportunity of hearing to the accused.
Evidence:
0
Evidence of an accomplice not put on trial - Conviction
on basis of his uncorroborated testimony ""- Held: Such an
accomplice is a competent witness - He deposes in the Court
after taking oath and there is no prohibition in any law not to
E act upon his deposition without corroboration - However, no
reliance can be placed on the evidence of accomplice unless
evidence is corroborated in material particulars - There has
to be some independent witness tending to incriminate the
accused in the crime.
F Testimony of sole eye-witness - Reliability of - Held:
There is no legal impediment in convicting a person on the
sole testimony of a single witness - If there are doubts about
testimony, the court would insist on corroboration - Test is
whether the evidence is cogent, credible and trustworthy or
G otherwise.
Criminal trial:
Non-mentioning the name of accused by witness at the
time of recording his statement uls.161 Cr.P.C. - Accused
H
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 865
ANR. ETC.
named for the first time in his deposition in court - Held: A
Accused is entitled to benefit of doubt.
Extra-ordinary case - Extra-ordinary situations demand
extra-ordinary remedies - In an unprecedented case, the court
has to innovate the law and may also pass unconventional
8
order keeping in mind the extra-ordinary measures.
Evidence Act, 1872 - s.106 - Applicability of - Burden
of proof under- Held: Section 106 is not intended to relieve
the prosecution of its burden to prove the guilt of accused
beyond reasonable doubt - It is designed to m(Jet certain C
exceptional cases, in which, it would be impossible for
prosecution to establish certain facts which are particularly
within the knowledge of the accused.
'JSK', a human right activist had been working on o ·
abduction and cremation of unclaimed/unidentified
bodies during the disturbed period in Punjab. He raised
his voice against the same. The local police did not like
it. They tried to desist him from exposing the illegal
activities of the police in these districts but he did not E
deter. The local police then hatched a criminal conspiracy
and abducted him. They kept him under illegal detention,
killed him and threw his body into a canal. PW 15
witnessed the abduction. PW 7 also saw appellants
alongwith other. accused persons rushing with 'JSK'
inside the van. PW 2, wife of 'JSK' lodged an FIR. F
However, no investigations were carried out nor
whereabouts of 'JSK' were known. PW2 filed a Habeas
Corpus petition before the Supreme Court. This Court
transferred the investigation to CBI. CBI registered a case
under Sections 365, 220 and 120-B IPC against the police G
officers, (the appellants and other accused) that all of
them agreed to abduct and eliminate 'JSK'. The main
accused was 'ASS', SSP but the charges could not be
framed against 'ASS' since he committed suicide before
framing of the charges. During course of trial, 'AK' died H
866 SUPREME COURT REPORTS [2011) 14 (ADDL.) S~C.R.
A and 'RS' was discharged. PW 16, Special Police Officer,
made voluntary statement to CBI in respect of abduction
and murder of 'JSK'. PW 14, who was convicted under
the Narcotic Drugs and Psychotropic Substances Act,
1985 in his statement recorded by CBI under Section 161
B Cr.P.C. revealed about the detention of 'JSK'. The
Sessions Judge convicted the appellants and some other
accused persons under Sections 364/34 IPC; appellant
'JS' and 'AS' under Sections 302/34 IPC and under
Sections 201/34 IPC and awarded sentences. The
c appellants and accused filed appeals. PW2, wife of 'JSK'
filed revision for enhancement of sentences of the four
appellants from seven years rigorous imprisonment to
imprisonment for life under Section 364 IPC. The High
Court acquitted 'AS' however, maintained conviction of
J other appellants. Notices were issued to four appellants .
for enhancing the sentences awarded to them while
dismissing their appeal. The High Court enhanced the
sentence of four appellants from seven years RI to life
imprisonment. Therefore, the appellants filed the instant
- appeals.
Dismissing the appeals, the Court
HELD:
POLICE ATROCITIES :
1. There is no 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. [Para 49) [920-B]
G
2.1. In view of the provisions of Article 21 of the
Constitution, any form of torture or cruel, inhuman or
degrading treatment is inhibited. Torture is not
permissible whether it occurs during investigation,
H interrogation or otherwise. The wrong-doer is
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 867
ANR. ETC.
accountable and the State is responsible if a person in A
custody of the police is deprived of his life except in
accordance with ttie procedure established by law.
However, when the matter comes to the court, it has to
balance the protection of fundamental rights of an
individual and duties of the police. It cannot be gainsaid B
that freedom of an individual must yield to the security
of the State. Latin maxim sa/us populi est suprema /ex-
the safety of the people is supreme law; and salus
reipub/icae suprema /ex-safety of the State is supreme
law, co-exist. However, the doctrine of the welfare of an c
individual must yield to that of the community. [Para 7)
[893-D-F]
2.2. The right to life has rightly been characterised as
'supreme' and 'basic'; it includes both so-called negative
and positive obligations for the State. The negative D
obligation means the overall prohibition on arbitrary
deprivation of life. Positive obligation requires that State
has an overriding obligation to protect the right to life of
every person within its territorial jurisdiction. Th.e
obligation requires the State to take administrative and E
all other measures in order to protect life and investigate
all suspicious deaths. The State must protect victims of
torture, ill-treatment as well as the human rights defender
fighting for the interest of the victims, giving the issue
serious consideration for the reason that victims of F
torture suffer. enormous consequences psychologically.
The problems of acute stress as well as a post-traumatic
stress disorder and many other psychological
consequences must be understood in correct
perspective. Therefore, the State must ensure prohibition , G
of torture, cruel, inhuman and degrading treatment to any
person, particularly at the hands of any State agency/
police force. [Para 7) [893-G-H; 894-A-C]
2.3. The Protection of Human Rights Act, 1993, also
H
868 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A provide for protection of all rights to every individual. It
inhibits illegal detention. Torture and custodial death have
always been condemned by the courts in this country.
In its 113th report, the Law Commission of India
recommended the amendment to the Evidence Act, ·1872,
B to provide that in case of custodial injuries, if there is
evidence, the court may presume that injury was caused
by the police having the custody of that person during
that period. Onus to prove contrary is on the police
authorities. Law requires for adoption of a realistic
c approach rather than narrow technical approach in cases
of custodial crimes. [Para 8] [894-D-F]
2.4. In absence of any research/data/ material, a
general/sweeping remark that a "substantial majority of
the population in the country considered the police force
D as an institution which violates human rights" cannot be
accepted. However, in a given case if there is some
material on record to reveal the police atrocities, the court
must take stern action against the erring police officials
in accordance with law. [Para 13] [898-B]
E
2.5. 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
F 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 the rule of law. Therefore,
G illegal regime has to be glossed over with impunity,
considering such cases of grave magnitude. [Para 48)
[919-G-H; 920-A]
Dilip K. Basu v. State of WB. & Ors, AIR 1997 SC 3017:
1997 (3) Suppl. SCR 219; N.C. Dhoundial v. Union·ot India
H & Ors. AIR 2004 SC 1272 : 2003 (6) Suppl. SCR 674;
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 869
ANR. ETC.
Munshi Singh Gautam (DJ & Ors. v. State 9f M.P. AIR 2005 A
SC 402: 2004 (5) Suppl. SCR 1092; Raghubir Singh v.
State of Haryana AIR 1980 SC 1087 : 1980 (3) SCR 277;
Gauri Shanker Sharma etc. v. State of UP. etc., AIR 1990 SC
709 : 1990 SCR 29 ; State of Madhya Pradesh v.
Shyamsunder Trivedi & Ors., (1995) 4 SCC 262 : 1995 (1) B
Suppl. SCR 44; The State of UP. v. Mohd. Nairn AIR 1964
SC 703: 1964 SCR 363; People's Union for Civil Liberties
v. Union of India & Anr., AIR 2005 SC 2419; Rubabbuddin
Sheikh v. State of Gujarat & Ors. (2010) 2 SCC 200: 2010 (1)
SCR 991; Jaywant P.Sankpal v. Suman Gholap & Ors. c
· (2010)-11 SCC 208 : 2010 (9 ) SCR 102; Narmada Bai v.
State of Gujarat & Ors. (2011) 5 SCC 79 : 2011 (5) -SCR 729
- relied on.
SCOPE OF SECTION 386(e) Cr.P.C.
D
3. The High Court in exercise of its power under
Section 386(e) tr.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. [Para 17] [899-D-E] E
Eknath Shankarrao Mukkawar v. State of Maharashtra
AIR 1977 SC 1177"~ 1977 (3) SCR 513; Surendra Singh
Rautela @ Surendra Singh Bengali v. State of Bihar (Now
State of Jharkhand) AIR 2002 SC 260 : 2001 (5) Suppl. SCR
340; Nadir Khan v. The State (Delhi Administration) AIR 1976 F
SC 2205: 1975 Suppl. SCR 489; Govind Ramji Jadhav v.
. State of Maharashtra (1990) 4 SCC 718 : 1990 (1) SCR 855;
K. Pandurangan etc. v. S.S.R. Velusamy & Anr. AIR 2003 SC
3318; Jayaram Vithoba & Anr. v. The State of Bombay, AIR_
1956 SC 146 : 1955 SCR 1049 - relied on. G
EVIDENCE OF AN ACCOMPLICE - Not put on trial:
_ 4. An -accomplice is a competent witness and
conviction can lawfully rests upon his uncorroborated - H
870 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A testimony, yet the court is entitled to presume and may
indeed, be justified in presuming in the generality of
cases that no reliance can be placed on the evidence of
an accomplice unless the evidence is corroborated in
material particulars, which means that there has to be
B some independent witness tending to incriminate the
particular accused in the commission of the crime. The
deposition of an accomplice in a crime who has not been
made an accused/put to trial, can be relied upon,
however, the evidence is required to be considered with
c care and caution. An accomplice who has not been put
on trial is a competent witness as he deposes in the court
after taking oath and there is no prohibition in any law
not to act upon his deposition without corroboration.
[Paras 18 and 21) [899-F-G; 902-C-D]
D Rameshswar S/o Ka/yan Singh v. The State of Rajasthan
AIR 1952 SC 54 : 1952 SCR 377 ; Sarwan Singh Rattan
Singh v. State of Punjab AIR 1957 SC 637 : 1957 SCR 953
K. Hasim v. State of Tamil Nadu AIR 2005 SC 128 : 2004
(6) Suppl. SCR 1 Suresh Chandra Bahri v. State of Bihar AIR
E 1994 SC 2420: 1994 (1) Suppl. SCR 483; Chandran alias
Manichan alias Maniyan & Ors. v. State of Kera/a (2011) 5
SCC 161; Laxmipat Choraria & Ors. v. State of Maharashtra
AIR 1968 SC 938:1968 SCR 624 - relied on.
F ACCUSED NAMED FIRST TIME IN THE COURT:
5. In case the witness does not involve a particular
accused in a crime at the time of recording his statement
under Section 161 Cr.P.C., and name him first time in his
deposition in the court, the accused becomes entitled to
G benefit of doubt. [Para 22) [902-EJ
Rudrappa Ramappa Jainpur & Ors. v. State of Karnataka,
AIR 2004 SC 4148 State represented by Inspector of Police,
Tamil Nadu v. Sait alias Krishnakumar, (2008) 15 SCC 440
H : 2008 (14) SCR 120 - relied on.
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 871
ANR. ETC.
PERSON CHARGED UNDER SECTION 302/34 IPC - A
OTHER ACCUSED PERSONS STAND ACQUITTED :
6. It is impossible to reach a conclusion that the
appellant/accused shared the common intention with
other co-accused in case other accused stand acquitted, B
unless it is shown that some other unknown persons
were also involved in the offence. It is permissible in law
to charge an accused in the alternative for being shared
the common intention with another or others unknown,
but even then the common intention would have to be C
proved either by direct evidence or by legitimate.
inference. [Para 23) [902-G-H; 903-A-B]
Prabhu Babaji Navle v. State of Bombay AIR 1956 SC
51; Sukhram v. State of Madhya Pradesh AIR 1989 SC 772;
Madan Pal v. State of Haryana (2004) 13 SCC 508; Koppula D
Jagdish alias Jagdish v. State of A.P. (2005) 12 SCC 425;
Sanichar Sahni v. State of Bihar AIR 2010 SC 3786 : 2009
(10) SCR 112; WJ1/ie (Wif/fain) Slaney v. State of M.P. AIR
1956 SC 116 : 1955 SCR 1140; State of A.P. v. Thakkidiram
Reddy & Ors, AIR 1998 SC 2702 : 1998 ( 3 ) SCR 1088; E
Ramji Singh & Anr. v. State of Bihar AIR 2001 SC 3853 and
Gurpreet Singh v. State of Punjab AIR 2006 SC 191: 2005
(5) Suppl. SCR 90; Lok Pal Singh v. State of M.P. AIR 1985
SC 891 - referred to.
F
EVIDENCE OF THE SOLE EYE-WITNESS :
7. As a general rule, the Court can and may act on
the testimony of a single witness provided he is wholly
reliable. There is no legal impediment in convicting a
person on the sole testimony of a single witness. That is G
the logic of Section 134 of the Evidence Act. But if there
are doubts about the testimony, the court would insist on
corroboration. In fact, it is not the number or the quantity,
but the quality that is material. The time-honoured
H
872 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A principle is that evidence has to be weighed and not
counted. The test is whether the evidence has a ring of
truth, is cogent, credible and trustworthy or otherwise.
The legal system has laid emphasis on value, weight and
quality of evidence, rather than on quantity, multiplicity
B or plurality of witnesses. It i~, therefore, open to a
competent court to fully and completely rely on a solitary
witness and record conviction. Conversely, it may acquit
the accused in spite of testimony of several witnesses if
it is not satisfied about the quality of evidence. [Para 26]
C [904~A-G]
Vadive/u Thevar v. The State of Madras AIR 1957 SC
614 : 1957 SCR 981; Sunil Kumar v. State Govt. of NCT
of Delhi (2003) 11 SCC 367: 2003 (4) Suppl. SCR 767; ,
Namdeo v. State of Maharashtra, (2007) 14 SCC 150 : 2007 ·
D (3) SCR 939; Bipin Kumar Monda/ v. State of West Bengal
AIR 2010 SC 3638 : 2010 (8) SCR 1036 - relied on.
EXTRA-ORDINARY CASE:
E 8. Extra-ordinary situations demand extraordinary
remedies. While dealing with an unprecedented case, the
Court has to innovate the law and may also pass
unconventional order keeping in mind that extraordinary
fact situation requires extraordinary measures. Thus, it is
evident that while deciding the case, the Court has to
F bear in mind the peculiar facts, if so exist, in a given case.
[Para 27] [904-F-G; 905-A]
B.P. Achala Anand v. S. Appi Reddy & Anr. AIR 2005
SC 986 : 2005 (2) SCR 3 - retied on.
G
CORPUS DELICTI - Recoverv of :
9. In a murder case, it is not necessary that the dead
body of the victim should be found and· identified, i.e.
conviction for offence of murder does not necessarily
H
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 873
ANR. ETC.
depend upon corpus delicti being found. The corpus A
delicti in a murder case has two components - death as
result, and criminal agency of another as the means.
Where there is a direct proof of one, the other may be .
established by circumstantial evidence. [Para 28) [905-G-
H] _ B
Mani Kumar Thapa v. State of Sikkim AIR 2002 SC
2920; Ram Chandra & Anr. v. State of Uttar Pradesh AIR
1957 SC 381; Ashok Laxman Sohoni & Anr. v. The State of
Maharashtra AIR 1977 SC 1319; Rama Nand & Ors. v. The
State of Himachal Pradesh AIR 1981 SC 738 : 1981 (2) C
SCR 444 - relied on.
BURDEN OF PROOF UNDER SECTION 106
10. Section 106 is not intended to relieve the 0
,, prosecution of its burden to prove the guilt of the
accused beyond reason._ble 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 E
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 F
would be impossible for the prosecution to establish
certain facts which are particularly within the knowledge
of the accused. [Para 29) [906-A-D]
State of West Bengal v. Mir Mohammad Omar & Ors. etc.
etc., AIR 2000 SC 2988 : 2000 (2) Suppl. SCR 712; G
Shambhu Nath Mehra v. The State of Ajmer AIR 1956 SC
404 : 1956 SCR 199; Sucha Singh v. State of Punjab AIR
2001 SC 1436 : 2001 (2) SCR 644; Sahadevan @
Sagadevan v. State rep. by Inspector of Police, Chennai AIR
2003 SC 215 - relied on. H
874 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 11.1. There are concurrent findings of facts by two
courts that all the appellants are guilty of abducting 'JSK'
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
B 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 'JSK' was dead or alive. Had this
Court not issued directions and transferred the case to
the CBI for investigation, perhaps the mystery of death
c of 'JSK' 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
0
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
E getting proper security/protection under the orders of this
Court passed in the Writ Petition filed by the complainant
PW-2. [Para 37] [910-A-E]
11.2. Sufficient material was placed before the courts
below as well as before this Court to show that 'JSK' was
F a human rights activist and had raised the voice against
Ass• the then SSP of Taran Taran District, about the
killing of innocent persons and cremation of thousands
of unidentified bodies unceremoniously. 'ASS' directly
and indirectly tried that 'JSK could desist from exposing
G the illegal activities of the police in those districts.
However, he did not deter and therefore, there was a
motive on behalf of the police department to kidnap and
make him understand the consequence that he would .
face and, ultimately, to eliminate him. 'JSK' persisted in
H
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 875
ANR. ETC.
pursuing the truth and fighting for human rights. The A
motive of the accused police officers to abduct and kill
'JSK' comes out clearly from the testimonies of PW.2,
PW.5, a Judge, PW.6, PW.8, PW.11, PW.12, PW.15 and
PW.19. Some of these witnesses had deposed that 'JSK'
had been receiving death threats in reference to his B
investigations into illegal encounters and cremations.
There is nothing on record to discredit the testimonies
of either of these witnesses in this regard, rather their
testimonies had been consistent with each other and
inspired confidence. The accused had been identified c .
correctly in the court by various witnesses. [Paras 38 and
39] [911-A-D]
11.3. The courts below considered all the issues and
taking into consideration the entire fact-situation in which
the incident had taken place and whereabouts of 'JSK' D
could not be known in spite of the best efforts of this
Court, case of the prosecution cannot be brushed aside.
The Court has to take into consideration the ground
realities particularly that it is very difficult to get evidence
against the policemen responsible for custodial death. In. E
a case where the person is alleged to have died in police
custody, it is difficult to get any kind of evidence. "Rarely
in cases of police torture or custodial death, direct ocular
evidence is available of the complicity of the police
personnel, who alone can only explain the circumstances F
in which a person in their custody had died. Bound as
they are by the ties of brotherhood, it is not unknown that
police personnel prefer to remain silent and more often
than not even pervert the truth to save their colleagues".
In view of the persistent threats hurled by the accused G .
and other police officials to the complainant and
witnesses throughout the investigation and trial, variation
in his version from time to time is natural. However, it can
be inferred that deposition to the extent of illegal
detention, killing and throwing away the dead body of H
876 SUPREME COURT REPORTS [2011] 14 (ADDL.) $.C.R.
A 'JSK', can safely be relied upon as the same stand
corroborated by other circumstantial evidence and the
deposition of other witnesses. There is trustworthy
evidence in respect of abduction of 'JSK' by the
appellants; as well as his illegal detention. The position
B remains the same in case a solitary witness deposed
regarding the illegal detention and elimination of 'JSK'.
[Para 41 and 42] [912-G-H; 913-A-D]
11.4. Most of the appellants had taken alibi for
screening themselves from the offences. However, none
C of them could establish the same. However, it is clarified
that the conduct of accused subsequent to the
commission of crime in such a case, may be very
relevant. If there is sufficient evidence to show that the
accused fabricated some evidence to screen/absolve
D himself from the offence, such circumstance may point
towards his guilt. [Para 43] [913-F-H]
Anant Chintaman Lagu v. The State of Bombay AIR
1960 SC 500 : 1960 SCR 460 - referred to.
E
11.5. Both the courts below found that the accused/
appellants have abducted 'JSK". In such a situation, only
the accused person could explain as what happened to
'JSK' and if he had died, in what manner and under what
circumstances he had died and why his corpus delicti
F could not be recovered. All the accused/appellants failed
to explain any inculpating circumstance even in their
respective statements under Section 313 Cr.P.C. Such
a conduct also provides for an additional link in the chain
of circumstances. The fact as what had happened to the
G victim after his abduction by the accused persons, has
been within the special knowledge of the accused
persons, therefore, they could have given some
explanation. In such a fact-situation, the Courts below
rightly drew the presumption that the appellants were
H
PRITHIPAL SINGH ETC. v. SlATE OF PUNJAB & 877
ANR. ETC.
1 responsible for his abduction, illegal detention and· A
murder. [Para 44) [914-B-D]
11.6. It is possible for the appellate or the revisional
court to convict an accused for offence in which no
charge was framed unless the Court is of the opinion that
the failure of justice could be, in fact, occasioned. In order 8
to judge whether a failure of justice has been occasioned,
_ it would be relevant to examine whether the accused was
aware o! the basic ingredients of. the offence for which
he is bei~~ convicted and whether the main facts sought
to be estati'lished against him, were explained to him C
clearly and whether he got a fair chance to defend
himself. The Court cannot lose sight of the fact that 'JSK',
appellant, had also been charged and convicted under
Sections 364/34 IPC alongwith all other appellants. He
was not arrayed as a party/respondent in the Criminal D
Revision filed by PW.2, complainant for enhancement of
punishment as he had already been given life
imprisonment for the offences punishable under
Sections 302/34 IPC. Had he been acquitted for the said
offences and convicted under Sections 364/34 IPC, his E
sentences could also have been enhanced by the High
Court as it so happened in the cases of other accused/
appellants. In addition thereto, admittedly, at the initial
stage of the proceedings, main accused had been 'ASS'
- SSP, wh<? committed suicide before framing of the F
charges. 'JS'- DSP, appellant, cannot succeed on mere
technicalities. In view of the provisions of Section 464
Cr.P.C., and in the peculiar facts of the instant case, the
submission that the appellant alone cannot be convicted
for the offences punishable under Sections 302 read with G
34 IPC, cannot be accepted. [.Para 4~ [914-G-H; 915-A-
F]
11.7. The charges had been framed prior to the
statements recorded by PW.16 and in such a fact-
H
878 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A situation, the trial court ought to have altered the charges,
but it failed to do so. The offence proved against the
appellants has been abducting 'JSK' so that he could be
murdered. The High Court is justified in enhancing the
punishment particularly in the peculiar facts of this case.
8 The court cannot be a silent spectator where the facts
warrant interference in order to serve the interest of
justice. In the fact situation of the instant case, if the court
remains oblivious to the patent facts on record, it would
be tantamount to failure in performing its obligation under
C the law. [Para 46] [915-G-H; 916-A]
12. After appreciating the evidence on record and
considering the judgments of the courts below, it is
concluded:
D (i) 'JSK' being a human right activist, had taken the
task to expose the mis-deeds of police in Districts
Amritsar and Taran Taran killing innocent people
under the pretext of being terrorists and cremating
them without any identification and performing any
E ritual.
(ii) The Police authorities did not like such activities
of 'JSK' and tried to desist him from the same. 'JSK'
was being threatened over the telephone by the
police officials.
F
(iii) 'JSK' informed a large number of persons about
the threats and being watched by unidentified
suspicious persons, who had been wandering
around his house and had been followed by such
G elements.
(iv)'JSK' was able to generate publir pressure
against the police authorities which was a soµrce of
anger and pressure upon the police.
H (v) 'AS' SSP, hatched a conspiracy with appellants
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 879
ANR. ETC.
and some other police personnel to abduct 'JSK' and A
eliminate him or to put him in danger of being
murdered.
(vi) At the time of abduction, the accused did not
permit 'JSK' even to change his clothes. One of the
8
witnesses, 'PW.15 was pushed away.
(vii) PW.15 immediately informed various persons
including PW.2 and PW.5, a Judge about the incident
of kidnapping.
c
(viii) In spite of the best efforts made by PW.2, wife
of the deceased and others particularly, 'RS'-PW.15
who went from pillar to post, whereabouts of 'JSK'
were not made known to them.
(ix)The police authorities did not cooperate in D
helping the complainant, though the witnesses had
named the persons involved in the abduction of
'JSK'.
(x) Report dated 6.9.1995 submitted by PW2 had not E
properly been recorded by the SHO Police Station,
Islamabad. The version therein had been different
from what she had reported. It so happened because
of connivance of police officials.
F
(xi) The accused in the case had been high police
officials and there was every possibility that
statement of the complainant had not been recorded
as reported by her.
(xii) Before approaching this Court by filing a Habeas G
Corpus Writ Petition, PW.2 approached the National
Human Rights Commission at New Delhi in respect
of the incident. However, she was advised to
approach this Court.
H
880 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A (xiii) This Court passed several orders in a writ
petition filed by wife of the deceased, but
whereabouts of 'JSK' could not be known and in
view thereof, investigation of the case was
transferred to the CBI. ·
B
(xiv) In spite of transfer of the investigation of the
case to the CBI, the Punjab police officials did not
cooperate with the CBI and were not lending proper
support in conducting the investigation. The police
officials of Punjab united in an unholy alliance as
c their colleagues were involved. and the case was
going to tarnish the image of Punjab police. The
witnesses named the police officials in their
statements before the CBI and they identified the
accused persons in the court.
D
(xv) In order to find out the whereabouts of 'JSK' 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
E 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
F action of the police atrocities/criminal intimidation that
they could not muster the courage to reveal the truth.
The wit_nesses could not name the accused while
filing affidavits in this Court in the writ petition.
G (xvii) The appellants and other accused police
officials attempted to prevent the testimony of the
witnesses by threatening, harassing a!'d involving
them in false criminal cases and physical
intimidation. A large number of false documents had
H
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 881
ANR. ETC.
been created by one of the witnesses because of A ·
police threats and fear put by the accused.
(xviii) The witness.es had been acquitted by the
courts as they had falsely been involved in criminal
cases of a very serious nature. This was so done only 8
to prevent them to support the prosecution. The
witnesses suffered with criminal intimidation at the
hands of the police officials. Even the complaints
filed by the witnesses against other witnesses had
been found to be false.
c
(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 o.
PW.14 and 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 E
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.
F
(xxii) Charges had been framed prior to recording the
statements of PW.16 and in such a fact-situation the
trial court ought to have. altered the charges.
(xxiii) Sufficient evidence is available on record in G
respect of abduction of 'JSK' and the witnesses,
paiticularly, PW.2, PW.15 and PW.7 have identified
the appellants as the persons who have abducted
'JSK'. PW.14 has deposed about his illegal detention
in Police Station. In such a fact-situation, the burden
H
882 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A shifts on the respondents to disclose as what
happened to 'JSK'.
(xxiv) Though the dead body of 'JSK' could not be
recovered from the canal as the investigation
B commenced after a long time, recovery of the dead
body is not a condition precedent for conviction of
the accused for murder. [Para 47] [916-C-H; 917-A-
H; 918-A-H; 919-A-F]
Case Law Reference:
c
1997 (3) Suppl. SCR 219 Relied or. Para 8
2003 (6) Suppl. SCR674 Relied on Para 8
2004 (5) Suppl. SCR 1092 Relied on Para 8,11
D 1980 (3) SCR 277 Relied on Para 9
1990 SCR 29 Relied on Para 10
1995 (1) Suppl. SCR 44 Relied on Para 11
E 1964 SCR 363 Relied on Para 12
AIR 2005 SC 2419 Relied on Para 12
2010(1)SCR 991 Relied on Para 12
2010 (9) SCR 102 Relied on Para12
F
2011 (5) SCR 729 Relied on Para 12
1977 (3) SCR 513 Relied on Para 14
2001 (5) Suppl. SCR 340 Relied on Para 15
G
1975 Suppl. SCR 489 Relied on Para 15
1990 (1) SCR 855 Relied on Para 15
AIR 2003 SC 3318 Relied on Para 15
H 1955 SCR 1049 Relied on Para 16
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 883
ANR. ETC.
1952 SCR 377 Relied on Para 18 A
1957 SCR 953 Relied on Para 18
2004 (6) Suppl. SCR 1 Relied on Para 19
1994 (1) Suppl. SCR 483 Relied on Para 19
B
(2011) 5 sec 161 Relied on Para 20
1968 SCR 624 Relied on Para 20
AIR 2004 SC 4148 Relied on Para 22
2008 (14) SCR 120 Relied on Para 22
c
AIR 1956 SC 51 Referred to Para 23
AIR 1989 SC 772 Referred to Para 24
(2004) 13 sec 508 Referred to. Para 24 D
(2005) 12 sec 425 Referred to. Para 24
2009 (10) SCR 112 Referred to Para 25
1955 SCR 1140 Referred to Para 25 E
1998 (3) SCR 1088 Referred to Para 25
AIR 2001 SC 3853 Referred to Para 25
2005 (5) Suppl. SCR 90 Referred to Para 25
F
AIR 1985 SC 891 Referred to Para 25
1957 SCR 981 Relied on Para 26
2003 (4) Suppl. SCR 767 Relied on Para 26
2007 (3) SCR939 Relied on Para 26 G
2010 (8) SCR 1036 Relied on Para 26
·2005 (2) SCR 3 Relied on Para 27
H
884 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R
A AIR 2002 SC 2920 Relied on Para 28
AIR 1957 SC 381 Relied on Para 28
AIR 1977 SC 1319 Relied on Para 28
1981 (2) SCR 444 Relied on Para 28
B
2000 (2) Suppl. SCR 712 Referred to Para 28
1956 SCR 199 Relied on Para 28
2001 (2) SCR 644 Relied on Para 28
c
AIR 2003 SC 215 Relied on Para 28
1960 SCR 460 Referred to Para 43
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
D Nos. 523-527 of 2009.
From the Judgment & Order dated 8.10.2007 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
Nos. 2062-SB, 2073-SB, 2074-SB, 2075 of 2005 and Order
dated 16.10.2007 in Crl. Revision Petition No. 323 of 2006.
E
WITH
Crl. Appeal No. 528 of 2009.
Mohan Jain, ASG, Sushi! Kumar, Jaspal Singh, Vivek
F Goyal, AAG, Aditya Kumar, Priyanka Singh, Sanjay Jain, Vipin
Gogia, Jaspreet Gogia, Kuldeep Singh, D.K. Thakur, R.K.
Tanwar, Karthik, Ashok, Mudrika Bansal, A.K. Sharma, Kamini
Jaiswal, R.S. Bains, Shomila Bakshi for the appearing parties.
3 The Judgment of the Court was delivered by
DR. B.S. CHAUHAN, J. 1. All the above appeals have
been preferred again.st the common judgment and order dated .
8.10.2007 passed by the High Court of Punjab & Haryana at
H
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 885
ANR. ETC. [DR. B.S. CHAUHAN, J.]
Chandigarh in Criminal Appeal Nos. 864-DB of 2005;--2062- A
SB of 2005, 2073-SB of 2005, 2074-SB of 2005, 2075-SB of
2005 and order dated 16.10.2007 in Crl. RP. No. 323 of 2006,
whereby the High Court has dismissed the appeals of the
appellants filed against the conviction and sentences awarded
to them by the Additional Sessions Judge, Patiala, in Sessions B
Case No. 49-T of 9.5.1998/30.11.2001 vide judgment and order
dated 18.11.2005, whereby he had convicted Jaspal Singh,
DSP - appellant in Criminal Appeal No. 528 of 2009 and one
Amarjit Singh, ASI, under Sections 302/34 of Indian Penal
Code, 1860 (hereinafter referred as 'IPC'), and sentenced them c
to undergo imprisonment for life and to pay a fine of Rs.5,000/
- each, in default of payment of fine, to further undergo Rigorous
Imprisonment (hereinafter called 'RI') for five months. Both
were also convicted under Section 120-B IPC and sentenced
to undergo RI for five years and to pay a fine of Rs.2,000/-, in 0
default of payment of fine, to further undergo RI for two months.
They were further convicted under Sections 364/34 IPC and
sentenced to undergo RI for-seven years and to pay a fine of
Rs. 5000/- each, in default of payment of fine, to further undergo
RI for five months. They were also convicted under Sections E
201/34 IPC and sentenced to undergo RI for two years and to
pay a fine of Rs.2,000/-, in default of payment of fine, to further
undergo RI for two months.
Prithipal Singh, Satnam Singh, Surinderpal Singh and
Jasbir Singh, appellants, were convicted under Section 120-B F
IPC and sentenced to undergo RI for five years and to pay a
fine of Rs.2,bOO/- each, and in default of payment of fine, to
further undergo RI for two months. These four accused/
appellants were also convicted under Sections 364/34 IPC
and sentenced to undergo for seven years RI and to pay a fine G
of Rs.5,000/- each, in default of payment of fine-;- to further
undergo RI for five months.
The High Court while dismissing the Criminal Appeals filed
by appellants, allowed the Criminal Revision Petition No. 323 H
886 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A 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.
2. FACTS:
B
A. Shri Jaswant Singh Khalra, a human right activist,
having allegiance to Shiromani Akali Dal, was alleged to have
been abducted from his residential house No. 8, Kabir Park,
Amritsar, on 6.9.1995 at 1.00 O'Clock. Shri Rajiv Singh
C (PW.15) was present in the house of Shri Khalra.at the time of
abduction, Kirpal Singh Randhawa (PW.7) had seen appellants,
namely, Jaspal Singh, DSP, Surinderpal Singh, Jasbir Singh
and Satnam Singh alongwith other accused persons rushing
through Kabir Park with the deceased Jaswant Singh Khalra
D inside a Maruti van.
1
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
E 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.
F
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.
C. Smt. Paramjit Kaur (PW.2), wife of the deceased, filed
G Criminal Writ Petition No. 497 of 1995 before this Court,
wherein this Court vide order dated 5.11.1995 transferred the
investigation to the Central Bureau of Investigation (hereinafter
referred as 'CBI'). The CBI registered RC.No. 14/S/95/SCB-
l/Delhi dated 18.12.1995 (EX.PO) under Sections 365, 220 and
H 120-8 IPC.
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 887
ANR.. ETC. [DR. B.S. CHAUHAN, J.]
In spite of best efforts made by the CBI, whereabouts of A
said Jaswant Singh Khalra could not be traced. Even an award
of Rs.1 lakh was announced for anyone giving information
regarding his whereabouts.
D. Kulwant Singh (PW.14) in his statement recorded by B
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 (her1:-inafter called 'NDPS Act') on
4.9.1995 by the police officials of Police Station Jhabal. Shri
Jaswant Singh Khalra was aiso brought to the said Police
Station on 6.9.1995 and Shri Khalra had disclosed his identity C
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 D
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 E
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 F
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 G
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,
H
888 SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.
A SHO, Police Station Jhabal, and was promised to be inducted
into the Punjab Police permanently. Shri Jaswant Singh Kha.Ira
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
B 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
c 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
0 Khalra was beaten by them and, thereafter, they left 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
E 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
F went to the roorri 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
G the van while blood was oozing from his body. All of them
including the witness went in three cars to village Harike. The
dead body of Shri Khalra was thrown in the canal and all three
vehicles came back to the rest house of village Harike.
Subsequently, at about midnight, the witness alongwith some
H
..
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 889
ANR. ETC. [DR. B.S. CHAUHAN, J.] ·
appellants came back to police station Jhabal. He. could not A
reveal the incident to anybody because of fear till Ajit Singh
Sandhu, SSP, was alive as he was apprehending about the
safety of his own life in case he discloses the gruesome murder
of Shri Khalra committed by the :police.
. 8
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 C
364/34 IPC and convicted the appellant Jaspal Singh and one
Amarjit Singh under Sections 302/34 IPC and tinder Sections
201/34 IPC and awarded the sentences as mentioned
hereinabove.
D
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. E
I. All the matters were heard together. The Hjgh Court vide
.its impugned judgment and order dated 8.10.~007 acquitted
Amarjit Singh, however, the conviction of other appellants was
maintained. Notices were issued to the four appellants for
. enhancing the sentences awarded to them while dismissing F
their appeals. On 16.10.2007, th~ High Court enhanced the
,sentence of four appellants, namely, Satnam Singh, Surinderpal
Singh, Jasbir Singh and Prithipal Singh from seven. years RI
to life imprisonment.
G
Hence, these appeals.
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 H
890 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A under Section 365 IPC without naming any person. The charge-
sheet was filed under Sections 365/220 read with Section 1208
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
8 1208 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)
c 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 erred in enhancing the punishment suo motu. The
0
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.
E 4. Shri Jaspal Singh, learned Senior counsel appearing
for appellant Jaspal Singh, DSP, contended that none of the
alleged eye-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
F 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
G not furnish any explanation as to why the appellant had not been
named in the FIR lodged on 617.9.1995. She deposed that she
had disclosed the entire incident to Shri D.R. Bhati, D.l.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
H
. PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 891
ANR. ETC. [DR. B.S. CHAUHAN, J.]
Constitution of India, 1950 (hereinafter called as 'Constitution') A
before this Court. She did not name the appellant when her
statement was recorded by the CBI on 2.1.1996 under Sectio.n
161 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, B
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.l.G. but he has no~ stated before the CBI that he had C
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.
So far as the second part of the incident is concerned, i.e.,
detention of Shri Jaswant Singh Khalra, Kulwant Singh (PW.14) D
is the only material witness. No reliance could be placed on
his evidence as he has been an opium addict and mostly spent
his time in jail. He is a criminal and had escaped from judicial
custody while he stood convicted in a case under the NDPS
Act. He did not name the said appellant for years together and E
disclosed the same first time while his statement was recorded
in court. No explanation could be furnished by the prosecution
why the witness had not named the appellant Jaspal Singh,
DSP wheri his statement was recorded by the CBI under
Section 161 Cr.P.C. F
So far as the third part of the incident, i.e. elimination of
Jaswant Singh Khalra is concerned, Kuldip Singh (PW.16) has
been described as a star witness of the incident. His
deposition requires corroboration for various reasons. The said G
witness had strong grievances against the police officers in
. general and the accused persons in particular. There is nothing
on record to show that he had been appointed permanently or
temporarily as Special Police Officer (hereinafter called 'SPO')
and had been assigned the duty of bodyguard to Satnam
H
892 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A- Singh, SHO. His conduct throughout the proceedings could not
be above board. He lodged several complaints giving different
versions. One of the complaints had been against the
complainant herself. Therefore, the que~tion of reliance on his
deposition does not arise. More so, Kuldip Singh (PW.16) has
8 been an accomplice in the crime and over and above, he being
a solitary witness, his evidence cannot be relied upon without
corroboration. Jaspal Singh, DSP, appellant had been
charged under Sections 302/34 IPC alongwith two others. In
case of discharge of one by the trial court and acquittal of other
C co-accused of the said charges by the High Court, question of
convicting the appellants under S~ctions 302/34 IPC could not
arise. Kuldip Singh (PW.16) had never disclosed any name
for long-long time. The dead body of Shri Jaswant Singh Khalra
.was not recovered. The appeals have merit and deserve to be
allowed.
D
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
E judgment. There are concurrent findings of facts. The witnesses
were. reliable under the facts and circumstances of the case.
Most of the witnesses.have rig~1tly identified the appellants in
court. Their testimonies corroborate with·each other and are
important to comprehend the chain of events. The eye-witness
F 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 FfR
against Paramjit Kaur (PW.2) and Kirpal Singh Randhawa
(PW.7). In fact, the offence could be unearthed because of
G directions issued by this Court in the writ petition filed by Smt.
P~ramjit 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.·Tlte Police Force in India has
H
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 893
ANR. ETC. [DR. 8.S. CHAUHAN, J.]
always been known for its notorious activities. Recovery of the A
dead body in a crime is not a 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. 8
6. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
LEGAL ISSIJES:
c
POLICE ATROCITIES :
7. Police atrocities in India had always been a subject
. matter of controversy and debate. In view of the provisions of
Article 21 of the Constitution, any form of torture or cruel,
inhuman or degrading treatment is inhibited. Torture is not D
permissible whether it occurs during investigation, interrogation
or otherwise. The wrong-doer is accountable arid the State is
responsible if a person in custody of the police is deprived of
his life except in accordance with the procedure established
by law. However, when the matter comes to the court, it has to E
- balance the protection of fundamental rights of an individual
and duties ofthe police.JtJ:annot be gainsaid that freedom of
an individual must yield to the security of the State. Latin maxim
salus populi est suprema lex - the safety of the people is
supreme law; and salus reipublicae suprema lex - safety of F
the State is supreme law, co-exist.. However, the doctrine of the
welfare of an individual must yield to that ofthe community.
The right to life has rightly been characterised as
"'supreme' and 'basic'; it includes both so-called negative and G
positive obligations, for the State". The negative obligation
means the overall prohibition on arbitrary deprivation of life. In
this context, positive obligation requires that State has an
overriding obligation to protect the right to life of every person
within its territorial jurisdiction. The obligation requires the
H
894 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A State to take administrative and all other measures in order to
protect life and investigate all suspicious deaths.
The State must protect victims of torture, ill-treatment as
well as the human rights defender fighting for the interest of the
victims, giving the issue serious consideration for the reason
8
that victims of torture suffer enormous consequences
psychologically. The problems of acute stress as well as a
post-traumatic stress disorder and many other psychological
consequences must be understood in cprrect perspective.
Therefore, the State must ensure prohibition of torture, cruel,
C inhuman and degrading treatment to any person, particularly at
the hands of any State agency/police force.
8. In addition to the protection provided under the
Constitution, the Protection of Human Rights Act, 1993, also
o provide for protection of all rights to every individual. It inhibits
illegal detention. Torture and custodial death have always been
condemned by the courts in this country. In its 113th report,
the Law Commission of India recommended the amendment
to the Indian Evidence Act, 1872 (hereinafter called "Evidence
E Act"), to provide that in case of custodial injuries, if there is
evidence, the court may presume that injury was caused by the
police having the custody of that person during that period.
Onus to prove contrary is on the police authorities. Law
requires for adoption of a realistic approach rather than narrow
F technical approach in cases of custodial crimes. (Vide: Dilip
K. Basu v. State of WB. & Ors., AIR 1997 SC 3017; N.C.
Dhoundia/ v. Union of India & Ors., AIR 2004 SC 1272; and
Munshi Singh Gautam (0) & Ors. v. State of M.P., AIR 2005
SC 402).
G 9. This Court in Raghubir Singh v. State of Haryana, AIR
1980 SC 1087 while dealing with torture in police custody
observed:
"We are deeply disturbed by the diabolical recurrence of
H
PRITHIPAL SINGH ETC .. v. STATE OF PUNJAB & 895
ANR. ETC. [DR. S.S. CHAUHAN, J.]
police torture resulting in a terrible scare in the minds of A
common citizens that their lives and liberty are under a new
peril when the guardians of the law gore human rights to
death. The, vulnerability of human rights assumes a
traumatic, torturesome poignancy (when) the violent
violation is perpetrated by the police arm of the State 8
whose function is to protect the citizen and not to commit
gruesome of fences against them as has happened in this
case. Police lock-up if reports in newspapers have a
streak of credence, are becoming more and more
awesome cells. This development is disastrous to our C
human rights awareness and humanist constitutional
order."
10. Similarly, in Gauri Shanker Sharma etc. v. State of
U.P. etc., AIR 1990 SC 709, this Court held :
D
• .... it is generally difficult in cases of deaths in police
custody to secure evidence against the policemen
responsible for resorting to third degree methods since
they are in charge of police station records which they do
not find difficult to manipulate as in this case. E
.....The offence is of a serious nature aggravated by the
fact that it was committed by a person who is supposed
to protect the citizens and not misuse his uniform and
authority to brutally assault them while in his custody. Death
in police custody must be seriously viewed for otherwise F
we will help take a stride in the direction of police raj. It
must be curbed with a heavy hand. The punishment should
be such as would deter others from indulging in such
behaviour. There can be no room for leniency."
G
11 .. In Munshi Singh Gautam (Supra), this Court held that
peculiar type of cases must be looked at from a prism different
from that used for ordinary criminal cases for the reason that
in a case where the person is alleged to have died in police
H
896 SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.
A custody, it is difficult to get any kind of evidence. The Court
·observed as under:
"6. Rarely in cases of police torture or custodial death,
direct ocular evidence is available of the complicity of the
police personnel, who afore can only explain the
8 circumstances in which a person in their custody had died.
Bound as they are by the ties of brotherh_ood, it is not
unknown that police personnel prefer to remain silent and
more often than not even pervert the truth to save their
colleagues ...... .
c
7. The exaggerated adherence to and insistence upon the
establishment of proof beyond every reasonable doubt by
the prosecution, at times even when the prosecuting
agencies are themselves fixed in the dock, ignoring the
D ground realities, the fact situation and the peculiar
circumstances of a given case, .............often results in
miscarriage of justice and makes the justice-delivery
system suspect and vulnerable. In the ultimate analysis
society suffers and a criminal gets encouraged ....... The
E courts must not lose sight of the fact that death in police
custody is perhaps one of the worst kinds of crime in a
civilised society governed by the rule of law and poses a
.serious threat to an orderly civilised society. Torture in
custody flouts the basic rights of the citizens recognised
by the Indian Constitution and is an affront to human dignity.
F
Police excesses and the maltreatment of detainees/
undertrial prisoners or suspects tarnishes the image of any
civilised nation and encourages the men in "khaki" to
consider themselves to be above the law and sometimes
even to become a law unto themselves. Unless stern
G measures are taken to check the malady of the very fence
eating the crop, the foundations of the criminal justice-
delivery system would be shaken and civilisation itself
would risk the consequence of heading towards total
decay resulting in anarchy and authoritarianism
H
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 897
ANR. ETC. [DR. B.S. CHAUHAN, J.]
reminiscent of barbarism. The courts must, therefore, deal A
with such cases in a realistic manner and with the
sensitivity which they deserve, otherwise the common man
may tend to gradually lose faith in the efficacy of the system
of the judiciary itself, which if it happens, will be a sad day,
for anyone to reckon witl'l." B
(See also: State of Madhya Pradesh v. Shyamsunder
Trivedi & Ors., {19.95) 4 SCC 262).
12. In The State of U.P. V. Mohd. Naim, AIR 1964 SC
703, State of U.P. filed an appeal before this Court for C
expunging the following remarks made by the Allahabad High
Court:
"That there is not a single lawless group in the whole of .
the country whose record of crime comes anywhere near
0
the record of that organised unit which is known as the -
Indian Police Force."
".....Where every fish barring perhaps a few stinks, it is idle
to pick out one or two and say that it stinks."
E
This Court held that such general remarks could not be
justified nor were they necessary for disposal of the said case.
The Court expunged the aforesaid adverse remarks.
(See also: People's Union for Civil Liberties v. Union of F
India & Anr., AIR 2005 SC 2419).
Undoubtedly, this Court has been entertaining petition after
petition involving the allegations of fake encounters and rapes
by police personnel of States and in a large number of cases
· transferred the investigation itself to other agencies and G
particularly the CBI. .
. (See : Rubabbuddin Sheikh v. State of Gujarat & Ors.
(2010) 2 SCC 200; Jaywant P.Sankpa/ v. Suman Gho/ap &
Ors. (2010) 11 SCC 208; and Narmada Bai v. State of Gujarat. H
898 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A & Ors., (2011) 5 sec 79).
13. Thus, in view of the above, in absence of any research/
data/ material, a general/sweeping remark that a "substantial
majority of the population in the country considered the police
force as an institution which violates human rights" cannot be
8
accepted. However, in a given case if there is some material
on record to reveal the police atrocities, the court must take
stern action against the erring police officials in accordance
with law.
C SCOPE OF SECTION 386(e) Cr.P.C.
14. In Eknath Shankarrao Mukkawar v. State of
Maharashtra, AIR 1977 SC 1177, this Court held :
"6. We should at once remove the misgiving that the new
0 Code of Criminal Procedure, 1973, has abolished the
High Court's power of enhancement of sentence by
exercising revisional jurisdiction, suo motu. The provision .
for appeal against inadequacy of sentence by the State
Government or the Central Government does not lead to
E such a conclusion. High Court's power of enhancement of
sentence, in an appropriate case, by exercising suo motu
power of revision is still extant under section 397 read with
Sec. 401 Criminal Procedure Code, 1973, inasmuch as
the High Court can "by itself" call for the record of
F proceedings of any inferior criminal court under its
jurisdiction. The provision of Section 401 (4) is a bar to a
party, who does not appeal, when appeal lies, but applies
in revision. Such a legal bar under Section 401 (4) does
not stand in the way of the High Court's exercise of power
G of revision, suo motu, which continues as before in ttie new
Code."
15. In .Surendra Singh Rautela @ Surendra. Singh,
Bengali v. State of Bihar (Now State of Jharkhand), AIR 2002
SC 260, this Court reconsidered the issue and held:
H
PRITHIPAL SINGH ETC .. v. STATE. OF PUNJAB & 899
ANR. ETC. [DR. B.S. CHAUHAN, J.]
"It is well settled that the High Court, suo motu in exercise A
of revisional jurisdictiori, can enhance the sentence of an
accused awarded by the trial Court and the same is not
affected merely because an appeal has been provided
under Section 377 of.. the Code for enhancement of
sentence and no such appeal has been preferred." B
(See also: Nadir Khan v. The State (Delhi
AdministfBtion), AIR 1976 SC 2205; Govind Ramji Jadhav v.
State of Maharashtra (1990) 4 SCC 718; and K. Pandurangan
etc. v. S.S.R. Velusamy &· Anr. AIR 2003 SC 3318).
c
16. In Jayaram Vithoba & Anr. v. The State of Bombay,
AIR 1956 SC 146, this Court' held that the suo motu powers of
enhancement under revisional·jurisdiction can be exercised only
after giving notice/opportunity of hearing to the accused.
D
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.
E
EVIDENCE OF AN ACCOMPLICE - Not put on trial:
18. An accomplice is a competent witness and conviction
can lawfully rests upon his uncorroborated testimony, yet the
court is entitled to presume and may indeed, be justified in F
presuming in the generality of cases that no reliance can be
placed on the evidence of an accomplice unless the evidence
is corroborated in material particulars, which means that there
has to be some independent witness tending to incriminate the
particular accusea in the commission of the crime. (Vide: G
Rameshswar S/o Kalyan Singh v. The State of Rajasthan, AIR
1952 SC 54~ and Sarwan Singh Rattan Singh v. State of
Punjab, AIR 1957 SC 637). ·
19. In K. Hasim v. State of Tamil Nadu, AIR 2005 SC
H
900. SUPREME COURT REPORTS (2011) 14 (ADDL.) S.C.R.
A 128, this Court examined the issue while taking into
consideration the. provisions of Section 133 read with Section
114 Illustration (b) of the Evidence Act and held that the
provision of Section 114 Illustration (b) embodies a rule of
· prudence cautioning the court that an accomplice does not
B generally deserve to be believed unless corroborated in
material particulars. The legislature in its wisdom used the word
.'may' and not 'must' and, therefore, the court does not have a
right to interpret the word 'may' contained therein as 'must'. The
court has to appreciate the evidence with caution and take a
c view as to the credibility of the evidence tendered by an
· accomplice. In case evidence of an accomplice is found
credible and cogent, the court can record the conviction based
thereon even if uncorroborated.
The Court further explained that the word "corroboration"
D means not mere evidence tending to confirm other evidence.
Firstly, it is not necessary that there should be an independent
corroboration of every material circumstance in the sense that
the independent evidence in the case, apart from the testimony
of the accomplice, should in itself be sufficient to sustain
E conviction. All that is required is that, there must be some
additional evidence rendering it probable that the case of the
accomplice is true and it is reasonably safe to act upon it.
Secondly, the evidence on record must reasonably connect or
tend to connect the case with the crime by confirming in some
F material particular the testimony of an accomplice. Thirdly, the
circumstances involved in the case must be such as to make
it safe to dispense with the necessity of corroboration, though,
such evidence may be merely circumstantial evidence to show
conner.tion of the case with the crime.
G
(See also: Suresh Chandra Bahri v. State of Bihar, AIR
1994 SC 2420).
20. The issue was again considered by this Court in
Chandran alias Manichan alias Maniyan & Ors. v. State of
H
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 901
ANR. ETC. [DR. B.S. CHAUHAN, J.]
Kera/a, (2011) 5 SCC 161, wherein the Court had an occasion A
to appreciate the evidence of a person who had not been put
on trial, but could have been tried jointly with accused and found
his evidence reliable in view of the law laid down by this Court
in Laxmipat Choraria & Ors. v. State of Maharashtra, AIR 1968
SC 938. The Court held as under: B
"78. The argument raised was that this evidence could not
be taken into consideration and it would be inadmissible
because this witness, though was an accomplice he was
neither granted pardon under Section 306 CrPC nor was
he prosecuted and the prosecution unfairly presented him C
as a witness for the prosecution. The contention is clearly
incorrect in view of the decision of this Court in Laxmipat
Choraria (supra). While commenting on this aspect,
Hidayatullah, J. observed in AIR para 13 that there were
a number of decisions in the High Courts in which the D
examination of one of the suspects as the witness was not
held to be legal and accomplice evidence was received
subject to safeguards as admissible evidence in the case.
The Court in Laxmipat Choraria (supra) held:
E
"13. On the side of the State many cases were cited from
the High Courts in India in which the examination of one
of the suspects as a witness was not held to be illegal and
accomplice evidence was received subject to safeguards
as admissible evidence in the case. In those cases, F
Section 342 of the Code and Section 5 of the Oaths Act
were considered and the word 'accused' as used in those
sections was held to denote a person actually on trial
before a court and not a person who could have been so
tried ....... the evidence of an accomplice may be read
although he could have been tried jointly with the accused. G
In some of these cases the evidence was received
although the procedure of Section 337 of the Criminal
Procedure Code was applicable but was not followed. It
is not necessary to deal with this question any further
H
902 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A because the consensus of opinion in India is that the
competency of an accomplice is not destroyed because
he could have been tried jointly with the accused but was
not and was instead made to give evidence in the case.
Section 5 of the Oaths Act and Section 342 of the Code
B of Criminal Procedure do not stand in the way of such a
procedure."
21. In view of the above, the law on the issue can be
summarised to the effect that the deposition of an accomplice
in a crime who has not been made an accused/put to trial, can
C be relied upon, however, the evidence is required to be
considered with care and caution. An accomplice who has not
been put on trial is a competent witness as he deposes in the
court after taking oath and there is no prohibition in any law not
to act upon his deposition without corroboration.
D
ACCUSED ·NAMED FIRST TIME IN THE COURT:
22. In Rudrappa Ramappa Jainpur & Ors. v. State of
Kamataka, AIR 2004 SC 4148, this Court considered the issue
at length and held that in case the witness does not involve a
E particular accused in a crime at the time of recording his
statement under Section 161 Cr.P.C., and names him first time
in his deposition in the court, the accused becomes entitled
to benefit of doubt.
F A similar view has been re-iterated in State represented
by Inspector of Police, Tamil Nadu v. Sait alias
Krishnakumar, (2008) 15 SCC 440.
PERSON CHARGED UNQER SECTION 302134 IPC
G OTHER ACCUSED PERSONS STAND ACQUITTED :
23. In Prabhu Babaji Nav/e v. State of Bombay, AIR 1956
SC 51, this Court held that it is impossible to reach a
coriclusiori that the appellant/accused shared the common
intention with other co-accused in case other accused stand
H
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 903
ANR. ETC. [DR. B.S. CHAUHAN, J.]
acquitted, unless it is shown that some other unknown persons A
were also involved in the offence. It is permissible in law to
charge an accused in the alternative for being shared the'
common intention with another or others unknown, but even ·
then the common intention would have to be. proved either by
direct evidence or by legitimate inference. 8
24. In Sukhram v. State of Madhya Pradesh, AIR 1989 -
SC 772, this Court re-iterated the similar view observing that
in case a. co-accused is acquitted giving the benefit of doubt
the other accused would also be entitled to acquittal.
c
(See also: Madan Pal v. State of Haryana, (2004) 13
SCC 508; and Koppula Jagdish alias Jagdish v. State of A.P.
(2005) 12 sec 425). ·
25. This Court in Sanichar Sahni v. State of Bihar, AIR
0
2010 SC 3786, while considering a similar situation and
considering the earlier judgments of this Court, particularly in
Willie (William) Slaney v. State of M.P., AIR 1956 SC 116,
State of A.P. v. Thakkidiram Reddy & Ors., AIR 1998 SC 2702;
Ramji Singh & Anr. v. State of Bihflr, AIR 2001 SC 3853; and E
Gurpreet Singh v. State of Punjab, AIR 2006 SC 191, held·
that in case the charges have not properly been framed unless
it is established that the accused persons were in any way
prejudiced due to the errors or omissions in framing the
charges against them, the appellate court may not interfere with
conviction. The accused/appellant has to establish that he was F
not informed as what was the real case against him and that
he could not defend himself properly. Intervention by a superior
court on such t~chnicalities is not warranted, for the reason that
conviction order, in fact, is to be tested on the touchstone of
prejudice theory. G
A Three-Judge Bench judgment of this Court in Lok Pal
Singh v. State of M.P.,·AIR 1985 SC 891, observP.d that such
argument is irrelevant in case the involvement of the accused
is proved beyond reasonable doubt. H .
904 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A EVIDENCE OF THE SOLE EYE-WITNESS :
26. This Court has consistently held that as a general rule
the Court can and may act on the testimony of a single witness
provided he is wholly reliable. There is no legal impediment in
convicting a person on the sole testimony of a single witness.
8 That is the logic of Section 134 of the Evidence Act. But if there·
are doubts about the testimony, the court will insist on
corroboration. In fact, it is not the number or the quantity, but
the quality that is material. The time-honoured principle is that
evidence has to be weighed and not counted. The test is
C whether the evidence has a ring of truth, is cogent, credible and
trustworthy or otherwise. The legal system has laid emphasis
on value, weight and quality of evidence, rather than on quantity,
multiplicity or plurality of witnesses. It is, therefore, open to a
competent court to fully and completely rely on a solitary witness
D and record conviction. Conversely, it may acquit the accused
in spite of testimony of several witnesses if it is not satisfied
about the quality of evidence. (See: Vadivelu Thevar v. The
State of Madras, AIR 1957 SC 614; Sunil Kumar v. State
Govt. of NCT of Delhi, (2003) 11 SCC 367; Namdeo v. State
E of Maharashtra, (2007) 14 SCC 150; and Bipin Kumar
Monda/ v. State of West Bengal, AIR 2010 SC 3638).
27. EXTRAORDINARY CASE:
Extraordinary situations demand extraordinary remedies.
F While dealing with an unprecedented case, the Court has to
innovate the law and may also pass unconventional order
keeping in mind that extraordinary fact situation requires
extraordinary measures. In B.P. Achala Anand v. S. Appi
Reddy & Anr., AIR 2005 SC 986, this Court observed:
G
·unusual fact situation posing issues for resolution is an
opportunity for innovation. Law, as administered by Courts,
transforms into justice."
H
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 905
ANR. ETC. [DR. B.S. CHAUHAN, J.]
Thus, it is evident that while deciding the case, the Court A
has to bear in mind the peculiar facts, if so exist, in a given
case.
28. CORPUS DELICTI - Recovery of :
In Mani Kumar Thapa v. State of Sikkim, AIR 2002 SC B
2920, this Court held that in a trial for murder, it is neither an
absolute necessity nor an essential ingredient to establish
corpus delicti. The fact of the death of the deceased must be
established like any other fact. Corpus delicti in some cases
may not be possible to be traced or recovered. Th.ere are a C
number of possibilities where a dead body could be disposed
of without any trace, therefore, if the recovery of the dead body
is to be held to be mandatory to convict an accused, in many
a case, the accused would manage to see that the dead body
is destroyed to such an extent which would afford the accused D
complete immunity from being held guilty or from being
punished. What is, therefore, required in law to base a
·conviction for an offence of murder is that there should be
reliable and plausible evidence that the offence of murder like
any other factum of death was committed and it must be proved E
by direct or circumstantial evidence albeit the dead body may
not be traced.
(See also: Ram Chandra & Anr. v. State of Uttar Pradesh,
AIR 1957 SC 381; Ashok Laxman Sohoni & Anr. v. The State F
of Maharashtra, AIR 1977 SC 1319; and Rama Nand & Ors.
v. The State of Himachal Pradesh, AIR 1981 SC 738)
Therefore, in a murder case, it is not necessary that the
dead body of the victim should be found and identified, i.e.
conviction for offence of murder does not necessarily depend G
upon corpus delicti being found. The corpus delicti in a murder
case has two components - death as result, and criminal
agency of another as the means. Where there is a direct proof
of one, the other may be established by circumstantial
evidence. H
906 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 29. BURDEN OF PROOF UNDER SECTION 106
In State of West Bengal v. Mir Mohammad Omar & Ors.
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
8
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
C 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
D exceptional cases, in which, it would be impossible for the
prosecution to establish certain facts which are particularly
within the knowledge of the accused.
(See also: Shambhu Nath Mehra v. The State of Ajmer,
E AIR 1956 SC 404;. Sucha Singh v. State of Punjab, AIR 2001
SC 1436; and Sahadevan @ Sagadevan v. State rep. by
Inspector of Police, Chennai, AIR 2003 SC 215)
30. INVESTIGATION OF THE INSTANT CASE:
F · In the instant case, the incident occurred on 6.9.1995. In
spite of the fact that the matter had been brought to the notice
of the superior authorities, no action was taken by the police
at all. Ultimately, the complainant, Smt. Paramjit Kaur (PW.2)
who could not even know whether her husband was alive or
G dead and, if alive, where he had been and none of the higher
authorities in administration helped her or disclosed the
whereabouts of her husband, approached this Court by filing a
Habeas Corpus Petition i.e. Writ Petition (Crl.) No. 497 of
1995. As no information could be furnished by the State about
H the w~ereabouts of Shri Jaswant Singh Khalra, this Court
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 907
ANR. ETC. [DR. B.S. CHAUHAN, J.]
transferred the investigation to the CBI. The CBI during th.e A
course of investigation, realised that it was not possible to
conduct the investigation fairly and properly unless some of the
police officers involved in the case were transferred from the
. districts of Amritsar and Taran Taran. Thus, the CBI requested
this Court to issue direction to transfer Jaspal Singh, DSP, B
Taran Taran, Surinderpal Singh, SHO, Satnam Singh, SHO.
This Court vide order dated 15.3.1996 directed the Director
General of Police, Punjab, to transfer the said officials out of
those districts with a further direction that they should not be
posted in adjoining districts also. This Court further directed the c
State Administration to provide full protection/security to all the
witnesses who were assisting the CBI in the investigation.
31. The order dated 22.7.1996 passed by this Court
reveals that the CBI in its interim report informed this Court that
984 dead bodies had been cremated as 'Lavaris' in the district D
Taran Taran alone and a large number of innocent persons had
been killed by the police for which there was sufficient material
to register criminal cases against the police officials. This Court
directed the CBI to register the criminal cases for causing such
heinous crimes. Considering a larg~ number of cremations E
<lone as 'Lavaris', this Court asked the people at large to furnish
information/material to the CBI so that the matter may be
investigated properly. While passing the order dated 7.8.1996,
this Court had taken note that Kulwant Singh (PW.14), a convict
under the NDPS Act, was detained ·in Amritsar jail and the CBI F
had expressed certain doubts regarding his involvement in the
said case. This Court directed the Jail Superintendent,
Amritsar to file an appeal on behalf of Kulwant Singh (PW.14)
before the High Court.
G
It may be pertinent to note here that the appeal filed before
the High Court was allowed and Kulwant Singh (PW.14) was
acquitted vide order dated 8.12.1997 ..
32. Order dated 7.8.1996 further reveals that there was
sufficient material to prosecute Ajit Singh Sandhu, SSP, · H
908 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A District Taran Taran, Ashok Kumar, DSP and Jaspal Singh,
DSP and it was made clear that in spite of the fact that the CBI
was continuing further investigation regarding the whereabouts
of Jaswant Singh Khalra, it could not be known upto 7.8.1996
as to whether he was alive or not. The State of Punjab was
B directed to pay a· sum".: of Rs.10 lacs as an interim
compensation to complainant Smt. Paramjit Kaur.
33. This Court in its order dated 28.8.1996 took note of
the fact that the witnesses had been provided protection/
C security of Central Reserve Police Force/Border Security Force
and counsel appearing for the State assured the Court to grant
necessary sanction under Section 197 Cr.P.C., if so required
for the prosecution of the police officials. The investigation was
monitored by this Court. This Court's order dated 12.12.1996
reveals that according to the CBI, it was about 2097 bodies
D which had been cremated as unidentified and the press note
issued by Shri Khalra in this respect was found to be correct.
It was in view of the above orders passed by this Court
from time to time and monitoring the case for years together,
E the investigation conducted by the CBI could be completed.
INSTANT CASE:
34. The case requires to be examined by taking into
consideration the aforesr,iid facts and settled legal propositions.
F
35. According to the prosecution, Shri Jaswant Singh
Ktialra was a ht:man rights activist and had been General
Secretary, Human Rights Wing of Shiromani Akali Dal. He had
been working on abduction and crematior1 of unclaimed/
G unidentified bodies during the disturbed period in Punjab,
particularly in districts Amritsar and Taran Taran. The police had
been eliminating the young persons under the pretext of being
militants and. was disposing of their dead bodies without .
maintaining any record and without performing their last rites. ·
H Shri Jaswant Singh Khalra raised the voice against the same.
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 909
ANR. ETC. [DR .. B.S. CHAUHAN, J.]
The local police did not like it and hatched a conspiracy to A
abduct him' and in furtherance of that criminal conspiracy, he
had been abducted by the local police officials on 6.9.1995
abol;lt 9.00 a.m. from his residence and after keeping him in
the illegal detention, killed him and thrown his body into a canal
io\l-iarike area. B
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 main accused was Ajit Singh Sandhu, the then SSP
of Taran Taran District. However, the trial court vide order dated C
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 D
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.
Three of them, namely, Jaspal Singh, DSP, appellant, Amarjit E
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 F
said three persons were charged under Sections 201 read with
34 IPC.
During the course of trial, Ashok Kumar died, Rachpal
Singh was discharged before his statement under Section 313 G
Cr.P.C. 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.
H
910 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
B efforts of this Court, and passing order af+er 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
c 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
0 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
E Court passed in the Writ Petition filed by the complainant Smt.
Paramjit Kaur Khalra.
38. Sufficient material has been placed before the courts
below as well as before this Court to show that Shri Jaswant
Singh Khalra was a human rights activist and had raised the
F voice against Shri Ajit Singh Sandhu, the then SSP of Taran
Taran District, about the killing of innocent persons and
cremation of thousands of unidentified bodies
unceremoniously. Ajit Singh Sandhu directly and indirectly tried
that Shri Khalra could desist from exposing the illegal activities
G of the police in those districts. However, he did not deter and
therefore, there was a motive on behalf of the police
department to kidnap and make him understand the
consequence that he would face and, ultimately, to eliminate
him. Shri Khalra persisted in pursuing the truth and fighting for
H human rights. The motive of the accused police officers to
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 911
ANR. ETC .. [DR. B.S. CHAUHAN, J.]
abduct and kill Shri Jaswant Singh Khalra comes out clearly A
from the testimonies of Smt. Paramjit Kaur (PW.2), Justice
Ajit Singh Bains (PW.5), Satnam Singh (PW.6), Satwinderpal
Singh (PW.8),. Jaspal Singh Dhillon (PW..11 ), Surinderpal Singh
(PW.12), Rajiv Singh (PW.15) and KS.Joshi (PW.19). Some
of these witnesses had deposed that Shri Khalra had been s
receiving death threats in reference to his investigations into
illegal encounters and cremations. There is nothing on record
to discredit the testimonies of either of these witnesses in this
regard,
.
rather their testimonies had been consistent with each \
other and inspired confidence. c
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 D
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.
E
40. Smt. Paramjit Kaur (PW.2) had testified that she had
· been threatened by the accused persons on telephone for
pursuing the case of her missing husband. ·Punjab Police
qfficials persistently made attempts to exert undue pressure on
the witnesses throughout the investigation and trial. The police F
also registered fake criminal cases against Smt. Paramjit Kaur
(PW.2), Kirpal Singh Randhawa (PW.7), Kulwant Singh
(PW.14) and Rajiv Singh (PW.15). Kikkar Singh (PW.1) turned
hostile because of threats in spite of the fact that he was
provided sufficient security and protection. Kirpal Singh G
Randhawa (PW.7) and Rajiv Singh (PW.15) had been involved
in a case allegedly threatening to implicate the witnesses in a
rape case. Kirpal Singh Randhawa (PW. 7) was falsely enroped
in a rape case in the year 2004. The police implicated Rajiv
Singh (PW.15) in four cases during the trial. He had been
H
912 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A detained in July 1998 for allegedly forming a terrorist
organisation, which was subsequently found to be totally fake
on investigation by other agency. Kulwant Singh (PW.14) had
been falsely involved and convicted in a case under NDPS Act,
who was subsequently acquitted by the High Court. It may also
B be pertinent to mention here that in the said case, the appeal
could be filed before the High Court only on the direction issued
by this Court while entertaining the criminal Writ Petition filed
by Smt. Paramjit Kaur (PW.2).
C 41. Kuldip Singh (PW.16) kept quiet till Ajit Singh Sandhu,
SSP, committed suicide. He had been changing his version
during the investigation as well trial of the case. He had also
filed complaint against Smt. Paramjit Kaur (PW.2) allegedly
paying him a sum of Rs.50,000/- as a bribe for deposing
against the police authorities. Kuldip Singh (PW.16) was SPO
D and Bodyguard of Satnam Singh, SHO, accused/appellant. He
was having several grievances against the police officers in
general and accused persons in particular. His narration
recorded regarding detention of Shri Khalra by the police did
not get any corroboration from any corner including record of
E police station, log books of police vehicles. No employee/
person of the place where Shri Khalra had been detained or
from the guest house where his body was taken before throwing
away in the canal, has been examined to corroborate the
testimony of Kuldip Singh (PW.16). There are some
F improvements also in his deposition in the court from
statements recorded under Section 161 Cr.P.C.
However, all these issues/aspects have been considered
by the courts below and taking into consideration the entire fact-
G situation in which the incident had taken place and whereabouts
of Shri Khalra could not be known in spite of the best efforts of
this Court, case of the prosecution cannot be brushed aside.
The Court has to take into consideration the g.round realities
referred to hereinabove, particularly that it is very difficult to get
evidence against the policemen responsible for custodial death.
H
PRITHIPAL SINGH ETC. v. STATE Or PUNJAB & 913
ANR. ETC. [DR. B.S. CHAUHAN, J.]
In a case where the person is alleged to have died in A
police custody, it is difficult to get any kind of evidence. "Rarely
in cases of police torture or custodial death, direct ocular
evidence is available of the complicity of the police personnel,
who alone can only explain the circumstances in which a person
in their custody had died. Bound as they are by the ties of B
brotherhood, it is not unknown that police personnel prefer to
remain silent ~nd more often than not even pervert the truth to
save their colleagues" '
In view of the persistent threats hurled by the accused and .
other police officials to the complainant and witnesses C
throughout the investigation and trial, variation in his version
from time to time is natural. However, it can be inferred that
deposition to the extent of illegal detention, killing and throwing
away the dead body of Shri Khalra, can safely be relied upolt'
as the same stand corroborated by other circumstantiat\ D
evidence and the deposition of other witnesses. As we have
referred to hereinabove, there is trustworthy evidence in respect
of abduction of Shri Khalra by the appellants; as well as his
illegal detention.
E
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 F
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-examine the same. However, we would like to clarify
that the conduct of accused subsequent to the commission of G
crime in such a case, may be very relevant. If there is sufficient
evidence to show that the accused fabricated some evidence
to screen/absolve himself from the offence, such circumstance
may point towards his guilt. Such a view stand fortified by
H
914 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A judgment of this Court in Anant Chintaman Lagu v. The State
of Bombay, AIR 1960 SC 500.
44. Both the courts below have found that the accused/
appellants have abducted Shri Jaswant Singh Khalra. In such
a situation, only the accused person could explain as what
8
happened to Shri Khalra, and if he had died, in what manner
and under what circumstances he had died and why his corpus
delicti could not be recovered. All the accused/appellants failed
to explain any inculpating circumstance even in their respective
statements under Section 313 Cr.P.C. Such a conduct also
C provides for an additional link in the chain of circumstances.
The fact as what had happened to the victim after his abduction
by the accused persons, has been within the special knowledge
of the accused persons, therefore, they could have given some
explanation. In such a fact-situation, the Courts below have
D rightly drawn the presumption that the appellants were
responsible for his adduction, illegal detention and murder.
45. Shri Jaspal Singh, learned senior counsel appearing
on behalf of Jaspal Singh, DSP, appellant, has vehemently
E submitted that only three persons had been charged under
Sections 302/34 IPC. Rachpal Singh stood discharged by the
trial court before recording his statement under Section 313
Cr.P.C., and Amarjit Singh has been acquitted by the High
Court. Law does not permit to convict Jaspal Singh, appellant,
F alone for the offence punishable under Sections 302 read with
34 'IPC in view of law referred to hereinabove.
The arguments so advanced seem to be very attractive but
cannot be accepted for the reason that the case is required to
be considered in the factual backdrop mentioned hereinabove.
G This Court has consistently held that even otherwise "it is
possible for the appellate or the revisional court to convict an
accused for offence in which no charge was framed unless the
Court is of the opinion that the failure of justice could be, in fact,
occasioned. In order t9 judge whether a failure of justice has
H
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 915
ANR. ETC. [DR. B.S. CHAUHAN, J.]
been occasioned, it will be relevant to examine whether the A
accused was aware of the basic ingredients of the offence for
which he is being convicted and whether the main facts sought
to be established against him, were explained to him clearly
and whether he got a fair chance to defend himself." The Court
cannot lose sight of the fact that Jaspal Singh, appellant, had B
also been charged and convicted under Sections 364/34 IPC
alongwith all other appellants. He was not arrayed as a party/
respondent in the Criminal Revision filed by Smt. Paramjit Kaur
(PW.2), complainant for enhancement of punishment as he had
already been given life imprisonment for the offences c
punishable under Sections 302/34 IPC. Had he been acquitted
for the said. offences and convicted under Sections 364/34 IPC,
his sentences could also have been enhanced by the High Court
as it so happened in the cases of other accused/appellants. In
addition thereto, admittedly, at the initial stage of the
0
proceedings, main accused had been Ajit Singh Sandhu, SSP,
who committed suicide before framing of the charges. Jaspal
Singh, DSP, appellant, cannot succeed on mere technicalities.
In view of the provisions of Section 464 Cr.P.C., and in the
peculiar facts of this case, this argument is not worth E
acceptance.
Be that as it may, the contention raised on behalf of Jaspal
Singh, DSP, appellant, does not require further consideration
in view of judgment of this Court in Lok Pal Singh (supra),
wherein a similar contention stood rejected. F
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 failed to do so. The offence proved against the appellants G
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.
The court cannot be a silent spectator where the stinking
H
916 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A facts warrant interference in order to serve the interest of justice.
In the fact-situation of a case, like instant, if the court remains
oblivious to the patent facts on record, it would be tantamount
to failure in performing its obligation under the law.
4 7. After appreciating the evidence on record, and
8
considering the judgments of the courts below, we approve their
following conclusions:
(i) Jaswant Singh Khalra, being a human right activist, had
taken the task to expose the mis-deeds of police in Districts
C Amritsar and Taran Taran killing innocent people under the
pretext of being terrorists and cremating them without any
identification and performing any ritual.
(ii) The Police authorities did not like such activities of Shri
D Khalra and tried to desist him from the same. Shri Khalra was
being threatened over the telephone by the police officials.
(iii) Jaswant Singh Khalra informed a large number of
persons about the threats and being watched by unidentified
suspicious persons, who had been wandering around his house
E and had been followed by such elements.
(iv) Jaswant Singh Khalra was able to generate public
pressure against the police authorities which was a source of
anger and pressure upon the police.
F
(v) Ajit Singh Sandhu, SSP, hatched a conspiracy with
appellants and some other police personnel to abduct Jaswant
Singh Khalra and eliminate him or to put him in danger of being
murdered.
G (vi) At the time of abduction, the accused did not permit
Jaswant Singh Khalra even to change his clothes. One of the
witnesses, namely, Rajiv Singh (PW.15) was pushed away.
(vii) Rajiv Singh (PW.15) immediately informed various
H persons including Smt. Paramjit Kaur (PW.2) and Justice Ajit
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 917
ANR. ETC. [DR. S.S. CHAUHAN, J.]
Singh Bains (PW.5) about the incident of kidnapping. A
(viii) In spite of the best efforts made by Smt. Paramjit Kaur
(PW.2), wife of the deceased and others particularly, Rajiv
Singh (PW.15) who went from pillar to post, whereabouts of
Jaswant Singh Khalra were not made known to them.
B
(ix) The police authorities did not cooperate in helping the
complainant, though the witnesses had named the persons
involved in the abduction of Shri Khalra.
(x) Report (Ex.PA) dated 6.9.1995 submitted by Smt. c
Paramjit Kaur had not properly been recorded by the SHO
Police Station, Islamabad. The version therein had been
,different from what she had reported. It so happened because
of connivance of police officials.
(xi) The accused in the case had been high police officials D
and there was every possibility that statement of the
complainant Smt. Paramjit Kaur (Ex.PA) had not been recorded
as reported by her.
(xii) Before approaching this Court by filing a Habeas E
Corpus Writ Petition, Smt. Paramjit Kaur (PW.2) had
approached the National Human Rights Commission at New
Delhi in respect of the incident. However, she was advised to
approach this Court.
F
(xiii) This Court passed several orders in a writ petition
filed by Smt. Paramjit Kaur, wife of the deceased, but
•,ivhereabouts of Jaswant Singh Khalra could not be known and
in view thereof, investigation of the case was transferred to the
CBI.
G
(xiv) In spite of transfer of the investigation of the case to
the CBI, the Punjab police officials did not cooperate with the
CBI and were not lending proper support in conducting· the
investigation. The police officials of Punjab united in an unholy
I .
H
918 SUPREME COURT 'REPORTS [2011] 14 (ADDL.) S.C.R.
A alliance as their colleagues were involved and the case was
going to tarnish the image of Punjab police. The witnesses
named the police officials in their statements before the CBI
and they identified the accused persons in the court.
(xv) In order to find out the whereabouts of Shri Khalra,
8
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
C 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
D 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
E 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.
(xviii) The witnesses had been acquitted by the courts as
F they had falsely been involved in criminal cases of a very serious
nature. This was so done only to prevent them to support the
prosecution. The witnesses suffered with criminal intimidation
at the hands of the police officials. Even the complaints filed
by the witnesses against other witnesses had been found to
G be false.
(xix) The depositions made by the witnesses in the court
had been consistent with their statements recorded .under
Section 161 Cr.P.C.
H
PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 919
'·
ANR. ETC. [DR. B.S. CHAUHAN, J.]
/ .
(xx) The depositions of all the witnesses including Kulwant A
Singh (PW.14) and Kuldip Singh (Pvy.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 8
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 C
statements of Kuldip Singh (PW.16) and in such a fact-situation
the trial court ought to have altered the charges.
\ 1 ' I
in
(xxiii) Sufficient evidence is available on record respect
of abduction of Shri Jaswant Singh Khalra and the witnesses, D
particularly, Smt. Paramjit Kaur (PW.2), Rajiv Singh (PW.15)
and Kirpal Singh Randhawa (PW.7) have identified the
appellants as the persons who have abducted Shri Khalra.
Kulwant Singh (PW.14) has deposed about his illegal detention
in· Police Station Jhabal. In such a fact-situation, the burden E
shifts on the respondents to disclose as what happened to Shri
Jaswant Singh Khalra.
(xxiv) Though the dead body ofShri 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 F
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 G
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 the rule of law. H
920 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A 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
8 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.
N.J. Appeals dismissed.
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