Holding

The court held that, in cases of abduction followed by murder, the presumption that all abductors are responsible for the murder is permissible under Section 34 IPC, and the conviction stands.

Summary

During the peak of militancy in Punjab, two teenage sons of Diwan Singh were abducted from their home by four armed men, including the appellant Sucha Singh, and were later found shot dead. The parents were present in the house at the time of the abduction. The prosecution proved the abduction and the subsequent murder but had no direct evidence linking the appellant to the killings. The appellant appealed, arguing that the parents were not present, that the prosecution had not proved his participation in the murder, and that Section 106 of the Evidence Act could not be used to fill evidentiary gaps. The Supreme Court held that when multiple persons abduct a victim who is later murdered, the court may presume all abductors are responsible for the murder under Section 34 IPC, and that Section 106 does not relieve the prosecution of its burden. Consequently, the conviction and life sentence were upheld.

Issues considered

Whether the court can infer that all abductors are liable for murder of the abducted victim under Section 34 IPC.
Whether Section 106 of the Evidence Act can be invoked to shift the burden of proof to the accused in the absence of direct evidence.
Whether the presence of the parents at the house negates the appellant's participation in the abduction and murder.
Whether circumstantial evidence is sufficient to sustain a conviction for murder.

Legislation cited

Indian Evidence Act, 1872s. 106
Indian Penal Code, 1860s. 302, s. 34, s. 362, s. 364
Terrorist and Disruptive Activities (Prevention) Act

Subjects

abductionmurderpresumptionSection 34 IPCSection 106 Evidence Actcircumstantial evidenceterrorismkidnappingburden of proof

Judgment

A SUCHASINGH
v.
STATE OF PUNJAB

MARCH 22, 2001

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

Penal Code, 1860 : '
Sections 302, 362 and 34-Abduction and murder-Appellant and three
others forcibly took away the deceased during the days of militancy in Punjab
c as their father was suspected to be a police tout-Father of the deceased had
sensed danger and hid in tile same house-Bodies of deceased discovered next
morning and the father infom1ed the police after contacting. his other sons
staying at another City-Special Court awarded life imprisonment-On appeal 1
Held, a series of circumstances especially in the backdrop of terrorism in
D Punjab prove that the deceased were murdered to pursue a specific motive-
Parents of the deceased we're present in the house when they were taken away,
their father could have been the reai target but was saved as he was hiding- ·
Defence witnesses have not been able to prove that parents of the deceased were
not present at the time of occurrence-Conviction upheld.
E Sections 302, 364 an.d 34-Abduction and murder-Absence of any
direct evidence-Abductors dutybound to tell the court what happened to the
victim after abduction-Inference ofmurder could be drawn unless the court is
satisfied to the contrary.

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

Appellant along with three others has allegedly conspired to murder
two sons of P as they suspected him to be a police tout during the days of
G militancy in punjab. They took his sons from his house, ignoring the
protest of his wife, though at house P was hiding himself. After a short
while, gunshots were heard and on the next morning P discovered their
bodies. He did not inform the police immediately. He went to Amritsar
City on a bicycle to inform his elder sons and later on furnished details to
H the police. Only two ot' the conspirators were charged under Terrorist and
644
SUCHA SINGH v. STATE OF PUNJAB 645
Disruptive Activities (Prevention) Act and Section 302 read with Section A
34 J.P.C. as the other two were absconding. They were acquitted of the
offences under TADA, however, sentenced to life imprisonment for the
offences under I.P.C. Only one or the convicts filed this appeal.

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

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

2. There is no material to assume that the assailants did not count the
sons also as touts of the police along with their father. In fact all the visible
male members of the family were taken away and P was left out as he was
hiding due to fear. The fact that the accused succeeded in taking away the F
two sons alone is not enough to doubt the presence of P and his wife in the
house on the crucial night. [650-B-C]

3. On the testimony of P and his wife the circumstances against the
appellant are that the incident happened during the period of terrorism in
Punjab; that the house of the deceased was considered as the home of G
police touts; that the appellant and three others reached the house during
the dead of night, armed with AK-47 rifles and caught the deceased and
forcibly took them away; that within a shortwhile they heard the sound of
gunshots; that the deceased did not return to the house during that night;
that on the next morning their dead bodies were spotted on the roadside at H
646 SUPREME COURT REPORTS (2001) 2 S.C.R.
A a place situated only a short distance away from the house; that they were
killed with AK-47 riOes as the empties or the bullets or such Rrearm were
lying near the dead bodies; and that the appellant did not tell the Court as
to what happened to the deceased after they abducted them. (650·E·H)

4. The abductors alone could tell the court as to what bad happened to
B the deceased after they were abducted. When they withheld that Inform&·
tlon there Is every justiRcatlon for drawing the inference, In the light of all
the preceding and succeeding circumstances, that the abductors are the
murderers of the deceased. When more persons than one have abducted the
victim, who was later murdered, it is within the legal province oC the court
c to justifiably draw as presumption depending on the factual situation, that
all the abductors are responsible for the murder. Section 34 IPC could be
invoked for tbe aid to that end, unless any particular abductor satisfies the
Court with his explanation as to what else be did with the victim subse-
quently, i.e. whether he left his associates en-route or whether he dissuaded
others from doing the extreme act etc. etc. (650-H; 651-A·B; 652-F-G]
D
State of West Bengal v. Mir Mohammad Omar, (2000) 8 SCC 382,
alTU'llled.
5. Section 106 of, the Evidence Act is not intended to relieve the
prosecution of its burden to prove the guilt of the accused beyond reason.
E able doubt. The section would apply to cases where prosecution has suc-
ceeded in proving facts for which a reasonable inference can be drawn
regarding the existence or certain other facts, unless the accused by virtue
of special knowledge regarding such facts failed to offer any explanation
which might drive the court to draw a different inference. (652-D·E]
F
Shambhu Nath Mehra v. State of Ajmer, AIR (1956) SC 404, relied on.

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

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

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

H U.R. Lalit, M.K. Michael and Parminder Singh for lhe Appellant.
SUCHA SINGH v. STATB OF PUNJAB [THOMAS, J.] 647
Ranbir Yadav, Rajeev Shanna, Ms. Jayshree Anand and Addi. Genel. A
._ Punjab for the Respondent.

The Judgment of the Court was delivered by

THOMAS, J. During the months when insurgency in the State of
Punjab was at its peak, two striplings were knocked off from their house on B
a dark night by armed assailants in the very sight of their old parents, despite
the importunes made by their mother. Those abducted youngsters were
-~ finished off within a shortwhile by firing them with AK-47 rifles, a little away
from their house. The abductors were indicted for the murder of those two
young Sikhs. Appellant Sucha Singh, the sole survivor of the criminal C
conspiracy hatched, is now challenging the conviction and sentence of life
imprisonment passed on him by a designated court, for the offence under

-
Section 302 read with Section 34 of the Indian Penal Code.

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

-)- Learned senior counsel submitted that the said ratio is discordant with E
the criminal jurisprudence thus far enunciated that the burden is entirely on
the prosecution to prove the case. He further submitted that the ratio in the
said decision cannot at any rate be applied for fastening an accused with the
aid of Section 34 !PC. As we heard Shri U.R. Lalit in extenso on the above
submission, besides other points canvassed by him on the merits of the case, F ·
we are bound to deal with them now.

The synopsis of the case is this. The incident happened on the night
of 22.2.1991. PW-3 Diwan Singh and his wife PW-4 Dalbir Kaur had five
sons. The elder three were working in the grain market at Amritsar. Among
the remaining sons Narinder Singh was in the army and he came home for G
a furlough and stayed with his parents. The other son Surinde! Singh was
also staying in the same house. The militancy in Punjab had anned terrorists
on its cadre who were prowling for preys during those days. Diwan Singh
and his family were targeted by the militants as they suspected him to be
conduit for the police who were out to crush the insurgency. H
648 SUPREME COURT REPORTS [2001] 2 S.C.R.

A On the night of occurrence Diwan Singh, his wife and their two sons
(Narinder Singh and Surinder Singh) were in their house at Rupawali, which
is situate on the outskirts of Amritsar City. The inmates of the house retired
,.
to their rooms in the night, presumably after their supper. Four assailants
including the appellant went to that house anned with AK-47 rifles at about
10 P.M., and knocked at the door. Diwan Singh switched on the light in
B
the courtyard and he immediately understood the danger ahead of him. He
then scampered to the roof of the house and hid himself, but he could see
what was happening on the courtyard. The assailants caught the two )'"'
deceased sons. and took them away despite the entreaties persistently made
by their mother. Though she made a bid to follow them she could reach
c only up to the end of their courtyard as she was tweaked aside forcefully
with the butt end of a rifle. The two sons taken away by the assailants were
never seen thereafter by the parents.

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

E
injuries.

Police after investigation charge-sheeted only two persons as accused, "I
...
one the appellant Socha Singh and the other Sarbjit Singh. According to the
police the remaining two assailants could not be apprehended despite all the
steps adopted by the police. The case was sent up to a designated court as
some of the offences included in the charge fell within the purview of the
F Terrorist and Disruptive Activities (Prevention) Act (TADA). The judge of
the designated court convicted both the accused under Section 302 read with
Section 34 !PC though they were acquitted of the offences under TADA. We ~
are told that the other convicted person died subsequently. This appeal
pertains only to the appellant Socha Singh.
G There is no dispute that the deceased were shot dead on the said night
by somebody with AK-47 rifles. Hence lbe only point is whether lbe appellant
was one of the murderers. The evidenc.e against the appellant is the testimony
of PW-3 Diwan Singh and PW-4 Dalbir Kaur. As for them, they only testified J( •
th.at the two deceased were taken away by armed assailants from the house
H on that ill-fated night and such assailants included the two convicted persons
SUCHA SINGH v. STATE OF PUNJAB [THOMAS, J,] 649
and that the corpses o,f the deceased were spotted next morning lying on the A
roadside a little away from their house.

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

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

-,
Village "in Amritsar". '
E
Learned counsel made a futile endeavour to create some doubt that PW-
3 and PW-4 would have been staying with the elder sons at Amritsar City.
One such attempt was based on a fact that PW-3 himself was convicted in
a murder case earlier, and hence he would have known the value of prompt
reporting to the police. According to the counsel, PW-3 did not choose to go
F
to the police station even by next early morning. What PW-3 said on that
score is that after the sons were taken away he remained in the house during
the entire night as he was fear-stricken and when the morning broke he
collected his brother Gumam Singh and went in search of his sons and came
across the body at Village Phirni ·(which is close to their residence). He then
left the spot aftedeaving his brother to remain near the dead bodies, and went G
to Amritsar city on a bicycle for informing his elder sons about the occur-
rence. On his way back from the city he came across the police. He furnished
to them the details of the occurrence as he knew. In the above narration there
is nothing to show that PW-3 and PW-4 were residing away from their house
at Rupawali. H
650 SUPREME COURT REPORTS [2001] 2 S.C.R.

A Another attempt made by learned counsel is based on the fact that the •
abductors did not catch PW-3 who was considered to be a police tout.
According to the learned counsel the assailants would not have left the house
1
without him and the fact that they took away his two sons would further show
that PW-3 was not available in the house. This argument proceeded on an
assumption that the sons were not the target of the assailants at all. We don't
B
have any material to assume that the assailants did not count the sons also
as touts of the police along with their father. It must be remembered that the
assailants took away all the male members of the family whom they could ..,...
see in the house. As PW-3 went to the roof hiding himself from the assailants
they would have decided to be satisfied for the present with what they got,
c i.e. the two sons. Whatever it be, the fact that the accused succeeded in taking
away the two sons of the two deceased alone is not enough, in the circum-
stances of this case, to doubt the presence of PW-3 and his wife PW-4 in the
house on the crucial night.

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

E Thus we too are inclined to believe the version of PW- 3 and PW-4.
On their testimony the circumstances against the appellant are the following: ., -
(I) The incident happened during a period when Punjab was boiling
with terrorist activities. (2) The house of the deceascci was treated by the

F
.
terrorists as the home of police touts against terrorists. (3) Appellant
.
others reached the house during the dead of night armed with AK-47 rifles
and three

(which is described as "assault rifle") and caught the two sons. Even in spite
of entreaties made by their mother PW-4, the abductors forcibly took away
:i.
the two sons into the darkness outside. (4) Within a shortwhile they heard
the sound of gunshots. (5) The two abducted sons did not return to the house
during that night. (6) On the next morning their dead bodies were spotted
G
on the roadside at a place situated only a short distance away from the house.
(7) They were killed with AK- 47 rifles as the empties of the bullets of such
firearm were lying near the dead bodies. (8) Appellant did not tell the court
as to what happened to the two sons after they abducted them.
Al. .
H The abductors alone could tell the court as to what happened to the
SUCHA SINGH v. STATE OF PUNJAB [THOMAS, J.] 651
deceased after they were abducted. When the abductors withheld that infor- A
' mation from the court there is every justification for drawing the inference,
"" ~ in the light of all the preceding and succeeding circumstances adverted to
above, that the abductors are the murderers of the deceased.

Shri U.R. Lal it, learned senior counsel raised his contention on 'the
above score that even assuming that the appellant was one among the persons B
who took away the deceased that circumstance alone is not sufficient to hold
him to be one of the killers of the deceased. According to the senior counsel ·
a finding beyond abduction cannot be fastened on the appellant.

Recently this Court has held in Slate of West Bengal v. Mir Mohammad
Omar (supra) that the principle embodied in Section 106 of the! Evidence Act
c
can be utilised in a situation like this. Shri U.R. Lalit pleaded for reconsid-
eration of the said legal position. According to him, the ratio laid down in
that decision is not in tune with the well accepted principle of criminal law
~ that the accused is entitled to keep his tongue inside his mouth as the burden
is always on the prosecution to prove the guilt of the accused. To meet the D
said contention it is appropriate to extract the following observations from
that decision:

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

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

- )..
by Vivian Bose, J, in Shambhu Nath Mehra v. State of Ajmer, AIR (1956)
SC 404. The statement of law made by the learned Judge in the" aforesaid
decision has been extracted by us in State of Wesl Bengal v. Mir Mohammad H
652 SUPREME COURT REPORTS (2001] 2 S.C.R.
A Omar (supra). It is useful to extract a further portion of the observation made
by us in the aforesaid decision:
~ -
"Presumption of.fact is an inference as to the existence of one fact
from the existence of some other facts, unless the truth of such
inference is disproved. Presumption of fact is a rule in law of evidence
B that a fact otherwise doubtful may be inferred from certain other
proved facts. When inferring the existence of a fact from other set of
proved facts, the court exercises a process of reasoning and reaches
a logical conclusion as the most probable position. The above
principle has gained legislative recognition in India when Section 114
c is incorporated in the Evidence Act. It empowers the court to presume
the existence of any fact which it thinks likely to have happened. In
that process the court _shall have regard to the common course of
natural events, human conduct etc. in relation to the facts of the case."

We pointed out that Section 106 of the Evidence Act is not intended f
D to relieve the prosecution of its burden to prove the guilt of the accused
beyond reasonable doubt, but the section would apply to cases where
prosecution has succeeded in proving facts for which a reasonable inference
can be drawn regarding the existence of certain other facts, unless the
accused by virtue of special knowledge regarding such facts failed to offer
any explanation which might drive the court to draw a different inference.
E
We have seriously bestowed our consideration to the arguments ad-
1
dressed by the learned senior counsel. We only reiterate the legal principle
adumbrated in State of West Bengal v. Mir Mohammad Omar (supra) that
when more persons than one have abducted the victim, who was later
F murdered, it is within the legal province of ihe court to justifiably draw a
presumption depending on the factual situation, that all_ the abductors are
responsible for the murder. Section 34 of the !PC could be invoked for the
aid to that end, unless any particular abductor satisfies the court with his
explanation as to what else he did with the victim subsequently, i.e. whether
he left his associates en-route or whether he dissuaded others from doing
G
the extreme act etc. etc.

We are mindful of what is frequently happening during these days.
Persons are kidnapped in the sight of others and are forcibly taken out of the
~.
,(
sight of all others and later the kidnapped are killed. If a legal principle to
H be laid down is that for the murder of such kidnapped there should necessarily
SUCHA SINGH v. STATE OF PUNJAB [THOMAS, J.] 653

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

Lastly, learned counsel invited our attention to a note which was B
recovered by the police from the scene of murder. That note contained the
scribbling purported to have been authored by a gronp styled as "Babbar
Khalsa", owning the two murders of the deceased. We do not know how
the said note would help the appellant unless he shows that he has nothing
to do with that self styled "Babbar Khalsa", even assuming that the note C
was left by the murderers without any intention to mislead the investigation.
At any rate, we are not persuaded to change our conclusion on the strength
of the said note.

In the result, we confirm the conviction and sentence and dismiss this
appeal. D
A.Q. Appeal dismissed.