21 August 1996
Supreme Court
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BABA PEER PARAS NATH Vs STATE OF HAYRYANA

Bench: RAY,G.N. (J)
Case number: Crl.A. No.-000297-000297 / 1996
Diary number: 76130 / 1996


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PETITIONER: BADA PEER PARAS NATH AND ANR.

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       21/08/1996

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) HANSARIA B.L. (J)

ACT:

HEADNOTE:

JUDGMENT:                             WITH               CRIMINAL APPEAL NO. 637 OF 1996 Kashmir Singh and Anr. V. State of Haryana                          O R D E R      Both these  appeals are  directed against  the decision dated 20.2.1996  passed by  the  learned  Additional  Judge. Designated Court,  Karnal at  Kurukshetra in  Sessions Trial No. 39/95.  The appellants  in Crl. Appeal No. 297/96 namely Baba Peer  Paras Nath  and Baldev  Nath were  tried with the appellants Kashmir  Singh and Jaswant Kaur in the other Crl. A. No.  637 of  1996 and  also with  two other  accused Kaka alias Charanjit Singh and Sukhpal Singh alias Khushpal Singh.      It appears  that the   appellants  Baba Peer Paras Nath and Baldev  Nath Chela  were charged  for an  offence  under Section 307  read with  Section 34  and Section  109 of  the Indian Penal  Code and  the  appellants  Kashmir  Singh  and Jaswant Kaur were charged for offence under Section 307 read with section 34 and 109 of the I.P.C. and also offence under Sections 3,  4, 5  and 6  of the  Terrorist  and  Disruptive (Prevention) Activities  Act, 1987  (hereinafter referred to as TADA).      It may be stated here that confessional statements were made  by   all  the   six   accused   persons   before   the Superintendent of  Police under  Section 15  of the TADA but later  on,   the   accused   retracted   with   confessional statements. The  prosecution  case  in  short  is  that  the appellants Baba  Peer Paras  Nath and  Baldev wanted to kill the complainant Peer Gobind Nath in order to take control of Panchmukhi Hanuman  Temple at  Railway Road. Kurukshetra and for the said purpose through the appellant Jaswant Kaur they had approached  two terrorists Puran Singh and Karnail Singh (since deceased)  on payment  of money  and  the  appellants Kashmir Singh  and Jaswant  Kaur and  Kala  alias  Charanjit Singh and  Sukhpal Singh  alias Khushpal Singh, in  order to

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execute the  said plan  contacted the said two terrorists on 19.6.92. At  about 7.30  P.M. the  complainant alongwith  Om Prakash, Dr.  Narinder Prakash  and Arun  were sitting  in a room in   the  temple. At  that time  two young  Sikhs  came inside the  room and  on the asking by one of them as to who was Peer  Gobind Nath.  Peer Gobind  Nath had stated that he was the  same person.  The said  two accused then produced a letter head  and asked him to read the writing in it. On the letter-head, it  printed in  Punjabi as  well as  in English "Bhinderwala Tiger Force of Khalistan",. The contents in the letter-head  were  written  in  Punjabi.  The  said  persons disclosed that they were terrorists and also added that they had come to kill him and so saying one of the two terrorists fired a shot from his pistol to Gobind Nath but the shot did not hit  him because  he had bent his neck. In the meantime, the above  named three  persons,  who  were  sitting    with complainants raised  an alarm  that the  terrorists had come and they would be caught. The complainant and his companions also succeeded  in apprehending  the terrorist who had fired the shot  but the  other terrorist could manage to go out of the room.  But a  number of  persons, who  had come  by that time, succeeded in apprehending the other one.      It appears  that since  the appellants  Baba Peer Paras Nath and  Baldev Nath were not charged for any offence under TADA, the  confessional statements  made by  them  were  not relied upon  against them  but the  learned Designated Court placed reliance  on the  confessional statements made by the other accused  in the  said trial by placing reliance on the observation of  this Court  made in the case of Kartar Singh vs. State  of Punjab  (JT 1994 (2) SC 423). In paragraph 277 of the  decision, this  Court has  observed to the following object :      "As the   Act  now stands after its      amendment   consequent   upon   the      deletion of  Section 21(1)  (c),  a      confession made  by a person before      a  police   officer  can   be  made      admissible in  the  trial  of  such      person  not  only  as  against  the      person but  also  against  the  co-      accused,  abettor   or  conspirator      provided that the co-accused, tried      in the  same case together with the      accused, namely,  the maker  of the      confession. The present position is      in conformity  with Section  30  of      the Evidence Act."      The Designated  Court by  relying on  the  confessional statements of the other co-accused, convicted the appellants Baba Peer  Paras Nath  and Baldev  Nath  for  offence  under Section 307 read with Section 34 and Section 109 of the IPC. Both the  said appellants  were sentenced to suffer rigorous imprisonment for  3 years  and a fine of Rs.500/-,in default of  payment   of     fine,  to   undergo  further   rigorous imprisonment for 2 months.      So far as the appellants Kashmir Singh and Jaswant Kaur are concerned,  the learned  designated Court convicted them for the  offence under  Section 307 read with Section 34 and 109 of  the IPC and also under Section 3(3) of TADA. For the offence under  Section 307  read with  Section 34 and 109 of the IPC, they were sentenced to suffer rigorous imprisonment for 3  years with  a fine of Rs.500/-, in default of payment of fine  to undergo  further rigorous  imprisonment for  two months. For  the offence  under Section  3(3) of  TADA, they were sentenced  to suffer  rigorous  imprisonment  for  five

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years together  with a  fine  of  Rs.500/-,  in  default  of payment of  fine   to undergo  further rigorous imprisonment for two  months. The  learned Designated  Court has directed that the sentences would run concurrently.      Mr. U.R. Lalit learned senior counsel appearing for the appellants in  Appeal No.  297 of 1996, Baba Peer Paras Nath and Baldev  Nath has  submitted that  there is  no clinching evidence about  the complicity  of  the  appellants  in  the offence under  Section 307  read with  Section 34 and 109 of the IPC.  The said  appellants have been convicted simply by relying on the retracted confessional statements made by the other co-accused  who were  tried with  the appellants.  Mr. Lalit has  submitted that  normally  confessional  statement cannot be  recorded by  the Police Officer out under Section 15 of  the TADA  a  special  provision  for  recording  such confessional statement  by specified  Police Officer  in the manner indicated  in the Act and rules framed under TADA has been made.  Such  confessional  statement  made  before  and recorded by  the police  officer is  admissible only in  the trial for an offence under TADA. But where an accused is not tried for  an offence under TADA, the confessional statement recorded under  Section 15  is not  admissible. Mr Lalit has submitted that  in the  Kartar Singh’s  case, the  vires  of Section 15  was challenged  before this Court and this Court has upheld  the  vires  of  Section  15  after  recommending certain safeguards to be followed in the matter of recording confessional statement  under Section 15. This court was not called upon  to decide  in the  case of  Kartar Singh  as to whether confessional  statement recorded under Section 15 of TADA can  be taken  into consideration in respect of such of the accused  who were jointly tried in a criminal trial even though such  of the accused were not charged for any offence under TADA. Mr Lalit has submitted that Section 15 expressly provides that  the  confessional  statement  recorded  under Section 15  of the  TADA shall be admissible in the trial of such person  or co-accused,  abettor or  conspirator for  an offence under  this Act or rules framed thereunder, provided the co-accused  abettor or conspirator are tried in the same case together  with the  accused. He  has submitted that the observation made  by this  Court in  paragraph  277  of  the decision in  Kartar Singh’s  case as indicated herein before is not  the decision  of this Court on the question that the confessional statement  recorded under  Section 15  is  also admissible in  respect of  all the  co-accused in  the trial even though some of co-accused was not tried for any offence under TADA.  Therefore, the learned Designated Court wrongly appreciated the  decision of  this Court  in Kartar  Singh’s case and  relying upon  the confessional  statements of  co- accused recorded  under Section  15 of  TADA, convicted  the appellants Baba  Peer Paras  Nath and  Baldev  Nath  despite clear  provision   of  Section   15  indicating   that  such confessional statement  is admissible  in respect of the co- accused in  the same  trial only in respect of offence under TADA, Mr.  Lalit has  submitted that as the case against the appellants cannot  be  established  by  any  other  evidence excepting by  relying on  retracted confessional  statements recorded under  Section  15,  which  is  not  admissible  in evidence, the  conviction against  the appellants  cannot be sustained in  law. He  has, therefore,  submitted the appeal should be  allowed and  the conviction  and sentences passed against the appellants should be set aside.      Mr. Malik  counsel appearing  for the  State respondent has fairly  conceded that under Section 15, the confessional statement of  an accused is admissible against co-accused or abettor or  conspirator if  tried together  for  an  offence

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under TADA.      Learned  counsel  for  the  complainant  has,  however, submitted that  such confessional  statement can  be  looked into against  all the  accused if the confessional statement recorded under  Section 15  of TADA  is made by a co-accused when such  co-accused is  tried in  the same case with other accused. The  accused tried  in a  common trial cannot claim immunity  from   the  admissibility   of  the   confessional statement simply  because he  is not  tried for  an  offence under TADA.      We are,  however, unable  to accept the said contention of the  learned counsel  appearing for the complaint. In our view Mr.  Lalit is  justified in  his  submission  that  the confessional statement recorded under section 15 of the TADA is  admissible   against  the  co-accused    or  abettor  or conspirator provided  an accused  is tried  with  other  co- accused abettor  or conspirator in the same trial in respect of offence  under TADA.  Such professional statement  of the co-accused or  by the  co-accused is  not admissible against the accused  if he  is not tried for any offence under TADA. The observation  of this  Court  in  paragraph  277  of  the decision   as indicated herein before is not the decision of this Court  about  the  admissibility  of  the  confessional statement recorded  under Section  15  of  TADA  against  an accused when  such accused  is tried  with other co-accused, abettor or  conspirator but  such accused is not charged for any  offence   under  TADA.  Accordingly,  the  confessional statements were not admissible so far as the appellants Baba Peer Paras  Nath and  Baldev Nath are concerned. As there is no  reliable  evidence  on  the  basis  of  which  they  can convicted for  the  offence  under  Section  107  read  with Section 34  and 109  IPC, the conviction and sentence passed against them  cannot  be  sustained.  We,  therefore,  allow Crl.A. No.  297 of  1996 and  set aside  the conviction  and sentence passed  against both  the appellants  in  the  said appeal. The  said appellants  have  been  released  on  bail during the  pendency of  this appeal. Their ball bonds shall stand discharged.      So far as the appellants Kashmir Singh and Jaswant Kaur in Crl.  Appeal No.  637 of  1996 are concerned, although it has  been  strenuously  contended  by  the  learned  counsel appearing for  the said  appellants that  the said retracted confessional  statements   were  not   to  be   taken   into consideration and  in the  absence of any reliable evidence, the confessional  statements even if admissible against such appellants  were  of  no  consequence  because  confessional statement is  to be  considered only  for giving credence to other independent evidence, we are unable to accept the said contention of the learned counsel. A part of the money which was paid  to the  appellants for the purpose of engaging the said Puran  Singh and  Karnail Singh has been recovered from the house  of the  appellants. The letter pad with the print ’Bhinderwala Tiger  Force’ has  also been recovered from the place of  the incident.  The motor  cycle by  which the said Puran Singh  and Karnail  Singh had  come for committing the murder of  the complainant  has also been recovered from the place of  occurrence.  The  confessional  statements  though retracted, land  support to  the other  evidences led in the case about  the complicity  of the appellants in the offence alleged against  them. In the confessional statements it has been specifically  admitted by  the appellants that they had accepted the  said money  not  only    for  the  purpose  of engaging  the   assailants  to  commit  the  murder  of  the complainant but  also to create terror in the society and to bring disharmony  between the  Hindus and  Sikhs and to give

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propaganda  of   the  terrorist  outfit  ’Bhinderwala  Tiger Force’. In   the  aforesaid circumstances  for overt acts of appellants for  creating terrorism  and bringing  disharmony between two communities, their conviction under Section 3(3) of the  TADA is  justified. We  therefore find  no reason to interfere with  the conviction  and sentences passed against the said   appellants.  The Crl.  A. No.  637  of  1996  is, therefore, dismissed.  We have  also considered the question of sentence  to be passed against the said appellants. Since under Sub-section  3 of  Section 3 of TADA, minimum sentence to be  passed for an offence under Section 3, is five years, there is no question to reduce the sentence.