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PETITIONER: GURNAM SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       28/07/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:     With Crl. Appeal No. 420/98 and Death Ref. No. 2/98                       J U D G M E N T NANAVATI, J.      Criminal Appeal  No. 381/98  is filed  by Gurnam Singh, who h  as been  convicted under Sections 364 and 302 IPC for kidnapping Inder  Singh, Puran  Singh and  Baldev Singh  and then committing  their murder.  He has  also been  convicted under Section  3 of  the TADA Act. For committing murders of those three persons he has been sentenced to death. He h as, therefore, filed Criminal Appeal No. 381/98, challenging his conviction and  also the sentence. As required Reference No. 2/98 has  been made by the Designated Court for confirmation of his death sentence.      Criminal Appeal No. 420/98 is filed by Palwinder Singh, who has  been convicted  under Sections  364 and 302 IPC for kidnapping Baldev  Singh and committing his murder alongwith appellant Gurnam Singh. He is also convicted under Section 3 of the  TADA Act. For these offence he has been sentenced to suffer imprisonment  for life.  For the  offence  punishable under Section  3 of  the TADA  Act, both the appellants have ben sentenced to pay a fine of Rs. 5,000/- also.      As all  the three  cases arise  out of  common judgment passed by  the Designated Court. Nabha in Sessions Case No.l 45 of  1994, they are heard together and disposed of by this common judgment.      The prosecution  case against  the two  appellants  was that they  alongwith  six  other  accused    had  formed  an unlawful assembly,  the common object of which was to abduct Baldev Singh,  Inder Singh,  Puran Singh,  Kuldip Singh  and Maheshwar Rai,  and murder  them and  in prosecution of that object they  did abduct  those persons  and killed them. The prosecution had  not led  any direct  evidence to  prove the murders of those persons by the appellants. It, however, led evidence to  prove that the eight accused, including the two appellants, had  abducted those  five persons and had failed to explain  what had  happened to  them thereafter.  Relying upon the  evidence of  PW 3  Pritam Singh  and PW 7 Mukhtiar Singh, the Designated Court held that appellant Gurnam Singh had  abducted  Inder  Singh  and  Puran  Singh  on  7-10-92. Believing the  evidence of PW 8 Sukhwinder Kaur it held that

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the  appellants   Gurnam  Singh  and  Palwinder  Singh  had, abducted Baldev  Singh, on  7.10.92 between 9 and 10 p.m. It also believed  their evidence  that at the time of abduction they were armed with deadly weapons and had given threats to other family  members that  if they  reported the offence to the Police  they would  also be  finished. Even though there was no  direct evidence to show how those three persons were murdered, the  Designated Court,  relying upon  the  medical evidence which  proved  that  the  deaths  had  taken  place shortly after  their abduction  and also upon failure of the appellants to  explain  what  they  did  with  the  abducted persons, held them guilty for the offence of murder also.      It  was  contended  by  the  learned  counsel  for  the appellants that their being no direct evidence as to how and under what circumstances Inder Singh, Puran Singh and Baldev Singh were  killed, the  esignated Court  ought not  to have convicted the appellants under Section 302 IPC.      It was  also submitted that all the three eye witnesses had not  named either  of the  appellants  in  their  Police statements as the person who had abducted Inder Singh, Puran Singh or  Baldev Singh  and it was for the first time in the Court that  they had  stated that  the appellants  were  the abductors.  It   was  also  submitted  that  their  evidence suffered from  other infirmities  also  and,  therefore,  it should not have been believed.      We have  scrutinised the  evidence of PWs 1, 2, 3, 6, 7 and 8. Evidence of PWs 1 and 2 establishes that Kuldip Singh and Maheshwar  Rai were  also abducted  on 7.10.92 between 9 and 10  p.,, but  it does  not implicate the appellants. PW3 Pritam Singh  has stated  that Gurnam Singh and one Jita had come to their house about 10 p.m. and taken away Inder Singh at gun point. He has also stated that when he protested both the accused  had threatened  him that  if he  protested  any more, then  the whole  family would  be killed. In his cross examination he  has stated  that really  he did not know the names of  the persons  who had abducted his brother and that he had  come to  know their  names only  when the police had told him  who were those persons. He also stated that he had not identified  them on  7.10.92. This  witness thus  turned round in the cross examination and gave a different version. What needs  to be  appreciated is  that the witness and both the appellants  belong t  the same  village Shutrana. It was not even  suggested to  the witness  that there was no light and, therefore, he could not have identified the persons who had taken  away his  brother. The  only attempt made t raise some doubt  regarding identity  of the    offenders  was  by suggesting to  the  witness  that  they  had  changed  their clothes  and,   therefore,  he   could  not  identify.  This suggestion was  readily  accepted  by  the  witness.  It  is difficult to  appreciate how  a  person  who  was  otherwise known, being  of the  same  village,  could  not  have  been identified merely because he had changed his clothes. It was not  suggested   to  the  witness  that  the  offenders  had concealed their faces or done anything else to prevent their identification. This  witnesss later  explained that  he had not given  names of  the accused  to the  police  because  a threat was  given by them that they would otherwise kill the whole family. That appears to be the reason why while giving evidence  in  the  Court  also  this  witness  accepted  the suggestions made  in the   cross examination and stated that he was  not able  to identify the offenders when the offence took place.  In our  opinion the Designated Court was, right in accepting what Police. Both these suggestions were denied by the  witness. Having  gone through  the entire record, we find that  there is not material on record to show that they

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were two  factions in the village. Even the Sarpanch who was examined as  a defence  witness did  not  depose  about  any faction in  the village.  There is  also no material to show that this  witness was under the thumb of Police or that the Police could  have exercised  some influence over him. Thus, the suggestions  made by  the defence  do  not  receive  any support from  the material  on the record and, therefore, no weight can  be attached  to them  and  they  deserve  to  be disregarded. There  was no reason for the witness to falsely involve Gurnam  Singh and  other two  accused if  really his brother was  not kidnapped  by  them.  In  our  opinion  the Designated Court  was right  in placing  reliance  upon  his evidence and  in holding  that Gurnam  Singh and Amrik Singh had kidnapped Puran Singh.      PW 8  Sukhwinder Kaur  has, deposed  that about 9 p.m., two sikh  young persons,  armed with guns, came to her house and took  away her  husband. When  she had  tried to prevent them from  doing so,  she was  pushed aside  and door of the house was  closed from  outside. She has further stated that she had identified those two persons      Thus,  the   evidence  of   PWs  3,  7  and  8  clearly establishes that  Inder Singh,  Puran Singh and Baldev Singh were in  fact kidnapped  by  Gurnam  Singh  and  some  other accused  and   that  in  the  kidnapping  of  Baldev  Singh, Palwinder Singh   had  also taken part. The evidence further establishes that  while kidnapping  the accused  were  armed with deadly  weapons. Both  the appellants  had  also  given threats to  the witnesses.  As rightly  pointed out  by  the Designated Court, the medical evidence also establishes that the deaths  of Inder Singh, Puran Singh and Baldev Singh had taken place  within a  short time  after they were kidnapped and that  leads to  a legitimate  inference that the persons who had kidnapped had killed them.      The  prosecution   case,  was  that  Gurnam  Singh  and Palwinder Sing alongwith six other accused had committed the offences. There  is no  evidence to  show that  any  of  the appellants  had   himself  killed   any  of   the  deceased. Therefore, the  Designated Court instead of convicting under Section 302  should have  convicted  them  for  the  offence punishable under  Section   302 read with Section 34 IPC. We are also  of the  view that  in absence  of any  evidence as regards the  motive for abduction and as regards the accused who  actually   caused  their  deaths  and  the  manner  and circumstances in  which they  were  caused,  the  Designated Court should  not have imposed death sentence upon appellant Gurnam Singh.      We, therefore, partly allow the appeal of Gurnam Singh. His conviction under Section 302 IPC is altered to one under Section 302  read with  Section 34  IPC. The  order  of  his sentence is  modified and  instead of  death sentence, he is directed to  suffer imprisonment  for life for the deaths of Inder Singh,  Puran Singh  and Baldev SIngh. Criminal Appeal No. 402/98  filed by Palwinder Singh is dismissed subject to the alteration  of his  conviction from under Section 302 to one under  Section 302 read with Section 34 IPC. As were are not confirming  the death  sentence, death  reference stands rejected. IN THE MATTER OF :