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PETITIONER: PIARA SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 08/01/1969

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. GROVER, A.N.

CITATION:  1969 AIR  961            1969 SCR  (3) 236  1969 SCC  (1) 379  CITATOR INFO :  R          1974 SC  28  (4)  RF         1977 SC 472  (6)  R          1979 SC1761  (5)  RF         1988 SC 672  (7)

ACT: Evidence-Principle  of  issue-estoppel-Approver’s  evidence, value of.

HEADNOTE: The  appellant and S were, charged for an offence  under  s. 302  I.P.C:  and under the Explosive  Substances  Act.   The prosecution  relied upon the evidence of the approver.   The approver’s  statement was corroborated, (a) by the  recovery of a piece of cloth which was part of the same cloth used in the clime, (b) by the evidence of that the box was made  for the appellant, and (c) by the evidence regarding despatch of the  parcel by the appellant.  The Sessions Judge  convicted the appellant and   S,   against   which   both    appealed. The conviction of the appellant was     upheld  by the  High Court, as it considered that the statement of the approver was  corroborated by the evidence of other witnesses so  far the,appellant was concerned.  But the High Court  acquitted S being of the view   that   there   was   no    independent corroboration  of the approver’s evidence which lead to  the inference  that S was instrumental in the commission of  the crime.   In  appeal to this Court, the  appellant  contended that (i) the affect of acquittal of S was to, weaken, if not to  destroy, the approver’s evidence so far as it  concerned the appellant, relying on the principles of  issue-estoppel; and  (ii)  there  was no  corroboration  of  the  approver’s evidence so far as the appellant was concerned.   Dismissing the appeal, HELD  :  (i) For the principle of issue-estoppel  to  arise, there  must  have  been  distinctly  raised  and  inevitably decided  the same issue in the earlier  proceedings  between the  same parties.  But the principle cannot be  invoked  in the  present case because the parties are different and  the decision upon any issue as between State and S, in the  same litigation  cannot operate as binding upon the  ’State  with

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regard to the present appellant. [242 D-E] Pritam  Singh v. State of Punjab, A.I.R. 1956 S.C. 415.  and Manipur  Administration  v. Thokchom Bira  Singh,  [1964]  7 S.C.R. 123, followed. Sambasivam  v.  Public  Prosecutor,  Federation  of  Malaya, [1950]  A.C. 458, King v. Wilkes, 77 C.L.R. 511 at pp.  518- 519, Marz v. The Queen, (1956) 96 C.L.R. 62, Again in  Brown v, Robinson, (1960) SR. (N.S.W.) 297, 301, applied. (ii)The application of approver’s evidence has to satisfy a double  test.  His evidence must show that he is a  reliable witness  and  that  is a test which is  common  to  all  the witnesses.  If this test is satisfied the second test  which still remains to be applied is that the approver’s  evidence must  receive  sufficient  corroboration.   It  would  not however,   be   right  to  expect  that   such   independent corroboration  should  cover the whole  of  the  prosecution case.   In  the  present case, the High  Court  had  rightly applied  this Principle and reached the conclusion that  the approver’s  evidence was materially corroborated so  far  as the appellant was concerned. [243 A-C]                             237 Sarwan  Singh  v. State of Punjab, A.I.R.   1957  S.C.  637, followed.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeals  NO.  158 and 197 of 1968. Appeals  by certificate/special leave from the judgment  and order dated November 3, 1967 of the Punjab and Haryana  High Court  in Criminal Appeal No. 602 of 1967 and Murder  Refer- ence No. 45 of 1967. J.P.  Mitter,  J.  C.  Talwar and R. L.  Kohli  for  the, appellant (in both the appeals). Kartar Singh Chawla and R. N. Sachthey, for the,  respondent (in both the appeals). The Judgment of the Court was delivered by Ramaswaini,  J. The appellant Piara Singh and one  Nand  Lal Sehgal  were  tried  together  by  the  Sessions  Judge   of Kapurthala,  who  by  his  judgment  dated  1st  July,  1967 convicted  the  appellant  under  section  302  I.P.C.   and sentenced  him to death.  The appellant was  also  Convicted and  sentenced  to  5  years’  rigorous  imprisonment  under section  3 of the Explosive Substances Act and to  5  years’ rigorous imprisonment under section 326 of the Indian  Penal Code.   Nand Lal Sehgal was sentenced to  life  imprisonment under section 302 read with sections 109 and 113, I.P.C. and to  5  years’ rigorous imprisonment under section 4  of  the Explosive Substances Act.  Both the convicted persons  filed appeals in the.Punjab and Haryana High Court, viz.  Criminal Appeal No. 602 of 1967 and 601 of 1967.  The State of Punjab also   filed   a  criminal  revision  No.  1006   1967   for enhancement. of sentence of Nand Lal Sehgal.  By a of common judgment dated 3rd November, 1967, the High Court  dismissed the  appeal of the appellant and confirmed the  sentence  of death imposed upon him.  The High Court, however,  acquitted Nand  Lal  Sehgal by allowing his appeal and  dismissed  the revision  petition filed by the State of Punjab.  These  are two  appeals  one by certificate and the  other  by  special leave  on  behalf of the appellant Piara Singh  against  the judgment  of  the Punjab and Haryana High  Court  dated  3rd November, 1967. The case, of the prosecution was that one Ram Sahai P.W, 19, who  was the organising Secretary of Jagatjit  Kapra  Mills.

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Mazdoor Union, Phagwara, had proceeded on hunger strike from 1st  October;  1966  in front of the gate  of  the  Jagatjit Textile-Mills,  Phagwara (hereinafter called the  Mills)  in order to compel the management to accept certain demands  of that  Union regarding dearness allowance, gratuity. for  re- employment  of  the  labourers who had  been  turns  out  of service  and the like.  The hunger strike of, Ram Sahai  was supposed to last till death or the acceptance of the 238 demands by the Mills whichever was earlier.  A tent had been fixed  outside the gate of the Mills and Ram Sahai  used  to sit on a cot under the tent.  On 4th October, 1966, at  1.45 p.m.  Ram  Labhaya,  Postman,  P.W. 31  came  there  with  a registered  parcel  addressed to Ram Sahai.  On  the  parcel being  opened,  a bomb inside it exploded, as  a  result  of which Radhey Sham, Shadi Lal and Charanjit Lal died and P.W. 1 1 Chanan Singh, P. W. 14 Moti Lal, P.W. 16 Madhu  Parshad, P.W.  17 Tara Singh, P.W. 18 Ram Dass, P.W. 20 Muni Lal  and P.W. 21 Naunihal Singh received injuries.  It is alleged for the prosecution that tile parcel had been despatched by  the appellant  from Amritsar at the instance of Nand Lal  Sehgal and  that  the  approver  Mohinder  Singh  had  helped   the appellant in preparing the parcel containing the bomb. The first clue in connection with the crime was obtained  by the  police  on 8th October, 1966 when at about  4.00  p.m., P.W. 25 Amrik Singh, a resident of Amritsar appeared  before Sub-Inspector  Mohinderpal  Singh.   P.W.  59  and  made   a statement  that  he  had known Piara Singh  before  and  was friendly  with him, that on 3rd October, 1966,  Piara  Singh who  was  carrying  a  Jhola,  which  appeared  to   contain something  bulky, met him and. in response to an  invitation for  tea, told Amrik Singh that he was in a hurry to go  for some work.  Three or four days later, Amrik Singh read in  a newspaper  regarding  explosion of a bomb near  the  Textile Mills Phagwara On the 7th October, 1966, Sri Niwas, P.W.  27 who’,  is  a deed writer, met him and told  him  that  Piara Singh had despatched a parcel from Amritsar. The  most important witness in the case, is Mohinder  Singh, P.W. 8 who was tendered pardon under section 337 of the Code of   Criminal   Procedure  by   the   District   Magistrate, Kapurthala.  The evidence of approver is to the effect  that he  was  working in the Mills since 1951 and three  or  four years  later Piara Singh also joined service in  that  Mills and  was working as his subordinate.  Piara Singh  developed cordial  relations with Nand Lal Sehgal and used  to  assist him  in breaking up labour strikes.  One and a  half  months before  the occurrence, Piara Singh came to  the  approver’s residence and told him that Sehgal wanted one Ram Singh  who Was  employed  in  the Textile Mills.  Ganga  Nagar,  to  be killed, Piara, Singh suggested the device of sending a  bomb in  a parcel to the victim and when the  parcel  would  be opened,  the bomb would explode.  About 15 days  before  the incident,  Piara Singh again came to the approver  and  told him that he had secured a bomb and he wanted to get prepared two wooden boxes, one smaller in size. than the other.   The approver  and  Piara Singh thereafter went to  the  shop  of Nazar  Singh  P.W.22 a carpenter of Phagwara, who  made  the box.  Later in the evening they went to of Gian Singh,  P.W. 23 a carpenter of village Chachoki,which is said to be  half a mile from Phagwara.  Piara  Singh     got prepared                   239 from  him six pieces of phaties of raw wood.  After  it  had become  dark,  Piara Singh brought to  the  approvers  house these articles as also a bomb saying that he had removed the fuse  of  the  bomb so that if it should fall,  it  may  not

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explode.   On  2nd  October, 1966 Piara Singh  came  to  the approver’s  house  at 10 pm. and informed  him  of  Sehgal’s intention that the bomb should now be sent so as to  explode at Ram Sahai who was the leader of the strikers at Phagwara. Piara  Singh thereafter prepared a wooden box from  the  six pieces’  of phaties.  The, approver described  the  arrange- ment, for packing the bomb as follows:-               "Placing  the fuse in the bomb after  removing               the  pin and placing a wire in its place,  we               placed  it  in that ,box.  Then  the  box  was               closed and the lid was placed on it with Kabza               and Kundi.  In that Kundi a nut was placed and               a  bolt was fitted in it so that the  box  may               not  open.   Then the box was also  tied  with               strings  so that the Phaties may not give  way               on account of the pressure of the lever.  Then               from  the hole, which was on one side  of  the               box  corresponding to, the wire fitted in  the               bomb,  the  wire was pulled  out.   Then  that               wooden  box  was  placed in  the  bigger  box.               Piara  Singh  accused had brought with  him  a               piece  of Khaddar cloth and a parcel was  made               of  the bigger box in that cloth.  The  pieces               of Khaddar which were spare placed in  between               the two boxes so that the smaller box may  not               move  inside the bigger box.  Because  of  the               spare pieces of cloth were not sufficient so I               gave two shirts of my children to Piara Singh.               Those  shirts were of Poplin of  blue  colour.               Piara  Singh  tore one shirt into  pieces  and               placed  those  pieces also  in  between  those               boxes.  Before the parcel was prepared in  the               Khaddar cloth the bigger box was secured  with               nails." At,  about 1 a.m. the approver and Piara Singh went  to  the house  of Sehgal and explained to him how they had  prepared the  parcel.   Piara Singh told Sehgal that when  Ram  Sahai would  open the parcel the bomb would explode and  he  would die. made over a sheet of paper to Piara Singh on which  was written the address of Ram Sahai.  Sehgal also gave Rs. 40/- to  Piara  Singh for expenses and instructed  him  that  the parcel had to. be sent through the Post Office at  Amritsar. Next  day  on  3rd October, 1966 Piara  Singh  came  to  the approver in the morning carrying a Jhola in which he  placed the  parcel  containing the wooden box.  The  approver  took Nara Singh to the Railway Station Phagwara.  In the  evening Piara  Singh returned at about 6 p.m. and told the  approver that he had got the parcel despatched as directed by  Sehgal from  Am where he a so met Amrik Singh.  Both of  them  then went to the house of Sehgal and 240 Piara  Singh  banded over the registration  receipt  to  him saying that it should be destroyed.  At about 2 p.m. on  the next day, i.e, 4th October, 1966, the approver learnt  about the explosion of the bomb, The High Court considered that the statement of the approver Was sufficiently corroborated by the evidence of Nazar Singh P.W.  22, Gian Singh P.W. 23, Sardara Singh P.W.  24,  Amrik Singh P.W. 25 and Sri Niwas P.S. 27 so far as the  appellant was  ’Concerned.   The  High  Court  accordingly  held  that charges  under Ss. 302 and 326, I.P.C. and section 3 of  the Explosive  Substances  Act  were  established  against   the appellant.   As regards Nand Lal Sehgal the High Court  took the view that there was no independent corroboration of  the approver’s  evidence  which  could reasonably  lead  to  the

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inference that Sehgal was instrumental in the commission  of the  crime.  The High Court, therefore, acquitted  Nand  Lal Sehgal. In support  of his appeal Mr. Mitter contended, in the first place,  that by reason of the acquittal of Nand  Lal  Sehgal the  evidence given in the case concerning Nand  Lal  Sehgal must  be  totally  rejected.   It  was  contended  that  the evidence  of  the approver so far as it  concerns  Nand  Lal Sehgal must be eliminated.  In other words, the argument was that  the  effect  of acquittal of Nand Lal  Sehgal  was  to weaken  if not to destroy the approver’s evidence so far  as it concerns the appellant also In this connection Mr. Mitter relied upon the principle of issue-estoppel and referred  to the  decision  of the Judicial Committee  in  Sambasivam  v. Public   Prosecutor,  Federation  of  Malaya,(1),  and   the decision  of  this  Court  in  Pritam  Singh  v.  State   of Punjab,(2)  and  Manipur  Administration  v.  Thokchom  Bira Singh(").   In  our opinion, there is no  justification  for this  argument.   It  is  true  that  Nand  Lal  Sehgal  was acquitted  by  the High Court which took the view  that  the evidence of the approver was not corroborated so far as Nand Lal  Sehgal was concerned.  But there is no finding  of  the High Court that the approver had implicated Nand Lal. Sehgal falsely.  The High Court considered that there was no  legal corroboration of the approver’s evidence as regards Nand Lal Sehgal  and in the absence of such corroboration it was  not safe  to  upheld  the  conviction  of  Sehgal.   That  is  a different  thing from saying that the Court found  that  the approver’s evidence regarding the participation of Nand  Lal Sehgal  is  false.  In any event, the  principle  of  issue- estoppel has no application to the present case.  It  should be stated that the principle’ of issue-estoppel is different from  the principle of double jeopardy or autre fois  acquit as  embodied in S. 403 of the Criminal Procedure Code.   The prin- (1), [1950] A.C.458.    (2) A     1956 S.C. 415. (3)  [1964] 7 S.C.R. 123. 241 ciple of issue-estoppel is a different principle, viz. where an  issue of fact has been tried by a competent court  on  a former occasion and a finding has been reached in favour  of an  accused, such a finding would constitute an estoppel  or res  judicata  against the prosecution not as a bar  to  the trial  and  conviction  of the accused for  a  different  or distinct offence but as precluding the reception of evidence to  disturb that finding of fact when the accuses  is  tried subsequently  even  for a different offence which  might  be permitted by the terms of s. 403(2), Cr.P.C. Speaking on the principle of estoppel Dixon, J. said in King v. Wilkes(1)               "Whilst there is not a great deal of authority               upon the subject, it appears to me that  there               is nothing wrong in the view that there is  an               issue-estoppel,  it  it appears by  record  of               itself  of  as explained by  proper  evidence,               that  the same point was determined in  favour               of a prisoner in a previous  criminal  trial               which is brought in view on a second  criminal               trial of the same. prisoner. that seems to  be               implied in the language used by Wright, J.  in               R. v. Ollis which in effect I have adopted  in               the foregoing statement...... There must be  a               prior proceeding determined against the  Crown               necessarily  involving  an issue  which  again               arises in a subsequent proceeding by the Crown               against the same prisoner.  The allegation  of

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             the  Crown in the subsequent  proceeding  must               itself  be inconsistent with the acquittal  of               the prisoner in the previous proceeding.   But               if such a condition of affairs arises I see no               reason   why  the  ordinary  rules  of   issue               estoppel should not apply.  Such rules are not               to  be  confused with those of  res  judicata,               which in criminal proceedings are expressed in               the pleas of autre fois acquit and autre  fois               convict.   They are pleas which are  concerned               with. the judicial determination of an alleged               criminal   liability  and  in  the   case   of               conviction  with  the substitution  of  a  new               liability.  Issue-estoppel is concerned.  with               the judicial establishment of a proposition of               law or fact between parties.  It depends upon.               well   known  doctrines  which   control   the               reltigation  of  issues which are  settled  by               prior litigation." In  a  subsequent  case Marz v. The  Queen(2),  Dixon,  C.J. stated as follows :-               "The law which gives effect to issue-estoppels               is  not  concerned  with  the  correctness  or               incorrectness of the finding Which amounts  to               an  estoppel still less with the processes  of               reasoning by which the finding was reached  in               fact.......  It  is enough that  an  issue  or               issues (1)  77 C.L.R. 511 a, pp. 518-519. (2) [1956] 96 C.L.R. 62. 242               have  been  directly raised and  found.   Once               that  is I done, then, so long as the  finding               stands, if there by any subsequent  litigation               between  the  same  parties,  no   allegations               legally, inconsistent with the finding may  be               made  by  one of them against the  other,  Res               judicate  pro  veritate accipitur.   And  ....               this applies in pleas of the Crown."               Again  in  Brown  v.  Robinson(1)  Herron  and               Maguire, JJ. said               "Before  issue-estoppel can succeed in a  case               such  as this there must be  prior  proceeding               determined   against  the  Crown   necessarily               involving  an  issue which again arises  in  a               subsequent proceeding by the Crown against the               same prisoner .... It depends upon an issue or               issues having been distinctly raised and found               in the former proceeding". The principle of issue-estoppel has received the approval of this  Court  in  Pritam Singh v. State  of  Punjab  (2)  and Manipur  Administration  v.  Thokchom  Bira  Singh  (3)  and several  later  decisions.   But  the  principle  cannot  be invoked  in  the  present  case  because  the  parties   are different  and the decision upon any issue as between  State and Nand Lal Sehgal in the same litigation cannot operate as binding  upon the State with regard to  present’  appellant. For issue-estoppel to arise there must have been  distinctly raised and inevitably decided the same issue in the  earlier proceedings between the same parties’.  ’In our opinion, mr. Mitter is unable to make good his argument on this aspect of the case. It was then contended on behalf of the appellant that  there was no corroboration of the approver’s evidence so far as he was  concerned.   An accomplice is undoubtedly  a  competent

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witness  under  the  Indian Evidence, Act.   There  can  be, however,   no  doubt  that  the  very  fact  that   he   has participated  in the commission of the offence introduces  a serious  taint  in  his evidence and  Courts  are  naturally reluctant  to  act  on such tainted evidence  unless  it  is corroborated  in material particulars by other  independent, evidence.   It would not, however, be right to  expect  that such independent corroboration should cover the whole of the prosecution case or even all the material particulars of the prosecution case.  If such a view is adopted it will  render the  evidence of the accomplice wholy superfluous.   On  the other  hand, it will not be safe to act upon  such  evidence merely  because it is corroborated in minor  particulars  or incidental, details because, in such, a case,  corroboration does not afford the necessary assurance that the (1) [1960] S.R.(N.S.W.)297,301. (2) A.I.R. 1956 S.C. 415. (3) [1964]7 S.C.R. 123.                             243 main story disclosed by the approver can be, reasonably  and safely  accepted  as  true’.  It is well  settled  that  the appreciation  of  approver’s  ’,evidence has  to  satisfy  a double  test.   His evidence must show that he  is  reliable witness  and,  that is a test which is common  to  all  the witnesses.  If this test is satisfied the second test, which still remain to be applied is that the approver’s’  evidence must receive sufficient corroboration. (See Sarwan Singh  v. State,  of Punjab) (1).  In the present case the High  Court has   rightly  applied  this,  principle  and  reached   the conclusion  that  the  approver’s  evidence  was  materially corroborated  so far  as the appellant was  concerned.   In the  first place, the approver, said that while  going  from his  house  when he fled from Phagwara, he  had  thrown  the remaining pieces of the shirt in a cluster of sarkandas.  As a result of search A.S.I. Pritam Singh recovered torn pieces of  cloth  Exs.  P.9/ 11 to P. 9/ 3 from a bush  about  150 yards,  from  the  Mill.  The testimony of  the  expert  Mr. Longia  P.W. 7 shows that Exs.  P. 9/1 to P. 9/3 were  parts of  the same cloth as pieces Exs.  P. 10/1 to P. 10/3  which were  used  for Dacking the bomb between the inner  and  the outer  boxes.  If the approver was not a participant to  the packing  of  the hand grenade, he could not possibly  be  in possession  of the pieces. of cloth Exs.  P. 9/1 to P.  9/3. In  the second place, the evidence of Nazar Singh,  P.W.  22 indicates that he made the outer box for Piara Singh and was paid Re.  1/- by him.  Gian Singh, P.W. 23 also said that he had  been asked by Piara Singh to make Phaties about  4"  in length for the preparation of-the box.  Amrik Singh, P.W. 23 has also given corroborative evidence.  Piara Singh had  met him at Amritsar on 3rd October 1966 and told him that  Piara Singh  had  despatched  the parcel.  The  testimony  of  Sri Niwas, P.W. 27 is crucial in this case.  He has corroborated the  statement  of the approver. in  important  particulars. The  evidence of Sri Niwas was criticised on behalf  of  the appellantas Sri Niwas made his statement to the police after some  delay viz., on the 17th October, 1966.  On this  point Sub-Inspector  Mohinderpal Singh explained that  earlier  on 9th  October, 1966, he tried to contact Sri Niwas,  but  the latter was not found in his seat in Phagwara Chowk.  He made another  effort to trace him on 13th October, 1966,  but  it was  equally fruitless.  It is true that  the  Sub-Inspector could  have  made more strenuous efforts to trace  out  Sri Niwas,  but he was going to other places also in  connection with the investigation.  The High Court has held that merely on  account of this delay the statement of Sri  Niwas  could not  be rejected.  On the contrary the High Court has  found

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the  evidence of Sri Niwas to be true and reliable.   It  is manifest  that  there  is sufficient  corroboration  of  the evidence  of  the  approver  so  far  as  the  appellant  is concerned and the argument of Mr. Mitter must be  rejected on this aspect of the case. (1)  A.I.R. 1957 S.C. 637. 244 Lastly, it was contended that the hand grenade could not  be arranged in the manner stated by the approver, but that  the hand grenade was intact and when the parcel was opened, some one  may have caused it to explode.  In this connection  Mr. Mitter referred to the evidence of expert Mr. Murti P.W.  6. According  to Mohinder Singh, only one hole was made in  the inner  box through which the wire fitted in the  grenade  in place of the safety pin was taken out.  The argument of  the appellant  was that,two holes should have been made  in  the inner  box, but according to the approver only one hole  Was made.  It was also said that according to the report of the expert, bent steel wire was found in the first parcel  which was  sent  to  him.  It was argued that the  report  of  the expert was not consistent with the evidence of the  approver who  said that the safety pin of the wire had been  removed. It  was  suggested that Mohinder Singh would  have  probably thrown the safety pin and not kept it in the box.  The  High Court  has examined in detail the argument of the  appellant on this point and reached the conclusion that the  statement of  the  approver with regard to, the packing, of  the  hand grenade should be accepted as ’true.  The question  involved is  one  of appreciation of evidence and not a  question  of law.  In any event, we see no sufficient reason for taking a view different from that of the High Court in this matter. For,  these reasons we hold that there is no merit in  these appeals which are accordingly dismissed. Y.P.                                  Appeals dismissed. 245