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CASE NO.: Appeal (crl.) 24  of  2001

PETITIONER: SUCHA SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:       22/03/2001

BENCH: K.T. Thomas & R.P. Sethi

JUDGMENT:

THOMAS, J.@@ JJJJJJJJJJ L...I...T.......T.......T.......T.......T.......T.......T..J

   During the months when insurgency in the State of Punjab was  at its peak two striplings were knocked off from  their house  on 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 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 senior counsel  pleaded  for reconsideration  of  the  ratio laid down by this  Court  in State  of  West Bengal vs.  Mir Mohammad 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  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 IPC.  As we heard  Shri U.R.   Lalit  in  extenso on the above  submission,  besides other  points convassed by him on the merits of the case, 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

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home  for a furlough and stayed with his parents.  The other son  Surinder Singh was also staying in the same house.  The militancy  in  Punjab had armed 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.

   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 armed with AK-47 rifles at about 10 P.M., and knocked at the door. Diwan  Singh  switched on the light in 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 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.

   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 Gurna 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 injuries.

   Police  after  investigation   charge-sheeted  only  two persons  as  accused, one the appellant Sucha 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  Terrorist  and Disruptive Activities (Prevention) Act (TADA).  The judge of the  designated  court  convicted  both  the  accused  under Section  302  read  with  Section 34 IPC  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 Sucha Singh.

   There  is no dispute that the deceased were shot dead on the  said  night by somebody with AK-47 rifles.   Hence  the only  point  is  whether  the   appellant  was  one  of  the murderers.   The  evidence  against  the  appellant  is  the testimony  of PW-3 Diwan Singh and PW-4 Dalbir Kaur.  As for them,  they only testified that the two deceased were  taken away  by  armed assailants from the house on that  ill-fated night and such assailants included the two convicted persons and  that  the  corpses of the deceased  were  spotted  next morning  lying  on  the roadside a little  away  from  their house.

   Shri  U.R.  Lalit, learned senior counsel first focussed on  a contention that PW-3 Diwan Singh and PW-4 Dalbir  Kaur were  living with their elder sons at Amritsar City and that

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they  learnt  about  the  death of the  deceased  only  when somebody  informed  them about it on the following  morning. In other words, according to the learned senior counsel, the truth of the testimony of PW-3 and 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 the defence side to say that  the  old 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 the house where the deceased stayed on that night.   All that the witnesses could say was 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  in which DW-1 Senga Singhs address was described in his  deposition.   He is described as resident  of  Rupawali Village in Amritsar.

   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 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 Gurnam 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 after leaving his brother to remain near the  dead bodies, and went to Amritsar city on a bicycle for informing his  elder sons about the occurrence.  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.

   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 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 dont  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, 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  circumstances of  this  case, to doubt the presence of PW-3 and  his  wife PW-4 in the house on the crucial night.

   That  apart,  the two younger sons,  including  Narinder Singh  who  came  from army for a furlough to  be  with  his

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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.

   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:

   (1)  The  incident happened during a period when  Punjab was boiling with terrorist activities.  (2) The house of the deceased was treated by the terrorists as the home of police touts  against  terrorists.  (3) Appellant and three  others reached  the house during the dead of night armed with AK-47 rifles  (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 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 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.

   The  abductors  alone  could tell the court as  to  what happened to the deceased after they were abducted.  When the abductors  withheld that information 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.   Lalit,  learned senior counsel  raised  his contention  on  the above score that even assuming that  the appellant  was  one  among  the persons 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 State of West Bengal vs. Mir  Mohammad  Omar (supra) that the principle  embodied  in Section  106  of  the  Evidence Act can  be  utilised  in  a situation   like  this.   Shri   U.R.   Lalit  pleaded   for reconsideration  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  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   doctrine   of presumption  is  not alien to the above rule, nor  would  it

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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 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 Attygalle and anr.  vs.  The King (AIR 1936 PC 169) and also in  Stephen Seneviratne vs.  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 vs.  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 West Bengal  vs.   Mir  Mohammad 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 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 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  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.

   We  have  seriously  bestowed our consideration  to  the arguments  addressed by the learned senior counsel.  We only reiterate  the  legal principle adumbrated in State of  West Bengal vs.  Mir Mohammad Omar (supra) that when more persons than  one have abducted the victim, who was later  murdered, it  is within the legal province of the court to justifiably draw  a presumption depending on the factual situation, that all  the abductors are responsible for the murder.   Section 34  of  the  IPC 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 the extreme  act etc.  etc.

   We  are  mindful of what is frequently happening  during these  days.   Persons are kidnapped in the sight of  others

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and  are  forcibly taken out of the sight of all others  and later  the kidnapped are killed.  If a legal principle to be laid  down  is that for the murder of such  kidnapped  there should  necessarily  be independent evidence apart from  the circumstances enumerated above, we would be providing a safe jurisprudence  for  protecting   such  criminal  activities. 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 recovered by the police from the scene of murder. That  note  contained the scribbling purported to have  been authored  by  a group 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 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.