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Friday, April 17, 2015

However, as regards Darshan Singh all that the prosecution has produced is the record of telephonic conversations. No doubt that there have been communications with Ashwani Kumar, Anil Kumar, Joginder Singh and the number from Canada but such communications are from a landline number which stands in the name of the brother of Darshan Singh. There is no evidence on record that the said landline number was under the exclusive control of Darshan Singh. Secondly, given the fact that his daughter is married with the son of Surjeet Singh from Canada, the conversations with the number in Canada are explainable. It is true that suspicion against Darshan Singh was expressly stated in the first statement of PW-15 Sukhwinder Singh itself. However, apart from telephonic conversations nothing has been placed on record by the prosecution. We, therefore, give benefit of doubt to Darshan Singh and acquit him of the charges leveled against him.

                                                                  Reportable


                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                    CRIMINAL APPEAL NOs.1041-1042 of 2008


Ashwani Kumar @ Ashu & Anr.                    .... Appellants

                                   Versus

State Of Punjab                                   .... Respondent

                                    WITH

                       CRIMINAL APPEAL NO.1043 OF 2008

                                     AND

                       CRIMINAL APPEAL NO.1814 OF 2009



                               J U D G M E N T



Uday Umesh Lalit, J.


1.    These appeals by special leave challenge the judgment and order  dated
15.02.2008 passed by the High Court of Punjab and Haryana.  Criminal  Appeal
Nos.1041-1042 of 2008 are by  Ashwani  Kumar  @  Ashu  and  Joginder  Singh,
Criminal Appeal No.1043 of 2008 is  by  Anil  Kumar  while  Criminal  Appeal
No.1814 of 2009 is by Darshan Singh. The appellants  stand  convicted  under
Sections 364/302/307 read with Section 120B IPC.  Since these appeals  arise
from the same judgment, they are being  dealt  with  and  disposed  by  this
common judgment.  Initially eleven persons were sent  for  trial  while  two
absconding accused were marked as  proclaimed  offenders.  The  trial  court
convicted seven out of those eleven accused and acquitted four  accused.  In
the appeals by the convicted accused, the High Court  acquitted  three  more
accused, confirming the conviction and sentence of the  present  appellants.
Since the acquittal of others has  attained  finality,  the  facts  narrated
hereafter are confined to the appellants herein.

2.    One Jaswinder Kaur @ Jassi, normally  residing  with  her  parents  in
Canada, married PW-15 Sukhwinder Singh  resident  of  village  Kaoka  Khosa,
District Sangroor, Punjab on  15.04.1999.   It  was  a  court  marriage  and
against the wishes of her parents and her maternal uncle.  Jassi  thereafter
went to Canada on 02.05.1999 and while she was there, on the basis of a  fax
message (Ext.PAO) allegedly under her signature, FIR No.38 dated  23.02.2000
was registered with Police Station Sadar Jagraon against  PW  15  Sukhwinder
Singh under Sections 342, 467, 468, 471 and 506 of the  IPC.     When  Jassi
got to know about this, she came back  to  India  and  appeared  before  the
police.  Her statement was recorded that she had married  PW  15  Sukhwinder
Singh out of her free will, that the alleged signature on  the  fax  message
was not hers and that   the marriage was not to the liking  of  her  parents
and maternal uncle.  Her  statement  under  Section  164  Cr.P.C.  was  also
recorded and thereafter closure  in  respect  of  said  crime  was  ordered.
Jassi then started living with her husband in the house  of  PW  20  Sukhdev
Singh, maternal uncle of her husband, in village Narike.

3.    On 08.06.2000 PW 15 Sukhwinder Singh and Jassi were coming back  on  a
scooter from Malerkotla to their village and when  they had reached  village
Sykhe at about 9.30 PM, four persons armed with  hockey  sticks  and  swords
got down from a white Maruti car and attacked them.  PW 15 Sukhwinder  Singh
received number  of  injuries.  Leaving  him  in  injured  condition,  those
persons forcibly took away  Jassi  in  that  car.  PW  15  Sukhwinder  Singh
somehow managed to reach the house of  PW  20  Sukhdev  Singh  who  got  him
admitted in the Civil Hospital, Malerkotla, where PW-1 Dr. Amit  Modi  found
him to have suffered the following injuries:-
2 X 1cm incised wound over left side of face 2 cm below ear pinna.

Swelling and tenderness over left side of mandible.

10 X .5 cm wound over left side of scalp 8 cm over left pinna.

4X .5 cm incised wound over left side of scalp in temporal area 2  cm  above
ear pinna.

3 X .5cm incised wound over left side of scalp  3  cm  above  ear  pinna  in
temporal area 2 cm from injury No. 4.

4.5 X .5cm incised wound over left side of scalp 6 cm above  ear  pinna  1cm
away from injury No. 4 and 2cm away from injury No. 5

4 X 3cm lacerated wound with  this  much  of  it  hanging  and  attached  to
remaining scalp by superficial layer of skin only 1cm  from  injury  No.  6.
For injuries No. 1 to 7 X-ray was advised.

8 X 4cm incised  wound  from  web  space  between  middle  and  ring  finger
proximally towards wrist joint-cutting all  structures  from  skin  to  skin
from dorsal to ventral aspect of hand, cutting,  skin,  nerves,  tenden  and
bone.

2 x .5cm incised wound over right little finger proximal  phalanx  over  the
dorsal aspect.

 Right ring finger amputated obliquely  at  middle  phalanx.  Wound  margins
sharp clean cut.

For injuries No. 8 to 10 X-ray was  advised.  In  all  the  injuries  except
injury No. 2 fresh bleeding was present. Injuries  No.  1  to  8  were  kept
under observation, whereas injuries No. 9 and  10  were  grievous.  Probable
duration of injuries was within six hours.  The  kind  of  weapon  used  for
injuries No. 1,3,4,5,6,8,9 and 10 was sharp, whereas for injuries No. 2  and
7 was blunt."

4.    PW-1 Dr. Amit Modi sent intimation or ruqa Ext.PB to  the  police  who
recorded the statement of PW 15 Sukhwinder Singh, in which   it  was  stated
as under:-
"....I was coming back alongwith my wife  Jaswinder  Kaur  on  scooter  from
Malerkotla to Village Narike and when we reached the  Village  of  Syhke,  a
white Maruti car was parked near  the  bridge  of  the  drain  and  when  we
reached nearby, then 4 persons came out of said Maruti car  who  were  armed
with hockeys and swords and attacked us. I received many injuries and I  was
thrown and my wife was forcibly kidnapped with intention to kill her. I,  on
my scooter in  staggering  condition,  reached  the  house  of  my  maternal
parents. Sukhdev Singh, my maternal uncle  got  me  admitted  in  the  Civil
Hospital, Malerkotla. You have written my statement and  it  is  correct.  I
have doubts against Hardev Singh @ Mintu etc.  s/o  Darbara  Singh,  Village
Kaonke Khosa who have done this. I can identify others when  brought  before
me."

5.    FIR No. 48 was accordingly registered  with  police  station  Amargarh
under Sections 307, 364 and 34 IPC at about 1.50 AM  on  09.06.2000.  PW  15
Sukhwinder Singh was then referred and taken to Christian  Medical  College,
Ludhiana for further treatment where he was attended to by PW 2  Dr.  Deepak
Bansal and PW 4 Dr. Subhasish Das.  On 09.06.2000  at  about  10.00  AM  one
Bahadur Singh of Village Bolara while going to his agricultural field  found
dead body of a young lady aged about 22-23 years lying in water on the  edge
of minor canal.  He reported the matter to the  police,  pursuant  to  which
FIR No.197 dated 09.06.2000 under Section 302 IPC was  registered  with  the
police station Sadar Ludhiana.  The  body  was  identified  to  be  that  of
Jassi.  In the post  mortem  conducted  by  a  Board  of  three  doctors  on
10.06.2000 at about 4.00 PM, following injuries were noticed on the body  of
Jassi:-
An incised wound 7 inch x 2  inch into muscle deep in front of the neck.

An incised wound just below the chin 4  inch x 2   inch  was  cutting  the
skin, sub coetaneous tissue and muscles.

An incised wound 6" x   "  x  skin  deep  on  the  front  of  chest  placed
horizontally.

The post mortem further indicated:-
"..The cause of death in this case in our  opinion  was  due  to  shock  and
hemorrhage as a result of injury to the vital organs, which were  sufficient
to cause death in the ordinary course of nature. All the injuries were ante-
mortem in nature...."


6.    On 09.06.2000 itself a supplementary  statement  of  PW-15  Sukhwinder
Singh  was recorded in which he gave the number of said Maruti  car  as  DNJ
4862 and also stated his firm belief that the occurrence had been  committed
in connivance with Hardev Singh  @  Mintu,  Surjeet  Singh,  Malkiat  Singh,
Darshan Singh and Gurnek Singh @  Bhatti.   It  appears  that  despite  such
clear  assertions  no  arrests  were  effected.   The   matter   was   being
investigated by PW 38 Sub-Inspector Hardeep Singh who had gone to  the  spot
on 09.06.2000 and prepared the  site  plan  and  was  able  to  recover  one
sandal, a handle of cricket bat and upper portion of a hockey stick.   Under
the orders of the Special Superintendent of Police, investigation was  taken
up by PW 40 Inspector Swarn Singh on 20.06.2000.  Hardev  Singh  whose  name
was mentioned in the FIR as well as supplementary statement was arrested  on
21.06.2000 while Darshan Singh was arrested on 22.06.2000.    On  28.06.2000
Anil Kumar was arrested, while six others including  Ashwani  Kumar  @  Ashu
were arrested on 30.06.2000.

7.    While he was in custody, statement of Anil Kumar  was  recorded  which
led to the discovery of a pistol, three live cartridges and one  Maruti  car
bearing no. DNJ 4862  from  which  a  mobile  having  No.9814011272  and  an
additional SIM having No.9814038404 were recovered.  Blood  stained  portion
of back seat of the car was cut and seized. The statement of  Ashwani  Kumar
led to the discovery of a kirpan and a photograph of Jassi  (Ext.P-38)  from
a farm named Bolara Farm.  On the back side of the photograph, in  Gurumukhi
was written her name, physical  description  including  complexion  and  the
clothes that she would normally wear.  The description was meant  to  enable
a stranger to identify with clarity the person in the photograph.  It was  a
full photograph taken out from the collection of someone  known  to  her  or
the family. From the  house  of  Ashwani  Kumar  mobiles  were  seized  with
numbers 9814014562 and 9316053404.

8.    On 05.07.2000 statement of PW 5   Jagdeep  Singh  was  recorded  under
Section 164 Cr.P.C to the effect that about one and a  half  months  before,
one Gurwinder Singh and Ashwani Kumar had taken him and  PW6  Harjeet  Singh
to the dhaba of one pahlwan in a tempo.  They were told to give  beating  to
PW 15 Sukhwinder Singh as he had contracted marriage with a girl related  to
Ashwani Kumar without the consent of her family.  Said PW  5  Jagdeep  Singh
and PW 6 Harjeet Singh not having agreed to, they left the dhaba.  Later  in
the newspaper he saw the photograph of PW 15 Sukhwinder Singh and  his  wife
and therefore had appeared before  the  Investigating  Officer  to  get  the
statement recorded before the Magistrate.  To the  similar  effect  was  the
statement of PW 6 Harjeet Singh which was also recorded  under  Section  164
Cr.P.C. on 05.07.2000.

9.    On 12.07.2000 a request was made to PW 23  Shri  B.S.  Deol,  Judicial
Magistrate, First Class, Malerkotla to conduct  Test  Identification  Parade
in respect of accused Anil Kumar, Ashwani Kumar  and  other  named  accused.
However, he received letters (Ext. PO, Ext.  PO-5  and  Ext.PO-6)  from  the
concerned Jail Superintendent that the accused were not willing  to  subject
themselves to the such test.

10.   On 18.07.2000  statement  of  PW-7  Jasbir  Singh  under  Section  164
Cr.P.C. was recorded that Anil Kumar, Ashwani Kumar, Ginder  and  Tony  were
his friends and they would often assemble on the  farm  of  Anil  Kumar  for
drinks and meals.  It was further stated that on 16.06.2000  when  they  had
so assembled, Anil Kumar asked him if he had read the newspaper of  the  day
and upon  his  answering  in  the  negative  Anil  Kumar  stated  that  news
regarding the murder of Jassi had appeared in  the  newspaper  of  that  day
which murder  was  committed  by  them.   Anil  Kumar  further  stated  that
Joginder Singh Thanedar was with them and the parents of the girl had  given
them money through  Joginder  Singh,  Thanedar  for  the  said  murder.   On
22.07.2000 PW-8 Bhagwan  Singh  produced  one  tempo  bearing  No.PB-10/9719
before the police.  This was the tempo stated to have been used  by  Ashwani
Kumar and Gurwinder Singh for taking PW-5 Jagdeep  Singh  and  PW-6  Harjeet
Singh to the dhaba of pahlwan.

11.   On 26.07.2000 Joginder Singh, serving police officer was arrested  but
was released on bail, the same day.  He was later re-arrested on  19.01.2001
after his bail was cancelled.  On 29.08.2000 an  application  was  moved  by
the police for taking specimen hand-writing of Ashwani Kumar  who  was  then
confined in District Jail, Sangroor to compare with  the  writing  found  on
the back side of the photograph of Jassi (Ext.P-38).  PW-23 Shri B.S.  Deol,
Judicial Magistrate asked the Superintendent of Jail to  take  the  specimen
hand-writing of Ashwani Kumar. However, Ashwani Kumar  vide  Ext.  DK  dated
05.09.2000 refused to submit his specimen hand-writing.

12.   After completion  of  investigation  charge-sheet  was  filed  against
eleven persons while Surjeet Singh, maternal uncle and Malkiat Kaur,  mother
of Jassi were declared  proclaimed  offenders.   It  was  the  case  of  the
prosecution that the accused  had  hatched  the  conspiracy  to  commit  the
murder of Jassi and had caused injuries to PW-15 Sukhwinder Singh  and  thus
committed the offences with which they were charged.  It  was  alleged  that
the marriage of Jassi with PW 15 Sukhwinder Singh, who was  simply  a  three
wheeler driver, was not to the liking of the mother and the  maternal  uncle
of Jassi. The prosecution in support of its case examined 45  witnesses  and
produced number of documents on record while 42 witnesses were  examined  in
defence. The gist  of  the  testimony  of  the  witnesses  examined  by  the
prosecution, inter alia, was as under:-
i)    PW-3 Dr. Jasbir Singh who was one of the doctors conducting the  post-
mortem on the body of Jassi, stated about her  injuries  and  the  cause  of
death and that kirpan Ext.P-12 recovered pursuant  to  disclosure  statement
could have caused those injuries.
ii)   PW-1 Dr. Amit Modi, PW-2 Dr. Deepak Bansal and PW-4 Dr.  Subhasis  Das
deposed about the injuries of  PW-15  Sukhwinder  Singh  and  the  treatment
given to him by them.
iii)  PW-5 Jagdeep Singh and PW-6 Harjeet Singh stated about  their  meeting
with Ashwani Kumar and Gurwinder at the dhaba of a  pahlwan  and  that  they
did not agree to the proposal  of  beating  PW-15  Sukhwinder  Singh.   They
identified the tempo and stated about having given statements under  Section
164 Cr.P.C.
iv)   PW-7 Jasbir Singh deposed that Ashwani Kumar, Anil Kumar,  Ginder  and
Tony were his friends, that they had met at a farm on 16.06.2000  when  Anil
Kumar had asked him whether he had read newspaper of the  day.   He  further
deposed that Anil Kumar stated that they had committed the murder of  Jassi,
that Joginder Singh Thanedar was with them  and  that  the  money  was  paid
through said Joginder Singh.  He  stated  about  having  given  a  statement
under Section 164 Cr.P.C.
v)    PW-8 Bhagwant Singh deposed that his tempo  PB-10/9719  was  impounded
by CIA staff of which Joginder Singh was in-charge and that  the  tempo  was
released on 07.06.2000 after he had paid money as  demanded.   This  version
was corroborated by PW-9 Jagir Singh.
vi)   PW-14 Barjinder Singh stated that on 08.06.2000 he saw a car of  white
colour with four persons standing close by.  Later he heard the voice  of  a
woman asking for help and that those persons had forcibly  taken  her  away.
Though he failed to identify the persons, his version supported the case  as
regards the location and the time of incident.
vii)  PW-15  Sukhwinder  Singh  deposed  that  he  was  married  with  Jassi
on15.03.1999, that it was against the wishes of her  parents,  that  Malkiat
Kaur and Surjeet Singh viz. mother and maternal  uncle  of  Jassi,  used  to
give him threats and stated how the incident  occurred  on  08.06.2000.   He
had shown his willingness and capacity to identify the  assailants  and  did
identify Ashwani Kumar and Anil Kumar in court.
viii) PW-20 Sukhdev Singh, uncle of PW-15 Sukhwinder  Singh  who  had  taken
him to the hospital, supported the version of PW-15 Sukhwinder Singh.

ix) PW-23 B.S. Deol, Judicial Magistrate spoke about the refusal on part  of
Anil Kumar and Ashwani Kumar to participate in  test  identification  parade
and refusal by Ashwani Kumar to give his specimen handwriting.
x) PW-24 constable Bikkar Singh deposed about the recoveries  effected  from
Bolara Farm pursuant to the disclosure statement of the accused.
xi) PW-27 Charan Preet Singh stated that he  knew  Ashwani  Kumar  and  Anil
Kumar and that they used to call from their telephone numbers.
xi) PW-32 Jaswinder Singh deposed that  at  the  request  of  ADGP,  Punjab,
Intelligence his company had supplied copies  of  print  outs  of  telephone
Nos.9814014562,   9814031374,   9814011272,   9814090919,   9814075614   and
9814036765.  PW-34 Ved Prakash  Julka  produced  the  record  pertaining  to
telephone No.605219 installed in the name of Joginder Singh.
xii)  PW-37 SI Harjinder Singh deposed about the FIR No.38 dated  23.02.2000
which was registered pursuant  to  fax  message  Ext.PAO  and  that  he  had
recorded the statement of Jassi.  He further stated about the  statement  of
Jassi under Section 164 Cr.P.C. and that  he  had  recommended  cancellation
after having found the case to be false.
xiii) PW-38 SI Hardeep Singh spoke about the  registration  of  FIR  in  the
present case and the investigation conducted by him till it was handed  over
to PW-41 Inspector Swaran Singh who in turn deposed about various stages  of
investigation including the arrests of the  accused,  disclosure  statements
made by the accused and the recoveries made  pursuant  thereto  and  various
other aspects.

 13.  The trial court after considering the material on record  and  hearing
rival submissions,  vide  its  judgment  dated  21.10.2005  found  that  the
prosecution had successfully proved its case against seven  accused  persons
including the appellants.   It found them guilty under  Section  302/364/307
read with Section 120B IPC.  Accused  Anil  Kumar,  Ashwani  Kumar  @  Ashu,
Gurwinder Singh @ Ginder and Gursharan Singh @  Tony  were  sentenced  under
Section 302 IPC to undergo life  imprisonment,  under  Section  364  IPC  to
undergo RI for 10 years and under Section 307 IPC to undergo  RI  for  seven
years with separate sentences of fine  and   sentences  in  default.   Three
other accused, namely, Joginder Singh, Hardev Singh and Darshan  Singh  were
convicted with the aid of Section 120B IPC and sentenced to  suffer  similar
imprisonment on the aforesaid three counts.  However benefit  of  doubt  was
given to other four accused, namely, Jaswant Singh @ Soni, Ravinder Singh  @
Lilu, Kamaljeet Singh @ Komal and  Gurnek  Singh  @  Bhatti  and  they  were
acquitted of all the charges.  All seven convicted  accused  filed  Criminal
Appeal Nos.836-DB/2005 and 921-DB/2005 before the High  Court,  which   gave
benefit of doubt to Hardev Singh, Gurwinder  Singh  and  Gursharan  Singh  @
Tony and acquitted them, while it confirmed the conviction and  sentence  of
the present appellants,  which  judgment  is  now  under  challenge  in  the
present appeals.

14.   As regards appellants Ashwani Kumar and Anil Kumar,  the  trial  court
as well as  the  High  Court  have  principally  relied  upon  the  evidence
regarding assault on   PW-15 Sukhwinder Singh as stated by him and the  fact
that he identified them to be part of the group of  assailants.   The  extra
judicial confession, as stated by  PW-7  Jasbir  Singh  and  the  recoveries
effected pursuant to  the  disclosure  statements  were  relied  upon.   The
testimony of PW-5 Jagdeep Singh and  PW-6  Harjeet  Singh  as  well  as  the
communications between the accused soon before and  after  the  incident  of
assault on PW-15 Sukhwinder Singh and kidnapping of Jassi were  also  relied
upon.  The other two appellants were found guilty with the  aid  of  Section
120B IPC as conspirators.  The telephonic communications  between  them  and
Ashwani Kumar and Anil Kumar were relied upon as against Joginder Singh  and
Darshan Singh.

15.   Appearing for Ashwani Kumar and Anil Kumar, Mr. R.K.  Kapoor,  learned
Advocate submitted that identification by PW-15  Sukhwinder  Singh  for  the
first time in court  could  not  be  taken  as  conclusive  evidence.    The
evidence in the form of extra judicial confession was  also  not  conclusive
inasmuch as certain other accused, though  named  in  such  confession  were
acquitted by the courts below.  Shri K.T.S. Tulsi, learned  senior  Advocate
appearing for Joginder Singh submitted that in a subsequent trial  initiated
against Joginder Singh on the allegation of demand of  bribe  for  releasing
the same tempo bearing No.PB-10/9719, he was  honourably  acquitted  and  as
such said judgment would operate as issue estoppel.   Shri Ratnakar K.  Dash
learned senior Advocate appearing  for  Darshan  Singh  submitted  that  the
landline telephone number in question stated to be  that  of  Darshan  Singh
was actually in the name of his brother installed at the residence  of  said
brother and there was no evidence to suggest that it was  exclusively  under
the control of Darshan Singh.  In any case daughter  of  Darshan  Singh  was
married to the son of Surjeet Singh, maternal uncle of  Jassi  and  as  such
calls from the said landline number to the number in Canada were  completely
justified and no inference could be drawn that said Darshan  Singh  was  one
of the conspirators.

16.   Appearing for State of Punjab Shri Jayant K. Sud, Additional  Advocate
General assisted by Ms. Jasleen Chahal, Assistant Advocate General  took  us
through the entire record.   It  was  submitted  that  the  offence  in  the
present case  was an act of conspiracy which was clear from  the  fact  that
fax message Ext.PAO had originated from  the  same  number  in  Canada  with
which the accused Ashwani Kumar @ Ashu and Anil  Kumar  were  constantly  in
touch,  that  the   backside  of   the   photograph   (Ext.P-38)   and   the
conversations deposed to by PW-5 Jagdeep Singh and PW-6 Harjeet  Singh  lend
complete corroboration,  that   identification  by  PW-15  Sukhwinder  Singh
was  completely  trustworthy  and  fully  reliable,  that  the   record   of
telephonic conversations show all the four appellants  were  in  touch  with
each other as well as with the number in Canada soon before and  immediately
after the occurrence, that the  recoveries  of  kirpan,  blood-stained  seat
cover and photograph (Ext.P-38) corroborated the prosecution case  and  that
the  extra judicial confession  as  stated  by  PW-7  Jasbir  Singh  further
clinched the issue.

17.   The evidence of PW-15 Sukhwinder Singh regarding the  occurrence  that
took place on 08.06.2000 is fully  supported  by  the  medical  evidence  on
record.  He was immediately taken for medical attention and  found  to  have
suffered 10 injuries, some of which  were  by  sharp  cutting  weapon.   His
assertion regarding the place of  incident  and  the  manner  in  which  the
occurrence took place is also supported by another witness  PW-14  Berjinder
Singh.   Though said witness failed to identify the  assailants  as  he  had
watched the incident from a distance, he lends complete support to PW-15  as
regards other material particulars.   Considering  the  nature  of  injuries
suffered by  him  and  the  fact  that  Jassi  was  forcibly  taken  by  the
assailants the entire incident  could  certainly  have  afforded  sufficient
time and opportunity to PW-15 to  recollect  and  identify  the  assailants.
The law on the point is well-settled that if the witness is trustworthy  and
reliable, the mere fact that no test  identification  parade  was  conducted
would not be a reason to  discard  the  evidence  of  the  witness.  It  was
observed by this Court in Ashok Debbarma Vs. State of Tripura[1] as under:-
"21  The abovementioned decisions would indicate that while the evidence  of
identification of an accused at a trial is admissible as  substantive  piece
of evidence, it would depend on the facts of a given case as to  whether  or
not such a piece of evidence can  be  relied  upon  as  the  sole  basis  of
conviction of an accused. In Malkhansingh  V.  State  of  M.P.,  this  Court
clarified that the test identification parade is not a substantive piece  of
evidence and to hold the test identification parade is not even the rule  of
law but a rule of prudence so that the identification of accused inside  the
courtroom at the trial can be safely relied upon. We are of  the  view  that
if the witnesses are trustworthy and reliable, the mere fact  that  no  test
identification parade was conducted, itself,  would  not  be  a  reason  for
discarding the evidence of those witnesses...."


18.    The  prosecution  had   made   the   witness   available   for   test
identification but the concerned accused had refused to participate  in  the
test. Though there was no reason for  such  refusal  and  adverse  inference
could be drawn against the accused, we still looked for other  corroborating
material which is available in the form  of  extra  judicial  confession  as
deposed to by PW-7 Jasbir Singh and the incident which had happened  at  the
dhaba of pahlwan as spoken by PW-5 Jagdeep Singh  and  PW-6  Harjeet  Singh.
The fact that a photograph of Jassi (Ext.P-38)  was  recovered  pursuant  to
disclosure  statement  by  Ashwani  Kumar  is  another  circumstance.   That
photograph (Ext.P-38) was recovered from Bolara Farm  which  was  under  the
control of Anil Kumar.  The description of Jassi in Gurumukhi  on  the  back
side of the photograph is crucial.  Refusal on  part  of  Ashwani  Kumar  to
give his specimen hand writing must lead to adverse inference  against  him.
 The recovery of weapon, namely, kirpan which according to the doctor  could
have resulted in the injuries suffered by PW-15 Sukhwinder Singh  and  Jassi
and the blood-stained seat cover are other  circumstances  lending  complete
corroboration.  The communication by Ashwani Kumar and Anil Kumar  with  the
number in Canada which itself was the source for the fax-message Ext.PAO  is
another circumstance.  All these  circumstances  stand  proved  and  clearly
point in the direction of the guilt of Ashwani  Kumar  and  Anil  Kumar  and
additionally lend complete support to the testimony  of  and  identification
by PW 15  Sukhwinder  Singh.  The  courts  below  were  therefore  perfectly
justified in finding Ashwani Kumar and Anil Kumar  guilty  of  the  offences
under Sections 364/307 and 302 IPC.

19.   We now deal with the case of the  other  appellants.   The  submission
advanced by Shri Tulsi that the subsequent judgment will  operate  as  issue
estoppel is not correct.  First and foremost the offences are different  and
distinct. The rule regarding issue  estoppel  relates  to  admissibility  of
evidence in subsequent proceedings which is designed to up-set a finding  of
fact recorded on the previous occasion and  mandates  that  the  finding  so
rendered on earlier occasion must operate as issue  estoppel  in  subsequent
proceedings.   It makes it impermissible to lead  any  such  evidence  at  a
subsequent stage or occasion.  The attempt on part of Mr. Tulsi is just  the
opposite.  He seeks to rely on the finding at a subsequent stage  to  up-set
a finding of fact recorded on a previous occasion.  The  law  on  the  point
was succinctly stated by this Court in  Sangeetaben  Mahendrabhai  Patel  v.
State of Gujarat[2] in following words:
"23.    This Court has time and  again  explained  the  principle  of  issue
estoppel in a criminal trial observing that where an issue of fact has  been
tried by a competent court on an earlier occasion and  a  finding  has  been
recorded in favour of the  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 acceptance/reception of evidence to disturb  the  finding  of
fact when the accused is tried subsequently for a  different  offence.  This
rule is distinct from the  doctrine  of  double  jeopardy  as  it  does  not
prevent the trial of any offence but only precludes the evidence  being  led
to prove a fact in issue as regards which evidence has already been led  and
a specific finding has been recorded at an  earlier  criminal  trial.  Thus,
the rule relates only to the admissibility of evidence which is designed  to
upset a finding of fact recorded by a competent court in  a  previous  trial
on a factual issue..."

            We therefore reject the submission.


20.   As per deposition of PW-8 Bhagwan Singh and other material on  record,
the tempo in  question  bearing  No.PB-10/9719  was  under  the  control  of
Joginder Singh. It was this tempo which was used by Ashwani Kumar as  stated
by  PW-5  Jagdeep  Singh  and  PW  6   Harjeet   Singh.     The   telephonic
conversations between Joginder Singh, a serving police officer  and  Ashwani
Kumar and Anil Kumar just before and soon after the incident  are  extremely
crucial.  No explanation has been offered on part of  Joginder  Singh.   The
record further indicates that Joginder Singh was  also  in  touch  with  the
same number from Canada, in respect of which again there is no  explanation.
 In the extra judicial  confession  deposed  to  by  PW-7,  there  is  clear
assertion that parents of Jassi had given money through Joginder Singh.   In
the circumstances we fully agree with the  assessment  made  by  the  courts
below in finding Joginder Singh guilty of the offences under  Sections  364,
302 and 367 IPC with the aid  of  Section  120B  IPC.   His  conviction  and
sentence, in our considered view, is completely justified.

21.   However, as  regards  Darshan  Singh  all  that  the  prosecution  has
produced is the record of telephonic conversations.   No  doubt  that  there
have been communications with Ashwani Kumar, Anil Kumar, Joginder Singh  and
the number from Canada but such communications are from  a  landline  number
which stands in the name of the brother of  Darshan  Singh.    There  is  no
evidence on record that the said landline number  was  under  the  exclusive
control of Darshan Singh.  Secondly, given the fact  that  his  daughter  is
married with the son of Surjeet Singh from Canada,  the  conversations  with
the number in Canada are explainable.   It is true  that  suspicion  against
Darshan  Singh  was  expressly  stated  in  the  first  statement  of  PW-15
Sukhwinder Singh  itself.   However,  apart  from  telephonic  conversations
nothing has been placed on record by the prosecution.  We,  therefore,  give
benefit of doubt to Darshan Singh and acquit  him  of  the  charges  leveled
against him.

22.   In the circumstances Criminal Appeal Nos.1041-1042 of  2008  preferred
by Ashwani Kumar @ Ashu and Joginder Singh and Criminal  Appeal  No.1043  of
2008 by Anil Kumar are dismissed affirming  the  orders  of  conviction  and
sentence recorded against them. The appeal of Darshan  Singh,  namely,  Crl.
Appeal No.1814 of 2009 is allowed and he is acquitted of  all  the  charges.
The bail bonds furnished by him stand  cancelled.   Ashwani  Kumar  @  Ashu,
Anil Kumar and Joginder Singh who were not granted bail,  must  undergo  the
sentences awarded.


                 ..............................J.
                                  (Madan B. Lokur)



            .............................J.
                                  (Uday Umesh Lalit)
New Delhi,
April 16, 2015
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[1]    (2014) 4 SCC 747
[2]    (2012) 7 SCC 621

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