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
-----------------------
[1] (2014) 4 SCC 747
[2] (2012) 7 SCC 621
-----------------------
25
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
-----------------------
[1] (2014) 4 SCC 747
[2] (2012) 7 SCC 621
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25
