Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 553 OF 2008
BALDEV SINGH … APPELLANT
Versus
STATE OF PUNJAB … RESPONDENT
J U D G M E N T
S.B. Sinha, J.
1. This appeal is directed against the judgment and order dated
14.12.2006 passed by a Division Bench of the High Court of Punjab &
Haryana at Chandigarh in Criminal Appeal No. 298-DB of 2006 affirming
the judgment and order dated 30.3.2006 passed by the Additional Sessions
Judge, Jalandhar convicting the appellant herein for commission of an
offence under Section 302 read with Section 120B of the Indian Penal
Code (for short, “IPC”) and sentencing him to undergo rigorous
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imprisonment for life and pay a fine of Rs.5000/-, and in default of
payment of fine, to further undergo rigorous imprisonment for six months.
2. Appellant – Baldev Singh and Pritam Singh (the deceased) were
brothers. Both were Non Resident Indians (N.R.I.).
A civil suit was filed by the deceased Pritam Singh against his
nephew Harbhinder Singh, Tehal Singh and his brother Baldev Singh
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seeking declaration that the sale deed executed on 21 October, 1997 on
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the basis of a Power of Attorney dated 15 October 1990 is null and void
as it was allegedly forged and fabricated.
On or about 17.2.2001 at about 11.00 a.m., when Pritam Singh was
making preparation to leave his house in Paragpur for Jalandhar (Punjab),
he was killed at his residence. The said incident was allegedly witnessed
by Nath Ram (P.W. 25), who was a servant of Pritam Singh for last 40
years and Parminder @ Bittu, the driver of the deceased.
A First Information Report (“FIR” for short) was lodged marked as
FIR No. 131 of 2001 on 17.2.2001 at about 1.40 p.m. by P.W. 25, wherein
he stated:
“Since last forty years, I have been working as
Servant with Pritam Singh, resident of Pragpur.
Pritam Singh is an NRI who is residing in
England. He has kothi and land in village
Pragpur. I look after it and Pritam Singh also
visits the place. Pritam Singh has been living in
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his kothi at Pragpur for the last about 5-6 years.
Whenever in the morning, Pritam Singh used to
go out in car, then after his crossing I used to
close the gate from inside. Today, at about 11
A.M., Pritam Singh after taking meals got ready
to go to Jalandhar and I also came out from the
Kothi. Parminder Singh @ Bittu driver was
standing outside, who also accompanied us. In
the meanwhile two youngmen came inside
through main gate and came to us. One of these
youngmen was clean shaven who had covered
himself with thin blanket (loi). He was having
good height, wheatish complexion and putting
helmet on his head. The second one was a Sikh
having wheatish complexion wearing turban on
his head and having beared. Clean shaven
person took out small double barrel gun .12 bore
from loi wrapped by him and fired a shot at
Pritam Singh. Then Pritam Singh saved himself
cleverly and went inside. Both these youngmen
chased Pritam Singh and went inside through
Kainchi gate. Then clean shaven person gave
fired another shot at Pritam Singh, which hit on
the right side of the back of Pritam Singh as a
result of which, Pritam Singh fell down straight
on the floor and blood started oozing from back
and chest. Both these youngmen ran away
together with their arms and ammunition
through main gate. We both saw Pritam Singh.
The abdomen of Pritam Singh was ruptured and
he had died. Parminder Singh driver and I have
witnessed this occurrence. The cause of grudge
is that a dispute between both real brothers
Pritam Singh and Baldev Singh regarding Kothi
and land is pending in the Court at Jalandhar,
which was fixed for hearing on yesterday i.e.
15.2.2001 (sic 16.2.2001). In the year 1988,
Baldev Singh along with his sons, son-in-law
and other persons duly armed with ammunition
had tried to take possession of kothi and land.
Baldev Singh and his accomplices had fired
shots and Gurmej Singh of Pritam Singh’s party
had died, and one person had become injured.
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In this regard, case FIR No.221/88, under
Section 302/307, 148/149 IPC 25/27/54/59
Arms Act was registered in the Police Station, in
which Baldev Singh was convicted and his sons
are absconders and have fled away to foreign
country. I am sure that even now Baldev Singh,
by sending both these youngmen by giving them
allurement has got murdered Pritam Singh with
gun-shot. I can identify both these youngmen if
they come across me. Action be taken. I have
heard my statement, which is correct.”
The Investigating Officer prepared an inquest report on 17.2.2001.
He recovered the clothes and a pair of spectacles with the left glass
missing belonging to the deceased. He noticed a gun shot injury on the
right side of the back of the deceased. His abdomen was ruptured as
pellets had struck in the back and right hand. The Investigating Officer
also picked up the blood stained soil from the spot, a blood stained
spectacles cover and two empty .12 bore cartridges. He also recovered
from outside the room a Canadian driving licence bearing No. 6130617
allegedly belonging to Harbhinder Singh. The dead body was thereafter
sent for post mortem examination.
On 18.2.2001, the post mortem of the deceased was conducted by a
medical board consisting of Dr. H.S. Kahlon (P.W.1), Dr. Rajnish and Dr.
Ranbir Singh. It was of the opinion that the death was caused due to
shock and hemorrhage, following fire arm injuries which was sufficient to
cause death in the ordinary course of business. It was also stated in the
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report that the death had occurred immediately and the time of death is 24
hours prior to holding of the post mortem examination.
On 20.2.2001, Harbhinder Singh was arrested from the Indira
Gandhi International Air Port at Delhi while he was about to leave for
London. On the same day, one Avtar Singh was also arrested by the
police.
On 23.2.2001, both Harbhinder Singh as well as Avtar Singh made
disclosure statements to the police. Pursuant to the recording of the
alleged disclosure, some recoveries were made on the pointing out of the
accused persons, including two empty cartridges allegedly fired from the
gun.
3. The learned Additional Sessions Judge framed charges against
Harbhinder Singh and Avtar Singh under Section 302/450 IPC read with
34 IPC and Sections 25/27 of the Arms Act.
A large number of witnesses were examined during the course of
the trial. Learned Additional Sessions Judge opining that Harbhinder
Singh and Avtar Singh were guilty, convicted them for commission of
offences under Sections 302/450 IPC and under Section 25 of the Arms
Act.
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4. Indisputably, appellant – Baldev Singh left India on 16 February
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2001 for Vancouver. He returned to India on 19 August, 2004. His
arrival at Delhi Airport was communicated to SSP, Jalandhar. On the
basis of this information, ASI Harpal Singh (P.W. 13) after obtaining
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production warrants arrested Baldev Singh on 20 August, 2004. A
supplementary report under Section 173 of the Code of Criminal
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Procedure (“Code” for short) was filed against him on 24 August 2005.
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Charge was framed against him under Section 120-B IPC on 19
September, 2005. He pleaded not guilty and claimed to be tried.
The learned Sessions Judge conducted the trial against the appellant
separately and examined as many as 28 prosecution witnesses. The
learned Sessions Judge found him guilty for commission of an offence
under Section 302 read with 120B IPC and sentenced him to undergo life
imprisonment and to pay a fine of Rs.5000/-, and in default whereof to
undergo rigorous imprisonment for 6 months.
In arriving at the said finding , the following evidences were taken
into consideration:
i) Deceased was brother of the appellant;
ii) He had a motive to get the brother killed;
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iii) Lalit Kumar (P.W.26) being an independent witness, there
was no reason to disbelieve his evidence;
iv) Statement of Avtar Singh is admissible under Section 30 of
the Evidence Act;
v) Gun with which the shots were fired earlier belonged to the
appellant.
5. As noticed hereinbefore, criminal appeal filed by the appellant has
been dismissed by the High Court by reason of the impugned judgment
inter alia holding:
“When all the evidence is taken together the
conclusion that is irresistible is that Baldev
Singh master-minded his brother’s murder.
Baldev Siingh was a convict who was
undergoing life sentence, was on bail after his
sentence was suspended. Baldev Singh had
managed to convince Avtar Singh, a fellow
jailmate, to also join Harbhinder Singh, who
arrived in India on February 7, Baldev Singh
purchased the weapon, his son took the weapon
and shot the deceased, Baldev Singh left India a
day before the occurrence while Harbhinder
Singh tried to flee three days after occurrence.
The latter was arrested but the former had
successfully managed to escape. Baldev Singh’s
gun was recovered from the possession of his
son Harbhinder Singh.
The above chain of circumstances is so
complete that one cannot take a view other than
that Pritam Singh’s murder was committed on
the basis of a conspiracy in which Pritam
Singh’s brother Baldev Singh was a participant,
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may be the leader. The circumstances are
crystal clear and there does not appear to be any
ambiguity and inconsistency in the chain. The
circumstantial evidence also finds support from
the evidence of Sukhdev Singh (PW-22) and
Lalit Kumar (PW-26). Therefore, the argument
of the learned counsel for the appellant that the
appellant was not in the country when Pritam
Singh was murdered and could not have
conspired in the murder cannot be accepted.
Conspirators conspire in secrecy and disperse
after the plan has been finalized and separate
tasks are assigned to each members of the
conspiracy. The conspiracy in this case was to
murder Pritam Singh. It was between Baldev
Singh and his son and also between Baldev
Singh and Avtar Singh. Therefore, the obvious
conclusion in this case, on the basis of strong
circumstantial evidence, would be that Baldev
Singh indeed was a member of the conspiracy.
In the light of the above, evidence of
Sukhdev Singh and Lalit Kumar provides
support to the circumstantial evidence. The
argument that Harbhinder Singh had not acted at
the behest of his father finds no support, either
from the evidence on record or from any other
circumstance. This argument is hollow as the
circumstantial evidence against the appellant is
very strong regarding his participation as a
conspirator in his brother’s murder.”
6. Indisputably, the incident took place on 17.2.2001. Appellant had
left India for Vancouver (Canada) on 16.2.2001, i.e., a day prior to the
date of incident. He came back to India in August 2004 when he was
arrested. The main accused, namely, Avtar Singh and Harbhinder Singh,
however, were tried separately. We may notice that Harbhinder Singh
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was found guilty under Section 302 IPC and Avtar Singh was found guilty
under Section 302/34 IPC. They were also found guilty under Section
450 IPC. Whereas Harbhinder Singh was also found guilty under Section
27 of the Arms Act, Avtar Singh was found guilty under Section 25
thereof.
It is, however, of some significance to notice that Avtar Singh and
Harbhinder Singh were not charged for commission of offence under
Section 120B IPC. The legal position in this regard will be adverted to a
little later. At this stage, we may also notice that both the courts below
have passed the aforementioned judgment of conviction and sentence as
against the appellant relying inter alia on the evidence of Lalit Kumar
(PW-26), who was a taxi driver and is said to have overheard the
conversation amongst the accused in regard to hatching of a purported
conspiracy as also on the basis of an extra judicial confession purported to
have been made by Avtar Singh before Sukhdev Singh (P.W.22). It now
stands admitted that apart from the aforementioned two pieces of
evidence, no other evidence was brought on record against the appellant.
7. P.W. 26 – Lalit Kumar – was a taxi driver. His statement was
recorded in the court on 15.1.2002. Accused persons are said to have
hired his taxi from Goraya for going to Paragpur. On the way, they
stopped at a ‘Dhaba’. According to him, although he was a taxi driver he
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shared food and drinks with the accused. A plan to cause the death of
Pritam Singh was said to have been discussed by them only at the said
Dhaba. On the one hand, he stated that he overheard the accused
discussing the said subject, but on the other, as noticed hereinbefore, he
shared meals and drinks with them. In his cross-examination he admitted
that he did not know the accused persons from before; he did not
remember the number of his taxi; he was not an owner of the taxi; he had
plied taxi only for five days. It is borne out from records that he came to
court with Rana, who had shown active interest in the case.
He, when confronted with his statements made before the
Investigating Officer, stated:
“Out of my two statements made above my
statement with regard to accused having
consumed the liquor in the ahata is correct and
my other statement of consuming liquor by
accused in dhaba is wrong. 3-4 more people
were there in the said ahata.”
Indisputably, he did not reveal the said fact to any other person. He
made his statement for the first time before the police. He made a
statement thereafter only in the court.
8. Although he did not have any acquaintance with the accused
persons; he not only could identify the accused in court but appears to
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have been knowing their nick names as also their avocation of life.
Admittedly, Rana is his partner in a business concern known as Saraswati
Mill Store, the office of which is located in the building of Rana. His
evidence, in our opinion, does not inspire confidence.
9. Conspiracy is defined in Section 120A of the IPC to mean:
“120A. Definition of criminal conspiracy.-
When two or more persons agree to do, or cause
to be done,--
(1) an illegal act, or
(2) an act which is not illegal by illegal
means, such an agreement is
designated a criminal conspiracy:
Provided that no agreement except
an agreement to commit an offence
shall amount to a criminal
conspiracy unless some act besides
the agreement is done by one or
more parties to such agreement in
pursuance thereof.
Explanation.--It is immaterial whether the
illegal act is the ultimate object of such
agreement, or is merely incidental to that
object.”
An offence of conspiracy which is a separate and distinct offence,
thus, would require involvement of more than one person.
Criminal conspiracy is an independent offence. It is punishable
separately; its ingredients being:-
(i) an agreement between two or more persons.
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(ii) the agreement must relate to doing or causing to be done
either (a) an illegal act; (b) an act which is not illegal in itself
but is done by illegal means.
It is now, however, well settled that a conspiracy ordinarily is
hatched in secrecy. The court for the purpose of arriving at a finding as to
whether the said offence has been committed or not may take into
consideration the circumstantial evidence. While however doing so, it
must be borne in mind that meeting of the mind is essential; mere
knowledge or discussion would not be.
Adverting to the said question once again, we may, however, notice
that recently in Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra
[(2008) 6 SCALE 469], a Division Bench of this Court held:
“23. Thus, it is manifest that the meeting of
minds of two or more persons for doing an
illegal act or an act by illegal means is sine qua
non of the criminal conspiracy but it may not be
possible to prove the agreement between them
by direct proof. Nevertheless, existence of the
conspiracy and its objective can be inferred from
the surrounding circumstances and the conduct
of the accused. But the incriminating
circumstances must form a chain of events from
which a conclusion about the guilt of the
accused could be drawn. It is well settled that an
offence of conspiracy is a substantive offence
and renders the mere agreement to commit an
offence punishable even if an offence does not
take place pursuant to the illegal agreement.”
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Yet again in Nirmal Singh Kahlon vs. State of Punjab & Ors.
[(2008) 14 SCALE 639], this Court following Ram Lal Narang vs. State
(Delhi Administration [(1979) 2 SCC 322] held that a conspiracy may be
a general one and a separate one meaning thereby a larger conspiracy and
a smaller which may develop in successive stages. For the
aforementioned purpose, the conduct of the parties also assumes some
relevance.
In K.R. Purushothaman vs. State of Kerala [(2005) 12 SCC 631],
this Court held:
“11. Section 120A of I.P.C. defines 'criminal
conspiracy.' According to this Section when two
or more persons agree to do, or cause to be done
(i) an illegal act, or (ii) an act which is not
illegal by illegal means, such an agreement is
designed a criminal conspiracy. In Major E.G.
Barsay v. State of Bombay, (1962) 2 SCR 195,
Subba Rao J., speaking for the Court has said:
“The gist of the offence is an
agreement to break the law. The
parties to such an agreement will be
guilty of criminal conspiracy,
though the illegal act agreed to be
done has not been done. So too, it is
not an ingredient of the offence that
all the parties should agree to do a
single illegal act, It may comprise
the commission of a number of
acts."
xxx xxx xxx
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13. To constitute a conspiracy, meeting of
mind of two or more persons for doing an illegal
act or an act by illegal means is the first and
primary condition and it is not necessary that all
the conspirators must know each and every
detail of conspiracy. Neither it is necessary that
every one of the conspirators takes active part in
the commission of each and every conspiratorial
acts. The agreement amongst the conspirators
can be inferred by necessary implications. In
most of the cases, the conspiracies are proved by
the circumstantial evidence, as the conspiracy is
seldom an open affair, The existence of
conspiracy and its objects are usually deducted
from the circumstances of the case and the
conduct of the accused involved in the
conspiracy. While appreciating the evidence of
the conspiracy, it is incumbent on the Court to
keep in mind the well-known rule governing
circumstantial evidence viz. , each and every
incriminating circumstance must be clearly
established by reliable evidence and the
circumstances proved must form a chain of
events from which the only irresistible
conclusion about the guilt of the accused can be
safely drawn, and no other hypothesis against
the guilt is possible. The criminal conspiracy is
an independent offence in Indian Penal Code.
The unlawful agreement is sine quo non for
constituting offence under Indian Penal Code
and not an accomplishment. Conspiracy consists
of the scheme or adjustment between two or
more persons which may be express or implied
or partly express and partly implied. Mere
knowledge, even discussion, of the Plan would
not per se constitute conspiracy. The offence of
conspiracy shall continue till the termination of
agreement.”
As noticed hereinbefore, neither Avtar Singh nor Harbhinder Singh
were charged for commission of offence punishable under Section 120B
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IPC. In our opinion, therefore, appellant alone could not have been
convicted under Section 302 read with Section 120B of the IPC.
In Darshan Singh @ Bhasuri Ors . vs. State of Punjab [(1983) 2
SCR 605], this Court cautioned that the court ordinarily should not
convict a person for commission of offence of conspiracy on the basis of a
weak evidence, stating:
“The evidence regarding conspiracy is as weak
as the evidence about the dying declaration of
Sohan Singh, Surat Singh (P.W. 27) speaks of a
meeting between the co-conspirators in the
house of accused No. 1, Darshan Singh alias
Bhasuri. We cannot believe that in the presence
of an utter stranger like Surat Singh, the
conspirators would discuss their plans to commit
these murders, throwing all caution to the winds.
The answer of the High Court is that the
conspirators were taking liquor while discussing
the conspiracy and,
‘When liquor is taken, then under its
influence sometimes most secret things
are divulged in the presence of a
person who is not so intimately
connected. It is often said, when liquor
goes in, truth comes out.’
This is somewhat artless. Liquor is no lie-
detector and we cannot assume that accused
Nos. 1 and 2 were so drunk as to overlook the
presence of a stranger in their midst yet not so
drunk so as to be unable to discuss the execution
of their criminal design. Besides, Surat Singh
forgot all about the incident and was contacted
by the police a few days later. The learned
Sessions Judge was right in holding that Surat
Singh's evidence suffers from certain infirmities,
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because of which one could not place implicit
reliance upon him. We would go further and say
that his evidence is too unnatural to merit
serious attention. Apart from the evidence of
motive, Surat Singh's evidence in regard to the
conspiracy is the only evidence against accused
No. 1 Bhasuri and accused No. 2 Joga Singh. It
is on that evidence that these two accused have
been convicted under Section 120-B read with
Section 302 of the Penal Code, the former being
sentenced to death and the latter, because of his
young age, to life imprisonment,”
10. We are now left with the question of purported extra judicial
confession by the co-accused Avtar Singh. Such a purported extra
judicial confession was made by Avtar Singh before Sukhdev Singh
(P.W.22). The distance between the village wherein Avtar Singh was a
resident and that of the said Sukhdev Singh was said to be 100 kms. He
allegedly visited Sukhdev Singh on 18.2.2001 at about 9.00 a.m. For no
apparent reason, he had disclosed that he along with Bhinda (Harbhinder
Singh) had committed the murder of Pritam Singh. No details thereof had
been furnished. A purported disclosure was also made that the murder
was committed at the instance of the appellant herein. He was asked to
come on the next day. He neither visited him thereafter nor was he
produced before the police by P.W.22. There is nothing on record to
show that such a purported extra judicial confession by Avtar Singh was
conveyed to the police authorities; P.W. 22’s statement having been
recorded on 19.2.2001.
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If he was so familiar with the family of Avtar Singh, there was
absolutely no reason whey he was not in a position to state as to what was
the composition of his family. He admitted that he had never visited the
village of Avtar Singh.
Evidence of extra judicial confession is generally of a weak nature.
No conviction ordinarily can be based solely thereupon unless the same is
corroborated in material particulars.
11. Extra judicial confession must be found to be reliable. P.W. 22 was
examined by the police authorities also in some other cases. A suggestion
was put to him that he was a police tout. His evidence, therefore, in our
opinion, cannot be relied upon. If his evidence cannot be relied upon, the
same could not have formed foundation of recording a judgment of
conviction and sentence and that too in a case of conspiracy. We must
also notice that the evidence of purported extra judicial confession by
itself cannot be held to be sufficient for recording a judgment of
conviction against a co-accused in terms of Section 30 of the Evidence
Act.
In Jaspal Singh alias Pali vs. State of Punjab [(1997) 1 SCC 510],
this Court held:
“15. The third contention of Mr. Sodhi viz.,
that it is highly improbable that Jaspal Singh (A-
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1) would have gone to this witness alongwith his
co-accused to confess the guilt, is equally
formidable. Chhota Singh (PW 7) has not given
any reason as to why and how Jaspal Singh (A-
1) and other co-accused have reposed such a
confidence in him and confessed their guilt.
After going through the evidence of Chhota
Singh (PW 7), we do not find it safe to hold any
of the appellants guilty in the present crime.”
12. For the aforementioned reasons, the impugned judgment being
unsustainable is set aside. The appeal is allowed. The appellant is in
custody; he is directed to be set at liberty unless wanted in connection
with any other case.
.……………………………….J.
[S.B. Sinha]
...…………………………..…J.
[Dr. Mukundakam Sharma]
New Delhi;
May 06, 2009