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TMI Blog1997 (7) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... Prosecution unfolds its story by ushering us into an era when the Punjab was writhing in pain of militancy. 4. Village Pipaltha, P.S. Garhi Distt. Jind, where Om Prakash deceased) lived with his three sons, Dharam pal (P.W 10), Surinder (P.W. 11) and Suresh (P.W.12) (fourth is not material) was targetted by terrorists resulting in the death of Om Prakash and gunshot injuries to his son, Suresh. 5. The appellant was prosecuted and tried by the Additional judge (designated Court, Rohtak at Jind) and convicted for offences u/s 302/34 IPC read with Section 3(2) of the Terrorist disruptive Activities (Prevention) Act, 1987 (for Short, the `Act') with a fine of ₹ 200/- or else further rigorous imprisonment for one year; under Section 452/34 IPC (Sentence: 3 years R.I. with a fine of ₹ 100/- or else 3 months further R.I.) under Section 307/34 IPC (Sentence: 7 years R.I.); and under Section 394/34 IPC (Sentence: 10 years R.I. with a fine of ₹ 200/- or else R.I. for one year). 6. House of Om Prakash which also contained a shop at which Dharam Pal and Surinder used to sit, was located almost in the centre of the Village in a busy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded by the police under Section 15 of the Act, constitute the basis of his conviction for the offences in question. 13. So far as eye witnesses are concerned, they are three, namely, Dharam Pal (P.W.10), Surinder (P.W.11) and Suresh (P.W.12). They are sons of om prakash (deceased). Suresh (P.W. 12) is an injured witness. These witnesses speak of the appellant's presence at the spot with a gun with one Kala Singh who was also armed with a gun. 14. It is contended by the learned counsel for the appellant that although the incident had taken place at 6.30 P.M on 18.11.1991 in the market area, the prosecution did not produce any independent eye witness and attempted to prove its case only through interested eye witnesses who were the sons of the deceased. It is contended that in such a situation where the independent witnesses, in spite of being available were not produced, the conviction cannot be sustained merely on the testimony of highly interested witnesses particularly in view of the fact that Om prakash (deceased) and his family members including his three sons who have been produced as eye witnesses were on inimical terms with the appellant and had even tried earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been in a hurry to save their lives. What is, however, relevant is that Surinder (P.W.11), the other son of Om prakash remained in the village and did not company his father or the injured brother to the hospital. He had full opportunity of going to the police station to lodge the report but there is no explanation forthcoming as to why this was not done. Dharam Pal, in his statement on oath, has stated that there was a police outpost in his village but there too, no report was lodged. 18. The police of P.S. Garhi which already knew the incident, having been informed by the police Outpost, Pipaltha, reached at the hospital at 9.30 p.m. Om Prakash was already declared dead by the doctors at the hospital. The statement of Dharam Pal was recorded by the police at the hospital at 10.50 P.M. on 18.11.91 after obtaining the opinion of the doctors that Suresh (P.W. 12) who was injured in the incident in question, was not in a fit condition to make the statement. On the basis of the statement of Dharam pal, a formal F.I.R. No. 237 was recorded at police Station, Garhi at 12.15 A.M. on 19.11.91 in which the appellant was named as an accused. The special Report which was sent to the mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement of Dharam Pal would bring out the factum of enmity existing between the parties:- Lakhi and Giani Harijans were employed by us to work in the fields alongwith other workers on daily wages whenever we felt any necessity. They were not our regular employees. I do not know whether Lakhi and Giani got registered a case against Sucha Singh and two brothers of Sahab Singh accused at our instance after this occurrence. It is correct that a criminal case under Section 325 IPC etc. was pending in the Court of JMIC, Narwana against Sahab Singh etc. accused and against us, prior to this occurrence. A civil litigation had also proceeded between us and Sahab Singh accused prior to this occurrence. We and sahab Singh accused were on inimical terms prior to this occurrence due to civil and criminal litigation between us. 22. To the same effect is the statement of Surinder (P.W.11) who stated as under:- It is correct that civil and criminal litigation between us and Sahab Singh accused is still pending in the courts and it was also pending at the time of alleged occurrence. both of us were challenged in case under sec. 325 IPC and cross-cases against Sahab Singh and also against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onducted our search took out our Hero Honda Motor-cycle from the shop asked my father to sit on the carrier of that motor-cycle and he also forcibly tried to make my father sit on the carrier of the motor cycle but my father gave him a push and moved towards the shop. One of them fired at my father in the left side of the chest. The Sikh youth who was standing inside the shop came out and all the Sikh youths then fired at my father who was in the shop at that time . Rather my father had entered the next room in which the shop was opening from behind at that time. Sahab Singh and Kala Singh had also fired my father at that time and were two of the eight. My father received injuries on the back, near the right hip-region. He also received injuries on back, hands etc. My father fell down in the room as a result of injuries sustained. we i.e. I and my brother Dharam Pal, tried to run away but Sahab Singh accused tried to catch hold of us but we escaped and ran towards the street and concealed ourselves. 27. Suresh Kumar (P.W.12) narrated the incident in the following words:- I was resident at pipaltha along with my brothers and father about 1 1/2 years ago. we were having two s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Lakhi Ram under Section 216-A IPC read with Section 4(3) , 3 and 6 of the Act on the ground that Kala Singh was harboured by Sucha Singh and others in their house. This FIR was challenged by the accused, involved in that case, in Criminal Miscellaneous petition No. 6397-M of 1992 and Criminal Miscellaneous petition No. 7728-M of 1992. Both the petitions were allowed by justice G.S Chahal of the Punjab Haryana High Court by judgment dated December 1,1992 with the finding that Kala Singh had already been killed by the police on October 31, 1991, prior to the registration of the case and, in any case, the allegations made in the FIR did not make out any case of harbouring . 34. Since Kala Singh had already been killed by the police on October 31, 1991, there was no occasion that he would be present at the spot on 18.11.91 when the incident, giving rise to this case, took place. All the three eye witnesses, examined in this case, testify to the presence of a dead person at the spot. All of them, therefore, speak a lie. When they saw appellant to be present at the spot in the company of Kala Singh, they again speak a lie as the appellant could not be in the company of Kala Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the appellant with which we intend to deal now is the other basis for his conviction. before looking into the contents of the confessional statement, we any first consider the relevant provisions of the Evidence Act around which certain principles have been built by judicial pronouncements including those of this Court. 39. Evidence Act contains a separate part dealing with Admission . This part comprises of Section 17 to 31. Confession which is known as a species of Admission is to be found contained in sections 24 to 30. 40. confession has not been defined in the Evidence Act. Mr. Justice Stephen in his Digest of the Law of Evidence, defined it thus: A confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed the crime. This definition was adopted by various High Courts here. (See: Queen Empress vs. Bapu Lal, ILR 6 Allahabad 509 9539); Queen Empress vs. Nana ILR 14 Bombay 260 (263); Queen Empress vs. Meher Ali Mullick Ors. ILR 15 Calcutta 589; Emperor vs. Cunna 22 Bombay Law Reporter 1247; Imperatrix vs. Pandharinath ILR 6 Bombay Law Reporter 1247; Imperatrix vs. Pandharinath ILR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complete ban on the making of such confession by that person whether he is in custody or not. Section 26 lays down that confession made by a person while he is in the custody of a police Officer shall not be proved against him unless it is made in the immediate presence of a Magistrate. Section 27 provides that when any fact is discovered in consequence of information received from a person accused of any offence who is in the custody of a Police officer, so much of such information, whether it amounts to a confession or not, as relates to the fact thereby discovered, may be proved. Section 27 is thus in the form of a proviso to sections 24,25 and 26. Sections 164,281 and 463 of the code of Criminal procedure are the other provisions dealing with Confession and the manner in which it is to be recorded. 44. Section 15 of the TADA Act, however, makes a special provision as to the admissibility of confession and signals a departure from the normal rule contained in Sections 25 and 26 of the Evidence Act. It provides that a confession made by an accused to a police officer of a particular rank or higher would be admissible in evidence and can be proved again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was dispute between them. Om Parkash was a rich man. Om Parkash got implicated my father in false cases and got challenged through police on the basis of which grudge increased. There is one Kala Singh @ Rukha in our village who has committed two murders in our village and he is intenglled in the group of terrorists and is residing in Punjab. Kala Singh was on visiting terms with us 3-4 days. Before committing the murder of Om Parkash, Kala Singh @ Rukha had come to us. I had asked Kala Singh @ Rukha to commit the murder of Om Parkash Mahajan R/o Pipaltha. Kala Singh @ Rukha told me that he has no need of money but he had to pay ₹ 15,000/- to the other terrorist for committing the murder. I promised to pay ₹ 15,000/- and Kala Singh had asked me to hand over ₹ 15,000/- to him in Makord Gurudwara. On 18-11-1991 Kala Singh @ Rukha R/o Pipaltha accompanied by six terrorists, one of them was Nachhatar Singh, names of other not known came to my house. Kala singh @ rukha had asked me to see as to Whether Om parkash Mahajan is present at the house or not. On this asking I went to the house of Om Parkash. Om Parkash was present at his shop. I told Kala Singh @ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im by showing that he too was armed with a gun and had gone at the spot and participated in the commission of the crime by firing his gun specially at the injured witness. The Confessional Statement is not truthful and is part of the Hallucination with which prosecution and its witnesses were suffering. It is accordingly discarded and cannot be acted upon. 53. A little effort on the part of the trial court would have revealed to it the falsity of the prosecution case, but it proceeded in a mechanical manner and ultimately convicted the appellant ignoring that there was a deliberately delayed FIR and the case set out therein was sought to be proved through highly interested witnesses, instead of independant witnesses, and also by bringing on record a Confessional statement which contained false facts. This leads to the conclusion that the trial judge was sitting only to convict forgetting that judiciary holds the SCALES even, not tilted. 54. For the reasons stated above, the appeal is allowed, the judgment dated 8.2.1994 passed by the trial court is set aside and the appellant is acquitted of all the charges. He is in jail. He shall be set at liberty forthwith, unless required ..... X X X X Extracts X X X X X X X X Extracts X X X X
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