CASE NO.: Appeal (crl.) 627 of 2002 PETITIONER: RANJIT SINGH @ JITA AND ORS. RESPONDENT: STATE OF PUNJAB DATE OF JUDGMENT: 11/09/2002 BENCH: Y.K. SABHARWAL & H.K. SEMA JUDGMENT:
JUDGMENT
2002 Supp(2) SCR 247
The following Order of the Court was delivered :
Six accused, including the four appellants, were forwarded by the Police to
the concerned court to stand trial for offences under various provisions of
I.P.C., The Terrorists and Disruptive Activities (Prevention) Act (in short
‘the TADA Act’) and The Arms Act. One of them (Gurbachan Singh) was
declared proclaimed offender. Another (Jagmail Singh) died. The remaining
four, namely appellants were convicted for the offences for which they were
tried. For offences under Sections 307/149 IPC and Section 3 & 5 of the
TADA Act, rigorous imprisonment for five years for each of these offences
and fine was imposed on each of the appellants. For offences under Section
148 IPC two years’ rigorous imprisonment and for offences under Section
363/149 IPC and Sections 25 of Arms Act one year’s rigorous imprisonment
and fine was imposed on each of the appellants. All the sentences were
directed to run concurrently. The appellants have challenged the judgment
and order of learned Additional Judge, Designated Court, Nabha, in this
appeal filed under Section 19 of the TADA Act. The appellants have been
convicted for the incident of encounter alleged to have taken place,
according to the case of the prosecution, on 18.8.1989. In brief, the
prosecution case is that on 18.9.1989 Inspector Ram Singh received
information that some terrorists armed with weapons had entered District
Kurukshetra for committing crime. Two police parties were constituted – one
headed by S.I. Anil Kumar and the other headed by S.I. Om Prakash, D.S.P.
Deep Ram and two independent witnesses Kamail Singh and Surjit Singh were
with Inspector Ram Singh along with some other police officials. A
Nakabandi was arranged with the instructions to the police officials to
start firing when it is so ordered. It was a moonlit night. At about 9.45
p.m. accused Jagmail Singh and other accused including one Gurnam Singh
were seen coming armed with weapons. Gurnam Singh has also died. On lalkara
being raised by Ram Singh, Jagmail Singh who was ahead of all accused
persons was apprehended. The other persons following him took positions and
started firing. The police parties also fired in self defence and asked the
accused to surrender as they were surrounded from all sides. The firing
continued for about one hour. The police team consisted of about 50/60
officials. During the firing 175 shots were fired by the police and 157
rounds by the accused. When all the accused surrendered, their personal
search were taken. From Jagmail Singh one AK-47 rifle, 169 cartridges, two
magazines were recovered. From the search of Gurbachan Singh one AK-47
rifle, 51 empty cartridges, two magazines and 163 live cartridges of Ak-47
were recovered. Ak-47 rifle was sealed and empties were also sealed. From
the search of Baldev Singh, one AK-47 rifle, 49 empty cartridges, one .30
bore pistol and 15 live cartridges of the same bore and 118 live cartridges
of AK-47 rifle were recovered. AK-47 rifle and 49 empty cartridges were
separately sealed. From Sukhjit Singh, one AK-47 rifle, two magazines, 47
empty cartridges, 127 live cartridges were recovered. Empties and the rifle
were sealed. From Ranjit Singh, one .315 bore rifle, 16 live cartridges,
two empty cartridges of the same bore were recovered. The recovered 16 live
cartridges were sealed. From Gurnam Singh, one .285 bore rifle, three
empties and 12 live cartridges were recovered. Empties and rifles were
separately sealed. From Satnam Singh, one .12 bore CBBL gun was recovered
with 12 live cartridges and two empty cartridges and one .32 bore pistol
was recovered. Gun and empties were sealed separately. The accused were not
carrying any permit or licence to carry the weapons and the ammunition.
The accused were charged for offences under Sections 148, 307/149, 363/149
IPC, Sections 3 and 5 of the TADA Act and Section 25 of the Arms Act. To
prove the case prosecution examined DSP Ram Singh (PW1), Surjit Singh (PW),
Shri Niwas Vashisht, S.P. (PW5), Surjit Singh Deswal, Addl. S.P. (PW4).
Kapoor Singh (PW5), Chander Bhan, Armourer (PW6). DSP Deep Ram (PW7) and
Dr. Harbaksh Singh (PW8).
The defence also examined three witnesses, namely, Jarnail Singh (DW1),
Kamail Singh (DW2) and Gurbachan Singh (DW3),
DW3 has deposed that he is the Lambardar of the village and the accused
were picked up by the police from the village and nothing was recovered
from them. DW2 has deposed that he was never called by PW1 Ram Singh in
connection with the Nakabandi in question and that he along with Surjit
Singh were called to Police Station and their signatures obtained there. No
recovery was made in his presence. He also stated that no encounter took
place between the police and the accused in his presence. Kamail Singh is
one of the attesting witnesses to the recovery. To the similar effect is
the testimony of DWI-Jarnail Singh. Surjit Singh (PW2) being other
independent witness of the recovery also did not support the prosecution
and was declared hostile.
Reverting now to the prosecution witnesses, PW1 has, of course, fully
supported the prosecution case. At the same time, however, it deserves to
be noticed that although according to the prosecution case 175 rounds were
fired by the police and 157 by the accused, the prosecution has not proved
even a single injury grievous, simple or minor to anyone – whether on
police side or on accused side. There is also no evidence to connect the
empties with the weapons. This is despite large recoveries as noticed
earlier. From the facts of the case, one gets an impression as if a
friendly match was being played. There is no evidence to prove the firing
of the shots as aforesaid except the testimony of PW1 and another police
official with him PW7 Deep Ram and the confessional statement to which we
would advert shortly. As noticed above none of the independent witnesses
have supported the prosecution.
There are also many vital discrepancies and contradictions between the
statements of PW1 on one hand and PW7 on the other. But for the view we are
taking of the confessional statement which is one of the main basis on
which conviction has been based and other circumstances of the case, it is
not necessary to delve into the said discrepancies and contradictions by
going, into details of their testimonies. PW3 Shri Niwas Vashisht, the S.P.
is stated to have recorded the confessions of Ranjit Singh and Jagmail
Singh on 5.10.1989 under Section 15 of the TADA Act. They were arrested on
18.9.1989. The confessions of Ranjit Singh is Exbt. P-M. It is signed by
Ranjit Singh and PW3. The confessions of Jagmail Singh is Exbt. P-N.
Likewise it is also signed by Jagmail Singh PW3.
According to the deposition of PW3 in cross-examination, the accused were
in police custody 18-20 days prior to recording of their confessional
statements. PW3 has deposed that he gave the requisite warning to the
accused that they were not bound to make the confessional statement and if
they make it will be used as evidence against them, but despite the warning
they were prepared and willing to make the statement. After recording the
introductory statement in this behalf in question-answer form he still
considered it proper to give them some time for rethinking and for this
purpose they were allowed to sit in separate rooms for some time and
brought to him after about half an hour and expressed their desire to make
statement and thereafter the confessional statements were recorded.
Before adverting to the facts said to have been narrated by the accused as
recorded in the two confessional statements, it deserves to be noticed that
in case the recording officer of the confessional statement on
administering the statutory warning to the accused forms a belief that the
accused should be granted some time to think over the matter, it becomes
obligatory on him to grant reasonable time for the purpose to the accused.
In other words, the cooling time that is granted has to be reasonable. What
time should be granted would of course depend upon the facts and
circumstances of each case. At the same time, however, when the time to
think over is granted that cannot be a mere force for the sake of granting
time. In a given case, depending on facts, the recording officer without
granting any time may straightaway proceed to record the confessional
statement but if he thinks it appropriate to grant time, it cannot be a
mechanical exercise for completing a formality.
In Sarwan Singh Rattan Singh v. State of Punjab, AIR (1957) S 637, where a
magistrate granted about half an hour to accused to think over and soon
thereafter recorded the confessional statement, this court reiterated that
when accused is produced before the magistrate by the Investigating
Officer, it is of utmost importance that the mind of the accused person
should be completely freed from any possible influence of the police and
the effective way of securing such freedom from fear to the accused person
is to send him to jail custody and give him adequate time to consider
whether he should make a confession at all. It would naturally be difficult
to lay down any hard and fast rule as to the time which should be allowed
to an accused person in any given case.
This Court further held :- “However, speaking generally, it would, we
think, be reasonable to insist upon giving an accused person at least 24
hours to decide whether or not he should make a confession. Where there may
be reason to suspect that the accused has been persuaded or coerced to make
a confession, even longer period may have to be given to him before his
statement is recorded. In our opinion, in the circumstances of this case it
is impossible to accept the view that enough time was given to the accused
to think over the matter.”
The present case as noticed earlier, relates to incident of alleged
encounter dated 18.9.1989. The confessional statements recorded by PW3
record two incidents. First the confession records about incidents by same
accused which had allegedly taken place in same village on 11.9.1989. The
incident dated 11.9.1989 was subject matter of Sessions Case no. 6-T of
17.1.91 before Additional Judge Designated Court, District Jail Nabha.
In respect of incidents dated 11th September, 1989 the appellants and two
other accused were charged for offences under Sections 148,452,323 read
with Sections 149,427 read with Sections 149, 506 IPC and for offences
under Section 3 of the TADA Act. The confessional statements proved by PW3
and PW4 also contain admission of guilt by these accused in respect of
incidents dated 11th September, 1989. The SHO, Inspector Anil Kumar who
inspected the spot and prepared the site plan etc. and made recoveries and
conducted a part of investigation of incidents of 11th September, 1989 was
the same, namely, Inspector Anil Kumar, who headed one of the team in the
encounter which is subject matter of the present appeal. The investigation
of the said case was also taken upon by Inspector Ram Singh who is PW1 in
the present case. Ram Singh had arrested all these accused on 18.9.1989
evidently in relation to both the cases, namely, one subject matter of the
present appeal and the other which was subject matter of Sessions case no.
6-T of 17.1.1991. The first part of the confession records the incident
dated 11.9.1989 and second pan records the incident dated 18.9.1989,
namely, the encounter that had taken place which led to the appellants’
conviction in the manner aforestated.
The earlier sessions case resulted in appellants’ acquittal by judgment
dated 20.10.1992 passed by Addl. Judge, Designated Court, District Jail.
Nabha. That judgment was placed on the record of the Designated Court by
the appellants. It is Ext. D-l. Unfortunately, there is not even a whisper
about the judgment dated 20th October, 1992 in the impugned judgment and
order of the Designated Court convicting the appellants.
The learned counsel for the respondent has not been able to explain the
reason why the confession which purports to admit both the incidents was
not placed and relied upon in the earlier case. The only submission made in
that regard is that the defence did not as any question in the present case
from the prosecution witnesses. On the facts of the case as noticed, that
is hardly an explanation.
PW4 Surjit Singh Deswal was an Addl. Superintendent of Police. He admitted
that in the administrative hierarchy PW3 was above him and on oral
directions of PW3 he recorded the confessional statements of accused Satnam
which is Ext. P-5 and accused Gurnam (Exbt. P-5/3). Like PW3, he gave to
the accused 20 to 30 minutes to think over whether they wanted to give the
confessional statements, this time was given after the accused were
administered statutory warning in the similar fashion as was done by PW3.
It seems to be quite strange that both the officers though recorded
confessional statements of two accused each separately thought that half an
hour or 20 minutes would be sufficient cooling time to be given to the
accused who are being brought before them from police custody of 18-20 days
and had expressed, according to these officers, their willingness to make
confessional statements.
There is another aspect of recording of confessional statements by PW4. As
already noticed he was Addl. S.P. In the administrative hierarchy he was
lower in rank than PW3 shri Niwas Vashisht, S.P. Learned counsel for the
State has not been able to show any rule, regulation or other provision to
establish the status of PW 4 – a police officer, an Additional
Superintendent of Police. Nothing was brought to our notice to establish
that he was a police officer not lower in rank than the Superintendent of
Police. It was, however, submitted by the learned counsel that even if the
two confessional statements recorded PW4 are kept out of consideration
still the conviction can be upheld only on the basis of confessional
statements recorded by PW3. We have already expressed hereinbefore our
views in respect of the confessional statements recorded by PW3.
In the facts and circumstances of the present case the grant of half an
hour to the accused to think over before recording their confessional
statement cannot be held to be a reasonable period. We do not think that is
safe to base conviction on such confessional statements. Further, on the
facts of the present case, conviction cannot be maintained on the sole
testimony of two police officials. It may also be noticed that although PW6
Chander Bhan, Armourer, was examined by the prosecution to prove that the
weapons were in working conditions, no effort was made to prove that the
ammunition or the empties matched the weapons.
For the aforesaid reasons, we are unable to sustain the conviction of the
appellants. Therefore, the impugned judgment and order of Additional Judge,
Designated Court, District Jail, Nabha, dated, 27th April, 2002 is set
aside and the appeal allowed, accordingly. The appellants shall be set at
liberty forthwith, if not required in any other case.