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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

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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)  

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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  

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Civil Hospital, Malerkotla, where PW-1 Dr. Amit Modi found him to  

have suffered the following injuries:-

1. 2 X 1cm incised wound over left side of face  2 cm below ear pinna.

2. Swelling  and  tenderness  over  left  side  of  mandible.

3. 10 X .5 cm wound over left side of scalp 8  cm over left pinna.

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

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

6. 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

7. 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. 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.

9. 2  x  .5cm  incised  wound  over  right  little  finger proximal phalanx over the dorsal aspect.

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

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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  

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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:-

a. An incised wound 7½ inch x 2 ½ inch into  muscle deep in front of the neck.

b. An incised wound just below the chin 4 ½  inch  x  2  ½  inch  was  cutting  the  skin,  sub  coetaneous tissue and muscles.

c. An incised wound 6” x ½ “ 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  

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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.

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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  

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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  

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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.

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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  

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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  

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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.   

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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  

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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  

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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  

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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  

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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  

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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  

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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 Tripura1 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  1 (2014) 4 SCC 747

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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.

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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 Gujarat2 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  

2 (2012) 7 SCC 621

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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  

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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.

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22. In the circumstances Criminal Appeal Nos.1041-1042 of 2008  

preferred  by  Ashwani  Kumar  @  Ashu  and  Joginder  Singh  and  

Criminal  Appeal  No.1043  of  2008  by  Anil  Kumar  are  dismissed  

affirming the orders of conviction and sentence recorded against them.  

The appeal of Darshan Singh, namely, Crl. Appeal No.1814 of 2009 is  

allowed  and  he  is  acquitted  of  all  the  charges.  The  bail  bonds  

furnished by him stand cancelled.   Ashwani  Kumar @ Ashu,  Anil  

Kumar and Joginder Singh who were not granted bail, must undergo  

the sentences awarded.

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

………………………..J. (Uday Umesh Lalit)

New Delhi, April 16, 2015

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