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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1303 of 2005  

Baldev Singh                                                      …… Appellant

Versus

State of Punjab                                                ….. Respondent

WITH

CRIMINAL APPEAL No. 1380 of 2005  

Balwinder Singh                                                 …… Appellant

Versus

State of Punjab                                                ….. Respondent

J U D G M E N T

A. K. PATNAIK, J.

These are appeals by way of special leave under Article  

136 of the Constitution against the common judgment dated

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06.04.2005  of  the  High  Court  of  Punjab  and  Haryana  in  

Criminal Appeal No.221-DB of 1998.

Facts of the case:

2. The facts very briefly are that Inder Singh sent an  

application dated 19.01.1992 by registered post with A.D. to  

the Director General of Police,  Punjab,  for releasing seven  

members  of  his  family.   In  the  application,  Inder  Singh  

alleged  that  on  29.10.1991  at  5.00  a.m.  Baldev  Singh,  

Deputy Superintendent of Police, and Balwinder Singh, Police  

Constable  (the  appellants  herein)  and  other  police  men  

raided  their  house  and  picked  up  seven  members  of  his  

family.  They are Sadhu Singh (his father), Hardev Singh (his  

son),  Gurdip  Singh  and  Amanjit  Singh  (his  brothers),  

Sharanjit Singh (son of his younger brother Sajjan Singh) and  

Davinder Singh and Sukhdev Singh (two sons of his younger  

brother  Khazan Singh).   Inder  Singh further  stated  in  the  

aforesaid application that he has seen his family members,  

who were  picked up,  in  Fatehgarh  Churian,  Police  Station  

Kalanaur, Dera Baba Nanak and Police Station Kathu Nangal  

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and on 08.01.1992,  his son Sarwan Singh has seen these  

persons in the police vehicle in Amritsar.  In the application,  

Inder Singh stated that he had fear that the appellant-Baldev  

Singh may kill his family members or may implicate in some  

case and he requested that  they be released from illegal  

detention  of  the  police  at  the  earliest.   By  Memo  dated  

21.03.1994, the Inspector General  of  Police,  Crime Branch  

directed the Senior Superintendent of Police, Majitha, to get  

the  case  registered  and  accordingly  a  formal  FIR  was  

registered under Section 364 of the Indian Penal Code (for  

short  ‘IPC’)  on  23.03.1994  in  Police  Station,  Kathunangal,  

District  Majitha.   After  investigation,  charges were framed  

against nine accused persons including the appellants and  

as  per  the  amended charges,  nine  accused persons  were  

tried for offences under Sections 120-B, 148, 452, 364, 365,  

302 read with Section 120-B and 201, IPC.   

3. At  the  trial,  fourteen  prosecution  witnesses  were  

examined.  Inder Singh was examined as PW-3 and he stated  

that  on  29.10.1991  the  two  appellants  accompanied  by  

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twenty to twenty five persons came in vehicles to the house  

and took away the seven members of his family.  PW-3 has  

further  deposed  that  he  and  his  other  relatives  had  

approached the higher authorities but all his efforts to get  

the seven persons released did not yield any result.   The  

evidence  of  PW-3  was  corroborated  by  his  brother  Sajjan  

Singh who was examined as PW-4 as well as Jarnail Singh, a  

relation of PW-3, who was examined as PW-5.  Sarwan Singh,  

the son of PW-3, was also examined as PW-6 and he stated  

that on 08.01.1992 he happened to be present at the shop  

near  the bus stand at  Amritsar  when he noticed  a  Police  

Gypsy going on the road and saw that his brother Hardev  

Singh was sitting in the vehicle and even he gave a signal by  

raising  his  hand.   He  also  stated  that  there  were  other  

persons sitting in the vehicle but he did not see them and  

made an attempt to chase the vehicle but he could not do  

so.   The  appellants  also  examined  as  many  as  eleven  

witnesses in their defence that they have not taken anybody  

in their custody as alleged by the prosecution.

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4. The trial court rejected the defence of the appellants  

and convicted the appellants under Sections 452, 364, and  

302  read  with  Section  120-B,  IPC,  by  its  judgment  dated  

30.03.1998.  The trial court thereafter heard the appellants  

on the question of sentence and sentenced the appellants to  

three years rigorous imprisonment and a fine of Rs.3,000/-  

for the offence of house trespass for wrongful restraint under  

Section 452, IPC, five years rigorous imprisonment and a fine  

of Rs.4,000/- for the offence of abduction of Sadhu Singh,  

Gurdip Singh, Hardev Singh, Amanjit Singh, Sharanjit Singh,  

Davinder Singh and Sukhdev Singh in order to murder under  

Section 364,  IPC and rigorous imprisonment for  life and a  

fine of Rs.50,000/- for the offence of murder of Sadhu Singh,  

Gurdip Singh, Hardev Singh, Amanjit Singh, Sharanjit Singh,  

Davinder Singh and Sukhdev Singh under Section 302 read  

with  Section  120-B,  IPC.   Aggrieved,  the  appellants  filed  

Criminal  Appeal  No.221-DB of 1998 before the High Court  

and by the impugned judgment dated 06.04.2005, the High  

Court dismissed the appeal.

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Contentions on behalf of the Appellants:

5.  Mr.  Amarendra  Sharan,  learned  senior  counsel  

appearing  for  the  appellants,  submitted  that  while  the  

incident was alleged to have taken place on 29.10.1991, the  

FIR  was  registered  on  19.01.1992  and there  was,  thus,  a  

delay of two months and twenty one days in lodging the FIR.  

He submitted that this delay is sought to be explained by the  

prosecution by saying that the complainant approached the  

Senior Superintendent of Police and the Director General of  

Police  and  thereafter  the  Courts  and  even a  writ  petition  

before  this  Court  and  only  thereafter  the  complaint  was  

registered  as  an  FIR.   Mr.  Sharan  submitted  that  PW-3  

belonged to a family of prosperous farmers and his son PW-6  

was serving in  the police and his  friend PW-5 was also  a  

member of Punjab State Congress Committee and had easy  

access to the Chief Minister of the State and, therefore, the  

explanation given by the prosecution for  the delay of two  

months and twenty one days in lodging the FIR cannot be  

accepted by the Court.   He cited the decision in  Meharaj  

Singh (L/Nk.) v. State of U.P. [(1994) 5 SCC 188] in which this  

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Court has held that delay in lodging the FIR often results in  

embellishment as well as introduction of a coloured version  

or  exaggerated  story  and  the  FIR  loses  its  value  and  

authenticity.  

6. Mr.  Sharan  next  submitted  that  there  was  enough  

evidence  to  show  that  there  was  enmity  between  the  

complainant and the appellants.  In this regard, he referred  

to the evidence of PW-3, the complainant himself, that the  

brother of the appellant-Baldev Singh was earlier kidnapped  

by  the  terrorists  on  18.10.1991  and  the  appellant-Baldev  

Singh was under the impression that Gurdip Singh (brother  

of PW-3) was responsible for getting Kuldip Singh kidnapped  

and earlier Kundan Singh, who was a co-accused with the  

appellants but  acquitted by the trial  court,  had asked the  

family of PW-3 to accept some girl for marriage with the son  

of  PW-3  Hardev  Singh,  but  Hardev  Singh  rejected  the  

proposal.  He submitted that as there was enmity between  

the family of PW-3 and the appellants, PW-3 has lodged the  

false complaint against the appellants.

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7. Mr. Sharan next submitted that the evidence of PW-3  

and PW-4 on which the trial court and the High Court relied  

on for holding the appellants guilty, is not reliable because  

the statements were recorded under Section 161, Cr.P.C., for  

the first  time in July,  1994 more than two years after the  

incident and this fact has been admitted by the Investigating  

Officer      (PW-10), who recorded the statements.  He cited  

the decisions of this Court in Jagjit Singh alias Jagga v. State   

of Punjab [(2005) 3 SCC 689] and State of Andhra Pradesh v.   

S. Swarnalatha & Ors. [(2009) 8 SCC 383] for the proposition  

that the delay in examination of a witness in the course of  

investigation  if  not  properly  explained  creates  a  serious  

doubt about the reliability of the evidence of the witness.   

8. Mr. Sharan referred to several improvements in the  

deposition  of  PW-3  over  his  statements  recorded  during  

investigation  under  Section  161,  Cr.P.C.   He  cited  Ashok  

Vishnu Davare v. State of Maharashtra [(2004) 9 SCC 431],  

Radha Kumar v. State of Bihar (now Jharkhand) [(2005) 10  

SCC 216] and Sunil Kumar Sambhudayal Gupta (Dr.) & Ors.   

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v. State of Maharashtra [(2010) 13 SCC 657], in which this  

Court  has  not  believed  the  evidence  of  prosecution  

witnesses on account of improvements in the deposition of  

the witnesses made over their  statements recorded under  

Section 161, Cr.P.C.                

9. Mr. Sharan submitted that police personnel, namely,  

SSP Sita Ram and SSP Hardeep Singh Dhillon, whose names  

find place in the evidence of PW-3,  PW-4 and PW-5,  were  

material witnesses and yet have not been examined by the  

prosecution.   He  submitted  that  similarly,  Sukhbans  Kaur  

Bhinder,  Member  of  Parliament,  and  Beant  Singh,  Chief  

Minister  of  the State,  whose names also find place in the  

evidence  of  PW-3,  were  material  witnesses,  but  have  not  

been  examined.   He  submitted  that  their  evidence would  

have thrown sufficient light on the prosecution case and the  

Court should draw adverse inference against the prosecution  

for non-examination of these material witnesses.  

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10. Mr.  Sharan  submitted  that  there  is  no  evidence  

whatsoever  on  record  to  show  that  the  seven  persons  

alleged  to  have  been  abducted  by  the  police  have  been  

killed by the appellants.  He cited the decision of this Court  

in State of Karnataka v. M.V. Mahesh [(2003) 3 SCC 353] in  

which  it  has  been  held  that  in  the  absence  of  definite  

evidence to indicate that Beena had been done to death, the  

accused  could  not  have  been  convicted  merely  on  the  

circumstance that  the accused and Beena were last  seen  

together.  He submitted that in this case, PW-3,   PW-4 and  

PW-5 have stated that they had seen the seven persons in  

Fatehgarh Churian Police Station and Kalanaur Police Station  

and PW-6 has further stated that he saw and identified his  

brother Hardev in a Police Van on 08.01.1992 at Amritsar.  

Mr. Sharan submitted that on these facts, therefore, Section  

106 of the Indian Evidence Act was not attracted and the  

burden was not on the appellants to prove that they had not  

killed the seven persons who were abducted by them.  He  

cited Sahadevan and Another v. State of Tamil Nadu [(2012)  

6 SCC 403] in which this Court has held that the last seen  

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theory should be applied while taking into consideration the  

prosecution  case  in  its  entirety  and  keeping  in  mind  the  

circumstances that precede and follow the point of being so  

last seen. He submitted that if the aforesaid principle as laid  

down by this Court in  Sahadevan and Another v.  State of   

Tamil Nadu (supra) is applied then the appellants could not  

be held guilty of the offence of murder of the seven persons.

11. Mr. Sharan next submitted that there is no evidence  

whatsoever  before  the  court  that  the  seven  persons  are  

dead and are not alive and the trial court has erroneously  

drawn the presumption that the seven persons are dead by  

applying Section 108 of the Indian Evidence Act. He cited the  

judgment of this Court in LIC of India v. Anuradha [(2004) 10  

SCC 131 in which the principle behind Section 108 of the  

Indian Evidence Act is explained.  He submitted that in any  

case, if there was any evidence against the appellants for  

the offence of murder of the seven persons under Section  

302, IPC, the same should have been put to the appellants  

by the Court  under  Section 313,  Cr.P.C.,  but  this  has  not  

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been  done  in  this  case.   He  vehemently  argued that  the  

conviction  of  the  appellants  for  the  offence  of  murder  of  

seven  persons  under  Section  302,  IPC  is  without  any  

evidence whatsoever.

Contentions on behalf of the State:

12. Mr. V. Madhukar, learned counsel appearing for the  

State  of  Punjab,  in  his  reply,  submitted  that  in  this  case  

though  the  complaint  was  filed  by  PW-3  on  19.01.1992  

nothing was done for quite sometime and, therefore, PW-3  

approached this Court in a habeas corpus petition to secure  

the  release  of  the  seven  members  of  his  family  and  on  

15.09.1994  this  Court  passed  an  order  directing  that  an  

inquiry  should  be  conducted  by  the  Central  Bureau  of  

Investigation.  He submitted that pursuant to the said order  

of  this  Court,  the  Director  of  the  Central  Bureau  of  

Investigation  submitted  his  report  dated  15.12.1994  and  

thereafter  the  investigation  was  carried  out  by  the  Crime  

Branch of the Punjab Police and the charge-sheet was filed  

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against the two appellants and others.  He submitted that  

the delay in lodging the FIR in this case on the part of PW-3  

must  be  on  account  of  the  fact  that  the  complaint  was  

against the police personnel themselves and PW-3 must be  

contemplating whether or not to lodge such a complaint.  He  

submitted that  this  was,  therefore,  an extra-ordinary case  

and this Court has held in Prithipal Singh & Ors. v. State of   

Punjab  &  Anr.  [(2012)  1  SCC  10]  that  in  such  an  extra-

ordinary situation, the Court has to bear in mind the peculiar  

facts and innovate the law accordingly.   He submitted that  

in the extra-ordinary facts in which PW-3, had to lodge the  

FIR, the delay in lodging the FIR should be ignored by the  

Court.   

13.  Mr. Madhukar next submitted that the evidence of  

PW-3, PW-4 and PW-5 on material aspects of the case are  

that  the appellants  took into  custody seven persons,  who  

were members of the family of PW-3, on 29.10.1991 and this  

was  the  case  of  PW-3  in  the  complaint  filed  by  him  on  

19.01.1992  as  well  as  in  his  statement  recorded  under  

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Section 161, Cr.P.C., in the course of the investigation.  The  

omissions  in  the  statements  recorded  under  Section  161,  

Cr.P.C., which have been supplied during the evidence of the  

witnesses  in  Court,  do  not  detract  from  this  basic  

prosecution  story  and,  therefore,  are  not  “contradictions”  

covered by the Explanation under Section 162, Cr.P.C.  He  

further submitted that the delay in recording the statements  

under Section 161, Cr.P.C. in this extra-ordinary case should  

not  be  held  fatal  to  the  prosecution  case  as  the  main  

prosecution  story  that  the  appellants  abducted  seven  

members  of  the  family  of  PW-3  has  been  consistently  

reiterated  all  throughout,  from the  date  of  the  complaint  

made  on  19.01.1992  to  the  dates  of  the  examination  of  

witnesses by the Court.  He submitted that the motive of the  

appellants to abduct the seven members of the family of PW-

3 obviously was revenge as will be clear from the evidence  

of PW-3 and thus the trial court and the High Court rightly  

believed the evidence of PW-3, PW-4 and PW-5.

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14. Mr.  Madhukar  submitted  that  seven  other  police  

personnel who went along with the appellants to abduct the  

seven members of the family of PW-3 were not examined as  

prosecution  witnesses  as  they  were  also  accused persons  

and these seven persons, namely Kundan Singh, Sukhwinder  

Singh, Balwinder Singh, Gurmukh Singh, Amrik Singh, Nirmal  

Singh and Randhir Singh, have been acquitted by the trial  

court.  He submitted that the only evidence which has come  

on record regarding Sita Ram, SSP, Batala, is that a message  

was received from him that seven persons will be collected  

from the office of Sita Ram, SSP.  He submitted that if Sita  

Ram, SSP, would have been examined he would have only  

denied  that  he  had  given  such  message  and  hence  non-

examination of Sita Ram, SSP, as a witness in court should  

not be held against the prosecution.  

15. Mr.  Madhukar  vehemently  submitted  that  the  

appellant-Baldev Singh was a DSP in the Police Department  

and had control over all the Police Stations under him and if  

this fact along with the fact that the appellant-Baldev Singh  

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abducted  the  seven  members  of  the  family  of  PW-3  are  

taken into consideration, then the burden of proving as to  

what happened to the seven persons abducted by him was  

on him under Section 106 of the Indian Evidence Act.  He  

submitted that as the appellants have not discharged this  

burden of  proving facts  especially  within  their  knowledge,  

the trial court and the High Court rightly held that the seven  

abducted persons have been murdered by the appellants.  In  

support of this argument, he cited the decisions of this Court  

in Ram Gulam Chaudhary & Ors. v. State of Bihar [(2001) 8  

SCC  311]  and  Badshah  &  Ors.  v.  State  of  Uttar  Pradesh  

[(2008) 3 SCC 681].  He submitted that in these two cases it  

was  held  that  even  though  the  dead-body  of  a  person  

alleged  to  have  been  murdered  was  not  discovered,  

conviction for  murder  under Section 302,  IPC,  can still  be  

recorded if there exists strong circumstantial evidence and if  

the  accused  is  unable  to  offer  any  explanation  regarding  

facts  especially  within  his  knowledge  as  provided  under  

Section 106 of the Indian Evidence Act.  He submitted that  

this  is,  therefore,  not  a  fit  case  where  this  Court  should  

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interfere with the concurrent findings of fact recorded by the  

trial  court  and the  High  Court  against  the appellants  and  

should dismiss the appeal.           

Findings of the Court:  

16. The first question that we have to decide is whether the  

delay of 2 months and 21 days in lodging the FIR could make  

the  prosecution  case  one  which  is  not  believable.   There  

cannot be any doubt that  delay in  the lodging of  the FIR  

often results in embellishment as well as the introduction of  

a distorted version of what may have actually happened, but  

the  facts  of  each  case  have  to  be  examined  to  find  out  

whether  the  delay  in  lodging  the  FIR  is  fatal  for  the  

prosecution  case.   In  the  present  case,  we  find  from the  

evidence of PW-3 that the terrorists were active in the State  

of  Punjab  and  the  police  was  taking  action  against  the  

terrorists  and  in  such  a  state  of  affairs,  PW-3  was  

apprehensive of the consequences of lodging an FIR against  

appellants,  one of  whom was a Deputy Superintendent of  

Police in control of several police stations and the other was  

a  police  constable.   Hence,  after  seven  members  of  his  

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family  were  picked  up  on  29.10.1991,  PW-3  waited  for  2  

months  and  21  days  with  the  hope  that  they  would  be  

released by the police and only after all  his efforts to get  

them released failed, he lodged the complaint on 19.01.1992  

(Ex.PB).   The  fact  that  the  complainant  addressed  the  

complaint  (Ex.  PB)  not  to  the  police  station  but  to  the  

Director General of Police, Punjab, is enough evidence of the  

fact  that  PW-3 was afraid of  lodging the complaint  to  the  

local  police  station  which  was  under  the  control  of  the  

appellant Baldev Singh.   

17. To illustrate this point, we may refer to  Gauri Shanker  

Sharma vs.  State of  U.P.  [1990 (Supp)  SCC 656].   In  this  

case, the facts were that Ram Dhiraj died of injuries received  

by him after his arrest while he was in police custody.  The  

prosecution  version  was  that  he  was  beaten  in  police  

custody  on  19.10.1971  by  accused  no.1  and  his  two  

companions after  he was arrested from his  residence and  

brought to the police station.  Even though the High Court  

came to the conclusion that the deceased was beaten  after  

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his arrest, the High Court refused to place reliance on the  

direct testimony of three witnesses insofar as involvement of  

the Station House Officer  of  Police Station was concerned  

and one of  the  grounds  for  rejecting  the evidence of  the  

three prosecution witnesses was that the telegram was sent  

by PW-5 who had requested the Station House Officer not to  

beat the deceased on 23.10.1971, where as the prosecution  

case was that the injuries on the person of the deceased  

were caused on the evening of 19.10.1971.  This Court held  

that the High Court has failed to appreciate that everyone  

thinks twice before deciding to make so serious a complaint  

against a police officer and there was no serious delay as to  

throw out the evidence of the three witnesses on the ground  

of  delay.   In  our  view,  considering  the  fact  situation,  the  

delay of 2 months and 21 days on the part of PW-3 to lodge  

the complaint to the Director General of Police, Punjab, had  

been explained by PW-3 and this is not a case where the  

prosecution case could be disbelieved on the ground of delay  

in lodging the FIR.  

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18. We may next consider the contention of Mr. Sharan that  

the trial court and the High Court should not have relied on  

the  evidence  of  witnesses  when  their  statements  under  

Section 161, Cr.P.C. were recorded for the first time in July,  

1994,  almost  more  than two years  after  the incident  and  

lodging of the FIR.   In  Jagjit  Singh alias Jagga v.  State of   

Punjab (supra) cited by Mr. Sharan, the relevant facts were  

that PW-6, who was a young girl of 7 years age and resided  

in a different village than that of Jagjit Singh did not say in  

her  earlier  statements  that  she  knew  him,  but  in  her  

statement  recorded  by  the  Investigating  Officer  under  

Section 161, Cr.P.C. she claimed to have known him and on  

these facts this Court held that in her earlier statements she  

did not name him and the delay in examining her in course  

of investigation also creates a serious doubt in the absence  

of any explanation for her late examination after 3 days and  

further  held  that  though  she  may  have  witnessed  the  

occurrence, she did not know Jagjit  Singh and she had no  

opportunity of knowing or seeing him earlier  and she has  

involved  him  at  the  instance  of  her  father  when  her  

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statement was recorded by the Investigating Officer.  In the  

facts of the present case, on the other hand, PW-3 and PW-4,  

who have stated in their evidence before the court that on  

29.10.1991 the appellants Baldev Singh and Balvinder Singh  

came in 3-4 vehicles and took the seven members of their  

family in the Gypsy and knew the two appellants who lived in  

village Ram Diwali which was at a small distance from the  

village of PW-3 and PW-4.  Further, in the very first complaint  

lodged  by  PW-3  on  19.01.1992,  PW-3  has  named  the  

appellants Baldev Singh and Balvinder Singh as the persons  

who raided their house and picked up seven members of his  

family.  Hence, the fact that there was considerable delay of  

two years from the date of lodging the FIR and recording of  

statements of PW-3 and PW-4 and other witnesses does not  

make their  evidence,  that the appellants picked up seven  

members  of  their  family  on  29.10.1991  at  5.00  a.m.,  

doubtful.   

19. In  State  of  Andhra  Pradesh  v.  S.  Swarnalatha  &  Ors  

(supra) also cited by Mr. Sharan, the prosecution relied on  

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the evidence of PW-3,  a taxi  driver,  who claimed to have  

taken  the  accused  persons  to  the  house  where  the  two  

persons  died  homicidal  death  and  he  also  said  that  the  

accused persons entered into the house and asked him to  

stay on at that place and after half an hour all of them came  

out of the house and asked him to drop them at Ring Road,  

Dilsukhnagar.  This Court found that PW-3 in his statement  

under Section 161, Cr.P.C. had mentioned the names of only  

two accused persons, but in his deposition before the Court,  

he took the names of six accused persons and further PW-3  

was not taken by the Investigating Officer to the house in  

question to identify the house where the incident has taken  

place.  On these facts, this Court held that the statement of  

PW-3 which was recorded by the Investigating Officer only  

on 31.01.1999 when the murder of the deceased had taken  

place on 03.12.1997 was not reliable, particularly when his  

statement  was  also  recorded  under  Section  164,  Cr.P.C.  

before  the  recording  of  his  statement  under  Section  161,  

Cr.P.C.  Thus, considering the peculiar facts of this case, the  

delay  in  recording  the  statement  of  witnesses  by  the  

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Investigating  Officer  under  Section  161,  Cr.P.C.  was  held  

against the prosecution by this Court.   In the facts of the  

present  case,  the  investigation  was  against  the  Deputy  

Superintendent  of  Police  and several  other  police  persons  

and  the  investigation  was  being  conducted  by  the  

Investigating Officer of the Crime Branch of the State Police.  

There was, therefore, resistance within the police against the  

investigation and it was only on account of intervention of  

this Court in Writ Petition (Criminal) No. 221 of 1994 that  

there was progress in the investigation and the statements  

of  witnesses  came  to  be  recorded  by  the  Investigating  

Officer.  This being explanation for the delay in examining  

the witnesses under Section 161 Cr.P.C., we are not inclined  

to accept the statement on behalf of the appellants that the  

prosecution witnesses should  not  be relied on because of  

delay in recording the statements under Section 161, Cr.P.C.  

20. We  are  also  unable  to  accept  the  submission  of  Mr.  

Sharan that the evidence of PW-3 and PW-4 ought not to be  

relied on by the trial court and the High Court when there  

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was evidence to show that there was enmity between PW-3  

and PW-4 on the one hand and the appellants on the other  

hand.  Where there is previous enmity between the witness  

and  the  accused,  the  evidence  of  the  witness  has  to  be  

carefully scrutinized by the Court before it is accepted, but  

only on account of such enmity the Court cannot discard the  

evidence  of  the  witness  altogether  [See  State  of  U.P.  vs.   

Kishanpal  and  Others (2008)  16  SCC  73].   Moreover,  

witnesses who are not related to a victim of an offence are in  

some situations difficult to find.  This is one such situation  

where  the  appellants  have  come  to  the  house  of  the  

complainant  (PW-3)  early  in  the  morning  at  5.00  am  on  

29.10.1991 and picked up seven members of his family and  

it is difficult to find persons witnessing this incident at 5.00  

a.m. during the last part of October.  Moreover, one of the  

appellants  was  a  Deputy  Superintendent  of  Police  and  

therefore even if some one had witnessed the incident, he  

would prefer  not to  narrate the incident either before the  

Investigating Officer or before the Court.  In such a situation,  

the  Court  has  to  consider  carefully  and  cautiously  the  

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evidence of witnesses who may have had enmity with the  

accused.  On such careful and cautious consideration, it is  

difficult to discard the evidence of PW-3 that the appellants  

picked up seven members  of  his  family  on 29.10.1991 at  

5.00 a.m. from his house particularly when it  is corroborated  

by  the  evidence  of  PW-4  as  well  as  the  complaint  dated  

19.01.1992 (Ext. PB) of PW-3 which had been registered as  

the FIR.  In our considered opinion, therefore, the trial court  

and the High Court could not have rejected the evidence of  

PW-3 and PW-4 on the ground of enmity between PW-3 and  

PW-4 on the one hand and the appellants on the other hand.  

21. We  may  now consider  the  submission  of  Mr.  Sharan  

that there were improvements in the deposition of PW-3 over  

his  statements  recorded  during  the  investigation  under  

Section  161  Cr.P.C.   The  Explanation  under  Section  162,  

Cr.P.C.  provides  that  an  omission  to  state  a  fact  or  

circumstance in the statement recorded by a police officer  

under Section 161,  Cr.P.C.  may amount to contradiction if  

the same appears to be significant and otherwise relevant  

having regard to the context in which such omission occurs  

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and whether any omission amounts to a contradiction in the  

particular context shall be  a question of fact.  Thus, unless  

the omission in the statement recorded under Section 161,  

Cr.P.C. of a witness is significant and relevant having regard  

to  the  context  in  which  the  omission  occurs,  it  will  not  

amount  to  a  contradiction to  the evidence of  the witness  

recorded  in  court.   The  evidence  of  PW-3  is  that  on  

29.10.1991, the appellant Baldev Singh accompanied by the  

appellant Balwinder Singh accompanied by twenty to twenty  

five persons came in three to four vehicles to his house and  

Sadhu  Singh  (his  father),  Hardev  Singh  (his  son),  Gurdip  

Singh (his brother), Amanjit Singh (his son), Sharanjit Singh  

(son  of  his  brother,  Sajjan  Singh),  Davinder  Singh  and  

Sukhdev  Singh  (sons  of  his  brother  Khazan  Singh)  in  all  

seven  persons  were  made  to  sit  in  the  Gypsy  and  the  

appellants took these seven persons with them.  There is no  

omission with regard to these facts about the picking up of  

seven members of his family from his house on 29.10.1991  

and the names of these seven members of his family in the  

statement of PW-3 recorded under Section 161 Cr.P.C.  The  

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omissions in the statement of PW-3 recorded under Section  

161 Cr.P.C. are with regard to the nature, number and colour  

of the vehicles and the number of men who had come as  

well  as  what  happened  after  the  aforesaid  incident  on  

29.10.1991.  In our view, the trial court and the High Court  

had  rightly  considered  these  omissions  as  not  material  

omissions  amounting  to  contradictions  covered  by  the  

Explanation  under  Section  162,  Cr.P.C.   In  our  view,  

therefore, the High Court rightly maintained the conviction of  

the appellants under Sections 364 and 452 IPC.   

22. We may now come to the submission of Mr. Sharan that  

there is no evidence whatsoever on record to show that the  

seven  persons  alleged  to  have  been  abducted  by  the  

appellants have been killed by the appellants.   

23. We find that PW-3 has stated in his evidence:  

“All  our men who kidnapped, were found  present in PS Fatehgarh Churian and they  were kept there for 10 days.  We kept on  meeting  them  during  this  period.   Their  condition was very bad.  We used to go to  them  to  supply  food  and  articles  and  clothing to meet their needs.  Then these  

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persons  were  shifted  from  Fatehgarh  Churian  to  Kalanaur.   I  and my relatives  Jarnail  Singh,  Kuldip  Singh,  Sajjan  Singh  used to  go to  meet  our  men in the said  police station also.  We found that all these  persons  had  been  given  severe  beatings  and out of them Gurdip Singh my brother  and Amanjit  Singh,  his son,  had received  more  serious  injuries  as  compared  to  others.   The  conditions  of  these  persons  were very bad.  After keeping our men at  PS Kalanaur for ten days, then they were  kept  in  PS  Fatehgarh  Churian.  Subsequently, 3 persons were taken to PS  Dera Baba Nanak and 4 were taken to PS  Kahnuwal.  Sadhu Singh, Gurdip Singh and  Amanjit  Singh had been kept  in  PS Dera  Baba Nanak,  where  as  the  other  4  were  kept  in  PS  Kahnuwal.   We  continued  meeting them from time to time in these  police  stations  also.   On  08.12.1991  4  persons,  namely,  Hardev Singh,  Davinder  Singh, Sukhdev Singh and Sharanjit Singh  were  shifted  to  PS  Sadiq  Faridkot  from  Kahnuwal Police Station.”

“I mentioned that we kept on meeting our  men  during  the  period  of  10  days  when  they  were  detained  in  Police  Station  Fatehgarh  Churian  and  also  that  their  condition was very bad and we used to go  there  to  supply  food  and  articles  and  clothing to meet their needs.”

“In my statement in court I had mentioned  that  we  had  been  meeting  our  men  at  various  Police  Stations  at  Kalanaur,  Fatehgarh  Churian  etc.  and  we  had  also  been supplying food articles to them.”

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Thus, as per the evidence of PW-3, after the seven members  

of his family were abducted, he had met them at different  

police stations and was supplying them food and articles and  

clothing to meet their needs.   

24. We also find that PW-4 in his statement has stated:  

“We  again  approached  Baldev  Singh  accused and he told us that our men will  be sent back after his brother was traced.  Thereafter, we continued to contact SSP of  Batala  for  getting  our  men  released  because  accused  Baldev  Singh  was  working as DSP under his control.  SSP Sita  Ram,  however,  continued  postponing  the  matter  promising  that  he  would  get  our  men released.   Our  men were kept from  time  to  time  at  Police  Station  Fatehgarh  Churian,  Kalanaur,  again  Fatehgarh  Churian  and  then  to  Kahnuwal  and  Dera  Baba Nanak.   We had been meeting our  men  from  time  to  time  in  these  Police  Stations and we used to provide our men  with food and clothes and other eatables.  Subsequently  4  persons  were  sent  to  PS  Sadiq.”

“Our men used to be kept in the residential  quarters  near  the  Police  Station  and  we  used to meet them there.  Other men from  public  were  not  present  there  on  these  occasions.  I  had mentioned in my police  

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statement  that  our  men  were  taken  to  Police Station Fatehgarh Churian because  our men had been subsequently seen by  us.”  

Hence, the evidence of PW-4 also is that the seven persons  

picked up by the appellants were kept at  different  places  

including Police Stations and residential  quarters  near  the  

Police  Station  and  their  family  members  used  to  provide  

them with food and clothes and other articles and used to  

meet them.   

25. We further find that PW-5 has stated in his evidence:  

“I then went to Gurdaspur.  Then I learnt  that our men were kept in Police Station  Kahnuwal.   I  went there and I  could find  only 4 persons present there.  The other 3  persons  namely  Sadhu  Singh,  his  son  Gurdip Singh and Son of Gurdip were not  there.”

“I  had also  disclosed that  I,  Inder  Singh,  Sajjan  Singh  and  wife,  brother  of  Sajjan  Singh  has  gone  to  PS  Kalanaur  and  had  met 7 persons.”

“I had mentioned in my statement before  Police about our going to PS Kahnuwal and  meeting 4 persons there.”

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“I did not meet the SHO of PS Kalanaur as  the SHO could never permit us to meet our  men.  Voluntarily explained that I had met  them in a stealthy manner, when a Head  Constable  who  had  earlier  remained  posted at Quadian, had helped us in seeing  them.   I  cannot  tell  his  name.   Head  Constable had taken our 7 men, out of the  particular  room,  so  that  we  may  meet  them.  All this, however, happened in the  premises  of  the  Police  Station.   We  had  gone  there  during  the  day.   There  were  other police officials and guard there.  It is  incorrect that I have given false evidence.”  

“We had gone to PS Kahnuwal.  There was  MHC there.  I told him that I wanted to see  my men who were detained there in the  adjoining  room in  the  Police  Station  and  the  said  MHC told  me that  I  could  meet  them hurriedly and go away as there was  lot of strictness in the quarters.”

Thus, the evidence of PW-5 is also that he had met the seven  

persons  after  they  were  abducted  by  the  appellants  in  

different  Police  Stations  where  there  were  other  police  

officials and guards.   

26. We also find that PW-6, who was the son of PW-3 and  

working  as  Police  Constable  at  Amritsar  has  said  in  his  

evidence:  

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“On 08.01.1992 I happened to be present  near the shops near Bus Stand.  I noticed a  police gypsy going on the road.  I noticed  that in the body of that vehicle my brother  Hardev Singh was sitting.  He also gave me  a signal with his hand.  There were other  persons also in that vehicle, but I could see  only  my  brother.   I  tried  to  pursue  that  vehicle but due to rush I could not reach  the vehicle, and it slipped away.  On the  same day I sent a message to my father  that  I  had  seen  my  brother  being  taken  away in a vehicle.  Police also recorded my  statement during investigation.”

Hence,  PW-6 also had seen his  brother  sitting in  a  police  

gypsy at Amritsar.  

27. We, therefore find that the evidence adduced by PW-3,  

PW-4, PW-5 and PW-6 is that the seven persons abducted by  

the  appellants  were  found in  different  police stations  and  

also in residential quarters near the police station.  On this  

evidence, the court cannot hold that the two appellants have  

killed the seven abducted persons only because the seven  

persons have not been traced or are found missing.  Learned  

counsel  for  the State submitted that  the appellant  Baldev  

Singh was in control of all the police stations in his area but  

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no material has been placed before the court to show which  

were the police stations which were under the control of the  

appellant Baldev Singh.  No material has been placed before  

the Court to establish that the last police station in which the  

seven persons or any of the seven persons were kept was  

under  the  control  of  the  appellant  Baldev  Singh  and  the  

other appellant Balwinder Singh.  From the evidence of PW-

3,  we  find  that  terrorism  was  prevailing  in  the  State  of  

Punjab at the time when the seven persons were abducted  

and  action  was  being  taken  by  the  police  against  the  

terrorists.   When  the  seven  persons  abducted  by  the  

appellants  did  not  go  missing  immediately  after  their  

abduction and were found in different police stations in the  

State of Punjab and one of them was also found going in a  

Gypsy  at  Amritsar,  the  Court  cannot  hold  that  the  seven  

abducted persons were last in the custody of the appellants  

and hence they must discharge the burden under Section  

106 of the Evidence Act and must explain what they did to  

the seven abducted persons.  The prosecution should have  

examined witnesses from amongst the police personnel or  

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the  Police  Station  to  establish  that  the  seven  abducted  

persons were last seen in the custody of the appellants.  In  

absence of such evidence, the finding of guilt recorded by  

the  trial  court  and the  High  Court  under  Section  302 IPC  

against the appellants, in our view, was not correct either on  

facts or on law.   

28. We,  therefore,  set  aside  the  conviction  of  the  two  

appellants under Section 302 read with Section 120-B, IPC  

but maintain the conviction of the appellants under Sections  

364 and 452, IPC.  The trial court has imposed a punishment  

of three years rigorous imprisonment and a fine of Rs.3000/-  

for  the  offence  under  Section  452,  IPC  and  five  years  

rigorous imprisonment and a fine of Rs.4000/- for the offence  

under Section 364, IPC, and the High Court has maintained  

the aforesaid sentences for the two offences.  We maintain  

the sentence and fine under Section 452, IPC.  But so far as  

the sentence and fine under Section 364, IPC is concerned,  

we find from illustration (h) under Section 220 of the Cr.P.C.  

that where an accused commits the same offence against  

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three persons, then he can be charged with three offences.  

As seven persons had been abducted by the appellants, the  

appellants were guilty of seven offences under Section 364,  

IPC, and they should be punished for each of these offences  

under Section 364, IPC.  We, therefore, direct that the fine  

amount as imposed by the trial court will be Rs.4000/- for  

each of the seven offences of abduction and the period of  

rigorous  imprisonment  will  be  five  years  for  each  of  the  

seven offences of abduction and these five years rigorous  

imprisonment for each of the seven offences of abduction  

will not run concurrently but consecutively. In case, the fine  

amount of Rs.4,000/- is not paid, the appellants will have to  

undergo  one  more  year  of  rigorous  imprisonment.   The  

appeals are allowed to the extent indicated above.   

.……………………….J.                                                                (A. K. Patnaik)

………………………..J.                                                                (Gyan Sudha Misra) New Delhi, September 20, 2013.    

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