REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 523-527 of 2009

Prithipal Singh Etc.                              … Appellants

Versus

State of Punjab & Anr. Etc.          …Respondents

WITH

CRIMINAL APPEAL NO. 528 of 2009

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. All  the  above  appeals  have  been  preferred  against  the  

common judgment and order dated 8.10.2007 passed by the High  

Court of Punjab & Haryana at Chandigarh in Criminal Appeal Nos.  

864-DB of 2005, 2062-SB of 2005, 2073-SB of 2005, 2074-SB of  

2005, 2075-SB of 2005 and order dated 16.10.2007 in Crl. R.P. No.  

323 of 2006, whereby the High Court has dismissed the appeals of

the appellants filed against the conviction and sentences awarded to  

them by the Additional Sessions Judge, Patiala,  in Sessions Case  

No.  49-T  of  9.5.1998/30.11.2001 vide  judgment  and  order  dated  

18.11.2005,  whereby  he  had  convicted  Jaspal  Singh,  DSP  –  

appellant  in  Criminal  Appeal  No.  528  of  2009  and  one  Amarjit  

Singh,  ASI,   under  Sections  302/34  of  Indian  Penal  Code,  1860  

(hereinafter  referred  as  `IPC’),  and  sentenced  them  to  undergo  

imprisonment for life and to pay a fine of Rs.5,000/- each, in default  

of  payment  of  fine,  to  further  undergo  Rigorous  Imprisonment  

(hereinafter called `RI’)  for five months.  Both were also convicted  

under Section 120-B IPC and sentenced to undergo RI for five years  

and to pay a fine of Rs.2,000/-, in default of payment of fine, to  

further undergo RI for two months.  They were further convicted  

under Sections 364/34 IPC and sentenced to undergo RI for seven  

years and to pay a fine of  Rs. 5000/- each, in default of payment of  

fine,  to  further  undergo  RI  for  five  months.   They  were  also  

convicted under Sections 201/34 IPC and sentenced to undergo RI  

for two years and to pay a fine of Rs.2,000/-, in default of payment  

of fine, to further undergo RI for two months.  

Prithipal Singh, Satnam Singh, Surinderpal Singh and  

Jasbir Singh, appellants, were convicted under Section 120-B IPC  

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and sentenced to undergo RI for five years  and to pay a fine of  

Rs.2,000/-  each,  and  in  default  of  payment  of  fine,  to  further  

undergo RI for two months.  These four accused/appellants  were  

also  convicted under Sections 364/34 IPC and sentenced to undergo  

for seven years RI and to pay a fine of Rs.5,000/- each, in default of  

payment of fine, to further undergo RI for five months.   

The High Court while dismissing the Criminal Appeals  

filed by appellants,  allowed the Criminal Revision Petition No. 323  

of 2006 filed by Smt. Paramjit Kaur (PW.2), wife of the deceased,  

vide order dated 16.10.2007 and enhanced the sentence of the four  

appellants  from  seven  years  RI  to  imprisonment  for  life  under  

Section 364 IPC.  

2. FACTS:  

A. Shri  Jaswant  Singh  Khalra,  a  human  right  activist,  having  

allegiance  to  Shiromani  Akali  Dal,  was  alleged  to  have  been  

abducted from his residential house No. 8, Kabir Park, Amritsar, on  

6.9.1995 at 1.00 O’Clock.  Shri Rajiv Singh (PW.15) was present in  

the  house  of  Shri  Khalra  at  the  time  of  abduction,  Kirpal  Singh  

Randhawa (PW.7) had seen appellants, namely, Jaspal Singh, DSP,  

Surinderpal Singh, Jasbir Singh and Satnam Singh  alongwith other  

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accused  persons  rushing  through  Kabir  Park  with  the  deceased  

Jaswant Singh Khalra inside a Maruti van.   

B.     Smt. Paramjit Kaur (PW.2) wife of the deceased, came to her  

house  from  the  University,  where  she  was  working,  on  being  

informed  by  Rajiv  Singh  (PW.15).   She  made  a  search  for  her  

husband but in vain.  She made a complaint on the same day at 4.00  

PM making a statement to SI Baldev Singh at Kabir Park that her  

husband had been kidnapped at 1.00 O’Clock by some persons in  

police uniform in Maruti  van of white colour bearing No. DNB-

5969.    On the basis of the said statement, an FIR No. 72 (Ex.PA)  

was registered on 7.9.1995 at P.S. Islamabad, District Amritsar, at  

9.30  AM  under  Section  365  IPC.  However,  no  progress  in  

investigation  could  be  made  and  whereabouts  of  Jaswant  Singh  

Khalra could not be  known.   

C.      Smt.  Paramjit  Kaur  (PW.2),  wife  of  the  deceased,  filed  

Criminal Writ Petition No. 497 of 1995 before this Court, wherein  

this Court vide order dated 5.11.1995 transferred the investigation to  

the Central Bureau of Investigation (hereinafter referred as `CBI’).  

The CBI registered R.C.No. 14/S/95/SCB-I/Delhi dated 18.12.1995  

(Ex.PO) under Sections 365, 220 and 120-B IPC.     

In spite of best efforts made by the CBI, whereabouts of said  

Jaswant Singh Khalra could not be traced.  Even an award of Rs.1  

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lakh  was  announced  for  anyone  giving  information  regarding  his  

whereabouts.   

D.     Kulwant Singh (PW.14) in his statement recorded by the CBI  

under Section 161 Cr.P.C. revealed that he had been detained in a  

case  under  the  Narcotic  Drugs  and Psychotropic  Substances  Act,  

1985 (hereinafter  called ‘NDPS Act’)   on 4.9.1995 by the  police  

officials  of  Police  Station Jhabal.  Shri  Jaswant  Singh Khalra  was  

also brought to the said Police Station on 6.9.1995 and Shri Khalra  

had disclosed his identity to the said witness and told him that he  

was not knowing as to why he had been brought to the police station  

by the appellants Satnam Singh and Jaspal Singh, DSP.  

E. After  completion  of  the  investigation,  the  chargesheet  was  

filed in the court of Special Judicial Magistrate (CBI Cases), Patiala,  

against  the  appellants  and  other  accused  persons  under  Sections  

120-B, 365 and 220 IPC.  The matter was committed to Sessions  

Court. It was revealed before the Sessions Judge that there was some  

evidence  that  Jaswant  Singh  Khalra  had  been  murdered  by  the  

appellants and other accused persons secretly and his dead body had  

been thrown in the canal near Harike at midnight just after Diwali in  

the  year  1995.   So,  the  prosecution  was  directed  to  file  

supplementary report under Section 173 (8) of Criminal Procedure  

Code, 1973 (hereinafter referred as `Cr.P.C.’).  

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F. It was on 2.3.1998, i.e.,  after filing of the charge-sheet that  

Kuldip  Singh (PW.16)  revealed  the  facts  to  the  CBI  (New Delhi  

Office) in respect of abduction and murder of Jaswant Singh Khalra.  

Kuldip Singh (PW.16), made voluntary statement to the CBI that he  

was a privy to all that happened with  Shri Jaswant Singh Khalra  

from the time he was brought to the  Police Station, Jhabal till his  

death.  He  was  Special  Police  Officer  (hereinafter  called  `SPO’)  

attached to Satnam Singh, SHO, Police Station Jhabal,   and  was  

promised to be inducted into the Punjab Police permanently.  Shri  

Jaswant Singh Khalra had been detained in a room in Police Station  

Jhabal and the witness had been assigned the duty by Satnam Singh,  

SHO,  to  serve  him meals  etc.  He  had been  directed  to  keep  the  

matter most secret and not to disclose anything to anybody. He had  

been serving the meals to Shri Khalra who had become very weak  

and fragile and was having scratch marks on his body.  After 4-5  

days,  Ajit  Singh  Sandhu,  SSP,  Jaspal  Singh,  DSP,  alongwith  his  

bodyguard Arvinder Singh came in a Maruti car without having any  

registration  number  at  7.00 PM.  After  sometime,  Satnam Singh,  

SHO, Jasbir Singh, SHO and Prithipal Singh also came in another  

Maruti car.  They all went to the room where Shri Khalra had been  

detained  and  Ajit  Singh  Sandhu,  SSP,  asked  him  to  stop  his  

activities. Shri Khalra was beaten by them and, thereafter, they left  

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the  said  place.   After  about  3  days  of  the  said  incident,   in  the  

afternoon, Satnam Singh, SHO, had taken Shri Khalra alongwith the  

said witness to Taran Taran at the residence of Ajit Singh Sandhu,  

SSP.   Some  high  officials  of  police  including  the  then  Director  

General  of  Police,  Punjab,  came  there  and  they  talked  to  Shri  

Jaswant  Singh  Khalra  in  a  closed  room.   After  sometime,  Shri  

Khalra was brought back to Jhabal Police Station.  On one day, at  

about 7.00 PM, Jaspal Singh, DSP, came there with his bodyguard  

Arvinder Singh and after sometime, Surinderpal Singh, Jasbir Singh  

and Prithipal Singh also came.  They all went to the room where Shri  

Jaswant  Singh Khalra had been detained and started beating him.  

The witness had been asked to bring hot water. As he went out of the  

room for  arranging  the  same,  he  heard  slow noise  of  gun  firing  

twice. The life of Shri Khalra came to an end.  His dead body was  

kept in a dicky of the van while blood was oozing from his body.  

All  of  them  including  the  witness  went  in  three  cars  to  village  

Harike.  The dead body of Shri Khalra was thrown in the canal and  

all  three  vehicles  came back  to  the  rest  house  of  village  Harike.  

Subsequently,  at  about  midnight,  the  witness  alongwith  some  

appellants came back to police station Jhabal. He could not reveal  

the incident to anybody  because of fear till Ajit Singh Sandhu, SSP,  

was alive as he was apprehending about the safety of his own life in  

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case he discloses the gruesome murder of Shri Khalra committed by  

the  police.  

G.      The prosecution examined 22 witnesses  to  prove its  case  

against the appellants and other accused persons. The defence also  

examined 12 witnesses to rebut the allegations of the CBI. Learned  

Additional Sessions Judge, Patiala, vide judgment and order dated  

18.11.2005  convicted  all  the  appellants  and  some  other  accused  

persons  under  Sections  364/34  IPC  and  convicted  the  appellant  

Jaspal Singh and one Amarjit Singh under Sections 302/34 IPC and  

under Sections 201/34 IPC and awarded the sentences as mentioned  

hereinabove.   

H. Being  aggrieved,  the  other  accused  Amarjit  Singh  filed  

Criminal Appeal No. 863-DB of 2005 and other appellants filed the  

criminal  appeals  as  mentioned  hereinabove.   Smt.  Paramjit  Kaur  

(PW.2) filed Criminal Revision No. 323 of 2006 for enhancement of  

the sentences of the four appellants.  

I. All the matters were heard together.  The High Court vide its  

impugned judgment  and order  dated 8.10.2007 acquitted  Amarjit  

Singh, however, the conviction of other appellants was maintained.  

Notices  were  issued  to  the  four  appellants  for  enhancing  the  

sentences  awarded  to  them   while  dismissing  their  appeals.  On  

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16.10.2007,  the  High  Court  enhanced  the  sentence  of  four  

appellants, namely, Satnam Singh, Surinderpal Singh, Jasbir Singh  

and Prithipal Singh from seven years RI to life imprisonment.   

Hence, these appeals.  

3. Shri Sushil Kumar, learned senior counsel appearing for the  

appellants in Crl. Appeal Nos. 523-527/2008, has submitted that in  

the instant  case,  an FIR had been lodged under Section 365 IPC  

without  naming  any  person.   The  charge-sheet  was  filed  under  

Sections  365/220  read  with  Section  120B  IPC  and  the  sanction  

dated  19.8.1996  had  been  obtained  by  the  prosecution  from the  

Competent  Authority  to  prosecute  the  accused  persons  under  

Sections 365/220 read with Section 120B IPC.  The appellants stood  

convicted under Section 364 read with Section 34 IPC and were  

awarded 7 years RI each.  In case, the appeals of these appellants  

had been dismissed by the High Court, there was no justification for  

enhancing the punishment in exercise of the power under Section  

386(e) Cr.P.C.  The High Court committed  error in observing that it  

was a fit case for enhancement of punishment though charges had  

never  been  framed  for  the  offences  providing  more  rigorous  

punishment.   In  case,  there  had been  no material  at  the  time  of  

framing of the charges for a more serious offence, the High Court  

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erred  in  enhancing  the  punishment  suo  motu.   The  prosecution  

witnesses failed to identify the abductors. Moreover, there had been  

inordinate  delay  in  investigation  and  thus,  there  were  a  lot  of  

improvements and manipulations in the record.   

4. Shri  Jaspal  Singh,  learned  Senior  counsel  appearing  for  

appellant Jaspal Singh, DSP, contended that none of the alleged eye-

witnesses, namely, Paramjit Kaur (PW.2), Rajiv Singh (PW.15) and  

Kirpal  Singh  (PW.7),  witnesses  of  first  part  of  incident,  i.e.,  

kidnapping of Jaswant Singh Khalra from his house,  is a reliable  

witness, for the reason, that Paramjit Kaur (PW.2) was examined in  

the court after 8 years of occurrence and, first time, she had named  

the appellant Jaspal Singh as one of the persons whom she had seen  

present outside her house on 6.9.1995, i.e., the date of kidnapping,  

but she could not furnish any explanation as to why the appellant  

had not been named in the FIR lodged on 6/7.9.1995.  She deposed  

that she had disclosed the entire incident to Shri D.R. Bhati, D.I.G.,  

who was not examined in the court.   She did not even name the  

appellant  in  the  writ  petition  filed  under  Article  32  of  the  

Constitution  of  India,  1950  (hereinafter  called  as  ‘Constitution’)  

before  this  Court.   She  did  not  name  the  appellant  when  her  

statement was recorded by the CBI on 2.1.1996 under Section 161  

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Cr.P.C.   Rajiv  Singh (PW.15)  filed  affidavit  in  the  writ  petition  

before this Court, however, he also did not name the appellant.  His  

statement was recorded by the CBI on 6.2.1996, but he did not name  

the  said  appellant.  Material  improvements/contradictions  exist  

between his statement in the court and before the CBI under Section  

161 Cr.P.C.   He had also accompanied Paramjit Kaur (PW.2) when  

she  met Shri D.R. Bhati, D.I.G. but he has not stated before the CBI  

that  he had accompanied her.   Kirpal  Singh (PW.7)  also did not  

disclose in his  statement under Section 161 Cr.P.C. the name of the  

appellant or any other person.

So far as the second part of the incident is concerned,  

i.e.,  detention  of  Shri  Jaswant  Singh  Khalra,  Kulwant  Singh  

(PW.14) is the only material witness.  No reliance could be placed  

on his evidence as he has been an opium addict and mostly spent his  

time in jail.  He is a criminal and had escaped from judicial custody  

while he stood convicted in a case under the NDPS Act. He did not  

name the said appellant for years together and disclosed the same  

first time while his statement was recorded in court.  No explanation  

could  be  furnished  by  the  prosecution  why  the  witness  had  not  

named  the  appellant  Jaspal  Singh,  DSP when  his  statement  was  

recorded by the CBI under Section 161 Cr.P.C.

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   So far as the third part of the incident, i.e. elimination  

of Jaswant Singh Khalra is concerned, Kuldip Singh (PW.16) has  

been described  as  a  star  witness  of  the  incident.   His  deposition  

requires  corroboration  for  various  reasons.  The  said  witness  had  

strong  grievances  against  the  police  officers  in  general  and  the  

accused persons in particular.  There is nothing on record to show  

that he had been appointed permanently or temporarily as Special  

Police Officer (hereinafter called ‘SPO’)  and had been  assigned the  

duty of bodyguard to Satnam Singh, SHO.  His conduct throughout  

the  proceedings  could  not  be  above  board.   He  lodged  several  

complaints  giving different  versions.   One of  the  complaints  had  

been against  the  complainant  herself.   Therefore,  the question of  

reliance on his deposition does not arise.  More so, Kuldip Singh  

(PW.16) has been an accomplice in the crime and over and above,  

he  being  a  solitary  witness,  his  evidence  cannot  be  relied  upon  

without  corroboration.   Jaspal  Singh,  DSP,  appellant   had  been  

charged under Sections 302/34 IPC  alongwith two others. In case of  

discharge of one by the trial court and acquittal of other co-accused  

of the said charges by the High Court, question of convicting the  

appellants under Sections 302/34 IPC could not arise.  Kuldip Singh  

(PW.16) had never disclosed any name for long-long time. The dead  

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body of Shri Jaswant Singh Khalra was not recovered. The appeals  

have merit and deserve to be allowed.  

5. On  the  other  hand,  Shri  Mohan  Jain,  learned  ASG,  Ms.  

Kamini Jaiswal and Shri R.S. Bains, learned counsel appearing for  

respondents, have submitted that the facts of the case do not warrant  

any interference by this Court with the impugned judgment. There  

are concurrent findings of facts.  The witnesses were reliable under  

the facts and circumstances of the case.  Most of the witnesses have  

rightly  identified  the  appellants  in  court.   Their  testimonies  

corroborate with each other and are important to comprehend the  

chain of events.  The eye-witness had always been threatened by the  

appellants who happened to be the police officials. The eye-witness  

had falsely  been implicated  in  serious  criminal  cases.  There  had  

been FIR against Paramjit Kaur (PW.2) and Kirpal Singh Randhawa  

(PW.7).   In  fact,  the   offence  could  be  unearthed  because  of  

directions  issued by this  Court  in  the  writ  petition  filed by  Smt.  

Paramjit Kaur (PW.2).  The High Court was justified in enhancing  

the punishment so far as the appellants other than Jaspal Singh, DSP  

are concerned considering the gravity of the offence committed by  

them.  The  Police  Force  in  India  has  always  been  known for  its  

notorious activities.  Recovery of the dead body in a crime is not a  

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condition precedent for conviction. Once the case of abduction by  

the appellants stands proved, the burden of proof is shifted on the  

respondents  to  disclose  as  what  happened  to  Shri  Jaswant  Singh  

Khalra.  The appeals lack merit and are liable to be dismissed.

6. We have considered the rival submissions made by learned  

counsel for the parties and perused the record.

LEGAL ISSUES:

POLICE ATROCITIES :

7. Police atrocities in India  had always been a subject matter of  

controversy and debate. In view of the provisions of Article 21 of the  

Constitution,  any form of  torture  or  cruel,  inhuman or  degrading  

treatment is inhibited.  Torture is not permissible whether it occurs  

during investigation, interrogation or otherwise. The wrong-doer is  

accountable and the State is responsible if a person in custody of the  

police is deprived of his life except in accordance with the procedure  

established by law. However, when the matter comes to the court, it  

has to balance the protection of fundamental rights of an individual  

and duties of the police. It cannot be gainsaid  that freedom of an  

individual must yield to the security of the State. Latin maxim salus  

populi est suprema lex – the safety of the people is supreme law; and  

salus reipublicae  suprema lex – safety of the State is supreme law,  

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co-exist. However, the doctrine of the welfare of an individual must  

yield to that of the community.   

 The  right  to  life  has  rightly  been  characterised  as  

“‘supreme’  and  ‘basic’;  it  includes  both  so-called  negative  and  

positive obligations for the State”.  The negative obligation means the  

overall  prohibition on arbitrary deprivation of life.   In this context,  

positive obligation requires that State has an overriding obligation to  

protect  the  right  to  life  of  every  person  within  its  territorial  

jurisdiction.  The obligation requires the State to take administrative  

and  all  other  measures  in  order  to  protect  life  and  investigate  all  

suspicious deaths.

        The State must protect victims of torture, ill-treatment as well  

as the human rights defender fighting for the interest of the victims,  

giving the issue serious consideration for the reason that victims of  

torture  suffer  enormous  consequences  psychologically.   The  

problems of acute stress as well as a post-traumatic stress disorder  

and many other psychological consequences must be understood in  

correct perspective.  Therefore, the State must ensure prohibition of  

torture,  cruel,  inhuman  and  degrading  treatment  to  any  person,  

particularly at the hands of any State agency/police force.    

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8.  In addition to the protection provided under the Constitution,  

the  Protection  of  Human  Rights  Act,  1993,  also  provide  for  

protection  of  all  rights   to  every  individual.  It  inhibits  illegal  

detention. Torture and custodial death have always been condemned  

by  the  courts  in  this  country.  In  its   113th report,  the  Law  

Commission of India recommended the amendment to the  Indian  

Evidence Act, 1872 (hereinafter called “Evidence Act”), to provide  

that in case of custodial injuries, if there is evidence, the court may  

presume that injury was caused by the police  having the custody of  

that  person  during  that  period.  Onus  to  prove  contrary  is  on  the  

police authorities.  Law requires for adoption of a realistic approach  

rather than narrow technical approach in cases of custodial crimes.  

(Vide: Dilip K. Basu v. State of W.B. & Ors., AIR 1997 SC 3017;  

N.C. Dhoundial v. Union of India & Ors., AIR 2004 SC 1272; and  

Munshi Singh Gautam (D) & Ors. v. State of M.P., AIR 2005 SC  

402).  

9. This  Court  in  Raghubir  Singh  v.  State  of  Haryana,  AIR  

1980 SC 1087 while dealing with torture in police custody observed:  

“We  are  deeply  disturbed  by  the  diabolical   recurrence of police torture resulting in a terrible   scare in the minds of common citizens that their   lives and liberty are under a new peril when the   guardians of the law gore human rights to death.   The  vulnerability  of  human  rights  assumes  a  

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traumatic,  torturesome  poignancy  (when)  the   violent violation is perpetrated by the police arm  of the State whose function is to protect the citizen   and  not  to  commit  gruesome  of  fences  against   them as has happened in this case. Police lock-up   if reports in newspapers have a streak of credence,   are becoming more and more awesome cells. This   development  is  disastrous  to  our  human  rights   awareness and humanist constitutional order.”  

 10. Similarly, in  Gauri Shanker Sharma etc. v. State of U.P.  

etc., AIR 1990 SC 709, this Court held :

“….it  is  generally  difficult  in  cases  of  deaths in   police  custody  to  secure  evidence  against  the  policemen  responsible  for  resorting  to  third  degree methods since they are in charge of police   station records which they do not find difficult to   manipulate as in this case.  

…..The offence is of a serious nature aggravated  by the fact that it was committed by a person who  is supposed to protect the citizens and not misuse  his uniform and authority to brutally assault them  while in his custody. Death in police custody must   be seriously viewed for otherwise we will help take  a stride in the direction of police raj. It must be  curbed with a heavy hand. The punishment should   be such as would deter others from indulging in   such  behaviour.  There  can  be  no  room  for   leniency.”   

  11. In  Munshi  Singh  Gautam (Supra),  this  Court  held  that  

peculiar type of cases  must be looked at from a prism different from  

that used for ordinary criminal cases for the reason that in a case  

17

where  the person is alleged to have died in police custody, it  is  

difficult  to get any kind of evidence. The Court observed as under:  

“6.  Rarely  in  cases  of  police  torture  or  custodial   death,  direct  ocular  evidence  is  available  of  the   complicity  of the police personnel,  who alone can  only explain the circumstances in which a person in  their custody had died. Bound as they are by the ties   of  brotherhood,  it  is  not  unknown  that  police   personnel  prefer  to  remain  silent  and  more  often   than  not  even  pervert  the  truth  to  save  their   colleagues…….

7. The  exaggerated  adherence  to  and  insistence   upon  the  establishment  of  proof  beyond  every   reasonable doubt by the prosecution, at times even  when the prosecuting agencies are themselves fixed  in the dock, ignoring the ground realities, the fact   situation and the peculiar circumstances of a given  case, ………….often results in miscarriage of justice   and makes the justice-delivery  system suspect  and  vulnerable.  In the ultimate analysis society suffers   and  a  criminal  gets  encouraged…….The  courts   must not lose sight of the fact that death in police   custody is perhaps one of the worst kinds of crime in   a civilised society governed by the rule of law and  poses a serious threat to an orderly civilised society.   Torture  in  custody  flouts  the  basic  rights  of  the   citizens recognised by the Indian Constitution and is   an affront to human dignity. Police excesses and the  maltreatment  of  detainees/undertrial  prisoners  or  suspects tarnishes the image of any civilised nation   and  encourages  the  men  in  “khaki”  to  consider   themselves to be above the law and sometimes even   to  become  a  law  unto  themselves.  Unless  stern  measures are taken to check the malady of the very   fence  eating  the  crop,  the  foundations  of  the   criminal  justice-delivery  system  would  be  shaken  and civilisation itself would risk the consequence of   heading  towards  total  decay  resulting  in  anarchy  and authoritarianism reminiscent of barbarism. The   

18

courts  must,  therefore,  deal  with  such  cases  in  a   realistic manner and with the sensitivity which they   deserve,  otherwise  the  common  man  may  tend  to  gradually lose faith in the efficacy of the system of   the judiciary itself, which if it happens, will be a sad   day, for anyone to reckon with.”

(See also:  State of Madhya Pradesh v. Shyamsunder Trivedi &  

Ors., (1995) 4 SCC 262).

12. In The State  of  U.P.  v.  Mohd.  Naim, AIR 1964 SC 703,  

State  of U.P. filed an appeal  before this  Court for expunging the  

following remarks made by the Allahabad High Court:

"That  there is  not  a  single  lawless  group in  the   whole of the country whose record of crime comes   anywhere near the record of that organised unit   which is known as the Indian Police Force.''  

"…..Where  every  fish  barring  perhaps  a  few  stinks, it is idle to pick out one or two and say that   it stinks.''

This  Court  held  that  such  general  remarks  could  not  be  

justified nor were they necessary for disposal of the said case.  The  

Court expunged the aforesaid adverse remarks.  

(See also: People’s Union for Civil Liberties v. Union of India &  

Anr., AIR 2005 SC 2419).

Undoubtedly, this Court has been entertaining petition  

after petition involving the allegations of fake encounters and rapes  

by  police  personnel  of  States  and  in  a  large  number  of  cases  

19

transferred the investigation itself to other agencies and particularly  

the CBI.  

(See  :  Rubabbuddin  Sheikh  v.  State  of  Gujarat  &  Ors.  

(2010) 2 SCC 200;  Jaywant P.Sankpal v.  Suman Gholap &  

Ors.  (2010)  11  SCC  208;  and  Narmada  Bai  v.  State  of  

Gujarat & Ors., (2011) 5 SCC 79).

13. Thus, in view of the above, in absence of any research/data/  

material, a general/sweeping remark that a “substantial majority of  

the  population  in  the  country  considered  the  police  force  as  an  

institution  which  violates  human  rights”  cannot  be  accepted.  

However,  in  a  given  case  if  there  is  some material  on record  to  

reveal the police atrocities, the court must take stern action against  

the erring police officials in accordance with law.

 SCOPE OF SECTION 386(e) Cr.P.C.

14. In  Eknath  Shankarrao  Mukkawar  v.  State  of  

Maharashtra, AIR 1977 SC 1177,  this Court held :  

“6. We should at once remove the misgiving that the   new  Code  of  Criminal  Procedure,  1973,  has   abolished the High Court's power of enhancement   of sentence by exercising revisional jurisdiction, suo  motu. The provision for appeal against inadequacy  of sentence by the State Government or the Central   Government  does  not  lead  to  such  a  conclusion.   High Court's power of enhancement of sentence, in  an appropriate case, by exercising suo motu power   

20

of revision is still extant under section 397 read with  Sec. 401 Criminal Procedure Code, 1973, inasmuch  as the High Court can "by itself'' call for the record   of proceedings of any inferior criminal court under   its jurisdiction. The provision of Section 401 (4) is a  bar to a party, who does not appeal, when appeal   lies, but applies in revision. Such a legal bar under  Section  401 (4)  does  not  stand in  the  way of  the   High  Court's  exercise  of  power  of  revision,  suo  motu, which continues as before in the new Code.”

15. In  Surendra Singh Rautela  @ Surendra  Singh Bengali v.  

State of Bihar (Now State of Jharkhand), AIR 2002 SC 260, this  

Court reconsidered the issue and held:

“It is well settled that the High Court, suo motu in   exercise of revisional jurisdiction, can enhance the   sentence of an accused awarded by the trial Court   and  the  same  is  not  affected  merely  because  an  appeal has been provided under Section 377 of the   Code  for  enhancement  of  sentence  and  no  such  appeal has been preferred.”

(See also: Nadir Khan v. The State (Delhi Administration), AIR  

1976 SC 2205;  Govind Ramji Jadhav v. State of Maharashtra  

(1990) 4 SCC 718; and K. Pandurangan etc. v. S.S.R. Velusamy  

& Anr. AIR 2003 SC 3318).

16. In Jayaram Vithoba & Anr. v. The State of Bombay, AIR  

1956  SC  146, this  Court  held  that  the  suo  motu powers  of  

enhancement  under  revisional  jurisdiction  can  be  exercised  only  

after giving notice/opportunity of hearing to the accused.

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17. In view of the above, the law can be summarised that the High  

Court  in  exercise  of  its  power  under  Section  386(e)   Cr.P.C.  is  

competent  to  enhance  the  sentence  suo  motu.  However,  such  a  

course is permissible only after giving opportunity of hearing to the  

accused.  

EVIDENCE OF AN ACCOMPLICE – Not put on trial:

18. An accomplice is a competent witness and conviction can  

lawfully rests upon his uncorroborated testimony, yet the court  

is  entitled  to  presume  and  may  indeed,  be  justified  in  

presuming  in  the  generality  of  cases  that  no  reliance  can  be  

placed on the evidence of an accomplice unless the evidence is  

corroborated  in  material  particulars,  which  means  that  there  

has to be some independent witness tending to incriminate the  

particular  accused  in  the  commission  of  the  crime.  (Vide:  

Rameshswar  S/o  Kalyan  Singh  v.  The  State  of  Rajasthan,  

AIR 1952 SC 54; and Sarwan Singh Rattan Singh v. State of  

Punjab, AIR 1957 SC 637).

19. In K. Hasim v. State of Tamil Nadu,  AIR 2005 SC 128,  

this  Court  examined  the issue  while  taking into consideration  

the provisions of Section 133 read with Section 114 Illustration  

22

(b) of the Evidence Act  and held that the provision of Section  

114 Illustration (b) embodies a rule of prudence cautioning the  

court  that  an  accomplice  does  not  generally  deserve   to  be  

believed  unless  corroborated  in  material  particulars.  The  

legislature  in its  wisdom used the word ‘may’ and not  ‘must’  

and, therefore,  the court does not have a right to interpret the  

word  ‘may’  contained  therein  as  ‘must’.  The  court  has  to  

appreciate the evidence with caution and take a view  as to the  

credibility of the evidence tendered by an accomplice.  In case  

evidence  of  an  accomplice  is  found  credible  and  cogent,  the  

court  can  record  the  conviction  based  thereon  even  if  

uncorroborated.  

The  Court  further  explained  that  the  word  

“corroboration”  means  not  mere  evidence  tending  to  confirm  

other evidence. Firstly, it is not necessary that there should be  

an independent corroboration of every material circumstance in  

the sense that the independent evidence in the case, apart from  

the testimony of the accomplice,  should in itself  be sufficient  

to sustain conviction.  All that is required is that, there must be  

some additional evidence rendering it probable that the case of  

the accomplice is true and it is reasonably safe to act upon it.  

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Secondly,  the  evidence  on  record must  reasonably  connect  or  

tend to connect the case with the crime by confirming in some  

material  particular  the  testimony  of  an  accomplice.   Thirdly,  

the circumstances involved in the case must be such as to make  

it safe to dispense with the necessity of corroboration, though,  

such evidence  may be merely circumstantial evidence to show  

connection of the case with the crime.  

(See also: Suresh Chandra Bahri v. State of Bihar, AIR 1994  

SC 2420).

20. The  issue  was  again  considered  by  this  Court  in  

Chandran  alias  Manichan  alias  Maniyan & Ors.  v.  State  of  

Kerala, (2011) 5 SCC 161, wherein the Court had an occasion  

to appreciate the evidence of a person who had not been put on  

trial, but could have been tried jointly with accused and found  

his evidence reliable in view of the law laid down by this Court  

in Laxmipat Choraria & Ors. v. State of Maharashtra, AIR  

1968 SC 938. The Court held as under:   

“78. The  argument  raised  was  that  this  evidence  could not be taken into consideration and it would   be inadmissible because this witness, though was an  accomplice  he  was  neither  granted  pardon under  Section 306 CrPC nor was he prosecuted and the  prosecution unfairly presented him as a witness for   

24

the prosecution. The contention is clearly incorrect   in view of the decision of this  Court  in  Laxmipat   Choraria (supra). While commenting on this aspect,   Hidayatullah, J. observed in AIR para 13 that there  were a number of decisions in the High Courts in   which the examination of one of the suspects as the   witness  was  not  held  to  be  legal  and  accomplice   evidence  was  received  subject  to  safeguards  as   admissible  evidence  in  the  case.  The  Court  in  Laxmipat Choraria (supra) held:

“13.  On the  side  of  the  State  many cases  were cited from the High Courts in India in  which the examination of one of the suspects   as a witness was not held to be illegal and   accomplice evidence was received subject to   safeguards  as  admissible  evidence  in  the   case.  In  those  cases,  Section  342  of  the  Code and Section 5 of the Oaths Act were   considered and the word ‘accused’ as used  in  those  sections  was  held  to  denote  a   person actually on trial before a court and   not a person who could have been so tried… …. the evidence of  an accomplice  may be  read  although  he  could  have  been  tried  jointly  with  the  accused.  In  some of  these   cases  the  evidence  was  received  although  the  procedure  of  Section  337  of  the   Criminal  Procedure  Code  was  applicable   but was not followed. It is not necessary to   deal with this question any further because   the consensus of opinion in India is that the  competency  of  an  accomplice  is  not   destroyed because he could have been tried   jointly with the accused but was not and was   instead made to give evidence in the case.   Section 5 of the Oaths Act and Section 342   of the Code of Criminal Procedure do not   stand in the way of such a procedure.”

25

21. In  view  of  the  above,  the  law  on  the  issue  can  be  

summarised to  the  effect  that  the  deposition  of  an  

accomplice in a crime who has not been made an accused/put  

to trial,  can be relied upon, however, the evidence is required  

to  be  considered  with  care  and  caution.   An  accomplice  who  

has not been put on trial is a competent witness as he deposes  

in the court after taking oath and there is no prohibition in any  

law not to act upon his deposition without corroboration.  

ACCUSED NAMED FIRST TIME IN THE COURT  :

22. In  Rudrappa  Ramappa  Jainpur  &  Ors.  v.  State  of  

Karnataka,  AIR  2004  SC  4148,  this  Court  considered  the  

issue  at  length  and  held  that  in  case  the  witness  does  not  

involve a particular accused in a crime at the time of recording  

his  statement  under  Section 161 Cr.P.C.,  and names him first  

time  in  his  deposition  in  the  court,   the  accused  becomes  

entitled to benefit of doubt.   

A  similar  view  has  been  re-iterated  in  State  

represented  by  Inspector  of  Police,  Tamil  Nadu  v. Sait alias  

Krishnakumar, (2008) 15 SCC 440.

PERSON  CHARGED  UNDER  SECTION  302/34  IPC   -  OTHER ACCUSED PERSONS STAND ACQUITTED :

26

23. In Prabhu Babaji Navle v. State of Bombay, AIR 1956  

SC  51,  this  Court  held  that  it  is  impossible  to  reach  a  

conclusion  that  the  appellant/accused  shared  the  common  

intention  with  other  co-accused  in  case  other  accused  stand  

acquitted, unless it is shown that some other unknown persons  

were  also  involved in  the offence.  It  is  permissible  in  law to  

charge  an  accused  in  the  alternative  for  being  shared  the  

common intention with another  or  others   unknown,  but  even  

then the common intention would have to be proved either by  

direct evidence or by legitimate inference.  

24. In Sukhram v. State of Madhya Pradesh, AIR 1989 SC  

772,  this  Court  re-iterated  the  similar  view observing  that  in  

case a co-accused is acquitted giving the benefit  of doubt the  

other accused would also be entitled to acquittal.  

(See  also:  Madan  Pal  v.  State  of  Haryana, (2004)  13  SCC  

508;  and  Koppula  Jagdish  alias  Jagdish v.  State  of  A.P.  

(2005) 12 SCC 425).

25. This Court in Sanichar Sahni  v.  State of Bihar,   AIR  

2010  SC  3786,  while  considering  a  similar  situation  and  

27

considering the earlier judgments of this Court, particularly in  

Willie (William) Slaney v. State of M.P.,  AIR 1956 SC 116,  

State of  A.P.  v.  Thakkidiram Reddy & Ors.,  AIR 1998 SC  

2702; Ramji Singh & Anr. v. State of Bihar, AIR 2001 SC  

3853; and  Gurpreet Singh v. State of Punjab,  AIR 2006 SC  

191,   held  that   in  case  the  charges  have  not  properly  been  

framed unless it is established that the accused persons were in  

any way prejudiced due to the errors or  omissions in framing  

the charges against them, the appellate court may not interfere  

with conviction.  The accused/appellant has to establish that he  

was  not  informed  as  what  was  the  real  case  against  him and  

that  he  could  not  defend  himself  properly.  Intervention  by  a  

superior  court  on such technicalities  is  not  warranted,  for  the  

reason  that  conviction  order,  in  fact,  is  to  be  tested  on  the  

touchstone of prejudice theory.

 A Three-Judge Bench judgment of this Court in Lok  

Pal Singh v. State of M.P., AIR 1985 SC 891, observed that such  

argument   is  irrelevant  in case the involvement  of the  accused is  

proved beyond reasonable doubt.  

28

EVIDENCE OF THE SOLE EYE-WITNESS :

26. This  Court  has  consistently  held  that  as  a  general  rule  the  

Court can and may act on the testimony of a single witness provided  

he is wholly reliable.  There is no legal impediment in convicting a  

person on the sole testimony of a single witness.  That is the logic of  

Section 134 of the Evidence Act. But if there are doubts about the  

testimony, the court will insist on corroboration. In fact, it is not the  

number or the quantity, but the quality that is material.  The time-

honoured  principle  is  that  evidence  has  to  be  weighed  and  not  

counted.  The  test  is  whether  the  evidence  has  a  ring  of  truth,  is  

cogent, credible and trustworthy or otherwise. The legal system has  

laid emphasis on value, weight and quality of evidence, rather than  

on quantity,  multiplicity  or  plurality  of  witnesses.  It  is,  therefore,  

open to a competent court to fully and completely rely on a solitary  

witness and record conviction. Conversely, it may acquit the accused  

in spite of testimony of several witnesses if it is not satisfied about  

the  quality  of  evidence.  (See:  Vadivelu  Thevar  v.  The State  of  

Madras, AIR 1957 SC 614; Sunil Kumar v. State Govt. of NCT of  

Delhi,   (2003)  11  SCC 367;  Namdeo v.  State  of  Maharashtra,  

(2007) 14 SCC 150; and  Bipin Kumar Mondal v. State of West  

Bengal, AIR 2010 SC 3638).   

29

27. EXTRAORDINARY CASE:

Extraordinary  situations  demand  extraordinary  remedies.  

While dealing with an unprecedented case, the Court has to innovate  

the law and may also pass unconventional order keeping in mind  

that extraordinary fact situation requires extraordinary measures. In  

B.P. Achala Anand v. S. Appi Reddy & Anr., AIR 2005 SC 986,  

this Court observed:  

“Unusual fact situation posing issues for resolution  is  an  opportunity  for  innovation.  Law,  as   administered by Courts, transforms into justice.”    

Thus,  it  is  evident  that  while  deciding  the  case,  the  

Court has to bear in mind the peculiar facts, if so exist, in a given  

case.

28. CORPUS DELICTI – Recovery of :

             In Mani Kumar Thapa v. State of Sikkim, AIR 2002 SC  

2920,  this  Court  held  that  in  a  trial  for  murder,  it  is  neither  an  

absolute necessity nor an essential ingredient to establish corpus  

delicti. The fact of the death of the deceased must be established like  

any other fact.  Corpus delicti in some cases may not be possible to  

be traced or recovered. There are a number of possibilities where a  

dead body could be disposed of without any trace, therefore, if the  

recovery of the dead body is to be held to be mandatory to convict an  

30

accused, in many a case, the accused would manage to see that the  

dead body is destroyed to such an extent which would afford the  

accused complete immunity from being held guilty or from being  

punished. What is, therefore, required in law to base a conviction for  

an offence of murder is that there should be reliable and plausible  

evidence that the offence of murder like any other factum of death  

was committed  and it  must  be proved by direct  or  circumstantial  

evidence albeit the dead body may not be traced.

(See also: Ram Chandra & Anr. v. State of Uttar Pradesh, AIR  

1957  SC 381;  Ashok Laxman Sohoni  & Anr.  v.  The  State  of  

Maharashtra,  AIR 1977 SC 1319; and Rama Nand & Ors. v. The  

State of Himachal Pradesh, AIR 1981 SC 738)

Therefore, in a murder case, it is not necessary that the  

dead  body  of  the  victim  should  be  found  and  identified,  i.e.  

conviction for offence of murder does not necessarily depend upon  

corpus delicti being found.  The corpus delicti in a murder case has  

two components - death as result, and criminal agency of another as  

the means. Where there is a direct proof of one, the other may be  

established by circumstantial evidence.    

29.       BURDEN OF PROOF UNDER SECTION 106  

31

           In State of West Bengal v. Mir Mohammad Omar & Ors.  

etc. etc., AIR 2000 SC 2988, this Court  held that if fact is especially  

in the knowledge of any person, then burden of proving that fact is  

upon  him.  It  is  impossible  for  prosecution  to  prove  certain  facts  

particularly  within  the  knowledge  of  accused.  Section  106 is  not  

intended to relieve the prosecution of its burden to prove the guilt of  

the accused beyond reasonable doubt. But the Section would apply  

to cases where the prosecution has succeeded in proving facts from  

which a reasonable inference can be drawn regarding the existence  

of  certain  other  facts,  unless  the  accused by virtue  of  his  special  

knowledge  regarding  such  facts,  failed  to  offer  any  explanation  

which might drive the Court to draw a different inference.  Section  

106 of the Evidence Act is designed to meet certain exceptional  

cases,  in  which,  it  would be impossible  for the prosecution to  

establish  certain  facts  which  are  particularly  within  the  

knowledge of the accused.  

(See also: Shambhu Nath Mehra v. The State of Ajmer, AIR 1956  

SC 404;  Sucha Singh v. State of Punjab, AIR  2001 SC 1436; and  

Sahadevan @  Sagadevan  v. State rep.  by  Inspector  of  Police,  

Chennai, AIR 2003 SC 215)

30.     INVESTIGATION OF THE INSTANT CASE:

32

In the instant case, the incident occurred on 6.9.1995. In spite  

of  the  fact  that  the  matter  had been brought  to  the  notice  of  the  

superior  authorities,  no  action  was  taken  by  the  police  at  all.  

Ultimately, the complainant, Smt. Paramjit Kaur  (PW.2)  who could  

not even know whether her husband was alive or dead and, if alive,  

where  he  had  been  and  none  of  the  higher  authorities  in  

administration  helped  her  or  disclosed  the  whereabouts  of  her  

husband, approached this Court by filing a Habeas Corpus Petition  

i.e. Writ Petition (Crl.) No. 497 of 1995. As no information could be  

furnished by the State about the whereabouts of Shri Jaswant Singh  

Khalra, this Court transferred the investigation to the CBI. The CBI  

during the course of investigation, realised that it was not possible to  

conduct  the  investigation  fairly  and  properly  unless  some of  the  

police  officers  involved  in  the  case  were  transferred  from  the  

districts of Amritsar and Taran Taran. Thus, the CBI  requested this  

Court to issue direction to transfer Jaspal Singh, DSP, Taran Taran,  

Surinderpal Singh, SHO, Satnam Singh, SHO. This Court vide order  

dated 15.3.1996 directed the Director General of  Police, Punjab,  to  

transfer  the  said  officials  out  of  those  districts  with  a  further  

direction that they should not be posted in adjoining districts also.  

This Court further directed the State Administration to provide full  

33

protection/security to all the witnesses  who were assisting the CBI  

in the investigation.   

31. The order dated 22.7.1996 passed by this Court reveals that  

the  CBI  in  its  interim  report  informed  this  Court  that  984  dead  

bodies had been cremated as ‘Lavaris’ in the district Taran Taran  

alone and a large  number of innocent persons had been killed by the  

police for which there was sufficient  material  to register  criminal  

cases  against  the  police  officials.  This  Court  directed  the  CBI to  

register  the  criminal  cases  for  causing  such  heinous  crimes.  

Considering a large number of  cremations done as ‘Lavaris’,  this  

Court asked the people at large to furnish information/material to the  

CBI so that the matter may be investigated properly.  While passing  

the order  dated 7.8.1996, this  Court  had taken note that  Kulwant  

Singh  (PW.14),  a  convict  under  the  NDPS Act,  was  detained  in  

Amritsar jail and the CBI had expressed certain doubts regarding his  

involvement  in  the  said  case.  This  Court  directed  the  Jail  

Superintendent,   Amritsar  to file an appeal  on behalf of Kulwant  

Singh (PW.14) before the High Court.  

It  may be pertinent  to note here that the appeal  filed  

before the High Court was allowed and Kulwant Singh (PW.14) was  

acquitted vide order dated 8.12.1997.  

34

32. Order dated 7.8.1996 further reveals that there was sufficient  

material to prosecute Ajit Singh Sandhu, SSP,  District Taran Taran,  

Ashok Kumar, DSP and Jaspal Singh, DSP and it was made clear  

that  in  spite  of  the  fact  that  the  CBI  was  continuing  further  

investigation regarding the whereabouts of Jaswant Singh Khalra, it  

could not be known upto 7.8.1996 as to whether he was alive or not.  

The State of Punjab was directed to pay a sum of Rs.10 lacs  as an  

interim compensation to complainant Smt. Paramjit Kaur.   

33. This Court in its order dated 28.8.1996 took note of the fact  

that the witnesses had been provided protection/security of Central  

Reserve Police Force/Border Security Force and counsel appearing  

for the State  assured the  Court  to grant  necessary sanction under  

Section 197 Cr.P.C., if so required for the prosecution of the police  

officials.   The  investigation  was  monitored  by  this  Court.  This  

Court’s order dated 12.12.1996 reveals that according to the CBI, it  

was about 2097 bodies which had been cremated as unidentified and  

the press note issued by Shri Khalra in this respect was found to be  

correct.  

It was in view of the above orders passed by this Court from  

time  to  time  and  monitoring  the  case  for  years  together,  the  

investigation conducted by the CBI could be completed.  

35

INSTANT CASE:

34. The case requires to be examined by taking into consideration  

the aforesaid facts and settled legal propositions.   

35. According to the prosecution, Shri Jaswant Singh Khalra was  

a   human rights  activist  and had been General  Secretary,  Human  

Rights  Wing of  Shiromani  Akali  Dal.   He had been  working  on  

abduction and cremation of unclaimed/unidentified bodies during the  

disturbed  period  in  Punjab,  particularly  in  districts  Amritsar  and  

Taran  Taran.  The police  had been eliminating  the  young persons  

under the pretext of being militants and was disposing of their dead  

bodies without maintaining any record and without performing their  

last  rites.   Shri  Jaswant Singh Khalra raised the voice against  the  

same. The local police did not like it and hatched a conspiracy to  

abduct him and in furtherance of that criminal conspiracy, he had  

been abducted by the local police officials  on 6.9.1995 about 9.00  

a.m.  from  his  residence  and  after  keeping  him  in  the  illegal  

detention, killed him and thrown his body into a  canal in Harike  

area.  

36. After investigating the matter in pursuance of orders passed  

by this Court, the CBI filed charge-sheet on 13.10.1996 in the court  

of  Magistrate  at  Patiala  against  nine  police  officers,  wherein  the  

36

main accused was Ajit Singh Sandhu, the then SSP of Taran Taran  

District.  However, the trial court vide order dated 25.7.1998 framed  

the charges against  eight persons,  namely, Ashok Kumar, Satnam  

Singh,  Rachpal  Singh,  Jasbir  Singh,  Amarjit  Singh,  Surinderpal  

Singh, Prithipal Singh and Jaspal Singh, DSP.  Charges could not be  

framed  against  Ajit  Singh  Sandhu,  SSP,  for  the  reason  that  he  

committed suicide before framing of the charges. The charges had  

been that all of them agreed to abduct and eliminate Shri Jaswant  

Singh Khalra.  Thus, all of them stood charged under Section 120-B  

IPC. All of them were charged under Sections 364 read with 34 IPC.  

Three of them, namely, Jaspal Singh, DSP, appellant, Amarjit Singh  

and Rachpal Singh, as a result  of criminal conspiracy,  committed  

murder of Shri Khalra.  Thus, they were charged under Sections 302  

read with 34 IPC. Further for causing the corpus of Shri  Jaswant  

Singh Khalra disappeared with the intention of screening themselves  

from legal punishment, the said three persons  were charged under  

Sections 201 read with 34 IPC.  

      During the course of trial, Ashok Kumar died, Rachpal Singh  

was  discharged  before  his  statement  under  Section  313  Cr.P.C.  

could  be  recorded  as  no  incriminating  material  appeared  against  

him.  Amarjit Singh has been acquitted by the High Court.  Thus, we  

are concerned with only remaining five appellants.  

37

37.      There are concurrent findings of facts by two courts that all  

the  appellants  are  guilty  of  abducting  Shri  Jaswant  Singh Khalra  

with an intent to eliminate him.  The findings so recorded are based  

on  appreciation  of  evidence  which  had been recorded  after  eight  

years of the incident.  In spite of the best efforts of this Court, and  

passing order after order in the Writ Petition for Habeas Corpus, it  

could not be known as to whether Shri Jaswant Singh Khalra was  

dead or alive.  Had this Court not issued directions and transferred  

the case to the CBI for investigation, perhaps the mystery of death of  

Shri  Jaswant  Singh  Khalra  could  not  have  surfaced.  There  is  

sufficient evidence on record to show that the appellants and other  

co-accused  remained  posted  in  the  districts  of  Taran  Taran  and  

Amritsar and they stood transferred from those districts only on the  

directions of this Court as the CBI had pointed out that it would not  

be  possible  to  conduct  a  fair  investigation  till  the  appellants  and  

other co-accused remain posted in those two districts. The witnesses  

had  been  threatened  and  implicated  in  false  cases.   They  could  

muster  the  courage  to  speak  only  after  getting  proper  

security/protection under the orders of this Court passed in the Writ  

Petition filed by the complainant Smt. Paramjit Kaur Khalra.  

38

38. Sufficient material has been placed before the courts below as  

well as before this Court to show that Shri Jaswant Singh Khalra  

was a human rights activist and had raised the voice against Shri Ajit  

Singh  Sandhu,  the  then  SSP  of  Taran  Taran  District,  about  the  

killing  of  innocent  persons  and  cremation  of  thousands  of  

unidentified bodies  unceremoniously.   Ajit  Singh Sandhu directly  

and indirectly tried that Shri Khalra could desist from exposing the  

illegal activities of the police in those districts. However, he did not  

deter  and  therefore,  there  was  a  motive  on  behalf  of  the  police  

department to kidnap and make him understand the consequence that  

he  would  face  and,  ultimately,  to  eliminate  him.  Shri  Khalra  

persisted in pursuing the truth and fighting for human rights.  The  

motive of the accused police officers to abduct and kill Shri Jaswant  

Singh  Khalra   comes  out  clearly  from  the  testimonies  of  Smt.  

Paramjit Kaur (PW.2),   Justice Ajit Singh Bains (PW.5), Satnam  

Singh  (PW.6),  Satwinderpal  Singh  (PW.8),  Jaspal  Singh  Dhillon  

(PW.11),  Surinderpal  Singh  (PW.12),  Rajiv  Singh  (PW.15)  and  

K.S.Joshi (PW.19).  Some of these witnesses had deposed that Shri  

Khalra  had  been  receiving  death  threats  in  reference  to  his  

investigations  into  illegal  encounters  and  cremations.   There  is  

nothing  on  record  to  discredit  the  testimonies  of  either  of  these  

39

witnesses in this regard, rather their testimonies had been consistent  

with each other and inspired confidence.   

39. The  accused  had  been  identified  correctly  in  the  court  by  

various  witnesses.  Smt.  Paramjit  Kaur  (PW.2)  identified  Jaspal  

Singh, Surinderpal Singh and Jasbir Singh;  Kirpal Singh Randhawa  

(PW.7) identified Satnam Singh;  Kulwant Singh (PW14) identified  

Jaspal  Singh  and  Satnam Singh;  Rajiv  Singh  (PW.15)  identified  

Jaspal Singh, Satnam Singh and Prithipal Singh; and  Kuldip Singh  

(PW.16) identified Jaspal Singh, Satnam Singh, Surinderpal Singh,  

Jasbir Singh and Prithipal Singh.   

40. Smt.  Paramjit  Kaur  (PW.2)  had testified  that  she had been  

threatened by the accused persons on telephone for pursuing the case  

of  her  missing husband.  Punjab Police officials  persistently  made  

attempts to  exert  undue pressure  on the  witnesses  throughout  the  

investigation and trial. The police also registered fake criminal cases  

against Smt. Paramjit Kaur (PW.2), Kirpal Singh Randhawa (PW.7),  

Kulwant Singh (PW.14) and Rajiv Singh (PW.15).  Kikkar Singh  

(PW.1) turned hostile because of threats in spite of the fact that he  

was  provided  sufficient  security  and  protection.  Kirpal  Singh  

Randhawa (PW.7) and Rajiv Singh (PW.15) had been involved in a  

40

case allegedly threatening to implicate the witnesses in a rape case.  

Kirpal Singh Randhawa (PW.7) was falsely enroped in a rape case  

in the year 2004.   The police implicated Rajiv Singh (PW.15) in  

four cases during the trial.  He had been detained in July 1998 for  

allegedly forming a terrorist organisation, which was subsequently  

found to be totally fake on investigation by other agency.  Kulwant  

Singh (PW.14) had been falsely involved and convicted in a case  

under  NDPS  Act,  who  was  subsequently  acquitted  by  the  High  

Court. It may also be pertinent to mention here that in the said case,  

the appeal could be filed before the High Court only on the direction  

issued by this  Court  while entertaining the  criminal Writ  Petition  

filed by Smt. Paramjit Kaur (PW.2).  

41. Kuldip Singh (PW.16) kept quiet till Ajit Singh Sandhu, SSP,  

committed  suicide.  He had been changing  his  version during the  

investigation as well trial of the case. He had also filed complaint  

against Smt. Paramjit Kaur (PW.2) allegedly paying him a sum of  

Rs.50,000/-  as a bribe for deposing against  the police authorities.  

Kuldip Singh (PW.16) was SPO and Bodyguard of Satnam Singh,  

SHO, accused/appellant. He was having several  grievances against  

the police officers in general and accused persons in particular.  His  

narration recorded regarding detention of Shri Khalra by the police  

41

did not get any corroboration from any corner including record of  

police station, log books of police vehicles. No employee/person of  

the place where Shri  Khalra had been detained or from the guest  

house where his body was taken before throwing away in the canal,  

has been examined to  corroborate  the  testimony of  Kuldip Singh  

(PW.16).  There are some improvements also in his deposition in the  

court from statements recorded under Section 161 Cr.P.C.  

However, all these issues/aspects  have been considered  

by the courts  below and taking into consideration the entire fact-

situation in which the incident had taken place and whereabouts of  

Shri Khalra could not be known in spite of the best efforts of this  

Court, case of the prosecution cannot be  brushed aside.  The Court  

has  to  take  into  consideration  the  ground  realities  referred  to  

hereinabove,  particularly  that  it  is  very  difficult  to  get  evidence  

against the policemen responsible for custodial death.   

In a case where  the person is alleged to have died in  

police custody, it is difficult  to get any kind of evidence. “Rarely in  

cases of police torture or custodial death, direct ocular evidence is  

available of the complicity of the police personnel, who alone can  

only explain the circumstances in which a person in their custody  

had died.  Bound as they are  by the ties of  brotherhood,  it  is  not  

42

unknown  that  police  personnel  prefer  to  remain  silent  and  more  

often than not even pervert the truth to save their colleagues”

In view of the persistent  threats  hurled by the accused and  

other police officials to the complainant and witnesses throughout  

the investigation and trial,  variation in his version from time to time  

is natural. However,  it can be inferred that deposition to the extent  

of illegal detention, killing and throwing away the dead body of Shri  

Khalra,  can safely be relied upon as the same stand corroborated by  

other circumstantial evidence and the deposition of other witnesses.  

As we have referred to hereinabove, there is trustworthy evidence in  

respect of abduction of Shri Khalra by the appellants; as well as his  

illegal detention.  

42. In view of the law referred to hereinabove, same remains the  

position  in  case  a  solitary  witness  deposed  regarding  the  illegal  

detention and elimination of Shri Jaswant Singh Khalra.   

43. Most  of  the  appellants  had  taken  alibi  for  screening  

themselves  from  the  offences.   However,  none  of  them  could  

establish  the  same.  The  courts  below  have  considered  this  issue  

elaborately and in order to avoid repetition, we do not want to re-

examine  the  same.   However,  we  would  like  to  clarify  that  the  

43

conduct of accused subsequent to the commission of crime in such a  

case, may be very relevant.  If there is sufficient evidence to show  

that the accused fabricated some evidence to screen/absolve himself  

from the offence,  such circumstance may point  towards his guilt.  

Such a  view stand fortified  by  judgment  of  this  Court  in  Anant  

Chintaman Lagu v. The State of Bombay, AIR 1960 SC 500.  

44. Both the courts below have found that the accused/appellants  

have abducted Shri Jaswant Singh Khalra.  In such a situation, only  

the accused person could explain as what happened to Shri Khalra,  

and if he had died, in what manner and under what circumstances he  

had died and why his corpus delicti could not be recovered. All the  

accused/appellants  failed  to  explain  any  inculpating  circumstance  

even in their respective statements under Section 313 Cr.P.C.  Such  

a  conduct  also  provides  for  an  additional  link  in  the  chain  of  

circumstances.  The fact as what had happened to the victim after his  

abduction  by  the  accused  persons,  has  been  within  the  special  

knowledge of the accused persons, therefore, they could have given  

some explanation.  In such a fact-situation, the Courts below have  

rightly drawn the presumption that the appellants were responsible  

for his adduction, illegal detention and murder.   

44

45. Shri Jaspal Singh, learned senior counsel appearing on behalf  

of Jaspal Singh, DSP, appellant, has vehemently submitted that only  

three persons had been charged under Sections 302/34 IPC. Rachpal  

Singh  stood  discharged  by  the  trial  court  before  recording  his  

statement under Section 313 Cr.P.C., and Amarjit Singh has been  

acquitted by the High Court.  Law does not permit to convict Jaspal  

Singh,  appellant,  alone for  the offence punishable  under  Sections  

302 read with 34 IPC in view of law referred to hereinabove.  

The arguments so advanced seem to be very attractive  

but cannot be accepted for the reason that the case is required to be  

considered  in  the  factual  backdrop  mentioned  hereinabove.  This  

Court has consistently held that even otherwise “it is possible for the  

appellate or the revisional court to convict an accused for offence in  

which no charge was framed unless the Court is of the opinion that  

the failure of justice could be, in fact, occasioned. In order to judge  

whether a failure of justice has been occasioned, it will be relevant  

to examine whether the accused was aware of the basic ingredients  

of the offence for which he is being convicted and whether the main  

facts sought to be established against him, were explained to him  

clearly and whether he got a fair chance to defend himself.”  The  

Court cannot lose sight of the fact that Jaspal Singh, appellant, had  

also  been  charged  and  convicted  under  Sections  364/34  IPC  

45

alongwith  all  other  appellants.  He  was  not  arrayed  as  a  

party/respondent  in  the  Criminal  Revision  filed  by  Smt.  Paramjit  

Kaur (PW.2), complainant for enhancement of punishment as he had  

already been given life  imprisonment  for the  offences  punishable  

under  Sections  302/34  IPC.  Had  he  been  acquitted  for  the  said  

offences  and convicted under  Sections  364/34  IPC,  his  sentences  

could also have been enhanced by the High Court as it so happened  

in  the  cases  of  other  accused/appellants.  In  addition  thereto,  

admittedly, at the initial stage of the proceedings, main accused had  

been  Ajit  Singh  Sandhu,  SSP,  who  committed  suicide  before  

framing  of  the  charges.   Jaspal  Singh,  DSP,  appellant,  cannot  

succeed on mere technicalities. In view of the provisions of Section  

464 Cr.P.C., and in the peculiar facts of this case, this argument is  

not worth acceptance.  

Be that  as  it  may,  the  contention raised on behalf  of  

Jaspal Singh, DSP, appellant, does not require further consideration  

in view of judgment of this Court in Lok Pal Singh (supra), wherein  

a similar contention stood rejected.

46. Undoubtedly,  the  charges  had  been  framed  prior  to  the  

statements recorded by Kuldip Singh (PW.16) and in such a fact-

situation,  the trial  court  ought to have altered the charges,  but  it  

46

failed to do so. The offence proved against the appellants has been  

abducting  Shri  Khalra  so  that  he  could  be  murdered.   The  High  

Court  is  justified  in  enhancing  the  punishment  particularly  in  the  

peculiar facts of this case.    

            The court cannot be a silent spectator where the stinking  

facts warrant interference in order to serve the interest of justice. In  

the fact-situation of a case, like instant, if the court remains oblivious  

to the patent facts on record, it  would be tantamount to failure in  

performing its obligation under the law.   

47. After appreciating the evidence on record, and considering the  

judgments  of  the  courts  below,  we  approve  their  following  

conclusions:  

(i) Jaswant Singh Khalra, being a human right activist, had taken  

the task to expose the mis-deeds of police in Districts Amritsar and  

Taran  Taran  killing  innocent  people  under  the  pretext  of  being  

terrorists   and  cremating  them  without  any  identification  and  

performing any ritual.  

(ii) The  Police  authorities  did  not  like  such  activities  of  Shri  

Khalra and tried to desist him from the same. Shri Khalra was being  

threatened over the telephone  by the police officials.  

47

(iii) Jaswant  Singh  Khalra  informed  a  large  number  of  persons  

about  the  threats  and  being  watched  by  unidentified  suspicious  

persons, who had been wandering around his house and had been  

followed by such elements.  

(iv) Jaswant  Singh Khalra  was  able  to  generate  public  pressure  

against  the  police  authorities  which  was  a  source  of  anger  and  

pressure upon the police.  

(v) Ajit Singh Sandhu, SSP, hatched a conspiracy with appellants  

and some other police personnel to abduct Jaswant Singh Khalra and  

eliminate him or to put him in danger of being murdered.  

(vi) At the time of abduction, the accused did not permit Jaswant  

Singh  Khalra  even to  change  his  clothes.   One of  the  witnesses,  

namely, Rajiv Singh (PW.15)  was pushed away .  

(vii) Rajiv Singh (PW.15) immediately  informed various persons  

including Smt. Paramjit Kaur (PW.2) and Justice Ajit Singh Bains  

(PW.5) about the incident of  kidnapping.  

(viii) In  spite  of   the  best  efforts  made  by  Smt.  Paramjit  Kaur  

(PW.2), wife of the deceased and  others  particularly, Rajiv Singh  

(PW.15) who went from pillar to post, whereabouts of Jaswant Singh  

Khalra were not made known to them.  

48

(ix) The  police  authorities  did  not  cooperate  in  helping  the  

complainant, though the witnesses had named the persons involved  

in the abduction of Shri Khalra.   

(x) Report  (Ex.PA)  dated  6.9.1995 submitted  by  Smt.  Paramjit  

Kaur   had not properly been recorded by the SHO Police Station,  

Islamabad. The version therein had been different from what she had  

reported. It so happened because of  connivance of police officials.  

(xi) The accused in  the  case  had been high police  officials  and  

there was every possibility that  statement of the complainant Smt.  

Paramjit Kaur (Ex.PA) had not been recorded as reported by her.  

(xii) Before approaching this Court by filing a Habeas Corpus Writ  

Petition,  Smt.  Paramjit  Kaur (PW.2) had approached the National  

Human Rights Commission at New Delhi in respect of the incident.  

However, she was advised to approach this Court.   

(xiii) This  Court  passed several  orders  in a writ  petition filed by  

Smt.  Paramjit  Kaur,  wife  of  the  deceased,  but  whereabouts  of  

Jaswant  Singh  Khalra  could  not  be  known  and  in  view  thereof,  

investigation of the case  was transferred to the CBI.

(xiv) In spite of  transfer of the investigation of the case to the CBI,  

the Punjab police officials did not cooperate with the CBI and were  

not  lending  proper  support  in  conducting  the  investigation.  The  

police  officials  of  Punjab  united  in  an  unholy  alliance  as  their  

49

colleagues  were  involved  and  the  case  was  going  to  tarnish  the  

image of Punjab police.  The witnesses named the police officials in  

their  statements  before  the  CBI  and  they  identified  the  accused  

persons in the court.  

(xv) In order to find out the whereabouts of  Shri Khalra, the CBI  

made public appeal by putting his photographs in electronic media.  

A large number of posters having his photograph had been affixed  

on the walls of the cities particularly in Taran Taran, Majitha and  

Amritsar  and  made  a  declaration  that  person  giving  information  

about him, would be rewarded with a sum of Rs.1 lakh.  

(xvi) The  witnesses  were  so  scared/terrified  of  the  action  of  the  

police atrocities/criminal intimidation that they could not muster the  

courage  to  reveal  the  truth.  The  witnesses  could  not  name  the  

accused while filing affidavits in this Court in the writ  petition.    

(xvii) The appellants and other accused police officials attempted to  

prevent the testimony of the witnesses by threatening, harassing and  

involving them in false criminal cases and physical intimidation. A  

large  number of  false  documents  had been created by one of  the  

witnesses because of police threats and fear put by the accused.  

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(xviii)The witnesses had been acquitted by the courts as they had  

falsely been involved in criminal cases of a very serious nature. This  

was so done only to prevent them to support the prosecution. The  

witnesses  suffered  with  criminal  intimidation  at  the  hands  of  the  

police officials.  Even the  complaints filed by the witnesses against  

other witnesses had been found to be false.   

(xix) The depositions made by the witnesses in the court had  been  

consistent with their statements recorded under Section 161 Cr.P.C.  

(xx) The depositions of  all the witnesses including Kulwant Singh  

(PW.14) and Kuldip Singh (PW.16) are worth acceptance  in spite of  

all the discrepancies pointed out by the accused/appellants.

(xxi) All the accused had taken the plea of alibi to show that none  

of them was present at the place of occurrence on the relevant date.  

However, none of them could successfully  prove the same and the  

plea  of  alibi  taken  by  them was  found  to  be  false.   This  points  

towards their guilt.  

(xxii) Charges had been framed prior to recording the statements of  

Kuldip  Singh (PW.16)  and in  such a  fact-situation the  trial  court  

ought to have altered the charges.  

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(xxiii)Sufficient  evidence  is  available  on  record  in  respect  of  

abduction  of  Shri  Jaswant  Singh  Khalra  and  the  witnesses,  

particularly, Smt. Paramjit Kaur (PW.2), Rajiv Singh (PW.15) and  

Kirpal Singh Randhawa (PW.7) have identified the appellants as the  

persons who have abducted Shri Khalra.  Kulwant Singh (PW.14)  

has deposed about his illegal detention in Police Station Jhabal. In  

such a fact-situation, the burden shifts on the respondents to disclose  

as what happened to Shri Jaswant Singh Khalra.  

(xxiv) Though the dead body of Shri Jaswant Singh Khalra could not  

be recovered from the canal as the investigation commenced after a  

long time, recovery of the dead body is not a condition precedent for  

conviction of the accused for murder.  

48. Police  atrocities are  always  violative  of  the  constitutional  

mandate,  particularly,  Article  21  (protection  of  life  and  personal  

liberty)  and  Article  22  (person  arrested  must  be  informed  the  

grounds of detention and produced before the Magistrate within 24  

hours).  Such provisions ensure that arbitrary arrest and detention are  

not  made.   Tolerance  of  police  atrocities,  as  in  the  instant  case,  

would amount to acceptance of systematic subversion and erosion of  

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the rule of law.  Therefore, illegal regime has to be glossed over with  

impunity, considering such cases of grave magnitude.     

49 In view of the above, we do not find any reason to interfere  

with the well reasoned judgment and order of the High Court.  The  

facts of the case do not warrant review of the findings recorded by  

the courts below.   

50. The appeals lack merit and are accordingly dismissed.   

………………………………J.       (P. SATHASIVAM)

                      ..……………………………J.                        (Dr. B.S. CHAUHAN)

New Delhi; November 4, 2011

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