• •

SATBIR SINGH & ANR. ETC. ETC. v.

STATE OF PUNJAB

March 14, 1977

tY. V. CHANDAACHUD, P. K.· GoSWAMI AND P. N. SHINGHAL, JJ.]

Code of Criminal Procedure. 1973 (Act !I of 1974), S. 378 (Code of 1898, s. 417)-dpJ'eal against acquittal-Sal:itc.ry principles in dealirie lrith .an appeal.

EJJidence Act (Act 1 of 1872), 1872-S. 24--i,'onf~:, sion obtained by the .superior ofiicer by questioning separately the llCCuscd after several abortive at/empts to secure confessioni S. 24 is auructed. -

. All the accused were tiied for offences u/s. 302/120B and 364 J.P.C., but acquitted by the Additional Sessions Judge, Amritsar. On State's apal against acquittal, the High :Court convicted five of the appellants (Satbir Singh, Paramjit Singh, Harbhajan Singh, Shiv Narain and ~I. P. Singh) under 'S. 302/120B I.P.C. and sentenced them to imprisonment for life. Satbir Singh was also convicted on the sole testimony of Puran Singh (PW3) u/s. 364 I.P.C. and sentenced to rigorous imprisonment for seven years and fine. The High Court held the extra judicial confessL:>ns made by Shiv Narain and Jlarbhajan Singh before R. K. Kapur (PW 41) the commander Border Security Fore~ as admissible in evidence before con\'icting them and rejected the plea of c:ncounter on the Indo--Pakistan border. The High Court convicted the_ remaining eight appellants (Ajit, Singh, Darshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and l\talook Singh) u/s. 364 l.P.C. and sentenced them also to rigorous imprisonn1ent for seven years

with fine.

Allowing the appeals under_ the Supreme Court (Enlargement of Crimin:l.J Appellate Jurisdiction) Act, 1971, the Court,

HELD: (1) This was not a fit case whre the lligh Court should have -interfered with the acquittal of any of the appellants. The High Court ha~ not at all considered the reasons given by the Sessk1ns Judge for acquitting the accused. It has given its own reasons for convicting the appe11ants but that is not enough in an appeal against acquital. [205 B-C] _

(2) As a Practical proposition, in an appe:tl against acquittal, it is alv.; ays necessary that the reasons given by the trial court for recording an acquittal should be examined by the High Court. If the conclusions of the trial court are not based upon any. evidence or they arl! such as no reasonable body of men, properly instructed in law can reach, on the evidence, or they are so palpably wrong as to shock the sense of justice, the High Court \\-'ill

be justified in taking a contrary view by giving its own reasons. It is not enough that it is just possible for the High Court to take a contrary view.

While interfering with acquittal the judgment of the High Court should demonstrate clearly the unworthiness of the conclusions of the trial court having regard to all the relevant evidence in record. The lligh Court has fol1o\ved these salctary principles in dealing \Vith an appeal against 3cquittal. [204 G-H,

205 A) . ·

(3) In deciding whether a particular confe3sion attracts the frown of sec- -tion 24 of the Evidence Act, the question has to be considered from the point of view of the confessing accused as to how the inducement, threat or pro- mise proceeding from a person in authority would operate in his mind.

In the instant case, the extra iudicial confessions~ by the i"-'O accused Shiv "Narain and Harbhajan Singh, have to be completely excludeU from consider- -ation being hit by s. 24 of the Evidence Act When the two accused were -questioned separately after several abortive attempts to secure confessions it cannot be said that there was no inducement, threat or promise of some kind.

:[203 H-204 A, E] •

A Obser~'ation :

T_he itness cal?-not be relied up5ln by es?rt to a kind of fpecial pleading. in _his aid.

Tht? I.1ne of approach 1_n a cnm1nal c_ase in order to find justification for conv1ctton on shaky testimony by making a virtue of the inalertness of the police administration is not to be commended.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 178- B 179 and 228 of 1975 .

. (From the Judgment aµd Order dated 10-4-1975 of the Punjab and Haryana High Court in Criminal Appeal No. 40 or 1972). ..

Frank Anthony, Herjinder Singh and S. N. Singh, for appellant No. 1 in Cr!. A.178/75 and appellants in Crl. 179/75 and Appellants Nos. 1-2 in Crl. A.228/75.

A. K. Sen, and Heriinder Singh for appellant No. 2 in Cd. A.173/ 75.

R. L. Kohli, Rameshwar Nath and Miss Manju Malhotra for appel- !ant No. 3 in Crl. A. No. 228/75.

0. P. Sharma and Miss Kusum Chaudhury, for the respondents in D all the appeals.

The Judgment of the Court was delivered by

GOSWAMI, J .-These appeals under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1976, are directed against the judgment and order of the High Court of Punjab and Haryana convicting five of the appellants (Satbir Singh, P.aramjit Singh, Harbhajan Singh, Shiv Narain and M. P. Singh) under section 302/120B, Indian Penal Code, and sentencing them to imprisonment for life.

Satbir Singh was also convicted on the sole testimony of Puran Singh under saction 364 IPC and sentenced to rigorous imprisonment for seven years and fine.

The remaining eight appellants (Ajit Singh, Ddtshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachaa Singh and Malook Singh) were convicted under section 364 IPC and sentenced to seven years rigorous imprisonment and fine.

They had all earlier been acquitted by the Additional Sessions Judge, Amritsar.

This case throws a lurid light on smuggling activities at the international India-Pakistan border near Amritsar.

Amongst the appellants (hereinafter to be descried as the accused) M.P. Singh was an Inspector of the Border Secuny Foce (BSF), Shiv Narain was a Sub-Inspector (BSF) and Harbhaian Smgh was a Constable (BSF). Accused Ajit Singh is the father of the two accused, Satbir Singh and .Paramjit Singh.

Aii.t S!ngh is alleged o be'.! big smuggler indulging m his smuggling acliv11ies at the India-Pak1staq border with his two sons and the other accused persons, namely, Darshan Singh, Arian Singh,. Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and Malook Smgh.

It is allege~ tha~ Inspector M:P.

Singh, s. I. shiv Narain and Cos.tahle Harbhaian Sngh, al.o~!,\ w.1th other BSF personnel were conmvmg at the smugglmg acliv1t1es of Ajit Singh and party and were reaping their illegal harvest. .

_,,_

. Shingara Singh and his son Hardip Singh and Kartar Singh are

he three deceased whose murders form the subject matter of this( case.

While the dead bodies of Harelip Singh and Kartar Singh were found that of Shingara Singh was not available.

' Puran Singh (PW 3) son of Shingara Singh (deceased) was a member of the gang of smugglers headed by accused Ajit Singh and in the course of smuggling activities there was a quarrel with regard to the sharing of money to the extent of Rs. 15,000/- which was said to be bis due and .which Ajit Singh and party were not paying.

A few1 months prior to July 6, 1970, the date of occurrence, when accused

Satbir Singh, Jasbir Singh and ten or twelve labourers along with Puran Singh smuggled 15 jackets of gold each weighing 1000 tolas frtim Pakistan into Indian territory with the connivance of Inspector

M.P. Singh and S.I. Shiv Narain (BSF), Puran Singh succeeded' in slipping away under the cover of darkness with two jackets of gold.

The gold with which Puran Singh fled away was then worth about Rs. 5 to 6 lakhs.

Muy 20, 1970 : A report was lodged by Shingara Singh deceased, at Police Station, Gharinda, alleging that his son Puran Singh (PW 3) who had been carrying on smuggling activities with the sons of accused Ajit Singh was taken away by accused Satbir Sin-gh and some others (not before us) on May 6, 1970, in a car.

He did not then suspect anything.

But now he had a firm suspicion that Satbir Singh, Jasbir Singh and Paramjit Singh, sons of Ajit Singh of Village Burj, Rajinder

Singh and Makhan Singh, had abducted his son Puran Singh over a dispute about the smuggled gold and they had kept him concealed at some unknown place with the intention to kill him.

On receipt of this report a case under section 364 IPC was registered by S.I. Baldev Singh (PW 63) at Police Sation, Gharinda (Ex. P.P.Y.).

July 7, 1970 : A report was sent to Police Station, Gharinda by accused Shiv Narain, S.I. (BSF) about an encounter of BSF with

smuQglers on the mid-night of July 6, 1970, on the border of India Pak'stan at Border Pillar No. JOO near Amritsar that "two sikh young

men" fall dead to the fire opened by the Border Security Force of the Indian side.

July 17, 1970: The first information report (Ex. PPZ/Rl of the present case was registered by Police Station, Gharinda, mi the report dated July 12, 1970 (Ex. P.P.Z.) of D.S.P. Surjit Singh (PW 64)

which, inter alia, disclosed :

"I heard a rumour on 8th July, 1970, on my return from casual leave that three persons namely Shingara Singh son of Inder Singh, Kartar Singh son of Mangat Singn and Hardip Singh son of Shingara Singh jats residents f Ranike Police Station Gharinda had been abducted fombly b/ Ajit Singh of Burj and his sons residents of village Burj, Police Station Gharinda and party from ner Cystal

Chowk, Amritsar and that they had been shown killed m an encounter in connivance with Border Security Force and Pak Rangers".

This report of D.S.P. Surjit Singh has discounted the encounter story as a fib but yet it continued to be the defence of the accused. According to the trial c@urt "the encounter version appears to be true".

Wer~ the. three persons, Shingara Singh, Hardip Singh and Kartar Smgh, k1lle~ m a nencounter with the BSF or murdered in pursuance of a .conspiracy to abduct and murder ? While the first part of the question need not even be proved, the second part must ifeeas be proved to the hilt.

The prosecution .case further is that Puran Singh after having been taken away from his village was taken to the Haveli of Ajit Singh "'.here he was asked about the gold which he had stolen away. Puran Smgh mformed the accused persons that he had delivered the gold to his brother, Hardip Singh.

It is alleged that Puran Singh was afterwards taken to the border and left with accused M.P. Sinoh and accused Shiv Narain who later on handed over him to Shaffi and Yakub, two Pakistan smugglers and the latter took him to vilJagl!

Dial (Pakistan). Puran Singh was brought to the Indian side of the border on the night intervening 6th and 7th July, 1970, but was agam taken back to Pakistan where!rom he could manage to escape and cross over to the Indian side of border only on November 6, 1970, to figure as an eye witness to the murder of his father.

It is alleged that on July 6, 1970, Shingara Singh, Hardip Singh and Kartar Singh (all deceased) along with Harnam Sirigh (PW 5) went to Amritsar.

Shingara Singh and Harelip Singh had gone to attend court, Kartar Singh to sell his vegetables and Ha.rnam Singh to attend to his wife, Smt. Piaro, who was a patient in the V. J. l'Iospital.

After being free from their work at about 1.00 p.m. the three deceased along with Harnam Singh (PW 5) went towards tbe V. J. Hospital.

When they had reached Crystal Chowk on way to the Vijay Hospital a big vehicle and a car came from the side of the Railw1y Station, in which accused Ajit Singh, Jasbir Singh (absconder), accused Satbir Singh, Satara (absconder), accused Paramjit Singh, accused Baghal Sinoh, accused Tara Singh, accused Arjan Singh, accused Bachan Singh, accused Darshan Singh, Pritn (Pritam Singh) (acquitted), accused Malook Singh and accused Dial Singh with two other 'Persons in police uniforms (Pamma '>id Malkiat) were travelling.

These persons were armed with guns and revolvers.

The accused came out of the vehicle and physically lifted Shingara Singh, Hardip Singh and Kartar Singh and whisked them away in the said vehicles.

It is alleged that the deceased persons were first taken to the Haveli of Ajit Singh in village Buri where they were belaboured and later cin~ blindfolded and tied, removed to the Inda-Pakistan border where on that night some goods were to be exchanged between the accused with Balkar Singh (PW 4) and the Pakistani smugglers. , Accused M. P.

Singh was also present there.

At about mid-night all of them including accused Shiv Narain and accused Harbhajan Singh moved near Pillar No. 100. This party handed over Lt maunds of silver to Yakub and Shaffi, Pakistani smugglers and received gold in return Hardip Singh and Kartar Singh were brought by accused Satbir Singh and others towards Indian side of the border but Shingara Singh

SATBIR SINGH v. PUNJAB ((j'oswami, J.) 199

was left behind with the Pakistani smugglers.

Balkar Singh (PW 4) then enquired as to why Shingara Singh had been handed over to Pakistanis. At that moment accused Shiv Narain fired two shots with very light pistol.

Accused Harbhajan Singh, accused

M. P.

Singh, accused Paramjit Singh and accused Satbir Singh also fired shots at Hardip Singh and Kartar Singh from a distance of 25 yards who then dropped dead.

Accused J asbir Singh (absconder) cae there and untied their hand's and removed the cloth covermg therr eyes.

A rifle was placed 'near the dead body of Hardip Singh and a K1rpan was placed near the dead body of Kartar Singh. Balkar

Singh (PW 4) also heard the sound of a fire shot in Pakistan territory when A jit Singh (accused) said that Shingara Singh had also been killed.

AJ>::ording to the prosecution to justify the killing of Hardip Singh and Kartar Singh, accused M. P. Singh, accused Shiv Narain and accused Harbhajan Singh with other officials of BSF, manipulated an encounter story and got a false case registered at Police Station, Gharinda, on July 7, 1970 (Ex. P.P. 0/i) on a "ruqa" having been sent by S.I. Shiv Narain (accused) falsely alleging, inter alia, that on a secret information having been recei•:ed by Inspector M. P.

Singh (accused) that some smugglers would bring some goods from Pakistan to India they conducted an ambush behind Burj (Border Pillar) No. 100 on the night intervening 6th and 7th July, 1970, and during the process in defence the Naka party fired which resulted in killing of two persons who were subsequently identified as Hardip

Singh and Kartair Singh.

The accused persons were charged under section 364/120B IPC for abducting Puran Singh.

They were also charged under section 364/120B IPC for abducting Shingara Singh, Hardip Singh and Kartar Singh.

They were further charged under section 302 /I 02B IPC for causing the death of Kartar Singh and Hardip Singh.

They were also charged under section 109 IPC for abetting the murder of Shingara Singh which offence was committed in consequence of the abetment.

The prosecution examined 68 witnesses.

The accused denied the charges and the BSF accused suggested a motive for the prosecution by alleging animus against the D.S.P. Surjit Singh (PW 64). According to them Kartar Singh and Hardip Singh were killed as a result of an encounter with smugglers on the border.

The Sessions Judge giving his reasons for not accepting the evidence of the eye witnesses and other material evidence acquitted all the accused.

The High Court on appeal confirmed the acquittal of two accused, namely, Pritam Singh and Mehar Singh, but convicted the appellants as mentioned above.

With regard to the charge under section 302/120B IPC the case will depend upon the evidence of Puran Singh (PW 3) and the extrajudicial confession by the accused, Shiv Narain and Harbhajan

J 4-240SCI/77 .

Singh, before R. K. Kapnr (PW 41).

With regard to the charge under section 364 IPC the prosecution rests upon Harnam Smgh

(PW 5) and also upon the evidence of Gurdial Singh (PW l 0), Inspector Gurmukh Singh (PW 11) and Constable Amrik Singh (PW

46) with regard to the Roznamcha entry (Ex. PP. A). We may also note here that Puran Singh (PW 3) and Balkar Singh (PW 4) were the two eye witnesses to the murder and Balkar Singh (PW 4) was disbelieved both by the Sessions J mlge and the l ligh Court. Harnam Singh (PW 5) is an eye-witness to abduction.

We should also note that Gurdip Singh (PW 14), Atma Singh (PW 27) and Mohinder Singh (PW 28) who were witnesses with regard to the charge of abduction were also disbelieved both by the Sessions J udgc and the High Court. Harnam Singh (PW 5) who is the eye-witness to abduction was dispelieved by the Sessions Judge but partly believed by the High Court.

In the above state of the evidence Mr. Sharma appearing on behalf of the state rests his case on the evidence of Puran Singh (PW 3) and the extra-judicial confession made by the accused Shiv Narain and Harbhajan Singh before R. K. Kapur (PW 41) with regard to the murder charge under section 302/120B !PC. He also relies upon the Roznamcha and the recoveries.

We will therefore first examine the reasons given by the Sessions Judge for acquitting the accused.

After narrating the facts deposed to by Puran Singh (PW 3) the Sessions Judge held that "the story on the face of it appears to be false".

According to Puran Singh (PW 3) the accused took him away to Ajit Singh's Haveli and then to the Inda-Pakistan border only with a view to recover the gold which he had earlier managed to steal away. _The Sessions Judge took note of the fact that P1JJan Singh had told the accused that the gold was lying with his brother, Hardip Singh.

It was, therefore, inconceivable tbat this clue with regard to the gold would not be pursued by the accused and Harelip Singh would be left out and Puran Singh alone would be taken away.

This witness oven after he had seen the murder of his father Shingara Singh, on July 6, 1970, stayed in Pakistan for about four months without disclosing this fact to anybody nor did he communicate about it to any of his relations.

Although this witness said that he crossep from Pakistan to India only on November 6, 1970, after the murder, and was arrested and interrogated by S. I. Jai Ram (PW 58) and was also prosecuted for crossing the border, there is no evidence from any police officer, nor even from S. I. Jai Ram (PW

58). No documentary evidence, which would have been available if his statel1)cnt was true, was produced in the case.

Apart from that, this witness stated that he was arrested by S.I. Jai Ram and he narrted the entire occurrence to him.

S. I. J ai Ram does not support him.

On the other hand he had earlier stated before the committing Magistrate that he did not tell anything about the iaid murders to S. I.

Jai Ram.

The Sessions Judge also note several discrepancies in his evidence and finally came to the conclusion that he was not actually present at the time of the murders nor was he abducted by the accused as alleged.

SATB!R SINGH v. PUNJAB (Goswami, J.) 201

The High Court does not appear to have closely considered the reasons given by the SeS1Sions Judge for disbelieving the testimony of Puran Singh.

It is difficult to appreciate how the High Court can say tliat the statement of this witness "seems to be quite natural" in view of the infirmities pointed out by the Sessions Judge.

After examining the endre discussion of the evidence of this witness by the High Court, we are not satisfied that the High Court was right in relying upon the testimony of this witness. It is pointed out that the High Court was not correct in observing that "it is not disputed that he (Puran Singh) is being tried for having come to Indian territory on November 6, 1970 and the moment he entered the Indian territory, he was taken into custody and his statement was recorded by the police". On the other hand the Sessions Judge found just to the contrary and there is no reference in the judgment of the High Court lo the discussion by the Sessions Judge with regard to this aspect.

We have next to see the reasons given by the Sessions Judge for disbelieving the testimony of Harnam Singh (PW 5). This witness gave evidence about the abduction of the three deceased from the Crystal Chowk, near V. J. Hospital, Amritsar. The witness is a near relation of the deceased and he admitted that when the three deceased were abducted he suspected that t'hc accused might inflict injuries on their person. Even so he did not go for police assistance nor did he inform even Mangal Singh (PW 17), father of the deceased Kartar Singh, about the occurrence although the latter was residing .with him in the same house.

He also did not ask the relations of the deceased to lodge any report with the police. Crystal Chowk is a busy commercial area where there are. shops and some residential houses and the shops were open at the time of the incident.

Even so this witness stated that there were no shops or bazar near the place of occurrence. This witness named five accused persons including two abscondern and stated that he knew them by names about one year prior to the occurrence.

Since he had named accused Paramjit Singh and accused Satbir Singh in the committing court he was asked there to idendfy these two accused.

He, however, wrongly pointed towards accused M. P.

Singh as Paramjit Singh and accus"d Pritam Singh as Satbir Singh.

Accused M. P. Singh was not even alleged to be present at Amritsar at the time of abduction.

Although this witness stated that he informed Kaba! Singh (PW 6) brother of Shingara Singh, Kaba] Singh did not corroborate him on this point.

Further, Harnam Singh (PW 5) states about abduction of the three deceased from Crystal Chowk.

The High Court accepts his evidence as being corroborated by witnesses regarding his presence at Amritsar with the three deceased persons. It is difficult to see how because his presence at Amritsar is proved the further fact about the abduction of the three deceased from Crystal Chowk is also established.

There is 110 corroboration whatsoe.ver of this part of the story.

If the Higl:t Court has to look for corroboration of the evidence of Harnam Singh even about his presence at Amritsar on its own reasoning, the principal part of the prosecution case about abduction depending upon his sole testimony cannot be held to be established.

The

High Court also seeks to find corroboration of this part of' the case from Roznamcha of July 6, 1970 (Ex. P.P. A) wherein a certain information from an undisclosed source was received at 2.00 P .M. by Gurdial Sirigh (PW 10) to. the effect "that there was some fight between some smugglers near Crystal Chowk or some legislator had been abducted''.

This information is hearsay in absence of the mformant.

The name of the informant is not even disclosed.

Apart from this, this Roznamcha does not corroborate Harnam Singh (PW

5) with regard_ to his statement that the three deceased per'sons were abducted by the accused from Crystal Cho; vk.

The High Court did not fail to observe that the reasons given by the witness for his belated examination by the police as "padding obviously .. at the instance of the police".

Even so, the High Court expiained away the fact cf Harnam Singh's not reporting to the police in a very unusual way.

The High Court observed firstly that it was natural for the witness not to be involved in the dispute of smugglers and secondly that there was no use informin_g the police as no petty police officer would take action against the international smugglers. The High Court went on to record that "it appears in the present day admin_istration that no pet'!y police officer is likely to take responsibility in the matter of prosecuting international smugglers without having the blessings of the highest police officer in the district and even above''.

Witnesses, like Harnam Singh, were, therefore, according to the High Court "helpless".

We cannot commend this line of approach in a criminal case in order to find iurisdiction for conviction on shaky testimony by making a virtue of the inalertness of the police administration.

The witness cannot be relied upon by resort to a kind of special pleading in his aid. We find that the High Court has not given any cogent reason for taking a different view with regarding to the appreciation of evidence of this witness by the Sessions Judge.

About recovery of fite-arms and gold at the instance of some of the accused, the case rested on the evidence of the police officers alone. The other search witnesses were declared hostile on account of their not supporting the prosecution.

The Sessions Judge did not feel it safe to act upon the testimony of police witnesses including Inspector Bachan Singh (PW 68) in the matter of disclosure statement as well as of recovery of tbe fire-arms and of gold in absence of corroboration by independent witnesses.

The High Court held that there was no reason to disbelieve the police witnesses.

But when both the Sessions Judge and the High Court seem to be in 3Jlreement in finding that there was "padping" by the police in respect of evidence produced in the case, it could not be said that the Sessions Judge was so grievously in error that contrary appreciation of the evidence was compelling under the circumstances.

There is also the evidence with regard to extra-jui!icial confessions said to have been made by the accused Shiv Narain and Harbhajan Singh before R.K. Kapur (PW 41), the Commandant of the Border Security Force.

The Sessions Judge has considered that evidence as inadmissible under section 24 of the Evidence Act.

The High Court, differing from the opinion of the Sessions Judge, A held the extra-judicial confession as admissible in e_vidence since, according to the High Court, "it cannot be held that he (Kapur) gave .any threat, inducement or promise to \he accused".

The High Court -Observed :

"When this (warning) was conveyed to the accused by B Shri Handa D.S.P., the accused still stuck to the. encounter versions and made their statements in writing supporting the encounter version.

The said threat of Shri Kapur P.W. did not work and the accused stuck to their old story ..... .

It was on 19th July, 1970 that Shiv Narain and Harbhajan Singh were questioned separately when he told them that they should come. out with the truth otherwise they would them- C selves be responsible for their actions and if they had done anything wrong, they wonld go to jail. Instead of giving them any promise of help, he in fact told them that if they were in the wrong, they would go to jail. . . . From the statement of this witness, which I have gone through minutely, it Is difficnlt to hold that he gave any induceme!!l, tl1r.eat or promise to the accused persons and that the accused persons D made the confessions in pursuance thereof'.

. Section 24 of tl1e Indian Evidence Act provides that a confession made by an ac:_cused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any induceiiient, threat or promise, having reference to the charge .against the accused person, proceeding from a person in authority and E sufficient, in the opinion of the court, to give the accused person grounds, which would appear to_ him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedingsa.!Jllin.st him.

Indeed, Mr. Kapur was a person in authority being the Commandant of the rank of a Senior Superintendent of Police and the confess- F ing accused were his subordinates.

Apart from thi~, it appears from his evidence that the oral confessional statements were not readily forthcoming from, the accused persons but they had to be interrogated <Jn several occasions. He further advised D.S.P. Handa to interrogate them "with a warning that they should state the truth otherwise they would not be supported by me".

Mr. Kapur further admitted in 11is cross-examination that he "did tell Mr. Handa on telephone on G 10th July, 1970 that he should give a warning to Border Security Force people to come out with truth otherwise they themselves would be responsible for their actions". Mr .. Kapur also himself "enquired

from M. P. Singh and Shiv Narain accused about the matter on 19th July, 1970 telli_ng them that now that the case has been registered they should state the truth" ..

In deciding whether a particular confession attracts the frown of 'Section 24 of the Evidence Act, the question has to be considered

from the point of view of the confessing accused as to how th_e inducement, threat or promise proceeding from a person in authonty would

operat() in his mind.

It is true that Mr. Kapur, in his evidence, denied having held out to the accused any inducement, threat or promise.

We, howe_ver, find that on July 17, 1970, the police gave a go by to the encounter story and the present case was registered against the accused.

Two days after, on July 19, 1970, Mr. Kapur havi11g a!rea, dy failed to _get any confessional statement from the accused through other agency, took upon himself to question accus<;.\I Shiv Narain and Harbhajan Singh

separately and this time he succeeded in securing confessional statements.

When the two accused were questioned separately after several abortive attempts to secure confessions, can it be said that there was no inducement, threat or promise of some kind proceeding from Mr. Kapur to have made any impact on their minds resulting in the confessions ?

Mr. Kapur having stated to the accus.ed on July 19, 1970, that "now that the case has been registered they should state the truth", it is difficult to hold that by this statement he would not gener ate in the minds of the accused some hope and assurance that if they told the "truth" Jhey would receive his "support" which he had earlier conveyed to them through D.S.P. Handa. It is true that in the course of cross-examination Mr. Kapur stated that he h_ad told the accused that if they had done anything wrong they would go to jail. But hav ing regard to the effect of the totality of the evidence of this witness, we are unable to hold 'that the confessions made by the accused before Mr. Kapur. on JUiy 19, 1970, were free from he taint of infirmity with.in the mischief of section 24 of the Evidence Act. We are, there fore, deady of opinion that the extra-judicial confessions by the two accu.<ed, Shiv Narain and Harbhajan Singh, have to be completely excluded from consideration being hit \Jy section 24 of the Evidence Act.

Similarly not much can be made. of abscondence of certain accused when other material evidence conuecting the accused with the crime has failed in this case.

A serious infirmity in the judgment of the High Court is that it has not at all considered the reasons given by the Sessions Judge for acquitting the accused.

The High Court has given its own reasons for convicting the appellants but that is not enough in an appeal against acquittal.

As a practical proposition, in an appeal against acq_uittal, it is al~ ways necessary that the reasons given by the trial court for recordinrr an acquittal should be examined by the High Court. If the conclusion~ of the trial court are not based upon any evidenca or they are such as no reasonable body of men, properly instmcted in law can reach on the evidence, or they are so palpably wrong as lo shok the sens~ of justice, the High Court will be justified in taking a contrary view by giv!ng its own reasons. It is not en~:mgh that it is just possible tor the High Court to take a contrary view.

While interfering wittr acquittal the judgment of the High Court should demonstrate clearly

the unworthiness of the conclusions of the trial court having regard to all the relevant evidence in record.

We are unable to say in these appeals that the High Court has followed these safotary principles in dealing with an appeal against acquittal.

We may also observe that the High Court need no! l!ave mentioned the fact tht , the Sessions Judge wa:s "suspended on account of corruption charges". If we may say so, it was absolutely unnecessary

to refer to this in disposing of the appeal,

We are clearly of opinion that this was not a fit case where the High Court should have interfered with the acquittal of any of the appellants.

The appeals are allowed.

The judgment and crder of the High Court are 'set aside and the appellants are acquitted of all the charges.

The appellnts, Satbir Singh, Paramjit Singh, Harbhajan Singh, Shiv Narajn and M. P. Singh shall be released from detention forthwith.

The remaining appellants, Ajit Singh, Darshan Singh, Arjan Singh, Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and Malook Singh, who have been on bail shall be discharged from their bail bonds.

S.R.

Appeals allowed.

SATBIR SINGH & ANR. ETC. ETC

STATE OF PUNJAB

P. K.· GoSWAMI

Code of Criminal Procedure

S. 378

s. 417

S. 24

S. 24

s. 302

Additional Sessions Judge, Amritsar

Paramjit Singh

Harbhajan Singh

Shiv Narain

~I. P. Singh

S. 302

I.P.C

Satbir Singh

Puran Singh

s. 364

I.P.C

Jlarbhajan Singh

R. K. Kapur

Arjan Singh

Baghal Singh

Tara Singh

Dial Singh

Bachan Singh

l\talook Singh

s. 364

Supreme Court (Enlargement of Crimin:l.J Appellate Jurisdiction) Act, 1971

Shiv "Narain

s. 24

Frank Anthony

Frank Anthony, Herjinder Singh and S. N. Singh, for appellant No.

Herjinder Singh

S. N. Singh

A. K. Sen

A. K. Sen, and Heriinder Singh for appellant No.

Heriinder Singh

R. L. Kohli

R. L. Kohli, Rameshwar Nath and Miss Manju Malhotra for appel- !

Rameshwar Nath

Manju Malhotra

P. Sharma

P. Sharma and Miss Kusum Chaudhury, for the respondents in D all the appeals.

Kusum Chaudhury

GOSWAMI

Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act

High Court of Punjab and Haryana

P.aramjit Singh

Harbhajan Singh

Shiv Narain

M. P. Singh

section 302

Indian Penal Code

IPC

Ajit Singh

Ddtshan Singh

Arjan Singh

Baghal Singh

Tara Singh

Dial Singh

Bachaa Singh

Malook Singh

section 364

IPC

Amritsar

M.P. Singh

Harbhaian Smgh

Ajit Singh

Accused Ajit Singh is the father of the two accused, Satbir Singh and .Paramjit Singh.

.Paramjit Singh

Darshan Singh

Arian Singh

Malook Smgh

Baghal Singh, Tara Singh, Dial Singh, Bachan Singh and Malook Smgh.

M:P.

Singh

BSF

Shingara Singh

Hardip Singh

Kartar Singh

Harelip Singh

Shingara Singh

July 6, 1970

Jasbir Singh

Pakistan

S.I. Shiv Narain

Muy 20, 1970

Gharinda

Satbir Sin

May 6, 1970

Burj

Rajinder

Singh

Makhan Singh

section 364

IPC

S.I. Baldev Singh

July 7, 1970

Police Station, Gharinda

July 17, 1970

July 17, 1970: The first information report (Ex.

July 12, 1970

D.S.P. Surjit Singh

8th July, 1970

D.S.P. Surjit Singh

Kartar Smgh

Puran Smgh

Puran Smgh mformed the accused persons that he had delivered the gold to his brother, Hardip Singh.

M.P. Sinoh

Shaffi

Yakub

6th and 7th July, 1970

November 6, 1970

Harnam Sirigh

Ha.rnam Singh

Piaro

Piaro, who was a patient in the V. J. l'Iospital.

V. J. l'Iospital

Harnam Singh

V. J. Hospital

Vijay Hospital

Satara

Baghal Sinoh

Pritn (Pritam Singh

Malook Singh

Pamma '>id Malkiat

Buri

Balkar Singh

M. P.

Singh

Accused M. P.

Singh was also present there.

J asbir Singh

Balkar

Singh

A jit Singh

M. P. Singh

India

Hardip

Singh

Kartair Singh

section 364

IPC

section 364

IPC

section 302

IPC

section 109

IPC

Surjit Singh

Pritam Singh

Mehar Singh

section 302

IPC

Harbhajan

Singh

R. K. Kapnr

section 364

IPC

Harnam Smgh

Gurdial Singh

Gurmukh Singh

Amrik Singh

Gurdip Singh

Atma Singh

Mohinder Singh

Sharma

section 302

Roznamcha

He also relies upon the Roznamcha and the recoveries.

P1JJan Singh

S. I. Jai Ram

S.I. Jai Ram

S. I. J ai Ram

S. I.

Jai Ram

V. J. Hospital, Amritsar

Mangal Singh

Kaba! Singh

Although this witness stated that he informed Kaba!

Kaba] Singh

Singh (PW 6) brother of Shingara Singh, Kaba] Singh did not corroborate him on this point.

Harnam Singh

Gurdial Sirigh

Bachan Singh

R.K. Kapur

section 24

Handa D.S.P.

Kapur

The said threat of Shri Kapur P.W. did not work and the accused stuck to their old story ..... .

19th July, 1970

Section 24

Indian Evidence Act

Kapur

D.S.P. Handa

Handa

10th July, 1970

Section 24

19, 1970

July 19, 1970

JUiy 19, 1970

section 24

section 24

Paramjit Singh

Shiv Narajn

Bachan Singh


MUNSHI & ORS.

RICHP AL & ORS.

February 17, 1977

[V. R. KRISHNA !YER AND JASWANT SINGH, JJ.]

Pepsu Tenancy and Agri'cultural Lands Act, 1955-Ss. 7 and 1A--Scope of.

Section 7 of the Peosu Tenancy and Agricultural Lands Act, 1955, w?.ich deals with termination of tenancy, provides that no tenancy shall ~<! tennr!lated except on any of the grounds mentioned i_n the ection. Section 7 gives additional grounds for termination of tenancy 1n certain cases.

Respondent no. 2 sold his land to the appellants. Claiming that he W3; S C a non-occupancy tenant under respondei:tt no. _2, repondent no. 1 filed a sut for possession of the land by ore-emption. lhe trial Court decreed the suit in favour of the olaintiff-ore-emotor holding that he had been a tenant-atwill on the date of the sale and that he was forcibly dispossessed after the sale.

The District Judge as well as the High Court upheld the trial Court's decision.

It was contended on behalf of the appellants that the pre-emptor hd . to prove his subsisting right of pre-emption on the date of sale, date f instltution of the suit and date of passing of the decree and since the plaintiff had failed to file a suit for recovery of possession unJer s. 50 of the Punjab Ten~

ancy Act, 1887 his right and title had been extinguished.

Dismissing the appeal,

HELD : The plaintiff cannot but be deemed to be the tenant of the suit land on the date of sale as well as on all other tnaterial dates and is thus fully qualified and entitled to pre-empt the land. [5H]

The point now sought to be raised was not raised by the appel}ant in the Courts below. In view of the provisions of ss. 7 and 71\ of the Pepsu Tenancy and Agricultural Lands Act, 1955, which have an over-riding effect and the decision of this Court in Rikki Rain & Anr v. Rain Ku111ar & Ors [19751 l 2 SCC 318 it C$lnilOt be disputed that an order Or decree directing eviction Of

a tenant is necessary to be obtained to bring about a determination of the tenancy. A fortiori, the person who has been in possession of the land with the. right to possess it continlies to hold the la-nd and be a tenant in spite of haVIng been wrongfullyput out of possession specially if he has initiated proceedings for recovery of possession. [3E & 5F]

Since in the itai:t case, it has been concurrently found by the Courts G below that the plamtiff-pre-emptor was a tenant of the suit land on the da.te of sale an~ it has not been alleged that his tenancy was thereafter determined or termJnated on any of the grounds set out in ss. 7 and 7 A of the Act and tlte plaintiff had applied to the Tehsildar for restoration of possession, he could not but be deemed to be a tenant of the suit land on the date of the sale as well as on all other material dates and thus fully qualified and entitled to pre-empt the land.

[5G]

Rikki Ram & Anr. v. Ram Kumar & Ors. fl975] 2 S.C.C. 318 followed.

B!taman Das v. Chet Ram [19711 2 S.C.R. 640 and Dindyal & Anr. v.

Rajaram (19711 1 S.C.R. 298 referred to.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2054/69.

(Appeal by Special Leave from the Judgment and Order dated the 5-8-1969 of the Punjab and Haryana High Court in Regular Second Appeal No. 983 of 1969). .

V. C. Mahajan, Mrs. Urmila Kapoor and Miss Kamlesh Bansal, for the appellants. .

Ram Sarup and !-{. A. Gupta, for respoudent No. 1.

The Judgment of the Court was delivered by

JASWANT SINGH, J. This appeal by special leave which is directed against the judgment and order dated September 24, 1969, of the High Court of Punjab and Haryana at Chandigarh, passed in R.S.A. No. 983 of 1969 arises in the following circumstances :-

Bhawani Dass, respondent No. 2 herein, who owned agricultural land measuring 50 kanals and 6 marlas comprised in Khewat No. 223, Khatauni No. 467-468, situate in village Kohlawas, Tehsil Dadri, District Mohindergarh, sold the same to Munshi, Dina and Rani Dutt, appellants before us, in lieu of Rs. 10,000/- by means of registered sale deed (Ext. D-1) dated October 17, 1966.

Alleging that he held as a non-occupancy tenant under Bhawani Dass the aforementioned land on the date of its sale to the appellants and had continued to do so and as such had a preferential right of its purchase under clanse Fourthly of section 15(1 )(a) of the Punjab Pre-emption Act, 1913 (Punjab Act 1 of 1913) which still applies to the State of Haryana, . Richpal, respondent No. 1 herein, brought a suit on October 17, 1967 for possession of the said land by pre-emption, in the Court of the Sub-Judge, Charkhi Dadri.

The suit was resisted by the appellants contending inter alia that the plaintiff-respondent was neither a nonoccupancy tenant of the land in question under Bhawani Dass, vendor, nor was he in possession of the land either on the day of the aforesaid sale or on the day of the institution of the suit.

After settling the necessary issues and recording the evidence adduced by the parties, the trial court by its judgment dated February 1, 1969, decreed the suit in favour of the plaintiff-pre-emptor on payment of Rs. 10,000/- (the consideration of the aforesaid sale) plus Rs. 727/- (the costs incurred by the vendees-appellants on the stamps, registration fee etc.) holding that he had been a tenant-at-will under the vendor from Kharif, 1957 to Rabi, 1968; that he was forcibly dispossessed after the sale; that wrongful eviction of a tenant could be of no consequence in the eye of law; that the plaintiff-pre-emptor continued to hold his rights as a tenant, including the right to immediate possession and cultivation of the land notwithstanding his wrongful ouster therefrom by the vendees, who could not be allowed fo take advantage of their own wrongs and the former must be deemed to continue in legal possession of the land which was comprised in his tenancy under the vendor on the date of the sale right upto the date of the suit and the date of the decree of the trial court iu his favour.

The t(ial court further held that 'a tenant's eviction can only be had under sections 7 and 7 A of the Pepsu Tenancy and Agricultural Lands Act, 1955, and there is nothing on the record of the case to even insinuate that the plaintiff's tenancy

which subsisted at the time of the impugned sale was ever determined A or terminated under section 7 or 7 A of the Act aud the plaintiff who

was iu physical possession of the land in suit as a tenant at the time of the sale has to be taken to be in legal possession up till the present moment'.

In conclusion, the trial could held that the mere act of forcible dispossession of the plaintiff-pre.emptor at the hands of the vendees after the sale could not have the effect of divesting him of his right to hold the land which he had acquired as a tenant of the R vendor and in the eye of law he must be presumed to have continued to be a tenant all along and as such had a preferential right of pre-emption.

The judgment and decree passed by the trial court was affirmed in appeal not only by the Additional District Judge, Gurgaon, but also by a learned Single Judge and Letters Patent Bench of the High Court.

Aggrieved by these decisions, the vendees-appellants have, as already stated, come up in further appeal to this Court.

C The so:e point that has been urged before us on behalf of the appellants is that as according to the decision of this Court in Bhagwan Das v. Chet Ram(') the plaintiff-pre-emptor has to prove his subsisting right of pre-emption on all the three material dates viz. ( 1) the date of sale, (2) the date of institution of the suit and (3) the date of passing of the decree and in the instant case, he failed to file a suit in the revenue court for recovery of possession of the suit land within one year of the date of his dispossession as contemplated by section

50 of the Punjab Tenancy Act 1887 not only his remedy was destroyed but his right and title was also extinguished at the expiry of that period on the general principles underlying section 27 of the Limitation Act, 1963, which may not in terms be applicable to the present case.

Though the learned counsel for the appellants cited a few cases in support of his contention but did not unfortunately brmg to our notice the decision of this Court in Dindyal & Anr. v. Raja- Ram(') which may in an appropriate case require reconsideration by a larger bench of this Court, we think, he cannot be allowed canvass the aforesaid point.

A reference to the record of the case shows that the point now sought to be agitated before us was not raised hy the appellants either in their written statement or in the grounds of the three appeals preferred by them before the courts below.

All that appear:s from the record to have been urged by them in the grounds of the aforesaid appeals was that the evidence had not been properly appraised and that in the absence of any lease deed in his favour or any receipt evidencing payment of rent by him to the vendor, mere entries in the khasra girdawaries were not enough to establish that the plaintiff-pre-emptor was a tenant of the suit land under the vendor at the time of the sale.

The suit land being situate in the district of Mohindergarh which formed part of the territories of the erstwhile of Pepsu, the case, as rightly observed by the court of first instance, was governed by sections 7 and 7 A of the Pepsu Tenancy and Agricultural Lands Act, 1955, which in view of section 4 of that Act have an overriding effect and provide as under :-

"4. Act to over ride other laws-Save, as otherwise expressly provided in this Act, the provisions of this Act

(1) [1971] 2 S.C.R. 640.

(2) [1971] l S.C.R. 298.

shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law or any usage, agreement, settlement, grant, sanad or any decree or order of any court or other authority, '

7. Termination of tenancy,-(!) No tenancy shall be terminated except in accordance with the provisions of this Act or except of any of the following grounds, namely :--

(a) , , . , . . , .. , . . . , . , , . . , . , , , , , .. , . , . , , , .

(b) that the tenant has failed to pay rent within a pei; iod

of six months after it falls due;

Provided that no tenant shall be ejected under this clause unless he has been afforded an opportunity to pay the arrears of rent within a further period of six months from the date of the decree or order directing his ejectment and he had failed to pay such arrears during that period;

( c) that the tenant, not being a widow, a minor, an unmarried woman, a member of the Armed Forces of the Union or a person incapable of cultivating land by reason of phyt5ical or mental infirmity has after commencement of the President's Act sublet without the consent in writing of the landowner, the land comprising his tenancy or any part thereof;

(d) that the tenant has, without sufficient cause, failed

to cultivate personally such land in the manner and to the extent customary in the locality in which such land is situated: ( e) that the tenant has used such land or any part thereof in a manner which is likely to render the land unfit for the purpose for which it was leased to him;

(2)

(f) that the tenant, on demand in writing by the landowner, has refused to execute a kabuliyat agreeing to pay rent in respect of his tenancy in accordance with the provisions of sections 9 and 10.

7 A Additional grounds for termination of tenancy in certain cases.-(1) Subject to the provisions of sub-sections

(2) and (3), a tenancy subsisting at the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956 may be terminated on the following grounds in addition to the grounds specified in section 7, namely:-

(a) that the land comprising the tenancy has been reserved by the land-owner for his personal cultivation in accordance with the provisions of Chapter II;

(b) that the landowner owns thirty standard acres or less of land and the land falls within the permissibk limit;

Provided that no tenant shall be ejected under this subsection-

(i) from any area of land if the area under the personal cultivation of the tenant does not exceed five standard acres,

(ii) from an area of five standard acres, if the area under the personal cultivation of the tenant exceeds five standards acres.

until hi is allowed by the State Government alternative land of eql ; alent value in standard acres.

(2) No tenant, who immediately preceding the commencement of r!, e President's Act has held any land continuously for a period of twelve years or more under the same land-owner or his predecessor in title; shall be ejected on the grounds specified in sub-section (1)- ( a) from any area of land, if the area under the personal cultivation of the tenant does not exceed fifteen standards acres, or

(b) from an area of fifteen standards acres, if the area under the personal cultivation of the tenant exceeds fifteen standard acres;

Provided that nothing in this sub-section shall apply to the tenant of a Jandoj\lner who, both, at the commencement of the tenancy and the commencement of the President's Act, was a widow, a minor, an unmarried woman, a member

of the Armed Forces of the Union or a person incapable of cultivating land by reason of physical or mental infirmity.

Explanation.-In computing the period of twelve years, the period during which any land has been held under the same land-owner or his predecessor in title by the father, brother or son of the tenant shall be included.

(3) For the purpose of computing under sub-sections

(1) and (2) the area of land under the personal cultivation of a tenant, any area of land owned by the tenant and under his personal cultivation shall be included."

It cannot, in view of the above noted provisions of Jaw and the decision of this Court in Rikh Ram & Anr. v. Ram Kumar & Ors.(') be disputed that an order or decree directing eviction of a tenant is necessary to be obtained to bring about a determination of the tenancy.

A fortiori, a person who has been in possession of land with the right to possess it continues to hold the fand and to he a tenant in spite of having been wrongfully put out of possession especially if he has initiatea proceedings for recovery of possession.

As in the instant case, it has been concurrently found by all the courts below that the plaintiff-pre-emptor was a tenant of the suit land on the date of sale

(!) [1975] 2 s.c.c. 318.

A and it has not been alleged much less proved that his tenancy was thereafter determined or terminated on any of the grounds set out in sections 7 and 7 A of the Pepsu Tenancy and Agricultnral Lands Act, 1955 and he had admittedly applied to the Tehsildar for restoration of his possession, he cannot but be deemed to be a tenant of the suit land on the date of the sale as well as on all other material dates and thus fully qualified and entitled to pre-empt the land.

We must 6 fairly state that our judgment is based on the provisions of law brought to our notice by counsel and our conclusion is confined to the interpretation of the Acts referred to above.

For the foregoing reasons, we do not find any merit in this appeal which is dismissed.

In the circumstances of the case, we leave the parties to bear their own costs of this appeal.

P.B.R.

Appeal dismised.

MUNSHI & ORS

RICHP AL & ORS

February 17, 1977

JASWANT SINGH, JJ.

Lands Act, 1955

Ss. 7 and 1A

Section 7

Section 7

s. 50

ss. 7 and 71

ss. 7 and 7

V. C. Mahajan

Urmila Kapoor

Kamlesh Bansal

Ram Sarup

A. Gupta

Bhawani Dass

Mohindergarh

Munshi

Dina

Rani Dutt

October 17, 1966

section 15(1 )(a)

Punjab Pre-emption Act, 1913

State of Haryana

Richpal

October 17, 1967

Sub-Judge, Charkhi Dadri

Bhawani Dass

February 1, 1969

sections 7 and 7

section 7

Additional District Judge, Gurgaon

section

50

Punjab Tenancy Act 1887

section 27

Limitation Act, 1963

Pepsu

sections 7 and 7

section 4

[1971] 2 S.C.R. 640

sections 9 and 10

section 7

sections 7 and 7