# 14 (ADDL.) S.C.R. 862 PRITHIPAL SINGH ETC v. STATE OF PUNJAB & ANR. ETC - **Citation:** [2011] 14 S.C.R. 862 - **Court:** Supreme Court of India - **Decided:** 2011-11-04 - **Case number:** Criminal Appeal Nos. 523-527 of 2009 - **Bench:** P. Sathasivam, Dr. B.S. Chauhan - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/14-addl-s-c-r-862-prithipal-singh-etc-v-state-of-punjab-anr-etc-27578 - **Pages:** 59 ## Headnote Penal Code, 1860 - ss. 302134, 364134 and 20114 - Conviction and sentence under - Abduction and murder of C human right activist by police officials - Activist working on abduction and cremation of unclaimed/unidentified bodies during the disturbed period in Punjab - Senior Superintendent of Police and other police persons hatched conspiracy and abducted the activist - Activist kept under o illegal detention, killed and thereafter, thrown in a canal - No investigation carried out and whereabouts of the activi. not known - Writ petition filed by the wife of the activist - Supreme Court transferred investigation to CBI - Charges framed against the appellant and accused (police officials) - E Conviction of DSP and AS/ u/ss. 302134 and imposed life imprisonment and also convicted and sentenced u/ss. 1208, 364134 and 201134 - Conviction of four appellants u/ss. 120-8 and 364134 and sentenced· to RI for five years and seven years respectively - High Court acquitted AS/, F however, appeal by the appellants were dismissed - On revision filed by the wife of the activist, the High Court enhanced the sentence of four appellants from 7 years rigorous imprisonment to life imprisonment - Interference with - Held: It is vel}' difficult to get evidence against the policemen 'esponsible for custodial death - Court cannot be a silent G spectator where the facts warrant interference in order to serve the interest of justice - There was motive on behalf of the police department to kidnap and ultimately to eliminate him - Testimonies of the witnesses had been consistent with each H . 862 PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 863 ANR. 'ETC. other and they identified the accused correctly in the court - A Minor variation in the version from time to time is natural since the witnesses were threatened and implicated in false cases · ~ There is trustworthy evidence in respect of abduction of the activist as well as his illegal detention - Courts below found that accused/appellants abducted the activist - In such a s situation only accused could explain as to what happened to deceas~d and why his corpus delicti could not recovered - All the accused failed to explain any inculpating circumstance even in their respective statements u/s. 313 Cr.P.C. - Such a conduct provides for an additional link in the chain of c circumstances - Courts below rightly drew the presumption that the appellants were responsible for his abduction, illegal detention and murder - More so, accused could not establish plea of alibi - A/so, since the charges had been framed prior to the statements recorded by PW 16, trial court ought to have 0 altered the charges but it failed to do so - Thus, order of the High Court was justified. s.302134 - Person charged uls.302134, other accused persons stand acquitted - Effect of - Held: It is impossible to hold that accused shared the common intention with other coE accused who is acquitted unless it is shown that some other unknown persons were a/so involved in the offence - Accused can be charged for being shared the common intention with another or others unknown, if either by direct evidence or by legitimate inference F Murder case - Corpus Delicti - Recovery of - Held: Conviction for offence of murder does not necessarily depend upon corpus delicti being found - Corpus delicti in a murder case has two components-death as result, and criminal G agency of another as the means - Where there is a direct proof of one, the other may be established by circumstantial evidence . . Constitution of India, 1950 - Articles 21 and 22 - Police H 864 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A atrocities, torture, custodial death and illegal detention - Protection of victim against - Held: State must ensure prohibition of torture, cruel, inhuman and degrading treatment to any person particularly at the hands of any State agency! police force - Such victims suffer enormous consequences B psychologically - If there is some material on record to ## Text _Characters 0–39,788 of 109,501. This is a partial read: ask again with offset=39788 for what follows._ A B [2011) 14 (ADDL.) S.C.R. 862 PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & ANR. ETC. (Criminal Appeal Nos. 523-527 of 2009) NOVEMBER 04, 2011 [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.] Penal Code, 1860 - ss. 302134, 364134 and 20114 - Conviction and sentence under - Abduction and murder of C human right activist by police officials - Activist working on abduction and cremation of unclaimed/unidentified bodies during the disturbed period in Punjab - Senior Superintendent of Police and other police persons hatched conspiracy and abducted the activist - Activist kept under o illegal detention, killed and thereafter, thrown in a canal - No investigation carried out and whereabouts of the activi. not known - Writ petition filed by the wife of the activist - Supreme Court transferred investigation to CBI - Charges framed against the appellant and accused (police officials) - E Conviction of DSP and AS/ u/ss. 302134 and imposed life imprisonment and also convicted and sentenced u/ss. 1208, 364134 and 201134 - Conviction of four appellants u/ss. 120-8 and 364134 and sentenced· to RI for five years and seven years respectively - High Court acquitted AS/, F however, appeal by the appellants were dismissed - On revision filed by the wife of the activist, the High Court enhanced the sentence of four appellants from 7 years rigorous imprisonment to life imprisonment - Interference with - Held: It is vel}' difficult to get evidence against the policemen 'esponsible for custodial death - Court cannot be a silent G spectator where the facts warrant interference in order to serve the interest of justice - There was motive on behalf of the police department to kidnap and ultimately to eliminate him - Testimonies of the witnesses had been consistent with each H . 862 PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 863 ANR. 'ETC. other and they identified the accused correctly in the court - A Minor variation in the version from time to time is natural since the witnesses were threatened and implicated in false cases · ~ There is trustworthy evidence in respect of abduction of the activist as well as his illegal detention - Courts below found that accused/appellants abducted the activist - In such a s situation only accused could explain as to what happened to deceas~d and why his corpus delicti could not recovered - All the accused failed to explain any inculpating circumstance even in their respective statements u/s. 313 Cr.P.C. - Such a conduct provides for an additional link in the chain of c circumstances - Courts below rightly drew the presumption that the appellants were responsible for his abduction, illegal detention and murder - More so, accused could not establish plea of alibi - A/so, since the charges had been framed prior to the statements recorded by PW 16, trial court ought to have 0 altered the charges but it failed to do so - Thus, order of the High Court was justified. s.302134 - Person charged uls.302134, other accused persons stand acquitted - Effect of - Held: It is impossible to hold that accused shared the common intention with other coE accused who is acquitted unless it is shown that some other unknown persons were a/so involved in the offence - Accused can be charged for being shared the common intention with another or others unknown, if either by direct evidence or by legitimate inference F Murder case - Corpus Delicti - Recovery of - Held: Conviction for offence of murder does not necessarily depend upon corpus delicti being found - Corpus delicti in a murder case has two components-death as result, and criminal G agency of another as the means - Where there is a direct proof of one, the other may be established by circumstantial evidence . . Constitution of India, 1950 - Articles 21 and 22 - Police H 864 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A atrocities, torture, custodial death and illegal detention - Protection of victim against - Held: State must ensure prohibition of torture, cruel, inhuman and degrading treatment to any person particularly at the hands of any State agency! police force - Such victims suffer enormous consequences B psychologically - 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 in law. Code of Criminal Procedure, 1973 - s.386(e) - Scope C of - Power of High Court u/s. 386(e) to enhance the sentence suo motu - Held: High Court is competent to enhance the sentence suo motu - However, it is permissible only after giving opportunity of hearing to the accused. 0 Evidence: Evidence of an accomplice not put on trial - Conviction on basis of his uncorroborated testimony ""- Held: Such an accomplice is a competent witness - He deposes in the Court after taking oath and there is no prohibition in any law not to E act upon his deposition without corroboration - However, no reliance can be placed on the evidence of accomplice unless evidence is corroborated in material particulars - There has to be some independent witness tending to incriminate the accused in the crime. F Testimony of sole eye-witness - Reliability of - Held: There is no legal impediment in convicting a person on the sole testimony of a single witness - If there are doubts about testimony, the court would insist on corroboration - Test is whether the evidence is cogent, credible and trustworthy or G otherwise. Criminal trial: Non-mentioning the name of accused by witness at the time of recording his statement uls.161 Cr.P.C. - Accused H PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 865 ANR. ETC. named for the first time in his deposition in court - Held: A Accused is entitled to benefit of doubt. Extra-ordinary case - Extra-ordinary situations demand extra-ordinary remedies - In an unprecedented case, the court has to innovate the law and may also pass unconventional 8 order keeping in mind the extra-ordinary measures. Evidence Act, 1872 - s.106 - Applicability of - Burden of proof under- Held: Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of accused beyond reasonable doubt - It is designed to m(Jet certain C exceptional cases, in which, it would be impossible for prosecution to establish certain facts which are particularly within the knowledge of the accused. 'JSK', a human right activist had been working on o · abduction and cremation of unclaimed/unidentified bodies during the disturbed period in Punjab. He raised his voice against the same. The local police did not like it. They tried to desist him from exposing the illegal activities of the police in these districts but he did not E deter. The local police then hatched a criminal conspiracy and abducted him. They kept him under illegal detention, killed him and threw his body into a canal. PW 15 witnessed the abduction. PW 7 also saw appellants alongwith other. accused persons rushing with 'JSK' inside the van. PW 2, wife of 'JSK' lodged an FIR. However, no investigations were carried out nor whereabouts of 'JSK' were known. PW2 filed a Habeas Corpus petition before the Supreme Court. This Court transferred the investigation to CBI. CBI registered a case under Sections 365, 220 and 120-B IPC against the police G officers, (the appellants and other accused) that all of them agreed to abduct and eliminate 'JSK'. The main accused was 'ASS', SSP but the charges could not be framed against 'ASS' since he committed suicide before framing of the charges. During course of trial, 'AK' died F H 866 SUPREME COURT REPORTS [2011) 14 (ADDL.) S~C.R. A and 'RS' was discharged. PW 16, Special Police Officer, made voluntary statement to CBI in respect of abduction and murder of 'JSK'. PW 14, who was convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 in his statement recorded by CBI under Section 161 B Cr.P.C. revealed about the detention of 'JSK'. The Sessions Judge convicted the appellants and some other accused persons under Sections 364/34 IPC; appellant 'JS' and 'AS' under Sections 302/34 IPC and under Sections 201/34 IPC and awarded sentences. The c appellants and accused filed appeals. PW2, wife of 'JSK' filed revision for enhancement of sentences of the four appellants from seven years rigorous imprisonment to imprisonment for life under Section 364 IPC. The High Court acquitted 'AS' however, maintained conviction of J other appellants. Notices were issued to four appellants . for enhancing the sentences awarded to them while dismissing their appeal. The High Court enhanced the sentence of four appellants from seven years RI to life imprisonment. Therefore, the appellants filed the instant - appeals. G Dismissing the appeals, the Court HELD: POLICE ATROCITIES : 1. There is no 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. [Para 49) [920-B] 2.1. 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, H interrogation or otherwise. The wrong-doer is PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 867 ANR. ETC. accountable and the State is responsible if a person in A custody of the police is deprived of his life except in accordance with ttie 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 B that freedom of an individual must yield to the security of the State. Latin maxim sa/us populi est suprema /exthe safety of the people is supreme law; and salus reipub/icae suprema /ex-safety of the State is supreme law, co-exist. However, the doctrine of the welfare of an c individual must yield to that of the community. [Para 7) [893-D-F] 2.2. 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 D obligation means the overall prohibition on arbitrary deprivation of life. Positive obligation requires that State has an overriding obligation to protect the right to life of every person within its territorial jurisdiction. Th.e obligation requires the State to take administrative and E all other measures in order to protect life and investigate F 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 , G of torture, cruel, inhuman and degrading treatment to any person, particularly at the hands of any State agency/ police force. [Para 7) [893-G-H; 894-A-C] 2.3. The Protection of Human Rights Act, 1993, also H 868 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A 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 Evidence Act, ·1872, B 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 c approach rather than narrow technical approach in cases of custodial crimes. [Para 8] [894-D-F] 2.4. 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 D 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. [Para 13] [898-B] E 2.5. 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 F 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 the rule of law. Therefore, G illegal regime has to be glossed over with impunity, considering such cases of grave magnitude. [Para 48) [919-G-H; 920-A] Dilip K. Basu v. State of WB. & Ors, AIR 1997 SC 3017: 1997 (3) Suppl. SCR 219; N.C. Dhoundial v. Union·ot India H & Ors. AIR 2004 SC 1272 : 2003 (6) Suppl. SCR 674; PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 869 ANR. ETC. Munshi Singh Gautam (DJ & Ors. v. State 9f M.P. AIR 2005 A SC 402: 2004 (5) Suppl. SCR 1092; Raghubir Singh v. State of Haryana AIR 1980 SC 1087 : 1980 (3) SCR 277; Gauri Shanker Sharma etc. v. State of UP. etc., AIR 1990 SC 709 : 1990 SCR 29 ; State of Madhya Pradesh v. Shyamsunder Trivedi & Ors., (1995) 4 SCC 262 : 1995 (1) B Suppl. SCR 44; The State of UP. v. Mohd. Nairn AIR 1964 SC 703: 1964 SCR 363; People's Union for Civil Liberties v. Union of India & Anr., AIR 2005 SC 2419; Rubabbuddin Sheikh v. State of Gujarat & Ors. (2010) 2 SCC 200: 2010 (1) SCR 991; Jaywant P.Sankpal v. Suman Gholap & Ors. c · (2010)-11 SCC 208 : 2010 (9 ) SCR 102; Narmada Bai v. State of Gujarat & Ors. (2011) 5 SCC 79 : 2011 (5) -SCR 729 - relied on. SCOPE OF SECTION 386(e) Cr.P.C. 3. The High Court in exercise of its power under Section 386(e) tr.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. [Para 17] [899-D-E] D E Eknath Shankarrao Mukkawar v. State of Maharashtra AIR 1977 SC 1177"~ 1977 (3) SCR 513; Surendra Singh Rautela @ Surendra Singh Bengali v. State of Bihar (Now State of Jharkhand) AIR 2002 SC 260 : 2001 (5) Suppl. SCR 340; Nadir Khan v. The State (Delhi Administration) AIR 1976 F SC 2205: 1975 Suppl. SCR 489; Govind Ramji Jadhav v . . State of Maharashtra (1990) 4 SCC 718 : 1990 (1) SCR 855; K. Pandurangan etc. v. S.S.R. Velusamy & Anr. AIR 2003 SC 3318; Jayaram Vithoba & Anr. v. The State of Bombay, AIR_ 1956 SC 146 : 1955 SCR 1049 - relied on. G EVIDENCE OF AN ACCOMPLICE - Not put on trial: _ 4. An -accomplice is a competent witness and conviction can lawfully rests upon his uncorroborated - H 870 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A 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 B some independent witness tending to incriminate the particular accused in the commission of the crime. 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 c 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. [Paras 18 and 21) [899-F-G; 902-C-D] D Rameshswar S/o Ka/yan Singh v. The State of Rajasthan AIR 1952 SC 54 : 1952 SCR 377 ; Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 : 1957 SCR 953 K. Hasim v. State of Tamil Nadu AIR 2005 SC 128 : 2004 (6) Suppl. SCR 1 Suresh Chandra Bahri v. State of Bihar AIR E 1994 SC 2420: 1994 (1) Suppl. SCR 483; Chandran alias Manichan alias Maniyan & Ors. v. State of Kera/a (2011) 5 SCC 161; Laxmipat Choraria & Ors. v. State of Maharashtra AIR 1968 SC 938:1968 SCR 624 - relied on. F ACCUSED NAMED FIRST TIME IN THE COURT: 5. 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 name him first time in his deposition in the court, the accused becomes entitled to G benefit of doubt. [Para 22) [902-EJ Rudrappa Ramappa Jainpur & Ors. v. State of Karnataka, AIR 2004 SC 4148 State represented by Inspector of Police, Tamil Nadu v. Sait alias Krishnakumar, (2008) 15 SCC 440 H : 2008 (14) SCR 120 - relied on. PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 871 ANR. ETC. PERSON CHARGED UNDER SECTION 302/34 IPC - A OTHER ACCUSED PERSONS STAND ACQUITTED : 6. 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, B 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 C proved either by direct evidence or by legitimate. inference. [Para 23) [902-G-H; 903-A-B] Prabhu Babaji Navle v. State of Bombay AIR 1956 SC 51; Sukhram v. State of Madhya Pradesh AIR 1989 SC 772; Madan Pal v. State of Haryana (2004) 13 SCC 508; Koppula D Jagdish alias Jagdish v. State of A.P. (2005) 12 SCC 425; Sanichar Sahni v. State of Bihar AIR 2010 SC 3786 : 2009 (10) SCR 112; WJ1/ie (Wif/fain) Slaney v. State of M.P. AIR 1956 SC 116 : 1955 SCR 1140; State of A.P. v. Thakkidiram Reddy & Ors, AIR 1998 SC 2702 : 1998 ( 3 ) SCR 1088; E Ramji Singh & Anr. v. State of Bihar AIR 2001 SC 3853 and Gurpreet Singh v. State of Punjab AIR 2006 SC 191: 2005 (5) Suppl. SCR 90; Lok Pal Singh v. State of M.P. AIR 1985 SC 891 - referred to. EVIDENCE OF THE SOLE EYE-WITNESS : F 7. 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 G the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court would insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured H 872 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A 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 B or plurality of witnesses. It i~, 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. [Para 26] C [904~A-G] Vadive/u Thevar v. The State of Madras AIR 1957 SC 614 : 1957 SCR 981; Sunil Kumar v. State Govt. of NCT of Delhi (2003) 11 SCC 367: 2003 (4) Suppl. SCR 767; , Namdeo v. State of Maharashtra, (2007) 14 SCC 150 : 2007 · D (3) SCR 939; Bipin Kumar Monda/ v. State of West Bengal AIR 2010 SC 3638 : 2010 (8) SCR 1036 - relied on. EXTRA-ORDINARY CASE: E 8. Extra-ordinary 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. Thus, it is evident that while deciding the case, the Court has to F bear in mind the peculiar facts, if so exist, in a given case. [Para 27] [904-F-G; 905-A] G B.P. Achala Anand v. S. Appi Reddy & Anr. AIR 2005 SC 986 : 2005 (2) SCR 3 - retied on. CORPUS DELICTI - Recoverv of : 9. 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 H PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 873 ANR. ETC. depend upon corpus delicti being found. The corpus A 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. [Para 28) [905-GH] _ B Mani Kumar Thapa v. State of Sikkim AIR 2002 SC 2920; 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; Rama Nand & Ors. v. The State of Himachal Pradesh AIR 1981 SC 738 : 1981 (2) C SCR 444 - relied on. BURDEN OF PROOF UNDER SECTION 106 10. Section 106 is not intended to relieve the 0 ,, prosecution of its burden to prove the guilt of the accused beyond reason._ble 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 E 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 F would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. [Para 29) [906-A-D] State of West Bengal v. Mir Mohammad Omar & Ors. etc. etc., AIR 2000 SC 2988 : 2000 (2) Suppl. SCR 712; G Shambhu Nath Mehra v. The State of Ajmer AIR 1956 SC 404 : 1956 SCR 199; Sucha Singh v. State of Punjab AIR 2001 SC 1436 : 2001 (2) SCR 644; Sahadevan @ Sagadevan v. State rep. by Inspector of Police, Chennai AIR 2003 SC 215 - relied on. H 874 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A 11.1. There are concurrent findings of facts by two courts that all the appellants are guilty of abducting 'JSK' 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 B 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 'JSK' was dead or alive. Had this Court not issued directions and transferred the case to the CBI for investigation, perhaps the mystery of death c of 'JSK' 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 0 had pointed out that it would not be possible to conduct a fair investigation till the appellants and other coaccused 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 E getting proper security/protection under the orders of this Court passed in the Writ Petition filed by the complainant PW-2. [Para 37] [910-A-E] 11.2. Sufficient material was placed before the courts below as well as before this Court to show that 'JSK' was F a human rights activist and had raised the voice against Ass• the then SSP of Taran Taran District, about the killing of innocent persons and cremation of thousands of unidentified bodies unceremoniously. 'ASS' directly and indirectly tried that 'JSK could desist from exposing G the illegal activities of the police in those districts. H 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. 'JSK' persisted in PRITHIPAL SINGH ETC. v. STATE OF PUNJAB & 875 ANR. ETC. pursuing the truth and fighting for human rights. The A motive of the accused police officers to abduct and kill 'JSK' comes out clearly from the testimonies of PW.2, PW.5, a Judge, PW.6, PW.8, PW.11, PW.12, PW.15 and PW.19. Some of these witnesses had deposed that 'JSK' had been receiving death threats in reference to his B investigations into illegal encounters and cremations. There is nothing on record to discredit the testimonies of either of these witnesses in this regard, rather their testimonies had been consistent with each other and inspired confidence. The accused had been identified c . correctly in the court by various witnesses. [Paras 38 and 39] [911-A-D] 11.3. The courts below considered all the issues and taking into consideration the entire fact-situation in which the incident had taken place and whereabouts of 'JSK' D 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 particularly that it is very difficult to get evidence against the policemen responsible for custodial death. In. E 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 F 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". In view of the persistent threats hurled by the accused G . 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 H 876 SUPREME COURT REPORTS [2011] 14 (ADDL.) $.C.R. A 'JSK', can safely be relied upon as the same stand corroborated by other circumstantial evidence and the deposition of other witnesses. There is trustworthy evidence in respect of abduction of 'JSK' by the appellants; as well as his illegal detention. The position B remains the same in case a solitary witness deposed regarding the illegal detention and elimination of 'JSK'. [Para 41 and 42] [912-G-H; 913-A-D] 11.4. Most of the appellants had taken alibi for screening themselves from the offences. However, none C of them could establish the same. However, it is clarified that the 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 D himself from the offence, such circumstance may point towards his guilt. [Para 43] [913-F-H] E Anant Chintaman Lagu v. The State of Bombay AIR 1960 SC 500 : 1960 SCR 460 - referred to. 11.5. Both the courts below found that the accused/ appellants have abducted 'JSK". In such a situation, only the accused person could explain as what happened to 'JSK' and if he had died, in what manner and under what circumstances he had died and why his corpus delicti F 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 G 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 rightly drew the presumption that the appellants were H PRITHIPAL SINGH ETC. v. SlATE OF PUNJAB & 877 ANR. ETC. 1 responsible for his abduction, illegal detention and· A murder. [Para 44) [914-B-D] 11.6. 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 8 to judge whether a failure of justice has been occasioned, _ it would be relevant to examine whether the accused was aware o! the basic ingredients of. the offence for which he is bei~~ convicted and whether the main facts sought to be estati'lished against him, were explained to him C clearly and whether he got a fair chance to defend himself. The Court cannot lose sight of the fact that 'JSK', appellant, had also been charged and convicted under Sections 364/34 IPC alongwith all other appellants. He was not arrayed as a party/respondent in the Criminal D Revision filed by 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 E 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 'ASS' - SSP, wh