# BALDEV SINGH v. STATE OF PUNJAB

- **Citation:** [2013] 9 S.C.R. 547
- **Court:** Supreme Court of India
- **Decided:** 2013-09-20
- **Case number:** Criminal Appeal No.1303 of 2005
- **Bench:** A.K. Patnaik, Gyan Sudha Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baldev-singh-v-state-of-punjab-29305
- **Pages:** 26

## Headnote

PENAL CODE, 1860:
A
B
ss. 302 read with s. 120-B - Police party picking up 7 c
members of complainant's family - Victims did not return -
Conviction by courts below u/ss 364, 452, 120-B and 302 -
Held: Evidence adduced is that the seven persons abducted
by appellants were seen in different police stations and also
in residential quarters near the police station -
On this
0
evidence, court cannot hold that the two appellants have killed
the seven abducted persons only because they have not been
traced or are found missing -
No material has been placed
before the court to establish that the last police station in which
the seven persons or any of them were kept was under the
E
control of the appellants -
In absence of such evidence, the
finding of guilt recorded by courts below u/s. 302 against
appellants, was not correct either on facts or on law -
Therefore, conviction of appellants u/s. 302 read with s. 120B is set aside.
ss. 364 and 452 - Seven members of a family picked
up by police party - Victims did not return - Held: It has been
established that appellants had gone to the house of
complainant in the early morning and picked up 7 members
F
of his family - Therefore, conviction of appellants u/ss 364
G
and 452 was rightly maintained by High Court- The sentence
of three years with fine uls 452 is maintained - However, in
the facts of the case, keeping in view l/lustration (h) to
s.220(1)CrPC, as seven persons had been abducted by
547
H
548
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A appellants, they were guilty of seven offences and should be
punished for each of these offences u/s. 364 -
Therefore, it
is directed that the fine of Rs.40001- as imposed by trial court
and the period of rigorous imprisonment of five years will be
for each of the seven offences of abduction and the five years
B rigorous imprisonment for each of the seven offences of
abduction will run consecutively and not concurrently - Code
of Criminal Procedure, 1973 - s.220(1), /11.(h).
Delay!Laches:
C
Delay in lodging of FIR - Held: Delay in lodging of FIR
often results in embellishment as well as the introduction of
a distorted version of what may have actually happened, but
the facts of each case have to be examined to find out
whether the delay in lodging the FIR is fatal to prosecution
D case -
In the instant case, there is enough evidence of the
fact that complainant was afraid of lodging the complaint to
local police station which was under the control of one of the
.. accused-appellants - Delay of 2 months and 21 days in
lodging the FIR has been explained by the facts and the
E evidence adduced - FIR.
Delay in recording statements uls 161 CrPC - Held:
Complainant in the very first complaint had named the
appellants as the persons who raided their house and picked
up seven members of his family, and therefore, the fact that
F there was considerable delay of two years from the date of
lodging the FIR in recording of statements of witnesses does
not make their evidence in this regard doubtful.
G
Evidence:
Witness at enmity with accused - Evidence of -
Held:
Testimony .of such a witness has to be carefully scrutinized
by the court before it is accepted, but only on account of
enmity, court cannot discard evidence of the witness
H a/together.
BALDEV SINGH v. STATE OF PUNJAB
549
Code of Criminal Procedure, 1973:
A
ss.161 and 162, Explanation -
Improvements in
deposition of witness over his statement u/s 161 - Held: In
view of Explanation to s. 162, unless the omission in the
statement recorded uls. 161 of a witness is significant having
8
regard to the context in which the omission occurs, it will not
amount to a contradiction to the evidence of the witness
recorded in court - In the instant case, courts below rightly
considered the omissions as not material omissions
amounting to contradictions covered by the Explanation to
C
s.162.
The appellants (a DSP and a constable of police) and
9 others were prosecuted for commiting offences
punishable u/ss. 120-8,

## Text

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[2013] 9 S.C.R. 547
BALDEV SINGH
v.
STATE OF PUNJAB
(Criminal Appeal No.1303 of 2005 etc.)
SEPTEMBER 20, 2013
[A.K. PATNAIK AND GYAN SUDHA MISRA, JJ.]
PENAL CODE, 1860:
A
B
ss. 302 read with s. 120-B - Police party picking up 7 c
members of complainant's family - Victims did not return -
Conviction by courts below u/ss 364, 452, 120-B and 302 -
Held: Evidence adduced is that the seven persons abducted
by appellants were seen in different police stations and also
in residential quarters near the police station -
On this
0
evidence, court cannot hold that the two appellants have killed
the seven abducted persons only because they have not been
traced or are found missing -
No material has been placed
before the court to establish that the last police station in which
the seven persons or any of them were kept was under the
E
control of the appellants -
In absence of such evidence, the
finding of guilt recorded by courts below u/s. 302 against
appellants, was not correct either on facts or on law -
Therefore, conviction of appellants u/s. 302 read with s. 120B is set aside.
ss. 364 and 452 - Seven members of a family picked
up by police party - Victims did not return - Held: It has been
established that appellants had gone to the house of
complainant in the early morning and picked up 7 members
F
of his family - Therefore, conviction of appellants u/ss 364
G
and 452 was rightly maintained by High Court- The sentence
of three years with fine uls 452 is maintained - However, in
the facts of the case, keeping in view l/lustration (h) to
s.220(1)CrPC, as seven persons had been abducted by
547
H
548
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A appellants, they were guilty of seven offences and should be
punished for each of these offences u/s. 364 -
Therefore, it
is directed that the fine of Rs.40001- as imposed by trial court
and the period of rigorous imprisonment of five years will be
for each of the seven offences of abduction and the five years
B rigorous imprisonment for each of the seven offences of
abduction will run consecutively and not concurrently - Code
of Criminal Procedure, 1973 - s.220(1), /11.(h).
Delay!Laches:
C
Delay in lodging of FIR - Held: Delay in lodging of FIR
often results in embellishment as well as the introduction of
a distorted version of what may have actually happened, but
the facts of each case have to be examined to find out
whether the delay in lodging the FIR is fatal to prosecution
D case -
In the instant case, there is enough evidence of the
fact that complainant was afraid of lodging the complaint to
local police station which was under the control of one of the
.. accused-appellants - Delay of 2 months and 21 days in
lodging the FIR has been explained by the facts and the
E evidence adduced - FIR.
Delay in recording statements uls 161 CrPC - Held:
Complainant in the very first complaint had named the
appellants as the persons who raided their house and picked
up seven members of his family, and therefore, the fact that
F there was considerable delay of two years from the date of
lodging the FIR in recording of statements of witnesses does
not make their evidence in this regard doubtful.
G
Evidence:
Witness at enmity with accused - Evidence of -
Held:
Testimony .of such a witness has to be carefully scrutinized
by the court before it is accepted, but only on account of
enmity, court cannot discard evidence of the witness
H a/together.
BALDEV SINGH v. STATE OF PUNJAB
549
Code of Criminal Procedure, 1973:
A
ss.161 and 162, Explanation -
Improvements in
deposition of witness over his statement u/s 161 - Held: In
view of Explanation to s. 162, unless the omission in the
statement recorded uls. 161 of a witness is significant having
8
regard to the context in which the omission occurs, it will not
amount to a contradiction to the evidence of the witness
recorded in court - In the instant case, courts below rightly
considered the omissions as not material omissions
amounting to contradictions covered by the Explanation to
C
s.162.
The appellants (a DSP and a constable of police) and
9 others were prosecuted for commiting offences
punishable u/ss. 120-8, 148, 452, 364, 365, 302 read with
s. 120-8 ands. 201, IPC. The prosecution case was that
D
on 29-10-1991 at about 5:00 am, the appellants and other
policemen raided the house of the complainant (PW 13)
and picked up seven members of his family, who
thereafter never returned. The trial court convicted the
appellants u/ss. 452, 364 and 302 read with s. 120-8 IPC
E
and sentenced them to various terms including
imprisonment for life u/s. 302 IPC. The High Court
dismissed the appeal.
Allowing the appeals in part, the Court
F
HELD: 1.1. There cannot be any doubt that delay in
the lodging of the FIR often results in embellishment as
well as the introduction of a distorted version of what
may have actually happened, but the facts of each case
have to be examined to find out whether the delay in
G
lodging the FIR is fatal to the prosecution case. In the
instant case, from the evidence of PW-3 it is evident that
the terrorists were active in the State of Punjab and the
police was taking action against the terrorists and in
such a state of affairs, PW-3 was apprehensive of the
H
550
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A consequences of lodging an FIR against appellants, one
of whom was a Deputy Superintendent of Police in
control of several police stations and the other was a
police constable. Therefore, after seven members of his
family were picked up on 29.10.1991, PW-3 waited with
B the hope that they would be released by the police and
only after all his efforts to get them released failed, he
lodged the complaint on 19.01.1992. The fact that the
complainant addressed the complaint not to the police
station but to the Director General of Police is enough
c evidence that PW-3 was afraid of lodging the complaint
to the local police station which was under the control
of appellant no. 1. Considering the fact situation, the
delay of 2 months and 21 days on the part of PW-3 to
lodge the complaint to the Director General of Police,
Punjab, had been explained by PW-3 and this is not a
D case where the prosecution case could be disbelieved
on the ground of delay in lodging the FIR. [Para 16-17]
[562-F-H; 563-A-B, G-H]
Gauri Shanker Sharma. vs. State of U.P. 1990 SCR 29 =
E 1990 (Supp) sec 656 - relied on.
1.2. As regards the delay in recording s.161 statements
of witnesses, it is evident from the evidence of PW-3 and
PW-4 that on the stated date and time, the appellants came
F in 3-4 vehicles and took the seven members of their family
in the Gypsy. Further, in the very first complaint lodged by
PW-3 on 19.01.1992, he has named the appellants as the
persons who raided their house and picked up seven
members of his family. Therefore, the delay of two years
G from the date of lodging the FIR in recording of statements
of PW-3 and PW-4 and other witnesses does not make their
evidence that the appellants picked up seven members of
their family on the stated date and time, doubtful. [Para 18]
[564-A-B, E-G]
H
BALDEV SINGH v. STATE OF PUNJAB
551
Jagjit Singh alias Jagga vs. State of Punjab 2005 (1)
SCR 559 =2005 (3) SCC 689; State of Andhra Pradesh vs.
S. Swamalatha & Ors. 2009 (12) SCR 289 = 2009 (8) SCC
383 - held inapplicable.
1.3. Where there is previous enmity between the
witness and the accused, the evidence of the witness
has to be carefully scrutinized by the court before it is
accepted, but only on account of such enmity the court
cannot discard the evidence of the witness altogether.
Moreover, witnesses who are not related to a victim of an
offence are in some situations difficult to find. The
appellants had gone to the house of the complainant
(PW-3) early in the morning at 5.00 am on 29.10.1991 and
picked up seven members of his family and it is difficult
to find persons witnessing the incident at the stated time.
Moreover, one of the appellants was a Deputy
Superintendent of Police and, therefore, no one would
prefer to narrate the incident either before the
Investigating Officer or before the court. In such a
situation, the court has to consider carefully and
cautiously the evidence of witnesses who may have had
enmity with the accused. On such careful and cautious
consideration, it is difficult to discard the evidence of PW3 when it is corroborated by the evidence of PW-4 as well
as the complaint dated 19.01.1992 (Ext. PB) of PW-3
which had been registered as the FIR. Therefore, the
evidence of PW-3 and PW-4 cannot be rejected on the
ground of enmity. [Para 20] [566-B-G]
State of U. P. vs. Kishanpal and Others 2008 (11)
SCR 1048 = 2008 (16) sec 73 - relied on.
1.4. With regard to the plea of improvements in the
deposition of PW-3 over his statements recorded u/s. 161
Cr.P.C, in view of Explanation to s. 162 Cr.P.C, unless the
omission in the statement recorded u/s. 161, Cr.P.C. of a
witness is significant and relevant having regard to the
A
B
c
D
E
F
G
H
552
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A context in which the omission occurs, it will not amount
to a contradiction to the evidence of the witness recorded
in court. There is no omission in the evidence of PW-3
with regard to the facts about the picking up of sever.
members of his family from his house on the stated date
~, and time and the names of the victims in his statement
u/s. 161 Cr.P.C. The trial court and the High Court had
rightly considered the omissions with regard to the
nature, number and colour of the vehicles and the
number of men who had come as well as what happened
C after the incident as not material omissions amounting to
contradictions covered by the Explanation to 162, Cr.P.C.
Therefore, the High Court rightly maintained the
conviction of the appellants u/ss. 364 and 452 IPC. [Para
21] [566-H; 567-A, B-C, E-H]
D
2.1. From the evidence of PW-3 to PW-6, it is evident
that the victims abducted by the appellants were
subsequently seen in different police stations and also
in residential quarters near the police station. No material
has been placed before the court to establish that the last
E police station in which the seven persons or any of them
was kept was under the control of the appellants. In
absence of such evidence, the finding of guilt recorded
by courts below u/s. 302 IPC against the appellants, was
not correct either on facts or on law. [Para 27] [571-D, EF F; 572-B-C]
2.2. Therefore, the conviction of the two appellants
u/s. 302 read with s. 120-B, IPC is set aside, but their
conviction u/ss. 364 and 452, IPC is maintained. The
sentence of three years rigorous imprisonment and a fine
G of Rs.3000/- for the offence punishable u/s. 452, IPC is
maintained. But so far as the sentence and fine u/s. 364,
IPC is concerned, in view of Illustration (h) to s. 220(1) of
·the Cr.P.C., as seven persons had been abducted by the
appellants, they were guilty of seven offences u/s. 364,
H IPC, and they should be punished for each of these
BALDEV SINGH v. STATE OF PUNJAB
553
offences. Therefore, it is directed that the fine of Rs.4000/
A
- as imposed by the trial court and the period of rigorous
imprisonment of five years, will be for each of the seven
offences of abduction; and the five years rigorous
imprisonment for each of the seven offences of abduction
will run consecutively and not concurrently. [Para 28]
8
[572-C-G]
Meharaj Singh (UNk.) vs. State of U.P. 1994 (5) SCC
188; Vishnu Davare vs. State of Maharashtra 2004 (9) SCC
431; Radha Kumar vs. State of Bihar (Jharkhand) 2005 (10)
SCC 216; Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. Vs.
C
State of Maharashtra 2010 (15) SCR 452 = 2010 (13) SCC
657; Sahadevan and Another vs. State of Tamil Nadu 2012
(4) SCR 366 = 2012 (6) SCC 403; L/C of India vs. Anuradha
2004 (3) SCR 629 = 2004 (10) SCC 131; Prithipal Singh &
Ors. vs. State of Punjab & Anr. 2012(14) SCR 862 = 2012 (1)
D
SCC 10; Gu/am Chaudhary & Ors. Vs. State of Bihar 2001
(3) Suppl. SCR 279 = 2001 (8) SCC 311; Badshah and Ors.
Vs. State of Uttar Pradesh 2008 (2) SCR 766 = 2008 (3)
sec 681 - cited.
Case Law Reference:
1990 SCR 29
relied on
para
2005 (1) SCR 559
held inapplicable para 7
2009 (12) SCR 289
held inapplicable para 7
2008 (11) SCR 1048
relied on
para 7
1994 (5) sec 188
cited
para 7
2004 (9) sec 431
cited
para 7
2005 (1 o) sec 216
cited
para 7
2010 (15) SCR 452
cited
para 7
2012 (4) SCR 366
cited
para 10
2004 (3) SCR 629
cited
para 11
E
F
G
H
A
554
SUPREME COURT REPORTS
2012(14) SCR 862
cited
2001 (3) Suppl. SCR 279 cited
2008 (2) SCR 766
cited
[2013] 9 S.C.R.
para 12
para 15
para 15
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
B No 1303 of 2005.
c
D
From the Judgment & Order dated 06.04.2005 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 221-DB of 1998.
WITH
Crl. A. No. 1380 of 2005
Amarender Saran, Kawaljit Kochar, Kusum Chaudhary for
the Appellant.
V. Madhukar, AAG, Paritosh Anil, Anivta Cowshish,
Srajita Mathur, Kuldip Singh for the Respondent.
The Judgment of the Court was delivered by
E
A.K. PATNAIK, J. 1. These are appeals by way of special
leave under Article 136 of the Constitution against the common
judgment dated 06.04.2005 of the High Court of Punjab and
Haryana in Criminal Appeal No.221-DB of 1998.
F Facts of the case:
2. The facts very briefly are that lnder Singh sent an
application dated 19.01.1992 by registered post with A.O. to
the Director General of Police, Punjab, for releasing seven
members of his family. In the application, lnder Singh alleged
G that on 29.10.1991 at 5.00 a.m. Baldev Singh, Deputy
Superintendent of Police, and Balwinder Singh, Police
Constable (the appellants herein) and other police men raided
their house and picked up seven members of his family. They
are Sadhu Singh (his father), Hardev Singh (his son), Gurdip
H
BALDEV SINGH v. STATE OF PUNJAB
555
[A.K. PATNAIK, J.]
Singh and Amanjit Singh (his brothers), Sharanjit Singh (son
A
of his younger brother Sajjan Singh) and Davinder Singh and
Sukhdev Singh (two sons of his younger brother Khazan Singh).
lnder Singh further stated in the aforesaid application that he
has seen his family members, who were picked up, in
Fatehgarh Churian, Police Station Kalanaur, Dera Baba Nanak
B
and Police Station Kathu Nangal and on 08.01.1992, his son
Sarwan Singh has seen these persons in the police vehicle in
Amritsar. In the application, lnder Singh stated that he had fear
that the appellant-Baldev Singh may kill his family members or
may implicate in some case and he requested that they be c
released from illegal detention of the police at the earliest. By
Memo dated 21.03.1994, the Inspector General of Police,
Crime Branch directed the Senior Superintendent of Police,
Majitha, to get the case registered and accordingly a formal
FIR was registered under Section 364 of the Indian Penal Code
0
(for short 'IPC') on 23.03.1994 in Police Station, Kathunangal,
District Majitha. After investigation, charges were framed
against nine accused persons including the appellants and as
per the amended charges, nine accused persons were tried
for offences under Sections 120-B, 148, 452, 364, 365, 302
read with Section 120-B and 201, IPC.
3. At the trial, fourteen prosecution witnesses were
examined. lnder Singh was examined as PW-3 and he stated
that on 29.10.1991 the two appellants accompanied by twenty
E
to twenty five persons came in vehicles to the house and took
F
away the seven members of his family. PW-3 has further
deposed that he and his other relatives had approached the
higher authorities but all his efforts to get the seven persons
released did not yield any result. The evidence of PW-3 was
corroborated by his brother Sajjan Singh who was examined
G
as PW-4 as well as Jarnail Singh, a relation of PW-3, who was
examined as PW-5. Sarwan Singh, the son of PW-3, was also
examined as PW-6 and he stated that on 08.01.1992 he
happened to be present at the shop near the bus stand at
Amritsar when he noticed a Police Gypsy going on the road
H
......
556
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A and saw that his brother Hardev Singh was sitting in the vehicle
and even he gave a signal by raising his hand. He also stated
that there were other persons sitting in the vehicle but he did
not see them and made an attempt to chase the vehicle but he
could not do so. The appellants also examined as many as
B eleven witnesses in their defence that they have not taken
anybody in their custody as alleged by the prosecution.
4. The trial court rejected the defence of the appellants and
convicted the appellants under Sections 452, 364, and 302
read with Section 120-8, IPC, by its judgment dated
C 30.03.1998. The trial court thereafter heard the appellants on
the question of sentence and sentenced the appellants to three
years rigorous imprisonment and a fine of Rs.3,000/- for the
offence of house trespass for wrongful restraint under Section
452, IPC, five years rigorous imprisonment and a fine of
D Rs.4,000/- for the offence of abduction of Sadhu Singh, Gurdip
Singh, Hardev Singh, Amanjit Singh, Sharanjit Singh, Davinder
Singh and Sukhdev Singh in order to murder under Section
364, IPC and rigorous imprisonment for life and a fine of
Rs.50,000/- for the offence of murder of Sadhu Singh, Gurdip
E Singh, Hardev Singh, Amanjit Singh, Sharanjit Singh, Davinder
Singh and Sukhdev Singh under Section 302 read with Section
120-8, IPC. Aggrieved, the appellants filed Criminal Appeal
No.221-DB of 1998 before the High Court and by the impugned
judgment dated 06.04.2005, the High Court dismissed the
F appeal.
Contentions on behalf of the Appellants:
5. Mr. Amarendra Sharan, learned senior counsel
appearing for the appellants, submitted that while the incident
G was alleged to have taken place on 29.10.1991, the FIR was
registered on 19.01.1992 and there was, thus, a delay of two
months and twenty one days in lodging the FIR. He submitted
that this delay is sought to be explained by the prosecution by
saying that the complainant approached the S~nior
H Superintendent of Police and the Director General of Police
BALDEV SINGH v. STATE OF PUNJAB
557
[A.K. PATNAIK, J.]
and thereafter the Courts and even a writ petition before this
A
Court and only thereafter the complaint was registered as an
FIR. Mr. Sharan submitted that PW-3 belonged to a family of
prosperous farmers and his son PW-6 was serving in the police
and his fri~nd PW-5 was also a member of Punjab State
Congress Committee and had easy access to the Chief
8
Minister of the State and, therefore, the explanation given by
the prosecution for the delay of two months and twenty one days
in lodging the FIR cannot be accepted by the Court. He cited
the decision in Meharaj Singh (UNk.) v. State of UP. [(1994)
5 SCC 188] in which this Court has held that delay in lodging
the FIR often results in embellishment as well as introduction
C
of a coloured version or exaggerated story and the FIR loses
its value and authenticity.
6. Mr. Sharan next submitted that there was enough
evidence to show that there was enmity between the
D
complainant and the appellants. In this regard, he referred to
the evidence of PW-3, the complainant himself, that the brother
of the appellant-Baldev Singh was earlier kidnapped by the
terrorists on 18.10.1991 and the appellant-Baldev Singh was
under the impression that Gurdip Singh (brother of PW-3) was
E
responsible for getting Kuldip Singh kidnapped and earlier
Kundan Singh, who was a co-accused with the appellants but
acquitted by the trial court, had asked the family of PW-3 to
accept some girl for marriage with the son of PW-3 Hardev
Singh, but Hardev Singh rejected the proposal. He submitted
F
that as there was enmity between the family of PW-3 and the
appellants, PW-3 has lodged the false complaint against the
appellants.
7. Mr. Sharan next submitted that the evidence of PW-3
and PW-4 on which the trial court and the High Court relied on
G
for holding the appellants guilty, is not reliable because the
statements were recorded under Section 161, Cr.P.C., for the
first time in July, 1994 more than two years after the incident
and this fact has been admitted by the Investigating Officer
H
558
SUPREME COURT REPORTS
[2013) 9 S.C.R.
A (PW-10), who recorded the statements. He cited the decisions
of this Court in Jagjit Singh alias Jagga v. State of Punjab
[(2005) 3 SCC 689) and State of Andhra Pradesh v. S.
Swarnalatha & Ors. [(2009) 8 SCC 383) for the proposition that
the delay in examination of a witness in the course of
B investigation if not properly explained creates a serious doubt
about the reliability of the evidence of the witness.
8. Mr. Sharan referred to several improvements in the
deposition of PW-3 over his statements recorded during
investigation under Section 161, Cr.P.C. He cited Ashok
C Vishnu Davare v. State of Maharashtra [(2004) 9 SCC 431],
Radha Kumar v. State of Bihar (now Jharkhand) [(2005) 10
SCC 216) and Sunil Kumar Sambhudayal Gupta (Dr.) & Ors.
v. State of Maharashtra [(2010) 13 SCC 657), in which this
Court has not believed the evidence of prosecution witnesses
D on account of improvements in the deposition of the witnesses
made over their statements recorded under Section 161,
Cr.P.C.
9. Mr. Sharan submitted that police personnel, namely,
E SSP Sita Ram and SSP Hardeep Singh Dhillon, whose names
find place in the evidence of PW-3, PW-4 and PW-5, were
material witnesses and yet have not been examined by the
prosecution. He submitted that similarly, Sukhbans Kaur
Bhinder, Member of Parliament, and Beant Singh, Chief
F
Minister of the State, whose names also find place in the
evidence of PW-3, were material witnesses, but have not been
examined. He submitted that their evidence would have thrown
sufficient light on the prosecution case and the Court should
draw adverse inference against the prosecution for nonexamination of these material witnesses.
G
10. Mr. Sharan submitted that there is no evidence
whatsoever on record to show that the seven persons alleged
to have been abducted by the police have been killed by the
appellants. He cited the decision of this Court in State of
H Karnataka v. M. V. Mahesh [(2003) 3 SCC 353) in which it has
BALDEV SINGH v. STATE OF PUNJAB
559
[A.K. PATNAIK, J.]
been held that in the absence of definite evidence to indicate
A
that Beena had been done to death, the accused could not
have been convicted merely on the circumstance that the
accused and Beena were last seen together. He submitted
that in this case, PW-3, PW-4 and PW-5 have stated that they
had seen the seven persons in Fatehgarh Churian Police
B
Station and Kalanaur Police Station and PW-6 has further
stated that he saw and identified his brother Hardev in a Police
Van on 08.01.1992 at Amritsar. Mr. Sharan submitted that on
these facts, therefore, Section 106 of the Indian Evidence Act
was not attracted and the burden was not on the appellants to c
prove that they had not killed the seven persons who were
abducted by them. He cited Sahadevan and Another v. State
of Tamil Nadu [(2012) 6 SCC 403] in which this Court has held
that the last seen theory should be applied while taking into
consideration the prosecution case in its entirety and keeping
0
in mind the circumstances that precede and follow the point of
being so last seen. He submitted that if the aforesaid principle
as laid down by this Court in Sahadevan and Another v. State
of Tamil Nadu (supra) is applied then the appellants could not
be held guilty of the offence of murder of the seven persons.
E
11. Mr. Sharan next submitted that there is no evidence
whatsoever before the court that the seven persons are dead
and are not alive and the trial court has erroneously drawn the
presumption that the seven persons are dead by applying
Section 108 of the Indian Evidence Act. He cited the judgment
F
of this Court in UC of India v. Anuradha [(2004) 10 SCC 131
in which the principle behind Section 108 of the Indian
Evidence Act is explained. He submitted that in any case, if
there was any evidence against the appellants for the offence
of murder of the seven persons under Section 302, IPC, the
G
same should have been put to the appellants by the Court under
Section 313, Cr.P.C., but this has not been done in this case.
He vehemently argued that the conviction of the appellants for
the offence of murder of seven persons under Section 302, IPC
is without any evidence whatsoever.
H
560
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A Contentions on behalf of the State:
12. Mr. V. Madhukar, learned counsel appearing for the
State of Punjab, in his reply, submitted that in this case though
the complaint was filed by PW-3 on 19.01.1992 nothing was
B done for quite sometime and, therefore, PW-3 approached this
Court in a habeas corpus petition to secure the release of the
seven members of his family and on 15.09.1994 this Court
passed an order directing that an inquiry should be conducted
by the Central Bureau of Investigation. He submitted that
pursuant to the said order of this Court, the Director of the
C Central Bureau of Investigation submitted his report dated
15.12.1994 and thereafter the investigation was carried out by
the Crime Branch of the Punjab Police and the charge-sheet
was filed against the two appellants and others. He submitted
that the delay in lodging the FIR in this case on the part of PWD 3 must be on acc;ount of the fact that the complaint was against
the police personnel themselves and PW-3 must be
contemplating whether or not to lodge such a complaint. He
submitted that this was, therefore, an extra-ordinary case and
this Court has held in Prithipal Singh & Ors. v. State of Punjab
E & Anr. [(2012) 1 sec 1 OJ that in such an extra-ordinary
situation, the Court has to bear in mind the peculiar facts and
innovate the law accordingly. He submitted that in the extraordinary facts in which PW-3, had to lodge the FIR, the delay
F
in lodging the FIR should be ignored by the Court.
13. Mr. Madhukar next submitted that the evidence of PW3, PW-4 and PW-5 on material aspects of the case are that
the appellants took into custody seven persons, who were
members of the family of PW-3, on 29.10.1991 and this was
G the case of PW-3 in the complaint filed by him on 19.01.1992
as well as in his statement recorded under Section 161,
Cr.P.C., in the course of the investigation. The omissions in the
statements recorded under Section 161, Cr.P.C., which have
been supplied during the evidence of the witnesses in Court,
H do not detract from this basic prosecution story and, therefore,
BALDEV SINGH v. STATE OF PUNJAB
561
[A.K. PATNAIK, J.]
are not "contradictions" covered by the Explanation under
A
Section 162, Cr.P.C. He further submitted that the delay in
recording the statements under .Section 161, Cr.P.C. in this
extra-ordinary case should not be held fatal to the prosecution
case as the main prosecution story that the appellants abducted
seven members of the family of PW-3 has been consistently
B
reiterated all throughout, from the date of the complaint made
on 19.01.1992 to the dates of the examination of witnesses by
the Court. He submitted that the motive of the appellants to
abduct the seven members of the family of PW-3 obviously was
revenge as will be clear from the evidence of PW-3 and thus c
the trial court and the High Court rightly believed the evidence
of PW-3, PW-4 and PW-5.
14. Mr. Madhukar submitted that seven other police
personnel who went along with the appellants to abduct the
seven members of the family of PW-3 were not examined as
D
prosecution witnesses as they were also accused persons and
these seven persons, namely Kundan Singh, Sukhwinder
Singh, Balwinder Singh, Gurmukh Singh, Amrik Singh, Nirmal
Singh and Randhir Singh, have been acquitted by the trial court.
He submitted that the only evidence which has come on record
E
regarding Sita Ram, SSP, Batala, is that a message was
received from him that seven persons will be collected from the
office of Sita Ram, SSP. He submitted that if Sita Ram, SSP,
would have been examined he would ha'1e only denied that he
had given such message and hence non-examination of Sita
F
Ram, SSP, as a witness in court should not be held against
the prosecution.
15. Mr. Madhukar vehemently submitted that the appellantBaldev Singh was a DSP in the Police Department and had
G
control over all the Police Stations under him and if this fact
along with the fact that the appellant-Baldev Singh abducted the
seven members of the family of PW-3 are taken into
consideration, then the burden of proving as to what happened
to the seven persons abducted by him was on him under
H
562
SUPREME COURT REPORTS
[2013) 9 S.C.R.
A
Section 106 of the Indian Evidence Act. He submitted that as
the appellants have not discharged this burden of proving facts
especially within their knowledge, the trial court and the High
Court rightly held that the seven abducted persons have been
murdered by the appellants. In support of this argument, he cited
B the decisions of this Court in Ram Gu/am Chaudhary & Ors.
v. State of Bihar [(2001) 8 SCC 311) and Badshah & Ors. v.
State of Uttar Pradesh [(2008) 3 SCC 681). He submitted that
in these two cases it was held that even though the dead-body
of a person alleged to have been murdered was not
c discovered, conviction for murder under Section 302, IPC, can
still be recorded if there exists strong circumstantial evidence
and if the accused is unable to offer any explanation regarding
facts especially within his knowledge as provided under
Section 106 of the Indian Evidence Act. He submitted that this
0
is, therefore, not a fit case where this Court should interfere with
the concurrent findings of fact recorded by the trial court and
the High Court against the appellants and should dismiss the
appeal.
E
Findings of the Court:
16. The first question that we have to decide is whether
the delay of 2 months and 21 days in lodging the FIR could
make the prosecution case one which is not believable. There
cannot be any doubt that delay in the lodging of the FIR often
F
results in embellishment as well as the introduction of a
. distorted version of what may have actually happened, but the
facts of each case have to be examined to find out whether the
delay in lodging the FIR is fatal for the prosecution case. In the
present case, we find from the evidence of PW-3 that the
G terrorists were active in the State of Punjab and the police was
taking action against the terrorists and in such a state of affairs,
PW-3 was apprehensive of the consequences of lodging an
FIR against appellants, one of whom was a Deputy
,Superintendent of Police in control of several police stations
and the other was a police constable. Hence, after seven
H
BALDEV SINGH v. STATE OF PUNJAB
563
[A.K. PATNAIK, J.]
members of his family were picked up on 29.10.1991, PW-3
A
waited for 2 months and 21 days with the hope that they would
be released by the police and only after all his efforts to get
them released failed, he lodged the complaint on 19.01.1992
(Ex.PB). The fact that the complainant addressed the complaint
(Ex. PB) not to the police station but to the Director General of
B
Poiice, Punjab, is enough evidence of the fact that PW-3 was
afraid of lodging the complaint to the local police station which
was under the control of the appellant Baldev Singh.
17. To illustrate this point, we may refer to Gauri Shanker C
Sharma vs. State of U.P. [1990 (Supp) SCC 656]. In this case,
the facts were that Ram Dhiraj died of injuries received by him
after his arrest while he was in police custody. The prosecution
version was that he was beaten in police custody on 19.10.1971
by accused no.1 and his two companions after he was arrested
from his residence and brought to the police station. Even
D
though the High Court came to the conclusion that the deceased
was beaten after his arrest, the High Court refused to place
reliance on the direct testimony of three witnesses insofar as
involvement of the Station House Officer of Police Station was
concerned and one of the grounds for rejecting the evidence
E
of the three prosecution witnesses was that the telegram was
sent by PW-5 who had requested the Station House Officer not
to beat the deceased on 23.10.1971, where as the prosecution
case was that the injuries on the person of the deceased were
caused on the evening of 19.10.1971. This Court held that the
F
High Court has failed to appreciate that everyone thinks twice
before deciding to make so serious a complaint against a
police officer and there was no serious delay as to throw out
the evidence of the three witnesses on the ground of delay. In
our view, considering the fact situation, the delay of 2 months
G
and 21 days on the part of PW-3 to lodge the complaint to the
Director General of Police, Punjab, had been explained by PW3 and this is not a case where the prosecution case could be
disbelieved on the ground of delay in lodging the FIR.
H
564
SUPREME COURT REPORTS
[2013] 9 S.C.R.
A
18. We may next consider the contention of Mr. Sharan that
the trial court and the High Court should not have relied on the
evidence of witnesses when their statements under Section
161, Cr.P.C. were recorded for the first time in July, 1994,
almost more than two years after the incident and lodging of
. B the FIR. In Jagjit Singh alias Jagga v. State of Punjab (supra)
cited by Mr. Sharan, the relevant facts were that PW-6, who was
a young girl of 7 years age and resided in a different village
than that of Jagjit Singh did not say in her earlier statements
that she knew him, but in her statement recorded by the
c Investigating Officer under Section 161, Cr.P.C. she claimed
to have known him and on these facts this Court held that in
her earlier statements she did not name him and the delay in
examining her in course of investigation also creates a serious
doubt in the absence of any explanation for her late examination
0
after 3 days and further held that though she may have
witnessed the occurrence, she did not know Jagjit Singh and
she had no opportunity of knowing or seeing him earlier and
she has involved him at the instance of her father when her
statement was recorded by the Investigating Officer. In the facts
of the present case, on the other hand, PW-3 and PW-4, who
E have stated in their evidence before the court that on
29.10.1991 the appellants Baldev Singh and Balvinder Singh
came in 3-4 vehicles and took the seven members of their
family in the Gypsy and knew the two appellants who lived in
village Ram Diwali which was at a small distance from the
F village of PW-3 and PW-4. Further, in the very first complaint
lodged by PW-3 on 19.01.1992, PW-3 has named the
appellants Baldev Singh and Balvinder Singh as the persons
who raided their house and picked up seven members of his
family. Hence, the fact that there was considerable delay of two
G years from the date of lodging the FIR and recording of
statements of PW-3 and PW-4 and other witnesses does not
make their evidence, that the appellants picked up seven
members of their family on 29.10.1991 at 5.00 a.m., doubtful.
H
19. In State of Andhra Pradesh v. S. Swamalatha & Ors.
BALDEV SINGH v. STATE OF PUNJAB
565
[A.K. PATNAIK, J.]
(supra) also cited by Mr. Sharan, the prosecution relied on the
A
evidence of PW-3, a taxi driver, who claimed to have taken the
accused persons to the house where the two persons died
homicidal death and he also said that the accused persons
entered into the house and asked him to stay on at that place
and after half an hour all of them came out of the house and
B
asked him to drop them at Ring Road, Dilsukhnagar. This
Court found that PW-3 in his statement under Section 161,
Cr.P.C. had mentioned the names of only two accused persons,
but in his deposition before the Court, he took the names of
six accused persons and further PW-3 was not taken by the
C
Investigating Officer to the house in question to identify the
house where the incident has taken place. On these facts, this
Court held that the statement of PW-3 which was recorded by
the Investigating Officer only on 31.01.1999 when the murder
of the deceased had taken place on 03.12.1997 was not
reliable, particularly when his statement was also recorded
D
under Section 164, Cr.P.C. before the recording of his
statement under Section 161, Cr.P.C. Thus, considering the
peculiar facts of this case, the delay in recording the statement
of witnesses by the Investigating Officer under Section 161,
Cr.P.C. was held against the prosecution by this Court. In the
E
facts of the present case, the investigation was against the
Deputy Superintendent of Police and several other police
persons and the investigation was being conducted by the
Investigating Officer of the Crime Branch of the State Police.
There was, therefore, resistance within the police against the
F
investigation and it was only on account of intervention of this
Court in Writ Petition (Criminal) No. 221 of 1994 that there was
progress in the investigation and the statements of witnesses
came to be recorded by the Investigating Officer. This being
explanation for the delay in examining the witnesses under G
Section 161 Cr.P.C., we are not inclined to accept the
statement on behalf of the appellants that the prosecution
witnesses should not be relied on because of delay in recording
the statements under Section 161, Cr.P.C.
H
566
SUPREME COURT REPORTS
[2013) 9 S.C.R.
A
20. We are also unable to accept the submission of Mr.
Sharan that the evidence of PW-3 and PW-4 ought not to be
relied on by the trial court and the High Court when there was
evidence to show that there was enmity between PW-3 and
PW-4 on the one hand and the appellants on the other hand.
B Where there is previous enmity between the witness and the
accused, the evidence of the witness has to be carefully
scrutinized by the Court before it is accepted, but only on
account of such enmity the Court cannot discard the evidence
of the witness altogether [See State of U.P. vs. Kishanpa/ and
C Others (2008) 16 SCC 73). Moreover, witnesses who are not
related to a victim of an offence are in some situations difficult
to find. This is one such situation where the appellants have
come to the house of the complainant (PW-3) early in the
morning at 5.00 am on 29.10.1991 and picked up seven
0
members of his family and it is difficult to find persons
witnessing this incident at 5.00 a.m. during the last part of
October. Moreover, one of the appellants was a Deputy
Superintendent of Police and therefore even if some one had
witnessed the incident, he would prefer not to narrate the
incident either before the Investigating _Officer or before the
E Court. In such a situation, the Court has to consider carefully
and cautiously the evidence of witnesses who may have had
enmity with the accused. On such careful and cautious
consideration, it is difficult to discard the evidence of PW-3 that
the appellants picked up seven members of his family on
F 29.10.1991 at 5.00 a.m. from his house particularly when it is
corroborated by the evidence of PW-4 as well as the complaint
dated 19.01.1992 (Ext. PB) of PW-3 which had been
registered as the FIR. In our considered opinion, therefore, the
trial court and the High Court could not have rejected the
G evidence of PW-3 and PW-4 on the ground of enmity between
PW-3 and PW-4 on the one hand and the appellants on the
other hand.
21. We may now consider the submission of Mr. Sharan
H that there were improvements in the deposition of PW-3 over
BALDEV SINGH v. STATE OF PUNJAB
567
[AK. PATNAIK, J.]
his statements recorded during the investigation under Section
A
161 Cr.P.C. The Explanation under Section 162, Cr.P.C.
provides that an omission to state a fact or circumstance in the
statement recorded by a police officer under Section 161,
Cr.P.C.