# ESHER SINGH v. ST A TE OF ANDHRA PRADESH

- **Citation:** [2004] 2 S.C.R. 1180
- **Court:** Supreme Court of India
- **Decided:** 2004-03-15
- **Case number:** Criminal Appeal No. A 1.363 of 2003
- **Bench:** Doraiswamy Raju, ARlJIT PASAYAT
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/esher-singh-v-st-a-te-of-andhra-pradesh-19689
- **Pages:** 32

## Headnote

Penal Code, 1860-Sections l 20A, l 20B and 302-Criminal Procedure
Code, 1973--Section 2(b)-Terrorist and Disruptive Activities (Prevention)
C Act, 1987 (TADA)--Sections 3(3), 4, 5, 6 and 15-Appellant was involved in
giving provocative speeches for formation of Khalistan and inciting violence
fanning religious feelings-Appellant and other accused charged for criminal
conspiracy and murder of deceased under IPC and TADA-Prosecution relied
on confession statement of one of the accused, who died without facing trial,
in convicting the appellant-Designated Court convicted only the appellant
D under section 4 of TADA for making provocative speeches and acquitted the
appellant and other accused from the offence of criminal conspiracy and
murder-Designated Court disregarded the evidences of some witnesses being
relatives of the deceased-Correctness of-Held, use of a confessional statement
against the accused under Section 15 of TADA is permissible when both the
accused making the confessional statement and the co-accused are facing
E trial after framing of charges-Designated Court was wrong in disregarding
the evidences of witnesses merely on the ground of relationship without giving
reasons-Evidences of such witnesses can be acted upon if they are cogent
and credible-Ingredients necessary for conviction under section 4 of TADA
have been clearly established by prosecution against appellant-On evidence,
p the conviction for criminal conspiracy and murder not established by
prosecution-Evidence Act, I 872 : Section 30-Jndian Arms Act, 1959 : Section
27.
Constitution of India-Article 136--Special Leave Petition by son of
the deceased challenging the acquittal of appellant and other accused by
G Designated Court-Maintainability of-Held, maintainable-Supreme Court
has discretionary power to entertain such appeal to prevent serious miscarriage
of justice.
Appellant and other accused intended to take over the institutions
established by the deceased and make a base for Khalistan movement. The
H
.llW
(
ESHER SINGH v. STATE OF A.P.
1181
appellant was involved in giving provocative speeches for formation of A
Khalistan and inciting violence fanning religious feelings. The appellant
and other accused were charged for criminal conspiracy and murder of
t
the deceased under sections 120-B and 302 read with 120-B IPC, 3(2) of
the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and
Section 27 of the Indian Arms Act, 1959 read with Section 5 and 6 of B
TADA .
...
~
The Designated Court, on the basis of the evid,!nce tendered by PWs
16 and 32 and corroborated by the confessional statement of one of the
accused (A-5), held the appellant guilty of offence punishable under section
-
4 of TADA and sentenced him to rigorous imprisonment for 5 years and. c
a fine of Rs. 1000 with default stipulation. The Designated Court did not
)
rely on evidences of other .witnesses on the ground of relationship with
the deceased; however it acquitted the appellant and other accused against
other offences since the allegations were not established. Appeals were filed
before this Court by the appellant challenging his conviction under section
4 of TADA and by the State challenging the acquittal of the appellant and D
other accused persons from other offences charged with. An appeal was
also filed by the son of the deceased before this Court.
The appellant contended that the evidence of PWs 16 and 32 do not
prove the accusations against the appellant; that no specific instance of E
fanning of religious feelings through provocative speeches for formation
'
of Khalistan and creating communal disharmony by the appellant was
-~~
proved; that the confessional statement of the accused (A-5), who died
before the charges were framed, was not admissible in law; and that the
Designated Court acted upon certain statements which were made in the
Court for the first time and were not told during investigation. The F
~
appellant further contended that the appeal filed b

## Text

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A
B
ESHER SINGH
v.
ST A TE OF ANDHRA PRADESH
MARCH 15, 2004
[DORAISWAMY RAJU AND ARlJIT PASAYAT, JJ.]
Penal Code, 1860-Sections l 20A, l 20B and 302-Criminal Procedure
Code, 1973--Section 2(b)-Terrorist and Disruptive Activities (Prevention)
C Act, 1987 (TADA)--Sections 3(3), 4, 5, 6 and 15-Appellant was involved in
giving provocative speeches for formation of Khalistan and inciting violence
fanning religious feelings-Appellant and other accused charged for criminal
conspiracy and murder of deceased under IPC and TADA-Prosecution relied
on confession statement of one of the accused, who died without facing trial,
in convicting the appellant-Designated Court convicted only the appellant
D under section 4 of TADA for making provocative speeches and acquitted the
appellant and other accused from the offence of criminal conspiracy and
murder-Designated Court disregarded the evidences of some witnesses being
relatives of the deceased-Correctness of-Held, use of a confessional statement
against the accused under Section 15 of TADA is permissible when both the
accused making the confessional statement and the co-accused are facing
E trial after framing of charges-Designated Court was wrong in disregarding
the evidences of witnesses merely on the ground of relationship without giving
reasons-Evidences of such witnesses can be acted upon if they are cogent
and credible-Ingredients necessary for conviction under section 4 of TADA
have been clearly established by prosecution against appellant-On evidence,
p the conviction for criminal conspiracy and murder not established by
prosecution-Evidence Act, I 872 : Section 30-Jndian Arms Act, 1959 : Section
27.
Constitution of India-Article 136--Special Leave Petition by son of
the deceased challenging the acquittal of appellant and other accused by
G Designated Court-Maintainability of-Held, maintainable-Supreme Court
has discretionary power to entertain such appeal to prevent serious miscarriage
of justice.
Appellant and other accused intended to take over the institutions
established by the deceased and make a base for Khalistan movement. The
H
.llW
(
ESHER SINGH v. STATE OF A.P.
1181
appellant was involved in giving provocative speeches for formation of A
Khalistan and inciting violence fanning religious feelings. The appellant
and other accused were charged for criminal conspiracy and murder of
t
the deceased under sections 120-B and 302 read with 120-B IPC, 3(2) of
the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and
Section 27 of the Indian Arms Act, 1959 read with Section 5 and 6 of B
TADA .
...
~
The Designated Court, on the basis of the evid,!nce tendered by PWs
16 and 32 and corroborated by the confessional statement of one of the
accused (A-5), held the appellant guilty of offence punishable under section
-
4 of TADA and sentenced him to rigorous imprisonment for 5 years and. c
a fine of Rs. 1000 with default stipulation. The Designated Court did not
)
rely on evidences of other .witnesses on the ground of relationship with
the deceased; however it acquitted the appellant and other accused against
other offences since the allegations were not established. Appeals were filed
before this Court by the appellant challenging his conviction under section
4 of TADA and by the State challenging the acquittal of the appellant and D
other accused persons from other offences charged with. An appeal was
also filed by the son of the deceased before this Court.
The appellant contended that the evidence of PWs 16 and 32 do not
prove the accusations against the appellant; that no specific instance of E
fanning of religious feelings through provocative speeches for formation
'
of Khalistan and creating communal disharmony by the appellant was
-~~
proved; that the confessional statement of the accused (A-5), who died
before the charges were framed, was not admissible in law; and that the
Designated Court acted upon certain statements which were made in the
Court for the first time and were not told during investigation. The F
~
appellant further contended that the appeal filed by the son of the deceased
is not maintainable under Article 136 of the Constitution of India.
The State, in its appeal, contended that accused A-5 had categorically
confessed about the involvement of the appellant and other accused in the
crime; that the death of the accused A-5, before framing of charges, cannot G
affect the authenticity of the voluntary confession statement; that the
confession of the co-accused is substantive in nature and can be treated
as evidence under section 15 of TADA or under section 30 of the Indian
~
Evidence Act, 1872; that the evidences of other witnesses, besides PWs 16
=--._/
and 32, and other materials on record clearly establish the role played by H
1182
SUPREME COURT REPORTS
(2004] 2 S.C.R.
A various accused persons, the chain of events and motive for the crime and
hence the Designated Court erred in acquitting the appellant and other
accused from other charged offences; and that this a fit case under section
3(3) of the Act and offences under the IPC have been clearly established.
The son of the deceased, in his appeal, besides adopting the
B contentions of the State, contended that Section 15 of TADA should not
be given a too technical interpretation as to disturb the true legislative
intent.
Dismissing the appeals, the Court
C
HELD: 1. A person becomes an accused for the purpose of trial after
the charges are framed. The question of having a trial before charges are
. framed does not arise. Therefore, the only interpretation that can be given
to the expression "charged and tried" in Section 15 of TADA is that the
use of a confessional statement against the accused is permissible when
D both the accused making the confessional statement and the co-accused
are facing trial after framing of charges. [1197-D-E]
E
Kalpanath Rai v. State (through CBI), [1997) 8 SCC 732; State through
Super intendant of Police, CBI/SIT v. Nalini and Ors., [1999) 5 SCC 253 and
State of Gujarat v. Mohammed Atik and Ors., [1998) 4 SCC 351, relied on.
2.1. When the basic features are stated, unless the elaboration is of
such nature that it creates a different contour or colour of the evidence,
the same cannot be said to have totally changed the complexion of the case.
In addition to the evidence of PWs 16 and 32, the evidence of PW-21
provides the necessary links and strengthens the prosecution version. The
F evidence of PW-24 was not tainted in any way, and should not have been
discarded and disbelieved only on surmises. PW-3, the son of the deceased,
has also stated about the provocative statements in his evidence. PW-14
has spoken about the speeches of the appellant highlighting the Khalistan
movement. The Designated Court had not given importance to th.e
G evidence of some of the witnesses on the ground that they were relatives
of the deceased. The approach is wrong. Mere relationship does not
discredit the testimony of a witness. What is required is careful scrutiny
of the evidence. If after careful scrutiny, the evidence is found to be
credible and cogent, it can be acted upon. [1198-G-H; 1199-A-C]
H
2.2. In the instant case, the trial Court did not indicate any specific
...,
-
-
-
'
/
ESHER SINGH v. STA TE OF A.P.
1183
reason to cast doubt on the veracity of evidence of the witnesses, whom it A
had described to be the relatives of the deceased. PW-24 has categorically
stated about the provocative speeches by A-1. The evidence makes the
position crystal clear so far as accusations against appellant are concerned.
(1199-C)
3. For the purpose of applying sub-section (2) of Section 4 of TADA, B
the explanation appended thereto assumes great significance in the present
case; more particularly in view of the inclusive definition of "secession".
Demand for Khalistan is clearly encompassed by the said definition. The
ingredients necessary to bring in application of section 4 of TADA have
been clearly established. (1200-F-G)
C
3.1. None of the witnesses examined on behalf of the prosecution
stated anything about the descriptive particulars of the assailants. There
was also no evidence of the appellant indulging in any manner armed with
firearms or explosives. The evidence of witnesses goes only to the extent
of showing that the appellant was giving provocative speeches for D
formation of Khalistan and inciting the Sikhs for violence fanning religious
feelings. Merely because the appellant-accused was holding the deceased,
as alleged, to be responsible for the killing of six Sikh students that per se
does not prove conspiracy. [1202-G-H; 1203-A-B)
3.2. The essence of a criminal conspiracy under the definition in E
Section 120-A IPC is the unlawful combination and ordinarily the offence
is complete when the combination is framed. Unless the statute so requires,
no overt act need be done in furtherance of the conspiracy, and that the
object of the combination need not be accomplished, in order to constitute
an indictable offence. Law making conspiracy a crime, is designed to curb
immoderate power to do mischief which is gained by a combination of the F
minds. The encouragement and support which co-conspirators give to one
another rendering enterprises possible which, if left to individual effort,
would have been impossible, furnish the ground for visiting conspirators
and abettors with condign punishment. The conspiracy is held to be
co~inued and renewed as to encompass all its members wherever and G
wh·1mever any member of the conspiracy acts in furtherance of the
COrfthlOD design. [1203-F-G).
.
American Jurisprudence Vol. II p. 559, referred to.
3.3. For an offence punishable under section 120-B IPC, prosecution H
1184
SUPREME COURT REPORTS
(2004) '.! S.C.R.
A need not necessarily prove that the perpetrators expressly agree to do or
cause to be done illegal act; the agreement may be proved by necessary
implication. Offence of criminal conspiracy has its foundation in an
11greement to commit an offence. A conspiracy consists not merely in the
~ntention of two or more, but in the agreement of two or more to do an
B μnlawful act by unlawful means. So long as such a design rests in intention
only, it is not indictable. When two agree to carry it into effect, the very
plot is an act in itself, and an act of each of the parties, promise again~
promise, actus contra actum, capable of being enforced, if lawful,
punishable if for a criminal object or for use of criminal means. The
essence of criminal conspiracy is an agreement to do an illegal act and
C such an agreement can be proved either by direct evidence or by
circumstantial evidence or by both. The circumstances proved before,
during and after the occurrence have to be considered to decide about the
complicity of the accused. There is no difference between the mode of proof
of the offence of conspiracy and that of any other offence.
D
(1203-H; 1204-A-B, D; 1205-A]
Bhagwan Swarup Lal Bishan Lal etc. etc v. State of Maharashtra, AIR
(1965) SC 682.
Halsbury's Laws of England 4th Ed. Vol. 11 P. 58.
E
3.4. As in all other criminal offences, the prosecution has to
discharge its onus of proving the case against the accused beyond
reasonable doubt. A few bits here and a few bits there on which the
prosecution relies cannot be held to be adequate for connecting the accused
with the commission of the crime of criminal conspiracy. It has to be shown
F that all means adopted and illegal acts done were in furtherance of the
object of conspiracy hatched. The circumstances relied for the purposes
of drawing an inference should be prior in point of time than the actual
commission of the offence in furtherance of the alleged conspiracy.
(1206-A-C]
G
v.c. Shukla v. State (Delhi Admn.), [1980] 2 sec 665, referred to.
H
3.5. The provisions of Section 120A and 120B IPC have brought the
law of conspiracy in India in line with the English Law by making the
overt act unessential when the conspiracy is to commit any punishable
offence. [1206-F]
-
(
-
ESHER SINGH i·. ST A TE OF A.P.
1185
Regina v. Murphy, 11837] 173 ER 502, referred to.
Russell on Crime, 12th Ed. Vol. I. p 202; Criminal Law by Glanville
Williams, Second Ed. p.382, referred to.
A
4.1. In a case where the agreement is for accomplishment of an act
which by itself constitutes an offence, then in that event, no overt act is B
necessary to be proved by the prosecution because in such a situation,
criminal conspiracy is established by proving such an agreement. Where
the conspiracy alleged is with regard to commission of a serious crime of
the nature as contemplated in Section 120B read with the proviso to subsection (2) of Section 120A IPC, then in that event mere proof of an C
agreement between the accused for commission of such a crime alone is
enough to bring about a conviction under Section 120B and the proof of
any overt act by the accused or by any one of them would not be necessary.
The provisions, in such a situation, do not require that each and every
person who is a party to the conspiracy must do some overt act towards
the fulfilment of the object of conspiracy. The essential ingredient being D
an agreement between the conspirators to commit the crime and if these
requirements and ingredients are established, the act would fall within the
trapping of the provisions contained in section 120B IPC.
(1207-F-H; 1208-AJ
S.C. Bahri v. State of Bihar, AIR (1994) SC 2420 and E.K. E
Chandrasenan v. State of Kera/a, AIR (1995) SC 1066, referred to.
4.2. The evidence as to the transmission of thoughts sharing the
unlawful act is not sufficient. A conspiracy is a continuing offence which
continues to subsist till it is executed or rescinded or frus.trated by choice
of necessity. During its subsistence whenever any one of the conspirators F
does an act or series of acts, he would be held guilty under Section 120-B
IPC. [1209-C-D)
Kehar Singh and Ors. v. The State (Delhi Administration), AIR (1988)
SC 1883, referred to.
4.3. When the evidence is tested, the inevitable conclusion is that the
Designated Court was justified in holding that accusations under Section
120-B IPC were not made out so far as the offences under IPC are
concerned. So far as the motive for the killing is concerned, the evidence
G
is clear to the extent that the appellant wanted removal of the deceased H
1186
SUPREME COURT REPORTS
[2004] 2 S.C.R.
A from the bodies of various trusts and educational institutions and not his
removal from this world. In the absence of adequate material to establish
commission of offences punishable under Section 302 or 302 read with
Section 120B IPC and Section 3(3), 5 and 6 of TADA and Section 27 of
the Arms Act, the appeals filed by the State and the complainant are
B without merit. [1211-F-G)
Ajay Agarwal v. Union of India and Ors., JT (1993) 3 SC 203; Yashpal
Mittal v. State of Punjab, [1977) 4 SCC 540 and State of Maharashtra v. Som
Nath Thapa, (1996) 4 SC 615, relied on.
C
5.1. Article 136 of the Constitution neither confers on anyone the
right to invoke the jurisdiction of this Court nor inhibits anyone from
invoking the Court's jurisdiction. The power is vested in this Court but
the right to invoke the Court's jurisdiction is vested in no one. The exercise
of the power of this Court is not circumscribed by any limitation as to
who may invoke it. Where a judgment of acquittal by the High Court has
D led to a serious miscarriage ofjustice, this Court cannot refrain from doing
its duty and abstain from interfering on the ground that a private party
and not the State has invoked the Court's jurisdiction. This Court can
entertain appeals against judgments of acquittal by the High Court at the
instance of interested private parties also. The circumstance that the Code
does not provide for an appeal to the High Court against an order of
E acquittal by a subordinate Court, at the instance of a private party, has
no relevance to the question of the power of this Court under Article 136.
Appeals under Article 136 of the Constitution of India are entertained by
special leave granted by this Court, whether it is the State or a private
party that invokes the jurisdiction of this Court, and special leave is not
p granted as a matter of course but only for good and sufficient reasons,
well established by the practice of this Court. (1201-A-G)
Durga Shankar Mehta v. Thakur Raghuraj Singh, AIR (1954) SC 520;
Mohan Lal v. Ajit Singh, (1978] 3 SCC 279; A_runachalam v. P.S.R.
Sadhqnantham and Anr., (1979] 2 SCC 279 and P.SR. Sadhanantham v.
G Arunachalam and Anr., (1980] 3 sec 141, referred to.
5.2. In the instant case, both the State and son of the deceased have
questioned the correctness of the impugned judgment. Appeal filed by the
son of the deceased is first in point of time. On the facts of the case, the~e
is no question of holding the appeal filed by the son of the deceased to be
H not maintainable. (1202-F)
I •r
-
ESHER SINGH v. STATE OF A.P. [PASA YAT. J.J
1187
~
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. A
1.363 of 2003.
From the Judgment and Order dated 17.10.2003 of the Illrd Additional
Metropolitan Sessions Judge, Hyderabad in S.C. No 186 of I 989.
WITH
(Criminal Appeal Nos. 1523 and 1524 of 2003)
R.K. Jain, Hardev Singh, U.R. Lalit, Mrs. K. Amreshwari, S.S. Nehra,
Dr. J.B. Gour, Abhav· Prakash Sahay, P.R. Ramasesh and Guntur Prabhakar
B
---
for the Appearing Parties.
C
...
,,
........ __ ...
'-.,
The Judgment of the Court was delivered by
ARIJIT PASAYA T, J. The matrix of these three appeals is a judgment
rendered by the III Additional Metropolitan Sessions Judge, Hyderabad acting
as the Designated court under the Terrorist and Disruptive Activities D
• (Prevention) Act, 1987 (in short the 'TADA').
Nine persons were alleged to be responsible for homicidal death of one
Joga Singh (hereinafter referred to as the 'deceased'). Five of them faced trial
and one of them Nishan Singh (A-3) died during the trial and therefore the
case abated so far he is concerned. The accused persons who faced trial were E
Esher Singh (A-1), Nanak Singh Nishter (A-2), Nishan Singh (A-3), Dilbagh
Singh (A-4) and Rajender Singh Dhingra (A-6). Ram Singh (A-9) absconded.
Charge sheet was filed against A-1 to A-9 for offences punishable under
Sections 120B and 302 read with Section 120B of the Indian Penal Code,
1860 (in short the 'IPC'). Section 3(3) of TADA and Section 27 of the Indian F
Arms Act, 1959 (in short the 'Arms Act'), read with Sections 5 and 6 of
TADA.
'l_ ·-,,The Trial Court found that accused Esher Singh, (appellant in Crl.A.
No. 1363/2003) was guilty of offence punishable under Section 4 of TADA
and while fu~her holding that the other allegations were not established so G
far as appellant Estter Singh and other co-accused are concerned. Esher Singh
.
"
was convicted as afore~noted and sentenced to suffer rigorous impriso.nment
for five years and to pay ¥ne of Rs. I ,000 with default stipulation. While .
Esher Singh questions legalit)( of the conviction and sentence imposed, the
State of Andhra Pradesh has quhtioned acquittal of the accused persons who
faced trial, and their non-conviction for the charged offences:
H
1I88
SUPREME COURT REPORTS
[2004] 2 S.C.R.
A
The State's appeal is numbered as Criminal Appeal No. 1524/2003.
B
Balbir Singh son of deceased Joga Singh has filed Criminal Appeal No.
1523/2003 with grievances similar as that of the State of Andhra Pradesh.
Accusations which led to the trial of the accused persons are essentially
as follows:
Accused persons conspired to kill deceased Joga Singh, to abet terrorist
and disruptive activities. Deceased had established many educational
institutions to serve Sikh community like Gurunanak Hospital in 1969,
Gurunanak Public School Bidar in 1975, Gurunanak School at Hyderabad in
1978 and could successfully establish Gurunanak Dev Engineering College
C at Bidar in August, 1980. Accused persons intended to take over the said
institutions and make a base for Khalisthan movement. After "Operation
Blue Star" which wounded the religious feelings of Sikhs, the Pro-Khalistan
militant Sikh Students Organisation had its watchful eyes on Sikh student
population of Bidar to establish its base. Dilbagh Singh (A-4) an activist of
D all India Sikh Students Federation (AISSF) who was studying in II year in the
Gurunanak Dev Engineering College came in contact with Deepender Singh
(A-5) who was student of Regional Engineering College, Balky. Others
involved were some wanted activists of AISSF. After proposed move of the
Government of India to have a comprehensive legislation for all Gurudwaras,
the deceased Joga Singh created a trust in the name of Shree Nanak Jheera
E Sahib Trust (Foundation) and transferred all the Educational Institutions to
the trust while delinking religious activities of the Gurudwara to Gurudwara
Nanak Jheera. Sahib and Mai Bhago. Deceased continued to be the head of
both the trust and Gurudwara.
Esher Singh (A-1) who was working as Sub-Inspector of Central Reserve
F Police Force left the service after "Operation Blue Star" and started moving
about in Hyderabad City wearing Bhindranwale type garments and organised
---
>
-. '
"
I
-----
~ '
processions carrying Bhindranwale pictures and held Bhog ceremony at /
""-._._.....
Gowliguda Gurudwara, Hyderabad. He was making efforts to inject rra'fiecf'
and disaffection among the Sikhs and could successfully ta)'!'/t;'~er the
Barambala Gurudwara at Rajendranagar, Attapur in Sikp/ ..... Chavani and
G successfully tried to bring some militant youth under his f,0'1d and indoctrined
Pro-Khalistan ideology by imparting training to th~Jv(fn Shastra Vidya and
Karate at Sikh Chavani Attapur and Gowliguda. H~also attempted to advocate
the said ideology in Bidar among the student/ Nanak Singh Nishter (A-2)
who was president of Central Gurudwara, q6'wliguda and also an Executive
H Member of Shree Nanak Jhira Sahib,-Bidar, and Gurudwara Mai Bhago at
I
--
ESHERSINGH v. STATE OF A.P. [PASAYAT.J.J
1189
Janwada was actively assisting the deceased in his religious activities, felt A
disappointed and aggrieved by his non-inclusion as member of the Trust of
Prabhandak Committee, Nanak Jheera Trust in 1987. Nishan Singh (A-3)
was residing in Bidar since September 1987 as representative of Baba Charan
Singh who was incharge of Karseva of Kurukshetra Gurudwara. Attempts to
pursue deceased Joga Singh to transfer the Kar Seva agreement in his name
cancelling the earlier agreement of Baba Charan Singh did not yield any B
result. A-1 to A-3 developed hatred against the deceased, and launched tirade
against the deceased with a view to take over the seat of the deceased.
Dilbagh Singh (A-4) a native of Amritsar and active member of All India
Sikh Student Federation, Punjab, sought his admission in Gurunanak Dev
Engineering College, Bidar, and started enlisting students from North India C
into his Pro-Khalistan activities and became close associate of A-3. Deepender
Singh (A-5), resident of Nabha, Patiala, and student of Rural Engineering
College, Bhalki which is at a distance of 40 kms. from Bidar came in contact
with A-1 and A-3 and was frequently visiting Dhera of Karseva. A-1 and
others were rigorously pursing their plan and propagating Pro-Khalistan
ideology among Sikh students of Bidar Rajender Singh Dhingra (A-6) of D
Hind Motor Driving School and Sony Travels and relative of A-2 is staunch
supporter of A-1. Mohinder Singh (A-7) a native of Haryana, a proclaimed
offender and terrorist of Punjab who was involved in number of terrorist
cases was also close associate of A-3. Gurmail Singh (A-8) of Punjab is also
a terrorist of Punjab and participated in various crimes alongwith A-5, A-7 E
and A-9. Ram Singh (A-9) also is a wanted terrorist of Punjab who participated
in the present occurrence.
A-1 and A-2 who were entertained for their religious affiliation misused
the same by collecting donations from students seeking admissions in
Gurunanak Dev Engineering College, Bidar. On coming to know of the same, F
deceased discarded them. Movement started by deceased to start a Medical
College heightened the tensions which was building up with the arrival of
some Sikh boys from North India. Several non-f.ikh educational institutions
joined hands to organise an agitation against granting of permission to start
medical college, because they feared that it would be further increasing the G
number of Sikhs to about 1200, of which 1000 from North India having antiestablished stands. There was organised violence and riots in September,
1988, in which six Sikh students were killed, besides many were injured and
houses and shops of Sikhs were damaged and burnt, besides religious
institutions. A-1 to A-3 who were waiting for an opportunity to make their
inroads to contain the growing influence of the deceased Joga Singh and also H
1190
SUPREME COURT REPORTS
[2004] 2 S.C.R.
A to occupy his position, made number of visits to Bidar, contacted A-3, A-4
and A-5 and other militant Sikhs having Pro-Khalistan ideas for starting
tirade against the deceased Joga Singh. They also started an active propaganda
that contributions made by the Sikh community to the educational trust were
misused with a view to deprive the Sikh community. They also accused the
B
deceased of many improprieties including indifference to the security of Sikhs.
At the instance of A- I and A-2, a meeting of Sikh community was convened
on 22.9.1988 at Sikh Hostel Narayanguda, Hyderabad to pay homage to
departed souls of students who were killed in Bidar riots. In the meeting Al and A-2 proposed to hold Deewan-E-Aam on 2.10.88 at Bidar Gurudwara
with an ulterior motive of defaming and excommunicating the deceased and
C trustees and usurp the control ofGurudwara and the trust. A-1, A-2, A-3, A4, A-6 and others marshalled their associates, and mustered their strength.
having successfully augmented majority among the students who attended.
A-1 and A-2 gave highly inflammatory speeches making wild allegations
against the deceased and levelling allegations of mal-administration of religious
funds of the community, made the deceased responsible for the misery to
D Sikh students and accused him of having fai!ed in his responsibility to protect
the Sikhs at Bidar. In that way A-I to A-3 could successfully make a dent
in establishing a base for Pro-Khalistan movement and trying to get support
of those who were openly opposing the deceased Joga Singh. A-1 and A-2
made their own henchmen as Punj Pyaras and imposed punishment of
E "Thankayya" on the deceased and four others holding them responsible for
the death of Sikh students and for their religious impropriety. The deceased
and his supporters resisted the said move and the matter was referred to
Thakhat Such Khand Shri Hazur Saheb, Nanded, which is considered as
Southern region religious head of the Sikh community. Hazura Singh (DW36) who is one of the Punj Pyaras of Nanded Gurudwara made enquiries
F from A-1 and deceased, disapproved the move of A-1 of ex-communication
and imposition of punishment on the deceased. A-1 questioned the propriety
of decision taken by Hazura Singh (DW-36), but later obeyed the religious
order. Accused persons proclaimed that they will retaliate if the culprits are
not booked before 23rd November, 1988 (i.e. Guru Nanak Jayanthi) as a part
G of terrorist activity to create terror in the minds of moderate Sikhs.
On 28.12.1988, two vehicles bearing Nos. AHS 9424 AHA 1168 which
were carrying sixty ceiling fans were burnt by mob of students in Gurudwara
premises. In that regard a case i.e. Cr. No. 422/88 U/Ss. 143, 211, 136 r/w
149 IPC was registered at Gandhigunj P.S. of Bidar District against unknown
H students in which the complicity of A-4 was strongly suspected. A-1 and A-
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ESHERSINGH v. STATE OF A.P. [PASAYAT.J.j
1191
2 started printing, publishing and circulating highly inflammatory, defamatory A
propaganda against the deceased Joga Singh, instigating student community
against the deceased with a view to bring them under their fold and propagate
Pro-Khalistan among Sikh community and organise an organisation, calling
itself as "SIKH COMMANDO FORCE". They threatened the Government
with dire consequences under the pretext of championing the cause of Sikh B
Community.
Deceased was apprehensive of A-1 and his associates and made earnest
appeal to the authorities concerned requesting to contain the anti-national
activities, for protection and also to take steps to contain the Pro-Khalistan
activities. As a security measure, check post was established on the outskirts C
of Bidar to check the vehicles in which the Sikhs were entering into Bidar
and systematically check and numbers noted with a view to prevent inflow
of wanted Pro-Khalistan activities and arms and ammunition. Another check
post was established at the entrance of Gurdwara, Bidar, besides various
other major steps for tightening security at Bidar Gurudwara under charge of
M. Srivastava, Superintendent of Police, Bidar. One officer was also posted D
as Personal Security Officer to the deceased with a service revolver and
ammunitions.
A-1 to A-3 intensified their war against the deceased by abusing,
threatening, intimidating him. By the end of 1988 A-1 to A-3 could
successfully establish contact with the underground dreaded terrorist Mohinder E
Singh (A-7) in Nanded who was taking his shelter there. Thereafter A-7
shifted to Bidar alongwith his family and took shelter with A-3 in his Dhera
as a Kar Sevadar. A-5, A-8 and A-9 used to frequently move in the company
of Kar Sevadar alongwith A-3, A-4 and A-7. A-8 approached Dayal Singh
(PW-32), Avtar Singh (PW-26) and other residents of Hyderabad and requested F
them to join hands with them in removing deceased from being a religious
head. A-7 shifted to Hyderabad and got accommodation through PW-26 at
Hyderabad. A-1 and A-2 held secret meetings in Kishan Bagh Chavani and
made efforts to enlist services of Sikh youth to liquidate deceased Joga Singh.
A-1, A-2, A-3, A-4, A-5 to A-9 held number of meetings in the house of A2.
G
In the month of February 1989, during the examination of B.E. II year
at G.N.D.E. College, numbers of students including A-4 were caught while
they were indulging in mal-practices. At that time deceased refused to interfere
with the enquiry in the matter. At that time, A-3 and A-4 nourished hatred H
1192
SUPREME COURT REPORTS
[2004) 2 S.C.R.
A against the deceased. A-1 to A-9 entered into criminal conspiracy to do away
with deceased. A-1 was mastermind of conspiracy for liquidating the deceased.
A-5 and AM7 were entrusted with the job of securing weapons. A-2 and A3 provided shelter and finance for the operation, A-1 was entrusted to select
youth for operation of annihilation, while A-6 was to provide information
B and conveyance. A-8 and A-9 were entrusted with execution of annihilation
of deceased. In pursuance of said conspiracy, A-5 and A-9 went to Punjab
and secured A.K.47 rifles, one .32 revolver and 200 rounds of ammunition.
The accused persons surveyed the topography of proposed scene of offence
and were noticed late in the night of29.3.89. On 24.3.89 A-1, A-7, A-8 and
A-9 alongwith Professor Darshan Singh Ragi visited Bidar when the latter
C attended Keertan arranged by some devotees. At that time, the plan of action
proposed to liquidate Joga Singh could ·not be executed. A-8 through A-6
secured a red colour Maruti Car bearing Registration No. AEY 222 belonging
to PW-11 on payment of Rs. 64,000 A-7, A-8 and A-9 visited Bidar on
28.3.1989 in the said Maruti Car and contacted A-3, A-4 and A-5 to track
down the movements of deceased Joga Singh. In pursuance of said criminal
D conspiracy, A-5, A-7, A-8 and A-9 wfnt to the house of deceased in the red
colour Maruti Car while A-5 was waiting in the Car. A-8 armed with a .32
Revolver was guarding at the scene. A-7 and A-9 entered the house armed
with AK.47 assault rifle. On 30.3.89 at about 21.05 liours, while PW-1 was
serving dinner while other family members of deceased were witnessing the
E T. V. in the drawing-cum-dining hall, A-7 and A-9 entered into the drawing
cum dinning hall, opened fire with A.K. Assault rifle, pumped_bullets on
Joga Singh who succumbed to gun shot injuries and on seeing the same
Devender Singh (PW-I) and Balwanth Singh (PW-2) raised cries, tried to
chase them, but the A-7 and A-9 while retreating fired at them
indiscriminatively to scare them away. PW-1 chased them upto main road
F and came to know through P. Satyanarayan ( PW-8) that 4 to 5 persons fled
away in a red Maruti Car towards Darussalam while scaring the public by
opening fire in the air. A-5, A-7 and A-9 returned to the house where they
were staying and tried to quit the house immediately. Meanwhile Darshan
Singh (PW-14) .and others surrounded the house in which A-5, A-7 and AG 9, tried to apprehend them, bu~ they fled away into the dark. A-8 who made
attempt to escape on Luna bearing Registration No. AEA 1326 was surrounded
by them. He left the Luna and took to heels and he was chased by them and
on finding no way to escape, he fired in the air to scare them and finally shot
himself dead with his Revolver.
H
On receipt of the complaint a case (Cr. No. 63/89) under Section 302
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ESH ER SINGH 1·. STATE OF A.P. IPASA VAT . .I.]
1193
IPC and Sections 25 and 27 of the Arms Act was registered, inquest was
conducted over the dead body, and it was sent for post mortem. Blood stained
clothes of the deceased, empty cartridges and spent bullets were seized under
panchanamas. Residential portion of house of A-7 was searched and a driving
license, a receipt, H.P. Gas cylinder, clothes, utensils and other household
articles were seized. Naganath (PW-15) identified A-7 to be Mohinder Singh
alias Satwender Singh@ Satta involved in number of terrorist cases in Punjab
and Haryana. C. Narasingha Rao (PW-47) seized the application form,
reservation slip written by A-5 for himself and A-9 for their return journey
from Delhi to Hyderabad. Subsequently A-7 was killed in an encounter in the
intervening night of 16/17-5-1989. In that regard also one A.K. rifle was
seized from his possession which was deposited in the Court of Judicial
Magistrate of First Class, Sangrur. A-3, A-6, and A-5 were arrested on
3.4.1989, 7.4.1989 and 20.4.1989 respectively. Confessional statement of A5 was recorded under TADA and A-2 and A-1 were arrested on 27.4.1989
and 11.5.1989 respectively.
The trial Court on the basis of evidence tendered by PWs 16 and 32 as
corroborated by the confessional statement of A-5 held that the accused
appellant Esher Singh had committed the offence punishable under Section
4 of TADA. It was concluded that A-1 was giving provocative speeches for
formation of Khalistan and was inciting violence fanning the religious feelings.
Therefore the accusations clearly established commission of offence punishable
under Section 4 of TADA. It further came to hold that the other accusations
were not established. It was noted that the two assailants who fired the guns
leading to the death of the deceased were not identified. Since some of the
statements made in Court were not stated during investigation, the trial Court
did not attach any importance thereto.
In support of the appeal filed by accused Esher Singh, Mr. R.K. Jain
learned senior counsel submitted that the evidence of PWs 16 and 32 do not
prove the accusations. It was not stated during investigation regarding the
need for establishing Khalistan or about the claim alleged to have been made
A
B
c
D
E
F
that the accused appellant was Deccan Bhindrawala. Merely because he was
wearing clothes of a particular colour, that also did not establish commission G
of any offence. Statements made for the first time in court without having
been told during investigation should not have been acted upon by the trial
Court. No specific instance of the so called statements that allegedly led
communal dis-harmony or fanning of religious feelings, and the nature of
provocation alleged to have been made in the speeches fo.r formation of H
1194
SUPREME COURT REPORTS
[2004] 2 S.C.R.
A Khalistan was stated. The alleged confessional statement could not be relied
upon because A-5 who was claimed to have made the confession died on
13 .4.1991, even before the charges were framed and therefore was not
admissible in law. Even otherwise, the so called confessional statement. was
recorded when the custody of A-5 was illegal as was observed by the High
Court of Andhra Pradesh in Writ Petition No.14403/1989. The High Court
B has categorically held that the custody was illegal for the period between
31.3.1989 and 1.10.1989. Reference was made to Kalpnath Rai v. State
(Through CBI), [1997] 8 SCC 732 to contend that the conclusions drawn by
the trial Court were erroneous. In essence, it was submitted that the trial
Court was not justified in convicting the accused Esher Singh.
c
Learned counsel for the State submitted that A-5 had categorically
stated about the involvement of A-1. Not only PWs 16 and 32 but other
witnesses i.e. PWs I, 3, 14, 17; 19, 21 .and 24 spoke in detail about the role
played by various accused persons. The evidence of PW-21 ·has not been
discarded and the evidence of PW-24 should not have been dis-believed on
D mere surmises. The role played by accused Esher Singh was graphically
described by the prosecution witnesses and the trial Court has noted them.
Therefore, the consideration should not have been restricted only to the
evidence of PWs 16 and 32. The pamphlet distributed were published by Al and it clearly indicates what was in the mind of accused persons regarding
E giving a boost to the Khalistan movement and creating communal disturbances
and disharmony. The evidence of certain witnesses has been discarded on the
ground ofrelationship, which is not the correct approach. Merely because A5 died before charges were framed, that docs not affect the confessional
statement which has been held to be voluntary. On the peculiar facts of the
case, when initially · A-5 was not arrayed as an accused subsequently the
F doubts regarding certain aspects were set right by this Court and proceedings
continued so far as A-5 is concerned, the fact that he died before framing of
charge cannot affect the authenticity· of his confessional statement. Even if
for the sake of argument it is conceded that the same was not to be acted
upon in terms of Section 15 of TADA, yet by operation of Section 30 of the
G Indian Evidence Act, 1872 (in short the 'Evidence Act') it can be considered.
Initially, the trial Court had held that TADA had no application to the facts
of this case but this Court held that TADA applies. There is no magical
charm in the expression "charged and tried" used in Section 15 of TADA. It
can very well mean charged for trial. A person can be treated to be charged
when allegations are made and not necessarily when charges are framed. The
H confession of a co-accused is in the nature of substantive nature and Kalpnath
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ESHERSJNGH v. STATEOFA.P. [PASAYAT.J.]
1195
Rai's case (supra) has been over-ruled in State Through Superintendent of A
Police, CBI/SIT v. Nalini and Ors., [1999] 5 SCC 253. The /chain of
circumstances were clearly established, the car used for commission of the
offence was traced and therefore the circumstances clearly established that
the accused respondents along with others named were responsible for the
killing of deceased and therefore the acquittal from offence relatable to Section B
1208 and 302 cannot be maintained. The use of the cur standing near the
house of the deceased and the purchase and sale of the car are links which
have been overlooked. The circumstances like association of an accused with
others, and sharing of common/similar animus against the deceased have
been established. A-1 and A-2 had strong animosity and motive so far as
deceased is concerned.