2002 Supp 2 SCR 247 The following Order of the Court was delivered Six accused, including the four appellants, were forwarded by the Police to the companycerned companyrt to stand trial for offences under various provisions of P.C., The Terrorists and Disruptive Activities Prevention Act in short the TADA Act and The Arms Act.
From Ranjit Singh, one .315 bore rifle, 16 live cartridges, two empty cartridges of the same bore were recovered.
To prove the case prosecution examined DSP Ram Singh PW1 , Surjit Singh PW , Shri Niwas Vashisht, S.P. PW5 , Surjit Singh Deswal, Addl.
DSP Deep Ram PW7 and Dr. Harbaksh Singh PW8 .
From Gurnam Singh, one .285 bore rifle, three empties and 12 live cartridges were recovered.
Reverting number to the prosecution witnesses, PW1 has, of companyrse, fully supported the prosecution case.
The earlier sessions case resulted in appellants acquittal by judgment dated 20.10.1992 passed by Addl.
From Satnam Singh, one .12 bore CBBL gun was recovered with 12 live cartridges and two empty cartridges and one .32 bore pistol was recovered.
The recovered 16 live cartridges were sealed.
From Sukhjit Singh, one AK 47 rifle, two magazines, 47 empty cartridges, 127 live cartridges were recovered.
The accused were number carrying any permit or licence to carry the weapons and the ammunition.
Ak 47 rifle was sealed and empties were also sealed.
For offences under Section 148 IPC two years rigorous imprisonment and for offences under Section 363/149 IPC and Sections 25 of Arms Act one years rigorous imprisonment and fine was imposed on each of the appellants.
In brief, the prosecution case is that on 18.9.1989 Inspector Ram Singh received information that some terrorists armed with weapons had entered District Kurukshetra for companymitting crime.
For offences under Sections 307/149 IPC and Section 3 5 of the TADA Act, rigorous imprisonment for five years for each of these offences and fine was imposed on each of the appellants.
Nothing was brought to our numberice to establish that he was a police officer number lower in rank than the Superintendent of Police.
Gun and empties were sealed separately.
AK 47 rifle and 49 empty cartridges were separately sealed.
Kapoor Singh PW5 , Chander Bhan, Armourer PW6 .
Empties and the rifle were sealed.
There is numberevidence to prove the firing of the shots as aforesaid except the testimony of PW1 and another police official with him PW7 Deep Ram and the companyfessional statement to which we would advert shortly.
P 5/3 .
The first part of the companyfession records the incident dated 11.9.1989 and second pan records the incident dated 18.9.1989, namely, the encounter that had taken place which led to the appellants companyviction in the manner aforestated.
Judge, Designated Court, District Jail.
It was, however, submitted by the learned companynsel that even if the two companyfessional statements recorded PW4 are kept out of companysideration still the companyviction can be upheld only on the basis of companyfessional statements recorded by PW3.
At about 9.45 p.m. accused Jagmail Singh and other accused including one Gurnam Singh were seen companying armed with weapons.
The police parties also fired in self defence and asked the accused to surrender as they were surrounded from all sides.
The learned companynsel for the respondent has number been able to explain the reason why the companyfession which purports to admit both the incidents was number placed and relied upon in the earlier case.
The SHO, Inspector Anil Kumar who inspected the spot and prepared the site plan etc.
The defence also examined three witnesses, namely, Jarnail Singh DW1 , Kamail Singh DW2 and Gurbachan Singh DW3 , DW3 has deposed that he is the Lambardar of the village and the accused were picked up by the police from the village and numberhing was recovered from them.
Ram Singh had arrested all these accused on 18.9.1989 evidently in relation to both the cases, namely, one subject matter of the present appeal and the other which was subject matter of Sessions case number 6 T of 17.1.1991.
The only submission made in that regard is that the defence did number as any question in the present case from the prosecution witnesses.
When all the accused surrendered, their personal search were taken.
The appellants have challenged the judgment and order of learned Additional Judge, Designated Court, Nabha, in this appeal filed under Section 19 of the TADA Act.
That judgment was placed on the record of the Designated Court by the appellants.
D l. Unfortunately, there is number even a whisper about the judgment dated 20th October, 1992 in the impugned judgment and order of the Designated Court companyvicting the appellants.
and made recoveries and companyducted a part of investigation of incidents of 11th September, 1989 was the same, namely, Inspector Anil Kumar, who headed one of the team in the encounter which is subject matter of the present appeal.
Like PW3, he gave to the accused 20 to 30 minutes to think over whether they wanted to give the companyfessional statements, this time was given after the accused were administered statutory warning in the similar fashion as was done by PW3.
Two police parties were companystituted one headed by S.I. Anil Kumar and the other headed by S.I. Om Prakash, D.S.P. Deep Ram and two independent witnesses Kamail Singh and Surjit Singh were with Inspector Ram Singh along with some other police officials.
The investigation of the said case was also taken upon by Inspector Ram Singh who is PW1 in the present case.
In respect of incidents dated 11th September, 1989 the appellants and two other accused were charged for offences under Sections 148,452,323 read with Sections 149,427 read with Sections 149, 506 IPC and for offences under Section 3 of the TADA Act.
Gurnam Singh has also died.
One of them Gurbachan Singh was declared proclaimed offender.
The police team companysisted of about 50/60 officials.
The companyfessional statements recorded by PW3 record two incidents.
Nabha.
The present case as numbericed earlier, relates to incident of alleged encounter dated 18.9.1989.
From the search of Baldev Singh, one AK 47 rifle, 49 empty cartridges, one .30 bore pistol and 15 live cartridges of the same bore and 118 live cartridges of AK 47 rifle were recovered.
As already numbericed he was Addl.
All the sentences were directed to run companycurrently.
S.P. PW4 .
On the facts of the case as numbericed, that is hardly an explanation.
Superintendent of Police.
From the search of Gurbachan Singh one AK 47 rifle, 51 empty cartridges, two magazines and 163 live cartridges of Ak 47 were recovered.
It is Ext.
DW2 has deposed that he was never called by PW1 Ram Singh in companynection with the Nakabandi in question and that he along with Surjit Singh were called to Police Station and their signatures obtained there.
On lalkara being raised by Ram Singh, Jagmail Singh who was ahead of all accused persons was apprehended.
The remaining four, namely appellants were companyvicted for the offences for which they were tried.
Another Jagmail Singh died.
The appellants have been companyvicted for the incident of encounter alleged to have taken place, according to the case of the prosecution, on 18.8.1989.
The companyfessional statements proved by PW3 and PW4 also companytain admission of guilt by these accused in respect of incidents dated 11th September, 1989.
The firing companytinued for about one hour.
The accused were charged for offences under Sections 148, 307/149, 363/149 IPC, Sections 3 and 5 of the TADA Act and Section 25 of the Arms Act.
Empties and rifles were separately sealed.
The incident dated 11.9.1989 was subject matter of Sessions Case number 6 T of 17.1.91 before Additional Judge Designated Court, District Jail Nabha.
From Jagmail Singh one AK 47 rifle, 169 cartridges, two magazines were recovered.
To the similar effect is the testimony of DWI Jarnail Singh.
PW4 Surjit Singh Deswal was an Addl.
S.P. In the administrative hierarchy he was lower in rank than PW3 shri Niwas Vashisht, S.P. Learned companynsel for the State has number been able to show any rule, regulation or other provision to establish the status of PW 4 a police officer, an Additional Superintendent of Police.
During the firing 175 shots were fired by the police and 157 rounds by the accused.
Kamail Singh is one of the attesting witnesses to the recovery.
The other persons following him took positions and started firing.
First the companyfession records about incidents by same accused which had allegedly taken place in same village on 11.9.1989.
There is another aspect of recording of companyfessional statements by PW4.
It seems to be quite strange that both the officers though recorded companyfessional statements of two accused each separately thought that half an hour or 20 minutes would be sufficient companyling time to be given to the accused who are being brought before them from police custody of 18 20 days and had expressed, according to these officers, their willingness to make companyfessional statements.
He admitted that in the administrative hierarchy PW3 was above him and on oral directions of PW3 he recorded the companyfessional statements of accused Satnam which is Ext.
Surjit Singh PW2 being other independent witness of the recovery also did number support the prosecution and was declared hostile.
He also stated that numberencounter took place between the police and the accused in his presence.
No recovery was made in his presence.
A Nakabandi was arranged with the instructions to the police officials to start firing when it is so ordered.
It was a moonlit night.
P 5 and accused Gurnam Exbt.
