VERY IMPORTANT POINT
When more persons than one have abducted the victim, who was later murdered, it is within legal province of the Court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder. Section 34 of the IPC could be invoked for the aid to that end, unless any particular abductor satisfies the Court with his explanation as to what else he did with the victim subsequently.

Headnote:Indian Penal Code, 1860-Sections 302/34 read with Evidence Act, 1872-Sections 106 and 114-Appellant along with 3 others abducted two sons of PW3 and PW4 from the house in night-PW3 (father) saw abduction from roof (where he was hiding himself), PW4 made futile efforts to pursuade abductors not to do it-Abducted sons found murdered with a note of "Babbar Khalsa" owning it-Appellant was arrested and convicted under Section 302/34 with the help of Section 106 Evidence Act-Appeal against-Whether conviction a sentence needs any interference? (No)-Ratio of case 2000(8) SCC 382 affirmed good rule of Law.
       Held : Learned counsel made a futile endeavour to create some doubt that PW-3 amd PW-4 would have been staying with the elder sons at Amritsar City. (Para 11)
       Thus we too are inclined to believe the version of PW-3 and PW-4. On their testimony the circumstances against the appellant are the following : (1) The incident happened during a period when Punjab was boiling with terrorist activities. (2) The house of the deceased was treated by the terrorists as the home of police touts against terrorists. (3) Appellant and three others reached the house during the dead of night armed with AK-47 rifles (which is described as "assault rifle") and caught the two sons. Even in spite of entreaties made by their mother PW-4, the abductors forcibly took away the two sons into the darkness outside. (4) Within a shortwhile they heard the sound of gunshots. (5) The two abducted sons did not return to the house during that night. (6) On the next morning their dead bodies were spotted on the roadside at a place situated only a short distance away from the house. (7) They were killed with AK-47 rifles as the empties of the bullets of such firearm were lying near the dead bodies. (8) Appellant did not tell the court as to what happened to the two sons after they abducted them. (Para 14)
       The abductors alone could tell the court as to what happened to the deceased after they were abducted. When the abductors withheld that information from the Court there is every justification for drawing the inference, in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are there murderers of the deceased. (Para15)
       We have seriously bestowed our consideration to the arguments addressed by the learned senior counsel. We only reiterate the legal principle adumbrated in State of West Bengal v. Mir Mohammad Omar, 2000(8) SCC 382 that when more persons than one have abducted the victim, who was later murdered, it is within the legal province of the court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder. Section 34 of the IPC could be invoked for the aid to that end, unless any particular abductor satisfies the Court with his explanation as to what else he did with the victim subsequently, i.e. whether he left his associates en-route or whether he dissuaded others from doing the extreme act etc.etc. (Para 20)
       In the result, we confirm the conviction and sentence and dismiss this appeal. (Para 23)

JUDGMENT

Thomas, J.-During the months when insurgency in the State of Punjab was at its peak two striplings were knocked off from their house on a dark night by armed assailants in the very sight of their old parents, despite the importunes made by their mother. Those abducted youngsters were finished off within a shortwhile by firing them with AK-47 rifles, a little away from their house. The abductors were indicted for the murder of those two young Sikhs. Appellant Sucha Singh, the sole survivor of the criminal conspiracy hatched, is now challenging the conviction and sentence of life imprisonsment passed on him by a designated court, for the offence under Section 302 read with Section 34 of the Indian Penal Code.

2. Shri U.R. Lalit, learned senior counsel pleaded for reconsideration of the ratio laid down by this Court in State of West Bengal v. Mir Mohammad Omar & Ors.1 wherein it is held that the court would be justified in appropriate cases to draw the presumption that the abductors themselves could be the killers of the abducted victim, unless they explained otherwise as to what they did with the prey.

3. Learned senior counsel submitted that the said ratio is discordant with the criminal jurisprudence thus far enunciated that the burden is entirely on the prosecution to prove the case. He further submitted that the ratio in the said decision cannot at any rate be applied for fastening an accused with the aid of Section 34 IPC. As we heard Shri U.R. Lalit in extenso on the above submission, besides other points convassed by him on the merits of the case, we are bound to deal with them now.

4. The synopsis of the case is this. The incident happened on the night of 22.2.1991. PW-3 Diwan Singh and his wife PW-4 Dalbir Kaur had five sons. The elder three were working in the grain market at Amritsar. Among the remaining sons Narinder Singh was in the army and he came home for a furlough and stayed with his parents. The other son Surinder Singh was also staying in the same house. The militancy in Punjab had armed terrorists on its cadre who were prowling for preys during those days. Diwan Singh and his family were targeted by the militants as they suspected him to be conduit for the police who were out to crush the insurgency.

5. On the night of occurrence Diwan Singh, his wife and their two sons (Narinder Singh and Surinder Singh) were in their house at Rupawali, which is situate on the outskirts of Amritsar City. The inmates of the house retired to their rooms in the night, presumably after their supper. Four assailants including the appellant went to that house armed with AK-47 rifles at about 10 P.M., and knocked at the door. Diwan Singh switched on the light in the courtyard and he immediately understood the danger ahead of him. He then scampered to the roof of the house and hid himself, but he could see what was happening on the courtyard. The assailants caught the two deceased sons and took them away despite the entreaties persistently made by their mother. Though she made a bid to follow them she could reach only up to the end of their courtyard as she was tweaked aside forcefully with the butt end of a rifle. The two sons taken away by the assailants were never seen thereafter by the parents.

6. After a shortwhile the parents of the deceased heard the sound of gunshots from a distance. The terror stricken parents somehow whiled away their time in the night without even gazing outside. On the next morning Diwan Singh went to his brother Gurna Singh, who was living nearby, and with him a search was made for their abducted sons. They came across the dead bodies of the deceased lying on the roadside studded with gunshot injuries.

7. Police after investigation charge-sheeted only two persons as accused, one the appellant Sucha Singh and the other Sarbjit Singh. According to the police the remaining two assailants could not be apprehended despite all the steps adopted by the police. The case was s

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2001 Supreme(SC) 547

Cases Referred (4)