IMPORTANT POINT
In the present case it is not safe to base conviction on confessional statements which are recorded after 18 to 20 days police custody by giving only 1/2 an hour to think over before recording confession. Nor it is safe to rely on oral evidence which is of the sole testimony of two police officials. The ammunition or empties are not matched with weapons. Therefore, the impugned judgment by TADA Court is liable to be set aside.

Headnote:Indian Penal Code, 1860-Sections 307/149 and 363/149-TADA-Sections 3 and 5-Arms Act-Section 25-Offences under-Tried by Designated Court-Incident of encounter dated 18.9.99-Designated Court recording conviction on the basis of testimony of police officials and confession by two accused-Appeal against to Supreme Court-Supreme Court finding story of encounter as a friendly match-No body sustaining any injury-The empties were not matched with arms-Confession not recorded by a proper officer nor sufficient time given to withdraw 1/2 an hour after 18-20 days police custody)-Whether conviction can be sustained on such evidence? (No)-Result-Appeal allowed.
       Held : Reverting now to the prosecution witnesses, PW1 has, of course, fully supported the prosecution case. At the same time, however, it deserves to be noticed that although according to the prosecution case 175 rounds were fired by the police and 157 by the accused, the prosecution has not proved even a single injury grievous, simple or minor to anyone whether on police side or on accused side. There is also no evidence to connect the empties with the weapons. This is despite large recoveries as noticed earlier. From the facts of the case, one gets an impression as if a friendly match was being played. There is no evidence 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 confessional statement to which we would advert shortly. As noticed above none of the independent witnesses have supported the prosecution. (Para 7)
       In the facts and circumstances of the present case the grant of half an hour to the accused to think over before recording their confessional statement cannot be held to be a reasonable period. We do not think that is safe to base conviction on such confessional statements. Further, on the facts of the present case, conviction cannot be maintained on the sole testimony of two police officials. It may also be noticed that although PW6 Chander Bhan, Armourer, was examined by the prosecution to prove that the weapons were in working conditions, no effort was made to prove that the ammunition or the empties matched the weapons.
        (Para 20)
       Held consequently : For the aforesaid reasons, we are unable to sustain the conviction of the appellants. Therefore, the impugned judgment and order of Additional Judge, Designated Court, District Jail, Nabha, dated 27th April, 2002 is set aside and the appeal allowed, accordingly. The appellants shall be set at liberty forthwith, if not required in any other case. (Para 21)

ORDER

Six accused, including the four appellants, were forwarded by the police to the concerned court to stand trial for offences under various provisions of I.P.C., The Terrorists and Disruptive Activities (Prevention) Act (in short the TADA Act ) and The Arms Act. One of them (Gurbachan Singh) was declared proclaimed offender. Another (Jagmail Singh) died. The remaining four, namely appellants were convicted for the offences for which they were tried. For offences under Sections 307/149 IPC and Sections 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. For offences under Section 148 IPC two years rigorous imprisonment and for offences under Section 363/149 IPC and Section 25 of Arms Act one year s rigorous imprisonment and fine was imposed on each of the appellants. All the sentences were directed to run concurrently. 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.

2. The appellants have been convicted for the incident of encounter alleged to have been taken place, according to the case of the prosecution, on 18.9.1989. 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 committing crime. Two police parties were constituted -- 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 Karnail Singh and Surjit Singh were with Inspector Ram Singh along with some other police officials. A Nakabandi was arranged with the instructions to the police officials to start firing when it is so ordered. It was a moonlit night. At about 9.45 p.m. accused Jagmail Singh and other accused including one Gurnam Singh were seen coming armed with weapons. Gurnam Singh has also died. On lalkara being raised by Ram Singh, Jagmail Singh who was ahead of all accused persons was apprehended. The other persons following him took positions and started firing. The police parties also fired in self defence and asked the accused to surrender as they were surrounded from all sides. The firing continued for about one hour. The police team consisted of about 50/60 officials. During the firing 175 shots were fired by the police and 157 rounds by the accused. When all the accused surrendered, their personal search were taken. From Jagmail Singh one AK-47 rifle, 169 cartridges, two magazines were recovered. From the search of Gurbachan Singh, one AK-47 rifle, 51 empty cartridges, two magazines and 163 live cartridges of AK-47 were recovered. AK-47 rifle was sealed and empties were also sealed. 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. AK-47 rifle and 49 empty cartridges were separately sealed. From Sukhjit Singh, one AK-47 rifle, two magazines, 47 empty cartridges, 127 live cartridges were recovered. Empties and the rifle were sealed. From Ranjit Singh, one .315 bore rifle, 16 live cartridges, two empty cartridges of the same bore were recovered. The recovered 16 live cartridges were sealed. From Gurnam Singh, one .285 bore rifle, three empties and 12 live cartridges were recovered. Empties and rifles were separately sealed. 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. Gun and empties were sealed separately. The accused were not carrying any permit or licence to carry the weapons and the ammunition.

3. The accused were charged for offences under Sections 148, 307/149, 363/149 IPC, Sections 3 & 5 of the TADA Act and Section 25 of the Arms Act.

4. To prove the case prosecution examined DSP Ram Singh (PW1), Surjit Singh (PW2), Shri Ni

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2002 Supreme(SC) 910

Cases Referred (1)