Delhi District Court
St. vs Harneik Singh on 28 May, 2010
1
IN THE COURT OF SH. J. R. ARYAN,
ADDITIONAL SESSIONS JUDGE CUM DESIGNATED
JUDGE; NEW DELHI
Date of Institution:13.09.1995
Date of judgment reserved on : 15.05.2010
Date of decision :28.05.2010
Sessions Case No. 180/2008
St.Vs Harneik Singh
FIR No. 316/93
U/s 3,4,5 of TADA, U/s 302 IPC r/w Section 120-B IPC,
U/s 307/326/324, 120-B, 436 r/w Section 120-B IPC,
U/s 3 of the Prevention of Damage to Public Property
Act & U/s 4 & 5 of the Explosive Substances Act.
P.S Parliament Street.
Harneik Singh @ Chotu @ Bhoop
S/o Tara Singh
R/o Village Butari, Police Station Bhullan
District Jagraon, Punjab.
J U D G M E N T:-
1. Accused Harneik Singh was proclaimed offender in the present case when other two accused namely Devender Pal Singh and Daya Singh Lahoria were tried for offences U/s 3, 4, 5 of Terrorist and Disruptive Activities (Prevention) Act, U/s 302 read with 120-B IPC and U/s 307/326/324, 120-B, 436 read with 120-B and Section Sessions Case No. 180/08 page No.1 of page No.20 2 120-B IPC and U/s 3 of the Prevention of Damage to Public Property Act. Further charge against these two accused was U/s 4 & 5 of the Explosive Substances Act. Trial commenced and concluded with examination of 133 witnesses from the prosecution side. Accused Devender Pal Singh was convicted by judgment dated 24/8/2001 and the evidence taken in to consideration for that conviction was the confession statement made by accused Devender Pal Singh which was recorded U/s 15 of the TADA Act and was accepted to be a substantive evidence. Accused Devender Pal Singh was held guilty and convicted for all above stated offences charged against him.
2. Co-accused Daya Singh Lahoria was acquitted on a finding that only evidence brought by the prosecution against that accused was the confession made by co-accused Devender Pal Singh wherein accused Devender Pal Singh though had attributed accused Daya Singh Lahoria a specific role in the incident as well in the conspiracy for the execution of the incident in this case, citing Supreme Court judgment in Nalini's case it was observed that when Section 15 of TADA provided that confession of an accused was admissible against co-accused as well, though it could be substantive evidence against co-accused but still not a substantial evidence. Provisions of Section 30 of the Evidence Act had been excluded from the purview of Sessions Case No. 180/08 page No.1 of page No.20 3 Section 15 of the TADA. On the basis of Supreme Court judgment in Nalini's case it was further observed that what value was to be attached to a confession when considered against co-accused will fall within the domain of appreciation of evidence and as a matter of prudence the court may look for some corroboration if confession was to be used against co-accused. It came to be further observed in that conviction judgment that their lordship in Nalini's case made it clear that even if confession of an accused as against co-accused tried with the accused in the same case was to be treated as substantive evidence, rule of prudence required that the court shall examine the same with great care keeping in mind the caution addressed by privy counsel in Bhuboni Sahu's case (AIR 1949 PC 257) to quote '' this tendency to include the innocent with the guilty is peculiarly prevent in India as judges have noted on innumerable occasions and it is very difficult for court to guard the danger''. With these observations on the law point, giving acquittal to accused Daya Singh Lahoria it came to be observed in that judgment dated 24/8/2001 that in absence of any other incriminating against accused Daya Singh Lahoria brought by the prosecution, confession given by accused Devender Pal Singh implicating Daya Singh Lahoria could not be made and accepted as a basis to convict him.
Sessions Case No. 180/08 page No.1 of page No.20 4
3. Admittedly in the present case against Harneik Singh prosecution is primarily relying of the incriminating evidence in the form of confession made by Devender Pal Singh wherein he has attributed specific role to Harneik Singh in the commission of the incident of this case. Prosecution however further claims to have brought evidence to corroborate that evidence showing involvement of accused in this incident. Accordingly primarily this court is required to examine as to what extent evidence and material brought by the prosecution against accused Harneik Singh in the present trial provides corroboration to the evidence of the confession given by Devender Pal Singh.
4. Charge framed against accused Harneik Singh in this case on 23/9/2006 was for offences U/s 120-B, 302/120-B, 307, 326, 324, 323/120-B, 436/120-B IPC, U/s 3, 4 & 5 of TADA (P) Act, U/s 427/120-B IPC, U/s 4 & 5 of the Explosive Substances Act. Accused claimed trial by pleading not guilty to the charge.
5. Present is the case popularly known as M.S Bitta blast case. Incident is of 11.9.1993 when at around 2.30 p.m a bomb blast occurred at 5 Raisina Road, New Delhi which was the office of the President of Indian Youth Congress. M.S Bitta the Congress Youth President was to travel from that office in his car around that time of Sessions Case No. 180/08 page No.1 of page No.20 5 the bomb blast. As soon the car of Mr.Bitta came out of that office, an Ambassador car parked nearby the gate of 5 Rai Sina Road exploded as explosive material had been placed inside that car and that explosive material was caused explosion by some remote device. Nine persons, named in the earlier judgment died because of the injury sustained in that blast, 29 other persons sustained injuries. There was a lot of damage to the movable as well immovable properties. M.S Bitta however escaped any serious injury.
6. Accused Devender Pal Singh was arrested in this case on the intervening night of 18th 19th January 1995 at IGI Airport. Later on he gave a confession which was recorded U/s 15 of the TADA and in that trial against Devender Pal Singh that confession was proved as Ex.PW121/E (proved a fresh against present accused Harneik Singh in the present trial as Ex.PW37/E). Relevant part of that confession wherein present accused Harneik Singh has been named and implicated with a specific role may be quoted as below:-
''In August, 1993, plans were chalked out to eliminate M.S. Bitta because Keepa felt that he is speaking to much against their movement and the militants. Keepa along with Charni went to Punjab and took out one quintal of RDX and left it with one Pawan Kumar @ Chajju at Ludhiana. They came back and sent Harneik @ Chottu to bring this RDX to their Sahibabad hideout. Part of this Sessions Case No. 180/08 page No.1 of page No.20 6 consignment was brought by Pawan Kumar which was handed over to Kuldeep Keepa at Delhi - Karnal Border. Harneik @ Chotu got the streel container fabricated for the bombs.
Daya Singh Lahora went to purchase an Ambassador Car which was subsequently used in the bomb blast. The cordless telephone was purchased from Ludhiana by Harneik. On 2nd September, 1993, Kuldeep Keepa and Navneet Kadian conducted the reccee of the office of M.S Bitta at 5, Rai Sina Road, New Delhi. Next day, Kuldeep Keepa, Navneet, Sukha @ Sangatpuria, Harneik, Lahoria and myself again came to the office of Bitta to watch the proceedings. We made two attempts on 6th and 9th September, 1993. On 6th September, 1993, the mechanism did not work and we could not trigger the blast. On 9th September, 1993, M.S Bitta did not come to the office. Myself and Kuldeep Keepa fixed the bombs in the rear seat and the dickey and the master receiver of the telephone was placed on the rear seat. The two wires coming out the receiver were connected to the detonators. Around 40 kgs of RDX was used in the blast.
On 11.9.1993, we came to the office of Bitta at around 11 a.m and the car was parked close to the front gate. Navneet, Keepa and Sangatpuria were waiting in the back side of parking of Meridian Hotel alongwith Gypsy No.DNC-1790 which was a fake number. I went to Connaught Place to bring Harneik @ Chotu with whom the time was fixed the previous day. In the meanwhile, M.S. Bitta went inside his office and we could not trigger off the blast as none of us were in position. We decided to go back, but when we reached Pragati Maidan, Keepa insisted on making another try. We reached Janpath Sessions Case No. 180/08 page No.1 of page No.20 7 Hotel and connected the wires in the parking area and sent Lahoria to park the car near the gate of the office. The other five of us went in the Gypsy and parked it in the parking area in front of Chelmsford club. Harneik and myself got down from Gypsy and went towards the office of M.S Bitta. I positioned myself on the opposite side of the office and Harneik positioned himself close to the walls of Jawahar Bhawan to save himself from the blast. When Lahoria came out of the car after parking immediately, thereafter, the cars of M.S Bitta started moving out and Lahoria gave a signal to Harneik who pushed the button of the hand set of the cordless telephone. The security car of M.S Bitta was hit and Bitta's car which was behind was not damaged. Since Lahoria was very closed, he was hit by splinters on his back. Harneik and myself went to the parked Gypsy from where Sukha had already come towards 5 Rai Sina Road, New Delhi to see whether any of us had been injured or not. Kuldeep and Navneet were already sitting in the Gypsy. Four of us left the place and dropped Navneet at the back of Meridian Hotel to come by bus or auto- rickshaw because he was a Sikh and possibility of identification was more strong. Lahoria went to the hospital in auto rickshaw and registered himself under the name of V K Sood and left the hospital immediately after first aid. He went to his hideout which is not known to me.''
7. Prosecution now argued that the conviction of accused Devender Pal Singh along with death reference sent by the trial court have been affirmed and upheld by the Supreme Court by judgment Sessions Case No. 180/08 page No.1 of page No.20 8 dated 22/3/2002 and now when there is no question or controversy on the admissibility of the confession made by Devender Pal Singh then in terms of Section 15 of the TADA which makes this confession by Devender Pal Singh admissible against co-accused as an abettor, conspirator charged and tried in the same case with Devender Pal Singh then it has to be accepted and to be made a basis to convict accused Harneik Singh also. It has been further submitted that evidence brought by the prosecution against Harneik Singh in the present trial brings sufficient evidence and material to provide corroboration to the confession made by Devender Pal Singh.
8. Evidence examined by the prosecution against Harneik Singh comprises testimony of 94 witnesses. A set of witnesses which prosecution could have claimed to provide corroboration to the confession given by Devender Pal Singh implicating accused Harneik Singh would be witnesses regarding the role assigned by Devender Pal Singh to accused Harneik Singh in this confession . The confession by Devender Pal Singh implicating Harneik was to the effect that Kuldeep @ Keepa alongwith Charni went to Punjab and took out one quintal of RDX and left it with one Pawan Kumar. They came back and sent Harneik Singh to bring that RDX to their Sahibabad hideout. Witness relevant on this fact i.e concerning Sessions Case No. 180/08 page No.1 of page No.20 9 Sahibabad hideout is PW-65. He is a property dealer and according to this witness on 18/8/1993 another property dealer Prahlad Sharma introduced two persons to this witness who were stated to be a GDA Contractor and in need of a property for rent/lease. He offered house FB 256, Lajpat Nagar Shahibabad and it was let out on a monthly rent of Rs.1700/-. Possession of that house was taken by those two persons on 22/8/1993. On 28/9/1993 this witness came to know that house had been raided by the police from Delhi and Punjab and RDX was recovered. Witness further deposed before court that if he was shown those GDA contractors or their servant or their photographs he could try to identify them. He further deposed that police had shown him some photographs which contained photos of those two persons who had taken the house on rent and he further deposed that police told this witness names of those two persons as Keepa and Professor. In cross examination witness admitted that recovery of RDX from that house premises was not in his presence and he had been shown RDX only in the Police Station Shahibabad. It is pertinent that from the photographs if witness identified those two persons who had taken the house on rent and police disclosed their name as Keepa and Professor, those photographs have not been brought on the file and were not shown to the witness to identify as to Sessions Case No. 180/08 page No.1 of page No.20 10 who that Keepa and Professor were. Accordingly this witness does not become relevant against Harneik Singh.
9. Another witness concerning this Shahibabad hideout could be PW-66. He is a person running electrical shop in Lajpat Nagar Shahibabad, UP. According to this witness in the year 1993 a person purchased a motor for the cooler and witness also arranged a plumber for the job and left that motor at a house FB-256 Lajpat Nagar, Shahibabad, UP taking the buyer along with scooter on this witness. After about a month or 1 ½ police came to this witness and showed him photographs from an album and witness identified person in one of those photographs to whom motor was sold and witness was told by police that he was Devender. This is in all witness deposed. He also fails to connect accused Harneik in this case.
10. PW-67 is a photographer, another witness from Lajpat Nagar Shahibabad, UP. Witness deposed that on 28/9/1993 police showed him some photographs and inquired if persons appearing in photographs ever visited his shop and witness was unable to identify any of them. Police alleged that two of those photographs had been clicked in his shop and it were seized by preparing memo Ex.PW62/A. This witness also nowhere helps prosecution to connect Harneik Sessions Case No. 180/08 page No.1 of page No.20 11 Singh in this case.
11. PW-68 is a property dealer Prahlad Sharma who has already been referred in the testimony of PW-65. Witness says that he was shown photographs by the police and he identified one person who had taken the house on rent and police told witness name of that person as Devender Pal Singh. Even a police official ACP Hawa Singh PW-62 who was a part of a police team headed by DCP B.S Bhola on 28/9/1993 when this residential flat FB 256 Shahibabad was raided, witness deposed that premises was found locked and lock was broken open. RDX 56.8 k.g with hand grenades with other incriminating material was recovered. A criminal case under Explosive Act was got registered at Police Station Shahibabad as F.I.R. No.673/93. Witness further deposed that three photographs were recovered from the said premises and he deposed that one photograph was of Devender Pal Singh, another photograph of Keepa and as regards third photograph, witness deposed, he did not recall to whom it belonged. Certainly that third photographs was not of accused Harneik Singh as the witness deposing in this case would have identified that photograph with Harneik Singh had it been of this accused in that photograph.
12. This is the set of witnesses concerning the alleged Sessions Case No. 180/08 page No.1 of page No.20 12 Shahibabad hideout. Admittedly no photographs have been proved in the present case and no photograph was shown to the witnesses when examined before the court and thus there is no evidence if accused Harneik was ever present in that house or connected with that residential house FB-256. More over we do not have a direct evidence of the fact that RDX had been recovered from that house.
13. Another act attributed to accused Harneik in the confession made by Devender Pal Singh is that Harneik got the steel container fabricated for bombs. A cordless phone was purchased by Harneik from Ludhiana. Finally on the date of the incident the act attributed by Devender Pal Singh in the confession to accused Harneik is that when Lahoria came out of the car after parking it and when cars of M.S Bitta started moving, Lahoria gave a signal to Harneik who pushed button of the handset of the cordless telephone and the blast occurred. No evidence has been brought on the facts that Harneik had got the steel container fabricated which were used for manufacturing bombs or that he did purchase a cordless phone from Ludhiana or that it was finally used as a remote device for the blast.
14. Investigating officer Norbu Tshering ACP examined as PW- 82 deposed that Harneik Singh was arrested by Punjab police in September, 2004 and he got accused produced through production Sessions Case No. 180/08 page No.1 of page No.20 13 warrants got issued from the court of Ld CMM, Delhi. Finally accused Harneik Singh was produced on 28/9/2004 before the court of Ld CMM, Delhi and from there was got produced before designated court TADA and after his arrest accused Harneik was got taken on police remand up to 5/10/2004. Accused Harneik is then alleged to have given a confession to the police and pursuant to that confession he took the police party including IO ACP Norbu Tshering to a workshop in the name of Guru Nanak Auto Works situated at Samrala Chowk, Ludhiana, Punjab and it was stated to belong to Baldev Singh and pointed out that workshop had been used by them for storing RDX. Such a pointing out without discovery of incriminating fact or article was of no use to the prosecution and it was an exercise in futility. At the instance of accused Harneik police arrested Baldev Singh also and Baldev Singh was chargesheeted with Harneik in the present case. In the absence of any incriminating evidence to even prima facie point out charge against Baldev Singh, he was discharged by this court when charge was framed against accused Harneik. Investigating officer admitted in cross examination that besides present accused Harneik named by Devender Pal Singh in his confession there was no other incriminating evidence against accused in September 2004 when he had taken over the investigation of this Sessions Case No. 180/08 page No.1 of page No.20 14 case.
15. Prosecution seeks to rely upon another circumstance that accused Harneik absconded after this incident and could not be arrested in this case till he had been apprehended by Punjab police in a criminal case. Abscondence of accused as a conduct relevant fact was sought to be proved but then evidence on this point is almost nil. PW-64 ACP P.P Singh has deposed that he took over the investigation of this case on 6/7/1995. Though aware of the fact that Devender Pal Singh had named present accused Harneik in his confession and that confession was admissible in terms of Section 15 of TADA, witness simply deposed that he obtained NBW's against accused Harneik and thereafter got proclamation proceedings U/s 82/83 Cr.P.C initiated. In cross examination witness deposed that NBW's against Harneik had been got issued on his residential address which had been disclosed by Devender Pal Singh. ASI Ajit Singh went to execute NBW's but returned it unexecuted it and ACP admits that he did not record statement of ASI Ajit Singh or to know for what reasons the NBW's were returned unexecuted and he says that it must have been recorded by ASI Ajit Singh in his report. Defence counsel was justified in his submissions that abscondance of accused could not be said to have been proved from such an Sessions Case No. 180/08 page No.1 of page No.20 15 evidence particularly when the prosecution seeks to project its case that this accused Harneik along with other accused Daya Singh Lahoria and others were involved in criminal activity in the state of Rajasthan. Prosecution thus cannot seek any support to its case against Harneik from the circumstance of abscondance of accused as a relevant conduct of accused.
16. Prosecution then seeks to rely upon fact that present accused Harneik alongwith another accused Daya Singh, wife of accused Daya Singh and fourth accused Nabnit Kadiyan were involved in a criminal case F.I.R. No.57/95, Police Station Ashok Nagar, Jaipur, Rajasthan U/s 365 read with Section 120-B IPC. In this criminal case a person Rajender Mirdha was kidnapped from in front of his house and had been taken and kept hostage in a primises in Jaipur and demand as put up by the kidnappers culprits was release of Devender Pal Singh Bhuller who was then in the custody of Punjab police. PW-84 Retired Inspector General of Police, Rasthan Police Mr. S.P. Khadgawat appeared and deposed that in the year 1995 he was Additional Superintendent of Police Crime Branch, Jaipur and was the investigating officer of the case F.I.R. No.57/95. He further deposed that victim Rajender Mirdha was rescued by the police team and during encounter Nabnit Kadiyan was killed and Sessions Case No. 180/08 page No.1 of page No.20 16 kidnappers/abductors Daya Singh, his wife and Harneik ran away. He further deposed that F.I.R. registered in that case did mention that kidnapping of Rajender Mirdha was to demand release of Devender Pal Singh. Witness deposed that accused Daya Singh and his wife Kamaljit Kaur have been convicted in that case F.I.R. No.57/95 with a sentence of life imprisonment and the trial is pending against accused Harneik who had been arrested subsequently.
17. This witness also deposed regarding another criminal case F.I.R. No.44/94 Police Station Vaishali Nagar, Jaipur, Rajasthan registered under Arms Act and Explosive Act. He deposed that documentary evidence collected during investigation in this case F.I.R. No.44/95 comprised photographs of Daya Singh, photograph of wife of Daya Singh and of Harneik Singh as recovered from the hideout in Vaishali Nagar.
18. Question arises should this evidence be considered providing a corroboration to the implication of accused Harneik Singh made by Devender Pal Singh in his confession in the present case. Corroboration could come from the set of facts and circumstances connected with the incident of the case or from the set of facts and circumstances immediately following the incident of the case.
19. Prosecution sought to derive corroborative support from Sessions Case No. 180/08 page No.1 of page No.20 17 the fact that victim Rajender Mirdha in F.I.R. No.57/95, Police Station Jaipur, Rajasthan was kidnapped and demand by the culprits kidnappers was release of Devender Pal Singh in lieu of release of Rajender Mirdha. Corroboration ought to have been brought on record by way of a direct evidence like the victim abductee Rajender Mirdha could have been examined in this case. Ld APP during arguments submitted that victim Rajender Mirdha was now no more alive but then Ld APP was not aware as to when Rajender Mirdha had passed away. When PW-84 Mr. Khadgawat has stated on oath that Daya Singh Lahoria and his wife were convicted in this case F.I.R. No.57/95 then it suggests Rajender Mirdha was examined in that criminal case. Witness on the fact that demand for the release of Rajender Mirdha by the kidnappers was for the release of Devender Pal Singh ought to have been examined in this case. Though witness Mr. Khadgawat deposed that Daya Singh Lahoria and his wife have been convicted but then even certified copy of the conviction judgment was not proved by placing it on record. Moreover trial against Harneik Singh is still pending in that F.I.R. No.57/95. This court is not at all aware exactly what role Harneik Singh played in that incident of kidnapping of Rajender Singh Mirdha. In absence of any such direct evidence brought against Harneik Singh which could Sessions Case No. 180/08 page No.1 of page No.20 18 prove that accused persons had kidnapped Rajender Mirdha to demand release of Devender Pal Singh, testimony of PW-84 cannot be considered proving the said fact and cannot provide a basis to find a necessary corroboration to the involvement of accused Harneik in the incident of the present case as named by accused Devender Pal Singh in his confession.
20. There is no other evidence to suggest accused Harneik Singh involved in the present case. Defence counsel raised another legal proposition that before providing admissibility of a confession against co-accused in terms of Section 15 of the TADA two conditions as a pre-requisite to be satisfied were,
1. That co-accused should have been charged in the same case along with the confessor.
2. He should have been tried together with the confessor in the same case.
Counsel argued relying upon Supreme Court judgment in a case Hardeep Singh Sohal Vs State of Punjab Crl.Appeal No.531/04 decided on 28/9/2004 that when accused Harneik Singh has not been tried along with the confessor Devender Pal Singh together, confession of Devender Pal Singh should not be read against him. The argument may not be acceptable in situation like present case Sessions Case No. 180/08 page No.1 of page No.20 19 where accused Harneik Singh was alleged absconding and that was the reason that he could not be tried together with Devender Pal Singh in this case. In the reported judgment the accused namely Balwinder Singh @ Fouji who had made a confession recorded U/s 15 of TADA and implicated other two accused namely Hardeep Singh Sohal and the other appellant before Supreme Court had escaped from custody even before charge could be framed against him and later on he died, trial court still accepted the confession given by Balwinder Singh and accepted that confession against co-accused also. This stand of the trial court was found incorrect in the appeal by the Supreme Court and the above referred two pre-requisite conditions were found not satisfied and in these circumstances the conviction against co-accused persons was set aside.
21. As regards evidentiary value of confession against co- accused in a case under TADA ld counsel had relied upon another Supreme Court judgment reported as State of Rajasthan Vs Ajit Singh & Ors 2008 (1) SCC 601 . It has been held.
''The principle that the prosecution should prove the involvement of the accused by other evidence first and the confession of an accused can only be used as a corroborative piece of evidence and not as a substantive piece of evidence, that too against the maker only (which is basically founded on an assumption that Sections 25 to 30 of the Evidence Act) would also apply to the confessions recorded under Section 15 of the TADA Act. It is only when the other Sessions Case No. 180/08 page No.1 of page No.20 20 evidence tendered against the co-accused points to (their) guilt then the confession duly proved could be used against such co-accused if it appears to lend support or assurance to such other evidence.''
22. Applying the law as laid down in the above Supreme Court judgment, in present case except the confession of accused Devender Pal Singh where he named and implicated accused Harneik there is no other evidence to connect accused Harneik with the present case incident. In absence of any corroboration from any evidence or circumstance to this confession made by Devender Pal Singh implicating accused Harneik, accused Harneik cannot be convicted for offences charged against him. Accused is accordingly acquitted. File be consigned to record room.
Announced in the open court (J.R.ARYAN)
dated 28/05/2010 ADDITIONAL SESSIONS JUDGE
CUM DESIGNATED JUDGE
NEW DELHI.
Sessions Case No. 180/08 page No.1 of page No.20