Punjab-Haryana High Court
Dr. Gurwinder Singh Samra vs State Of Punjab on 12 July, 2013
Author: Anita Chaudhry
Bench: Anita Chaudhry
Criminal Appeal No.D-105-DB of 2009 and
Criminal Appeal No.D-106-DB of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.D-105-DB of 2009
DATE OF DECISION : July 12, 2013
Dr. Gurwinder Singh Samra ...Appellant
Versus
State of Punjab ...Respondent
Criminal Appeal No.D-106-DB of 2009
Rajinder Kaur ...Appellant
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR.JUSTICE M.JEYAPAUL
HON'BLE MRS. JUSTICE ANITA CHAUDHRY
Present:- Ms. Baljit Mann, Advocate for the appellant
in Criminal Appeal No.D-105-DB of 2009.
Mr. Vipin Mahajan, Advocate for the appellant
in Criminal Appeal No. D-106-DB of 2009.
Mr. B.S. Bhalla, Addl. Advocate General, Punjab.
---
1. Whether Reporters of local papers may be allowed to see the
judgment? Yes/No
2. To be referred to the Reporters or not? Yes/No
3. Whether the judgment should be reported in the digest? Yes
M.JEYAPAUL, J.
1. The accused Dr. Gurwinder Singh Samra and accused Rajinder Kaur were convicted and sentenced as follows:- Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document
Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 2 CHARGE SENTENCE Under Section 120-B IPC The accused are sentenced to undergo RI for ten years each and to pay a fine of `10,000/-
each. In default of payment of fine, further undergo RI for six months.
Under Section 4-A of Explosive The accused are sentenced to Substances Act undergo RI for ten years each and to pay fine of `10,000/- each.
In default of payment of fine, further undergo RI for 6 months.
Under Section 5 of Explosive The accused are sentenced to Substances Act undergo RI for three years each and to pay a fine of `5000/- each.
In default of payment of fine, further undergo RI for 3 months.
Under Section 6 of Explosive The accused are sentenced to Substances Act undergo RI for ten years each and to pay fine of `10,000/- each.
In default of payment of fine, further undergo RI for 6 months.
Under Section 25(1) (a) of Arms The accused are sentenced to Act undergo RI for six years each and to pay fine of `10,000/- each. In default of payment of fine, further undergo RI for 6 months.
Under Section 195/120-B IPC Accused Rajinder Kaur is sentenced to undergo RI for fifteen years and to pay a fine of `10,000/-. In default of payment of fine, she shall further undergo R.I. for six months.
Under Section 195 IPC Accused Dr. Gurwinder Singh Samra is sentenced to undergo RI for fifteen years and to pay a fine of `10,000/- In default of payment of fine, he shall further undergo R.l for six months.
2. Aggrieved by the judgment of conviction rendered by the trial Court they have preferred the above appeals separately.
3. The brief case of the prosecution is that PW6 S.I. Balwant Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 3 Singh received a telephonic call from accused Dr. Gurwinder Singh Samra (for short accused 'Samra') on 28.1.2008 informing him that Paramjit Singh Kang, Balwinder Singh Mavi and Sukhwinder Singh Sangha hatched conspiracy at Water Lily Resort at Roop Nagar to kill him. Accused Samra also informed PW6 that if the latter reached Kartarpur he could recover explosive substances.
4. On 29.1.2008 PW6 reached Kartarpur along with police party and met accused Samra at his residential complex. He recorded the statement of accused Samra.
5. In the statement accused Samra has stated that he was in the hit list of terrorist, therefore, he was provided with government security. Avtar Singh who was dismissed from police department was his private security for about ten long years. Accused Samra apprehended danger to his life. Though, Avtar Singh left the security job in the year 2001, he used to visit accused Samra. On 24.1.2008 Avtar Singh came to the residence of accused Samra and informed him that Paramjit Singh Kang, Palwinder Singh Mawi and Sukhwinder Singh Sanka have given money to him to kill accused Samra. Those three persons also gave Avtar Singh `50,000/- at Alishan Hotel, Gurdaspur, `50,000/- at International Hotel of Gurdaspur and Rs. 50,000/- near Dolphin Hotel, Mukerian. Once the job was accomplished, Paramjit Singh Kang had promised him to hand over some more money to him. The above three persons also met at Water Liliy Resort, Roop Nagar and informed Avtar Singh that for Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 4 killing Samra they would give him money and would also supply ammunitions and explosives, AK47 and pistol. Avtar had relations with accused Rajinder Kaur @ Bhajno resident of Tibri cantonment Gurdaspur where Kang and Mawi used to visit. From the house of accused Rajinder Kaur ammunitions, explosive materials and bullets could be recovered. Based on the aforesaid statement of accused Samra, First Information Report dated 29.1.2008 on the file of P.S. City Ropar was registered.
6. PW6 along with police party reached police station Purana Shalla accompanied by accused Samra. PW2 S.I. Joga Singh was the Station House Officer of P.S. Purana Shalla. PW6 informed PW2 that the local police could conduct raid of the house of accused Rajinder Kaur.
7. On 29.1.2008 at about 5.30 P.M. PW2 and PW6 accompanied by the police officials attached to P.S. Purana Shalla proceeded to Army Cantonment at Tibri. As the Army officials insisted for search warrant, a search warrant Ex.P3 was obtained from the learned Duty Magistrate on the basis of the application Ex. P1 and the orders passed thereon by the Duty Magistrate under Ex.P2.
8. PW12 Lakhwinder Singh Naib Tehsildar was also associated for the purpose of raid. The police party headed by PW2 S.I. Joga Singh raided the official residence of accused Rajinder Kaur and made a thorough search of her house. On search they found four live cartridges of 7.62 bore, four PEK explosives, 2 pull switches and Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 5 one Electric Detonator were recovered from the drawer of the dressing table lying in the residence of accused Rajinder Kaur. The contrabands were separately parceled and properly sealed.
9. Accused Rajinder Kaur was arrested and interrogated on the spot. On 12.02.2008 Avtar Singh suffered a statement under Section 164 Cr.P.C. before the learned Additional Chief Judicial Magistrate, Ropar. He would state in his statement under Section 164 Cr.P.C. marked as Ex.D9 that on 24.1.2008 accused Samra called him to his residence telephonically. Accused Samra informed him that he wanted to get Avtar Singh's statement recorded by the police to the effect that Avtar Singh had a meeting with Paramjit Singh Kang, Balwinder Singh Mavi and Sukhwinder Singh Sangha at Ropar Water Lily Resort and conspired to kill accused Samra. Dr. Samra kept Avtar Singh in illegal detention from 24.1.2008 to 28.1.2008. He also gave some intoxicated substance and got his signatures on some blank papers, blank stamp papers and some registers. Accused Samra also got a movie film prepared and directed Avtar Singh to speak the same as tutored to him. Accused Samra also asked Avtar Singh to place some articles in the house of Rajinder Kaur at Dibri Cantonment, Gurdaspur. Accused Samra also tortured and harassed him.
10. On 30.01.2008 F.I.R. No. 7 was registered by Police Station Purana Shalla based on the statement given by PW2 S.I. Joga Singh.
11. Accused Avtar singh was arrested on 3.3.2008 under Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 6 memo of receipt Ex.P19. Accused Samra was also arrested on 5.3.2008 under memo of receipt Ex.P21.
12. The material objects were sent for chemical examination. The chemical examiners report was marked as Ex.P23. The report of the Forensic Science Laboratory was marked as Ex.P24.
13. On 23.8.2008 based on the application submitted by investigating agency through the public prosecutor tender of pardon proceedings were conducted by the learned Judicial Magistrate invoking the provisions under Section 306 and 307 Cr.P.C. Again the statement of accused Avtar Singh was recorded by the learned Judicial Magistrate on 23.9.2008 and a pardon was tendered to him on certain conditions. The investigating official having completed the investigation laid a final report as against the accused.
14. Accused Samra has stated in his statement under Section 313 Cr.P.C. that the police officials having been influenced by Paramjit Singh Kang, Balwinder Singh Mavi and Sukhwinder Singh Sangha who were followers of Baba Mann Singh Incharge of Pehova foisted a false case on him. Accused Avtar Singh was a stooge of Baba Mann Singh and his followers.
15. Accused Rajinder Kaur has stated in her statement under Section 313 Cr.P.C. that she was innocent, but a false case was foisted on her.
16. On the side of the defence Amit Kumar, Assistant Nodal Officer, Vodafone, Mohali was examined as DW1. ASI Manjit Singh Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 7 was examined as DW2 and Kulwant Singh who was the opposite resident of accused Rajinder Kaur was examined as DW3.
17. The trial Court having thoroughly relied upon the evidence of the approver Avtar Singh in the background of the evidence of PW2 S.I. Joga Singh, PW6 S.I. Balwant Singh and PW12 Lakhwinder Singh Naib Tehsildar and the recovery effected from the house of accused Rajinder Kaur returned the verdict of conviction as stated supra.
18. The learned Senior counsel appearing for the appellant Samra would submit that the recovery of the contraband was made only at his instance based on the First Information Report lodged by him. Such a recovery effected by the investigating agency cannot be used for corroboration of the untrustworthy evidence of the accomplice who turned as an approver. Though, there is a conflict between Section 114 (b) and Section 133 of the Evidence Act, it has been resolved that though conviction based on uncorroborated version of an accomplice is a rule of law under Section 113 of the Evidence Act, rule of prudence as contemplated under Section 114
(b) of the Evidence Act mandates rising of a presumption that the evidence of an accomplice is not a reliable one in the absence of any corroboration. She would vehemently attack the evidence of approver on the ground that his evidence was totally untrustworthy. The evidence of an accomplice which is writ large with inconsistency cannot be the sole basis for conviction. The conduct of the Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 8 accomplice throws doubt on the unnatural and unbelievable story projected by him. There is no evidence that accused Samra placed the contraband in the house of accused Rajinder Kaur. The investigating agency had no explanation as to why they had not chosen to arrest the accomplish Avtar singh who turned an approver lateron, inspite of the fact that from the very first day of the information shared by accused Samra through his First Information Report, the investigating agency has got sufficient information as to the complicity of Avtar Singh. There was no explanation as to why Paramjit Singh Kang, Balwinder Singh Mavi and Sukhwinder Singh Sangha were not arrested inspite of the allegations found in the First Information Report as regards their role in planting the contraband. As the cancellation report submitted by the Roopnagar police was not accepted and further investigation was ordered by the learned Judicial Magistrate the First Information Report lodged by accused Samra still stands good. The prosecution has come out with a totally unbelievable story that the contraband was kept by accused Samra in the house of Rajinder Kaur with an idea to cause the death of Paramjit Singh Kang, Balwinder Singh Mavi and Sukhwinder Singh Sangha. There was no investigation about the future design to kill those persons. Therefore, it is submitted that the accused Samra is entitled to acquittal, in as much as the unbelievable story of the approver has been totally isolated and there was no corroborative material to support the approver.
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19. The learned counsel appearing for the accused Rajinder Kaur would vehemently submit that the recovery of the contraband from the house of accused Rajinder Kaur was admitted by her through the evidence of DW3 Kulwant Singh adduced by her but there is virtually no evidence that accused Rajinder Kaur was in conscious possession of the contraband in her house. Accused Avtar Singh had misused his relationship with the innocent accused Rajinder Kaur. It is against common sense that a person would provide shelter for keeping the contraband exposing himself to prosecution. There is nothing on record that she conspired with the other accused. No offence under the Explosives Substances Act, 1908 and the Arms Act, 1959 was made out. Therefore, he would contend that the accused Rajinder Kaur also is entitled to acquittal.
20. Per contra, the learned Additional Advocate General, Punjab appearing for the State would submit that accused Samra had chosen Roop Nagar police station in order to register a case with the assistance of a Deputy Superintendent of Police known to him. Roop Nagar has no connection with the place where the contraband was recovered. The evidence of approver clearly established the complicity of the accused Samra and Rajinder Kaur. The recovery of material objects at the instances of accused Samra corroborates the evidence of approver. In as much as there was no material to establish the complicity of Paramjit Singh Kang, Balwinder Singh Mavi and Sukhwinder Singh Sangha, they were not arrested in connection Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 10 with this case. As the recovery was almost admitted, accused Samra as well as accused Rajinder Kaur cannot escape from the charges framed as against them. Further, investigation in F.I.R. No. 12 dated 29.1.2008 of Roop Nagar police station could not be done as the entire file was summoned by the Additional Sessions Judge for the purpose of trial in this case. It is his submission that the prosecution could establish the case as against both the accused through the evidence of approver and the recovery of contraband.
21. Accused Samra has lodged the First Information Report on 29.01.2008 that accused Avtar Singh confided to him that Paramjit Singh Kang, Balwinder Singh Mavi and Sukhwinder Singh Sangha had conspired to kill accused Samra with the assistance of Avtar Singh and placed explosives in the house of accused Rajinder Kaur. Through the First Information Report accused Samra has also revealed to the Investigating Officer that Avtar Singh was infact bribed with money to execute the job of killing Samra by those three persons.
22. PW6 S.I. Balwant Singh of P.S. Ropar having registered the case on the basis of the statement given by accused Samra coolly proceeded along with accused Samra to the house of accused Rajinder Kaur. Very conveniently PW6 S.I. Balwant Singh would depose that he had not associated accused Avtar Singh for conducting raid. Whereas, accused Avtar singh deposed that accused Samra and himself proceeded along with the police party to the house Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 11 of Rajinder Kaur for the purpose of recovering the contraband from her house.
23. Accused Avtar Singh has been shown as a supari killer on behalf of Paramjit Singh Kang, Balwinder Singh Mavi and Sukhwinder Singh Sangha. It is really surprising to note that PW6 had not chosen to arrest Avtar singh either prior to the recovery or subsequent thereto.
24. The approver has come out with a damaging version that he was taken into custody as on 2.2.2008 itself by the Investigating Officer. It was only his wife who got him released after about 12 days of detention by the investigating officials. There was no answer from the prosecuting agency as to why he was not arrested immediately after the investigating agency came to know that Avtar Singh was also a culprit. There was no answer as to why he was detained for about 10 long days without showing any arrest. In short we may come to a conclusion that all was not well with the investigation process.
25. It is the admitted case of the prosecution that Avtar singh suffered a statement Ex.D9 under Section 164 Cr.P.C. on 12.2.2008. The complicity of Avtar singh in the crime has been reflected in his statement under Section 164 Cr.P.C. recorded by learned Judicial Magistrate but the investigating agency had not arrested him even on 12.2.2008 well after the above statement under Section 164 Cr.P.C. suffered by him. The statement under Section 164 Cr.P.C. suffered by him before the learned Judicial Magistrate will have to be analysed in Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 12 the background of the damaging deposition of Avtar Singh that he was detained on 2.2.2008 and he was kept in illegal custody for 12 days before ever he was released at the instance of his wife. If we align the sequence of evidence, it is crystal clear that accused Avtar Singh had been released only at the instance of his wife on his assurance that he would give statement under Section 164 Cr.P.C. before learned Judicial Magistrate on 12.2.2008. The concession of not subjecting him to arrest had been given to him as on 12.2.2008 even after his damaging statement under Section 164 Cr.P.C.
26. In his statement under Section 164 Cr.P.C. Avtar Singh had stated that he was in illegal custody of accused Samra from 24.1.2008 to 28.1.2008. Samra had even given intoxicated substance to him. He also got his signatures on blank papers, blank stamp papers and some registers. A movie film was also prepared involving himself.
27. No document with the signatures of Avtar Singh was recovered from the house of Samra. No movie film was also recovered from the house.
28. It is the admitted case of the prosecution that at the time of occurrence Samra was provided with CRPF security. The entry and exit register maintained by the CRPF security personnel was also not recovered. Just for the execution of the personal agenda, Samra had allegedly kept him in illegal confinement for five days. Would a former police gun man tolerate such a humiliating exercise undertaken by Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 13 Samra for no fault of him? Would such a former gun man keep quite without taking efforts to retrieve the blank papers signed by him? Would he have obliged without any monetary consideration or some sentimental attachment to keep the contraband in the house of his acquaintance risking his life and liberty? In my considered view, Avtar Singh had reeled out a cock and bull story for the consumption of the investigating officials. Unfortunately, the investigating officials believed that story as true and misdirected investigation itself.
29. Surprisingly the First Information Report lodged by accused Samra is still at the stage of investigation. Though, the investigating agency submitted a closer report, the same was not accepted by the learned Judicial Magistrate. He was pleased to direct further investigation in the case. The investigating agency comes out with a plea that the entire file relating to F.I.R. No. 12 dated 29.1.2008 on the file of P.S. Ropar was summoned by Additional Sessions Judge and, therefore, further investigation could not be done. Had the investigating agency informed the Court of Additional Sessions Judge that further investigation has been ordered in that case, the Court would have definitely parted with the file to go ahead with the further investigation. But unfortunately, the fact that further investigation was ordered in F.I.R. No. 12 dated 29.1.2008 of P.S. Ropar was not brought to the notice of the Court of Additional Sessions Judge. The fact remains that the First Information Report lodged by accused Samra had not yet reached its logically end.
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30. Coming to the evidence of approver Avtar Singh, it is found that he had widened the scope of his first version found in his statement under Section 164 Cr.P.C. Never had he stated in his original version in his statement under Section 164 Cr.P.C. that accused Samra also accompanied him to the house of accused Rajinder Kaur to place the contraband on 28.2.2008. For the first time before the Court during the course of his evidence, Avtar Singh deposes that accused Samra planted the contraband in the house of accused Rajinder Kaur. In our considered view, the evidence of Avtar Singh is totally untrustworthy and unbelievable.
31. It is the case of the prosecution that the contrabands as detailed in the First Information Report lodged by accused Samra were recovered from the house of accused Rajinder Kaur. The contraband was of a small quantity which could be accommodated in the drawer of a dressing table. Though, there is some inconsistent version as to who were all present at the time when the contraband was recovered, we find that evidence of DW3 Kulwant Singh the resident of opposite side of Rajinder Kaur would go to establish that there was really a recovery made from the house of Rajinder Kaur in the early morning on 30.1.2008. The absence of denial by any of the witnesses examined on the side of the prosecution as regards the admission of the approver that he was very much present at the time when recovery was made and the evidence of DW1 Amit Kumar, Assistant Nodal Officer, Vodafone to the effect that the mobile phone Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 15 owned by accused Samra was in operation from Tibri Cantonment at about 1.15 A.M. on 30.1.2008 would go to establish that not only Samra but also approver Avtar Singh was present at the time when the raid was conducted. It is also quite natural for the investigating agency to associate the author of the First Information Report and the person who had passed on vital information to lodge the First Information Report for the purpose of raid. For reasons best known to the prosecuting agency, there is an attempt made by them to suppress the fact that Avtar Singh was also present at the time when the search was made in the house of Rajinder Kaur. The reason is not far to seek. They were under the obligation to explain as to why Avtar Singh was not arrested inspite of the fact that he was found in the company of the police party on 29.01.2008 itself. Therefore, there was a serious attempt to burke the fact that Avtar Singh was present at the time when the search was conducted. In our considered view, the prosecution has established that there was recovery of contraband from the house of Rajinder Kaur.
32. At this stage two questions arise for determination. One is whether the accused Samra placed the contraband at the house of accused Rajinder Kaur. The second is whether Rajinder Kaur was in conscious possession of the contraband.
33. On the side of the accused Samra it was submitted that Avtar Singh suffered statement under Section 164 Cr.P.C. as on 2.2.2008 itself. The said statement was exhibited as Ex.D2 on the Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 16 side of accused Samra but the prosecution resisted it saying that no such statement under Section 164 Cr.P.C. was recorded by the learned Judicial Magistrate. For the first time, the statement under Section 164 Cr.P.C. was recorded only on 12.2.2008 and the same was exhibited as Ex.D9. PW2 S.I. Joga Singh and PW6 S.I. Balwinder Singh were not sure as to whether any statement under Section 164 Cr.P.C. was recorded on 2.2.2008. As it was projected on the side of the accused Samra that a statement under Section 164 Cr.P.C. was already recorded on 2.2.2008, an application was submitted by the investigating official to know whether any statement under Section 164 Cr.P.C. from accused Avtar Singh was recorded as on 2.2.2004. DW2 ASI Manjit Singh has clarified the position that the Chief Judicial Magistrate had conveyed that there was no such statement recorded under Section 164 Cr.P.C. on 2.2.2008 from the accused Avtar Singh.
34. On a bare perusal of Ex.D2 the alleged statement under Section 164 Cr.P.C. suffered by Avtar Singh, we find that there was no signature of the Judicial Magistrate found thereon. The original of Ex.D2 had not seen the light of the day. Avtar Singh also had denied his signature appeared in Ex. D2. For all these reasons we reject the defence set up by accused Samra that Avtar Singh suffered statement under Section 164 Cr.P.C. way back on 2.2.2008 supporting the version of accused Samra.
35. In the statement under Section 164 Cr.P.C. Ex.D9 suffered Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 17 by Avtar Singh on 12.2.2008, he has stated that accused Samra asked him to place some articles in the house of Rajinder Kaur. He also asked him to place the explosive materials meant for Paramjit Singh Kang, Balwinder Singh Mavi and Sukhwinder Singh Sangha in the house of Rajinder Kaur. The above first version of the approver did not supply any clue as to who actually placed the contraband in the house of accused Rajinder Kaur.
36. Let us now critically analayse the testimony of approver as regards the planting of contraband in the house of Rajinder Kaur. The approver who was examined as PW1 has stated in his evidence that on 28.1.2008 he and Samra proceeded to the house of accused Rajinder Kaur. At that time yet another person also accompanied him. Before reaching the house of Rajinder Kaur accused Samra showed him the explosive materials wrapped in a polythene bag. Thereafter, they visited the house of Rajinder Kaur. Rajinder Kaur served them tea. Accused Samra went inside the room and placed the bag of explosive materials.
37. It is to be noted that there is no whisper made by the approver that Rajinder Kaur had knowledge about the contraband kept in her house. The contraband was of a small quantity which could be conveniently accommodated in the drawer of the old dressing table. There is every possibility that Rajinder Kaur would not have any knowledge about the contraband kept in her house.
38. The version that accused Samra and yet another person Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 18 accompanied Avtar Singh to the house of accused Rajinder Kaur is also found to be an improved version. Never had he stated that accused Samra and another person accompanied him to the house of Rajinder Kaur and accused Samra placed the contraband in her house. In his statement under Section 164 Cr.P.C., he has simply stated that he was assigned with the job of placing the contraband meant for Paramjit Singh Kang, Balwinder Singh Mavi and Sukhwinder Singh Sangha in the house of accused Rajinender Kaur. The material improvement in the evidence of Avtar Singh creates a doubt in the mind of the Court as to whether accused Samra would have accompanied him to the house of Rajinder Kaur to place the contraband. We also find that the other stranger who accompanied him was not tracked down by the investigating agency. No investigation was done in that direction. Further, the evidence of Avtar Singh that accused Samra opened the polythene bag and showed him the contraband also appears to be quite unnatural.
39. Rajinder Kaur would not have shown indulgence to place the explosive materials in her house just to accommodate a relative. She is exposed to criminal prosecution either at the instance of accused Samra or at the instance of those three persons shown as the villains of piece by accused Samra in his first F.I.R. When she cannot escape from criminal prosecution in any case, she would not have voluntarily accommodated the approver to place the contraband in her house.
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40. The investigating agency in the requisition for transit remand Ex.D3 has come out with a version that the investigating officer collected information that it was only Avtar Singh who brought the contraband and kept at the house of Rajinder Kaur but in the requisiton for police remand Ex.D4 the Investigating Officer would observe that he collected information that Rajinder Kaur's son Virender brought and kept the contraband in her house. We find that there are four inconsistent versions as to who actually placed the contraband in the house of Rajinder Kaur. One version is that it was only those three persons referred in F.I.R. No. 12 dated 29.1.2008 who kept the contraband to eliminate accused Samra. Second version is that it was only Samra who kept the contraband in the house of Rajinder Kaur to implicate those three persons. Third version is that at the instance of accused Samra accused Avtar Singh who turned as an approver planted the contraband in the house of Rajinder Kaur. The fourth version is that Rajinder Kaur's son Virender brought and kept the contraband in her house. In our considered view, the prosecution miserably failed to establish with cogent evidence that it was only accused Samra who placed the contraband in the house of accused Rajinder Kaur and accused Rajinder Kaur was in conscious possession thereof.
41. Illustration (b) to Section 114 of the Indian evidence Act 1872 would read that an accomplice is unworthy of credit unless he is corroborated in material particulars. Very interestingly Section 133 of Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 20 the Indian Evidence Act postulates a contradictory proposition. As per Section 133 of the Evidence Act, an accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon upon the uncorroborated testimony of an accomplice.
42. The privy counsel in Bhuboni Sahu versus The King 1949 AIR (PC) 257 made an attempt for the first time to resolve the anomalies in the above proceedings found in the Indian Evidence Act. It has been held therein though it is not illegal to act upon the uncorroborated testimony of an accomplice, it is a rule of prudence so universally followed that it is unsafe to act upon the evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused.
43. The Hon'ble Supreme Court Haroom Haji Abdulla versus State of Maharashtra AIR 1968 Supreme Court 832 held as follows:-
"The Evidence Act in Section 133 provides that an accomplice is a competent witness against an accused person and that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The effect of this provision is that the Court trying an accused may legally convict him on the single evidence of an accomplice. To this there is a rider in illustration (b) to Section 114 of the Act which provides that Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 21 the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. This cautionary provision incorporates a rule of prudence because an accomplice, who betrays his associates, is not a fair witness and it is possible that he may, to please the prosecution, weave false detail, into those which are true and his whole story appearing true, there may be no means at hand to sever the false from that which is true. It is for this reason that courts, before they act on accomplice evidence, insist an corroboration in material respects as to the offence itself and also implicating in some satisfactory way, however small, each accused named by the accomplice. In this way the commission of the offence is confirmed by some competent evidence other than the single or unconfirmed testimony of the accomplice and the inclusion by the accomplice of an innocent person is defeated. This rule of caution or prudence has become so ingrained in the consideration of accomplice evidence as to have almost the standing of rule of law."
44. After all an accomplice who bargains with the prosecution seeking pardon is naturally bound to oblige the prosecution by reeling out stories to the satisfaction of the prosecution. Therefore, the Court should be on guard while appreciating the evidence of an accomplice Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 22 as there is inbuilt unfairness in the conduct of the accomplice who has chosen to betray his co-accused. Rule of prudence mandates searching for corroboration for the sole testimony of the approver.
45. The Hon'ble Supreme court in Ravinder Singh versus State of Haryana AIR 1975 Supreme Court 856 observes as follows:-
"An approver is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This test is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi menu. Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a rare case taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the court may be permissible. Ordinarily, however, an approver's statement has to be corroborated in material particulars bridging closely the Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 23 distance between the crime and the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based."
46. An approver virtually purchases amnesty selling out his morality ditching his companion for the sake of accomplishing his agenda. The Court will have to apply the rule of caution while appreciating his evidence. Therefore, it is not safe for the Court to record conviction though it is legal unless the evidence of the approver receives corroboration in material particulars.
47. In Balwant Kaur versus Union Territory of Chandigarh AIR 1988 Supreme Court 139 the Hon'ble Supreme Court allowed the appeal of the accused on the ground that the evidence of the approver with regard to the complicity of the appellant accused lacked corroboration on certain material particulars.
48. In Ramprasad versus State of Maharashtra 1999(2) RCR(Criminal) 819 the Hon'ble Supreme Court has held as follows:-
"While dealing with the appeals concerning A.1-Gopal Maharaj and A.4-Ram Prasad Yadao we are to point out that their conviction depends entirely on the testimony PW2-Anil Chaudhary. The Division Bench of the High Court placed full reliance on his evidence. Though there is Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 24 no legal hurdle against acting on the testimony of an accomplice it is well-nigh settled that it would be imprudent to base a conviction on such testimony unless it is corroborated in material particulars. Hence PW2's evidence has to pass the test of reliability and must secure adequate corroboration before the same cane be acted upon, in so far as A.1-Gopal Maharaj and A.4-Ram Prasad Yadao are concerned."
49. It has been categorically held by the Hon'ble Supreme Court that evidence of an approver shall pass the test of realibility and also secure adequate corroboration. We find that PW1 Avtar singh has come out with totally incredible evidence. For the reasons set out above, we find that it would be unsafe to rely upon his untrustworthy evidence without any corroboration from any quarters to convict the accused. Though, it is legal to convict an accused based on the evidence of an approver, we find that there is virtually no evidence to corroborate the evidence of the approver on material particulars.
50. Of course, the investigating agency has recovered the explosive substance from the house of accused Rajinder Kaur but such a recovery has been effected only based on the First Information Report lodged by accused Samra. It is to be noted that recovery had not been effected in this case based on any disclosure statement made by a person in his capacity as an accused. Certain vital clues had been dropped in the First Information Report lodged by accused Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document Criminal Appeal No.D-105-DB of 2009 and Criminal Appeal No.D-106-DB of 2009 25 in his capacity as an aggrieved complainant. Therefore, such a recovery effected based on the information furnished by a person in his capacity as a complainant cannot be treated as a corroborating material to support the case of the prosecution projected through the evidence of an approver.
51. In view of the above, we find that none of the charges was established as against accused Dr. Gurwinder Singh Samra and accused Rajinder Kaur beyond reasonable doubt. Therefore, they are acquitted of all the charges framed as against them. They shall be set at liberty forthwith, If their custody is not required in connection with any other case. Consequently, the judgment of conviction and order of sentence passed by the trial Court is reversed and both the appeals preferred by them stand allowed.
(M.JEYAPAUL) JUDGE (ANITA CHAUDHRY) JUDGE July 12, 2013 p.singh Singh Parvinder 2013.08.01 11:15 I attest to the accuracy and integrity of this document