Indian Kanoon - Search engine for Indian Law

According to the testimony of Som Nath PW2 and Labh Singh PW3, they had left the police station at about 5 p.m. or 5.15 p.m. and while they were patrolling in the area of the main market of Sector 17, Chandigarh, they noticed both the appellants raising slogans, as noticed above. Both the witnesses conceded that when slogans were being raised, the people in general were going bout doing their jobs and they did not gather on hearing the slogans but stated that some people went away out of 'fear', In cross- examination, Som Nath PW2 admitted that he could not name anyone or even suggest whether any one out of the passer-by got afraid on hearing the slogans and fled away from the place. According to the witnesses, both the appellants had raised the slogans together. Though PW2 could not state as to how many times each of the three slogans was raised by the appellants, PW3 ASI Labh Singh admitted in the cross examination that the slogans "Khalistan Ziridabad" was raised about five or six times while the second slogan "Raj Karega Khaisa" was raised two or four times and that the third slogan was raised only once or twice. ASI Labh Singh PW also admitted that the slogans had been raised by the appellants before they were arrested and that they did not raise any slogans afterwards. ASI Labh Singh PW, however, added that the appellants raised slogans while they were being apprehended once or twice and to the same effect is the statement made by PW2 Som Nath, who, however, was confronted with his police statement recorded under Section 161 Cr. P.C., wherein he had not mentioned that the appellants raised any slogan while being apprehended. the appellants in their statement recorded under Section 313 Cr, P.C., denied the prosecution allegations against them. According to Balwant Singh, Bhupinder Singh, appellant came to his office at about 4.30 p.m. and they left together after he finished his day's duty at about 5 p.m. that while they were proceedings towards the bus stand, in order to take a bus to go to Mohali where they reside, they met Mewa Singh DW2 and Surender Pal Singh DW3 near the fountain with whom they exchanged 'Sat Siri Akai' Being an Amritdhari Sikh, he was wearing a kirpan. That near Neelam Cinema Dy. S.P. Sudhir Mohan and Inspector Baldev Singh caught hold of them, presumably because he was wearing a kirpan and both of them had not tied their beards. That the police officials took them to the police station in Sector 17 in their jeep. ASI Labh Singh was present at the police station attending to the telephone. On their enquiry, as to why thy had been brought to the police station and why they were being detained, ASI Labh Singh told him that only the senior officers who had brought them to the police station could give them an answer to their question. Bhupinder Singh, appellant made a substantially similar statement.

At the time of arrest of the appellants, the personal search of the appellants was taken and the personal search memos were prepared. In the personal search memo of Balwant Singh, the only two articles which are shown to have been recovered are: one watch HMT and one gold ring. There is no mention of any kirpan having been seized. After the arrest of the appellants, the police produced them before the Ilaqa Magistrate when they were remanded to judicial custody. DW1 Shitla Prashad, Munshi, District Jail, Burail deposed that on November 1, 1984, Balwant Singh appellant was admitted to the District Jail and that;

"At that time he was wearing a kirpan on his person which was taken off and kept in safe custody at the time of his admission into jail and that kirpan is still lying deposited with us. I have brought that kirpan."

Both PW2 and PW3, had however, stated in their statements that they did not see Balwant Singh wearing any kirpan and that no kirpan was taken into possession from him.

Mr. V.M. Tarkunde, the learned senior counsel appearing for the appellants submitted that the prosecution has not been able to establish the case against the appellants beyond a reasonable doubt. Learned Counsel argued that though admittedly the occurrence had taken place in a busy place, where number of independent persons were available, prosecution had not associated any independent person at the time of arrest of the appellants and that was a serious infirmity in the case, Mr. Tarkunde then submitted that the very fact that both the police witnesses, Constable Som Nath and ASI Labh Singh made unsuccessful effort to conceals that Balwant Singh was carrying a kirpan, which fact stands established from the evidence of DW1 Munshi of the District Jail at Burail, it could be safely inferred that the entire case against the appellants, was a made up affair and not based on facts. The prosecution witnesses were guilty of giving False statements. Learned counsel then, in the alternative, went on the submit that even if the prosecution case to the effect that the appellants had raised the three slogans was accepted, no offence under Section 124A IPC or 153A IPC could be said to have been made out.

On facts, we find that the prosecution witnesses PW2 and PW3 have not spoken the whole truth. Both the prosecution witnesses PW2 and PW3 made a deliberate attempt to conceal the existence of kirpan on the person of Balwant Singh at the time of his arrest, which fact stands amply proved from the evidence of DWl. The trial court while dealing with this aspect of the case observed :

"On 1.11.1984 the accused were produced before the Magistrate, No order of the Magistrate has been produced to show that Balwant Singh accused was wearing a kirpan when he appeared before him. It was only thereafter that the accused were sent to jail. It, therefore, appears that the kirpan was supplied to Balwant Singh after he had been remanded by the Magistrate and was on his way to the jail." (Emphasis ours) We are unable to appreciate this reasoning. The trial court appears to have made out a case which was neither spoken to nor relied upon either by the prosecution or the defence. It is nobody's case that Balwant Singh and been supplied with the kirpan when he was on his way to the jail. It defies logic to think that some one from the public would have such as easy access to a person in custody of the police so as to be able to arm him with as kirpan, without the police escort knowing about it! It is not permissible for the trial court to make such an inference on assumptions without any evidence on the record. The Court must confine itself to the evidence to decide the case and not base its opinion on surmises and conjectures. We also regret to note that the trial court while recording the conviction observed;