Sahib
Singh Vs. State of Haryana [1997] INSC 621 (28 July 1997)

M. K.
MUKHERJEE, S. SAGHIR AHMAD

ACT:

HEADNOTE:

S.
SAGHIR AHMAD, J Hallucination, as a disease, is an apparent perception without
any corresponding external object. It is defined as any of numerous sensations,
auditory, visual or tactile, experienced without external stimulus and caused
by mental derangement or intoxication. It may occur with relation to any of the
special senses, namely, hearing sounds or seeing things that do not exist.

2. The
prosecution in this case presents before us a story of Hallucination where a
dead person is seen by the eye- witnesses to have come armed with a gun, fired
the gun at one of the witnesses who was injured and then was seen running away
with other people including the appellant, towards another village never to be
found again. The appellant was seen in the company of that dead person,
shoulder to shoulder, armed with a gun and triggering it to keep pace with the
activities of his companion, the dead.

3. Prosecution
unfolds its story by ushering us into an era when the Punjab was writhing in pain of militancy.

4.
Village Pipaltha, P.S. Garhi Distt. Jind, where Om Prakash deceased) lived with
his three sons, Dharam pal (P.W 10), Surinder (P.W. 11) and Suresh (P.W.12)
(fourth is not material) was targetted by terrorists resulting in the death of Om
Prakash and gunshot injuries to his son, Suresh.

5. The
appellant was prosecuted and tried by the Additional judge (designated Court, Rohtak
at Jind) and convicted for offences u/s 302/34 IPC read with Section 3(2) of
the Terrorist & disruptive Activities (Prevention) Act, 1987 (for Short,
the `Act') with a fine of Rs.200/- or else further rigorous imprisonment for
one year; under Section 452/34 IPC (Sentence: 3 years R.I. with a fine of
Rs.100/- or else 3 months further R.I.) under Section 307/34 IPC (Sentence: 7
years R.I.); and under Section 394/34 IPC (Sentence: 10 years R.I. with a fine
of Rs. 200/- or else R.I. for one year).

6.
House of Om Prakash which also contained a shop at which Dharam Pal and Surinder
used to sit, was located almost in the centre of the Village in a busy
locality. a short distance away was another shop at which Suresh and his
brother, the fourth son of Om prakash,
used to sit.

7. On
18.11.1991 at about 6.30 P.M. while Om Prakash was at the shop of his two sons,
Dharam Pal and Surinder, two young Sikhs armed with small guns, came and asked Om
prakash to hand over his revolver but Om Prakash who did not possess a revolver
offered his 12 bore gun. The two Sikh youths, at the point of gun, brought all
the three, namely, Om Prakash, Dharam Pal and surinder on the street where a
group of three other young Sikhs were standing on the right side of the Shop
while another group of three or four Sikhs youths, which also included the
appellant, was standing in front of their shop. All of them were holding small
guns and were between the age group of 25-30 years. One of the two Sikh youths,
brought out a Hero-Honda Motor Cycle from the shop and wanted Om Prakash to sit
on the Motor Cycle but Om prakash refused and while trying to
run inside the ship, he was fired upon. He attempted to enter the room on the
rear of the shop but all the Sikh youths present there started firing
indiscriminately as a result of which he received injuries on various parts of
his body. While Dharam pal and Surinder managed to escape, Suresh, who was at
the other shop, came running to help them but was injured in the firing. All
the Sikh youths then went away towards village `Rewar'.

8. Om prakash was taken to a hospital at Narwana where he
was declared dead while Suresh, who was medically examined there, was admitted
for treatment.

9.
After due investigation, a charge-sheet was submitted only against the
appellant who was tried and ultimately convicted as aforesaid.

10.
The appellant, from the very beginning, had denied the prosecution story and
had contended that he had been falsely implicated on account of enmity as civil
and criminal cases were pending even on the date of incident between him and
other members of the family of Om prakash. He,
in that connection, examined one witness in defence and also brought on record
certain documents including a copy of the order passed by the Punjab & Haryana
High Court in Criminal Miscellaneous case No. 6397 (M) of 1992.

11.
Let us find out the truth.

12.
The statement of three eye witnesses one of whom was an injured witness as also
the appellant's confessional statement recorded by the police under Section 15
of the Act, constitute the basis of his conviction for the offences in
question.

13. So
far as eye witnesses are concerned, they are three, namely, Dharam Pal
(P.W.10), Surinder (P.W.11) and Suresh (P.W.12). They are sons of om prakash
(deceased). Suresh (P.W. 12) is an injured witness. These witnesses speak of
the appellant's presence at the spot with a gun with one Kala Singh who was
also armed with a gun.

14. It
is contended by the learned counsel for the appellant that although the
incident had taken place at 6.30 P.M on
18.11.1991 in the market area, the prosecution did not produce any independent
eye witness and attempted to prove its case only through interested eye
witnesses who were the sons of the deceased. It is contended that in such a
situation where the independent witnesses, in spite of being available were not
produced, the conviction cannot be sustained merely on the testimony of highly
interested witnesses particularly in view of the fact that Om prakash
(deceased) and his family members including his three sons who have been
produced as eye witnesses were on inimical terms with the appellant and had
even tried earlier to implicate him and his father in a false criminal case
involving, incidentally, the same Kala Singh in whose company the appellant, in
the instant case, has been placed.

15.
The contention that the prosecution had relied only upon witnesses who are
family members of the deceased and are thus highly interested cannot, by
itself, be aground to reject their statements. Witnesses who are related to the
deceased are as competent to depose the facts as any other witness. Mere
relationship does not disqualify a witness. If the incident had taken place at
a time or under such circumstances that there was no possibility of any other
person being present at the spot , except those who were related to the
deceased, those persons, namely, persons related to the deceased, will be
competent to depose the facts seen by them. Even if the possibility of
independent witnesses being present is not ruled out, the witnesses related to
the deceased would still be competent witnesses.

All
that has to be shown is that the witnesses were stating the truth. The Court
itself, in order to find out whether what they had stated was true or not would
scrutinise their evidence with care and caution. In Kartik Malhar vs. State of
Bihar 1996 91) SCC 614: 1996 Cr.L.J. 889 decided by a Bench of this Court of
which one of us (Saghir Ahmad, J.) was a member, it was held:- "A close
relative who is a natural witness cannot be regarded as an interested witness.
The term Interested' postulates that the witness must have some direct interest
in having the accused somehow or the other convicted for some animus or for
some other reason."

16.
This contention raised on behalf of the appellant will be considered a little
later to find out whether the witnesses had the motive to secure the conviction
of the appellant and were, therefore, interested witnesses.

17. Dharam
Pal (P.W.10) has stated that he had taken his father Om Prakash and brother
Suresh to the hospital at Narwana where they reached at about 10.00 p.m The police outpost at Pipaltha had already radioed
the message to police Station, Garhi which was received by A.S.I Dharam Singh
(P.W. 16) at 6.50 P.M. It is not disputed that police
Station, Garhi falls on way to Narwana but there too the matter was not
reported. That by itself would not be relevant as Dharam Pal who was taking his
father and brother to the hospital might have been in a hurry to save their
lives. What is, however, relevant is that Surinder (P.W.11), the other son of Om prakash remained in the village and did not company
his father or the injured brother to the hospital. He had full opportunity of
going to the police station to lodge the report but there is no explanation
forthcoming as to why this was not done. Dharam Pal, in his statement on oath,
has stated that there was a police outpost in his village but there too, no
report was lodged.

18.
The police of P.S. Garhi which already knew the incident, having been informed
by the police Outpost, Pipaltha, reached at the hospital at 9.30 p.m. Om Prakash was already declared dead by the doctors
at the hospital.

The
statement of Dharam Pal was recorded by the police at the hospital at 10.50 P.M. on 18.11.91 after obtaining the opinion of the
doctors that Suresh (P.W. 12) who was injured in the incident in question, was
not in a fit condition to make the statement. On the basis of the statement of Dharam
pal, a formal F.I.R. No. 237 was recorded at police Station, Garhi at 12.15 A.M. on 19.11.91 in which the appellant was named as an
accused. The special Report which was sent to the magistrate at Narwana was
received by him at 4.00
A.M.

19. It
would be relevant here to reproduce the following passage from the statement of
Dharam Pal (P.W.10);- "My brother Surender remained in the Village I
cannot tell whether Surender my brother made any report to the police in Vill Pipaltha
when we had taken our father to Hospital. We did not lodge any report with the
police station Garhi as we were first of all to save our father. It is correct
that if we come from village Pipaltha to Narwana, P.S. Garhi is located on the
road on the way to Narwana. we reached the Hospital at about 8.10 P.M. The police came at about 9.30 P.M. in the Hospital. On our arrival in the Hospital, the doctor
had declared our father as dead. My statement was recorded at about 10.15 PM by the police. My statement was recorded only at
that time and was not recorded subsequently. I did not make any supplementary
to the police in this case after my statement was recorded by the police in CivilHospital. i stated to the police in that very Hospital after about
2/3 hours of my recording the statement, name of Kala Singh but no statement to
that effect was recorded by police at that time. I had fully recognised Kala
Singh but no statement to that effect was recorded by police at that time. I
had fully recognised Kala Singh and he was standing with Sahab Singh near the
wall of Bharthu. Kala Singh had also fired shots as all the eight were firing
while running after us. I had not sated name of Kala Singh in my statement Ex.
PD to the police. I had stated the name of Kala Singh afterwards."

20.
The chronology of events indicates that the F.I.R. was registered after the
statement of Dharam Pal was recorded by the police at the hospital and further
that although Surinder remained in the Village, he did not go to the police
station to lodge the report. This chronology further indicates that the F.I.R.,
in this case, was lodged after unreasonable "delay" and after due
deliberation. Normally, this delay would have been ignored but if it is
considered in the light of the statement of witnesses, which we shall presently
scrutinise, it would come out that this "delay" was deliberate and
meaningful.

21.
Admittedly, there is positive enmity between the appellant and his family
members on the one hand and Om Prakash and his family members on the other. The
following extract from the statement of Dharam Pal would bring out the factum
of enmity existing between the parties:- "Lakhi and Giani Harijans were
employed by us to work in the fields alongwith other workers on daily wages
whenever we felt any necessity. They were not our regular employees. I do not
know whether Lakhi and Giani got registered a case against Sucha Singh and two
brothers of Sahab Singh accused at our instance after this occurrence. It is
correct that a criminal case under Section 325 IPC etc. was pending in the
Court of JMIC, Narwana against Sahab Singh etc. accused and against us, prior
to this occurrence. A civil litigation had also proceeded between us and Sahab
Singh accused prior to this occurrence. We and sahab Singh accused were on
inimical terms prior to this occurrence due to civil and criminal litigation
between us."

22. To
the same effect is the statement of Surinder (P.W.11) who stated as under:-
"It is correct that civil and criminal litigation between us and Sahab
Singh accused is still pending in the courts and it was also pending at the
time of alleged occurrence. both of us were challenged in case under sec. 325
IPC and cross-cases against Sahab Singh and also against us was pending at the
time of occurrence.

I had
also told the police about the enmity."

23.
Suresh Kumar (P.W.12) , who is an injured witness, also admitted that he and
Sahib Singh were on inimical terms.

24. it
is in this background that the statement of these three eye witnesses, who are
real brothers, are to be analysed to find out whether the occurrence did take
place in the manner stated by them and whether in that incident Sahib Singh and
Kala Singh participated and fired at Suresh Kumar (P.W.12) or at Om Prakash
(deceased).

25. Dharam
pal, in his statement, narrated the incident in the following words;- "One
Sikh youth remained standing inside the shop while the other Sikh youth came
outside and took out personal search. The Sikh youth who took personal search
brought our motor-cycle from the shop outside. The motor cycle was of
Hero-Honda make bearing registration No. HR-32/0218. The Sikh youth who took
out the motor- cycle from the shop made to sit forcibly my father on them
other- made to sit forcibly my father started walking inside the shop.

The
Sikh youth standing inside the shop fired a shot from his fire arm which hit my
father on the left side of the chest. The Sikh youths who were standing outside
the shop started firing indiscriminately on my father which hit him on the
chest, back and on the hand etc. My father fell down inside the room next to
the shop and we ran away but at that time while we were running, sahab Singh
accused tried to catch hold of us but we succeeded in getting rid off Sahab
Singh etc. all the 8 Sikh youths chased us and were firing. On hearing the
noise of shots, my brother Suresh and sadhu came towards the side of our shop
and while he was crossing the street, he (Suresh) received gun shot
injury."

26. Surinder
(P.W. 11) narrated the incident in the following words:- "We saw that
three Sikh youths were standing in front of shop of Bharthu and three Sikh
youths were standing near the wall of Fatia Kumhar. They were also armed with
small size guns. Sahab Singh accused present in the court today was one of the
three Sikh youths who were standing in front of the shop of Bharthu. Kala Singh
was also standing at that time with Sahab Singh, Out of the two Sikh youths,
who took out us, one of them took out personal search and one of them remained
standing before us aiming the gun towards us. The Sikh youth conducted our
search took out our Hero Honda Motor-cycle from the shop asked my father to sit
on the carrier of that motor-cycle and he also forcibly tried to make my father
sit on the carrier of the motor cycle but my father gave him a push and moved
towards the shop. One of them fired at my father in the left side of the chest.
The Sikh youth who was standing inside the shop came out and all the Sikh
youths then fired at my father who was in the shop at that time . Rather my
father had entered the next room in which the shop was opening from behind at
that time. Sahab Singh and Kala Singh had also fired my father at that time and
were two of the eight. My father received injuries on the back, near the right
hip-region. He also received injuries on back, hands etc. My father fell down
in the room as a result of injuries sustained. we i.e. I and my brother Dharam
Pal, tried to run away but Sahab Singh accused tried to catch hold of us but we
escaped and ran towards the street and concealed ourselves."

27.
Suresh Kumar (P.W.12) narrated the incident in the following words:- "I
was resident at pipaltha along with my brothers and father about 1 1/2 years
ago. we were having two shops at village Pipaltha. At one of the shops, my
father, Om Prakash, brother Dharam Pal and Surender used to sit while on the
other shop my brother Sadhu Ram and I used to sit. On 18.11.1991, I was present
at my shop. Sadhu Ram was also present at that time. We heard the noise of gun
shots. Sadhu Ram, my brother, went via street which runs by the side of the
houses while I was going to my house through the main street. 8 persons
including Sahab Singh accused were coming while firing. Kala Singh was also one
of them. Sahab Singh fired at me which hit my arm . Kala Singh had also fired
at me and which also hit me at my right arm.

The
accused went towards village Rewar."

28. He
further stated in the cross-examination as under:-

29.
From the above, it would appear that so far as main incident is concerned, Dharam
pal and Surender who were present at the shop and had seen the whole of the
incident are not consistent. While Dharam Pal and Surender both stated that Kala
Singh and the appellant were present at the spot and both were armed, Dharam
Pal did not specifically say that the appellant had fired at Om Prakash nor did
he say that kala Singh had fired at his father. The job of firing was
attributed to other sikh Youths present at the spot. Surender (P.W.11), on the
contrary, specifically stated that Sahib Singh had fired at his father.

30.
Suresh Kumar (P.W.12) speaks of the presence of kala singh along with the
appellant among the group of eight Sikh youths who had come to the shop of Dharam
Pal and Surender.

He
stated in hi examination-in-chief that Sahib Singh and fired at him which had
hit his arm. He also stated that kala Sigh had also fired at him which had hit
his right arm. In cross-examination, he repeated that he had received two
gunshot injuries as two shots were fired at him; one by kala singh and the
other by Sahib Singh.

31.
Who is this Kala Singh?

32. Dharam
Pal, in his cross examination, has stated that he knew Kala Singh from his
childhood as he was the resident of village pipaltha which he had left about 2
or 3 years prior to the occurrence but his family members still lived in the
village.

33. On
account of the enmity between the parties, appellant's father Sucha Singh and
others were implicated in a case relating to the "harbouring" of Kala
Singh in their house. This case was initiated on the basis of the Fir lodged by
Lakhi Ram under Section 216-A IPC read with Section 4(3) , 3 and 6 of the Act
on the ground that Kala Singh was harboured by Sucha Singh and others in their
house. This FIR was challenged by the accused, involved in that case, in
Criminal Miscellaneous petition No. 6397-M of 1992 and Criminal Miscellaneous
petition No. 7728-M of 1992.

Both
the petitions were allowed by justice G.S Chahal of the Punjab & Haryana
High Court by judgment dated December 1,1992 with the finding that Kala Singh
had already been killed by the police on October 31, 1991, prior to the
registration of the case and, in any case, the allegations made in the FIR did
not make out any case of "harbouring".

34.
Since Kala Singh had already been killed by the police on October 31, 1991, there was no occasion that he
would be present at the spot on 18.11.91 when the incident, giving rise to this
case, took place. All the three eye witnesses, examined in this case, testify
to the presence of a dead person at the spot. All of them, therefore, speak a
lie.

When
they saw appellant to be present at the spot in the company of Kala Singh, they
again speak a lie as the appellant could not be in the company of Kala Singh.
It appears that these witnesses who are real brothers were not aware of the
death of Kala Singh and, therefore, they made another attempt to implicate the
appellant in another false case involving Kala Singh. The first case, as was
seen earlier, was initiated by Lakhi Ram who was the labourer of Om prakash(deceased).

35.
Another reason to discard the evidence of these witnesses is that Dharam Pal
and Surinder, who were present at the shop when the Sikh Youths came to the
place and started firing indiscriminately, did not receive any injury.

They
also alleged that while they were running away, Sahib Singh had caught hold of
them but they got themselves freed and ran away. Sahib Singh was armed with a
gun. If both Dharam pal and Surinder had come in close contact with him, he
would have, in the natural course of conduct, fired at them instead of
attempting to catch them alive.

36.
The evidence on record indicates that the incident had not taken place in the
manner alleged by the prosecution in which a dead person is shown to have
participated in the incident in question. Not only that he was shown to be
armed with a gun, he was also shown to have fired at Suresh. The appellant was
surprisingly, placed in the company of that dead person. Is this not
Hallucination? The three brothers seem to be suffering from auditory and visual
sensory perception without any real external stimuli as they had heard gunshots
and seen Kala Singh firing at them even though he was dead on the date of
incident, having been killed on 31.10.1991.

37.
Indeed, enmity has always the potential of making a man stoop to the lowest
level of inhumanity. This is what has happened in the instant case where
certain terrorists appear to have come and attacked the shop of Dharam pal
where his father was sitting who was shot dead and the Hero Honda Motor Cycle
was taken away. Not having seen as to what had Happened and who had killed
their father, the three brothers, thought of involving the appellant in this
case so that he may be removed from the scene and lodged in the jail as thy, on
account of the enmity, were highly interested in securing his conviction and in
achieving this object, they did not shudder in lying before the court,
ignoring, in the process, what WILLIAM HAZLITT had said that "Lying is the
strongest acknowledgement of the force of truth."

38.
The confessional statement of the appellant with which we intend to deal now is
the other basis for his conviction.

before
looking into the contents of the confessional statement, we any first consider
the relevant provisions of the Evidence Act around which certain principles
have been built by judicial pronouncements including those of this Court.

39.
Evidence Act contains a separate part dealing with "Admission". This
part comprises of Section 17 to 31.

"Confession"
which is known as a species of "Admission" is to be found contained
in sections 24 to 30. 40. "confession" has not been defined in the
Evidence Act.

Mr.
Justice Stephen in his Digest of the Law of Evidence, defined it thus:

Emperor
vs. Cunna 22 Bombay Law Reporter 1247; Imperatrix vs. Pandharinath
ILR 6 Bombay Law Reporter 1247; Imperatrix vs. Pandharinath
ILR 6 Bombay 34; Muthukumaraswami Pillai &
Ors. v. King Emperor ILR 35 MADRAS 397). Straight,
J., however, in Queen Empress vs. Jagrup & Anr. ILR 7 Allahabad 646, did
not adopt this definition and held that only those statements which are direct
acknowledgments of guilt could be regarded as "confessions" and not
mere inculpatory admission which may fall short of an admission of guilt.

Similar
view was taken in Emperor vs. Santya Bandu 11 Bombay law Reporter 633. The
judicial opinion was thus not unanimous as to the exact meaning of
"confession." The Privy Council, however, by its authoritative
pronouncement in Pakala Narayana Swami vs. The King Emperor 66 Indian Appeals
66 = AIR 1939 PC 47. clarified the position and laid down that " a
confession must either admit in terms the offence, or at any rate substantially
all the facts which constitute the offence." This was followed by this
Court in many cases, including Palvinder Kaur vs. State of Punjab AIR 1952 SC
354 =1953 SCR 94; Om Prakash vs. State of U.P AIR 1960 SC 409(412); State of
U.P. vs. Deoman Upadhyaya 1961)(1) SCR 14; and Veera Ibrahim vs. State of Maharashtra
AIR 1976 SC 1167 (3) SCR 672.

41. In
View of these decisions, it is now certain that a "Confession" must
either be an express acknowledgement of guilt of the offence charge, certain
and complete in itself, or it must admit substantially all the facts which
constitute the offence.

42.
Section 24 provides, though in the negative form that "Confession "
can be treated as relevant against the person making the confession unless it
appears to the Court that it is rendered irrelevant on account of any of the
factors, namely, threat, inducement, promises etc. mentioned therein.

Whether
the "Confession" attracts the frown of Section 24 has to be
considered from the point of view of the confessing accused as to how the
inducement, threat or promise from a person in authority would operate in his
mind. (See: Satbir Singh vs. state of Punjab 1977 (3) SCR 195=1977(2) SCC 263).
The "Confession" has to be affirmatively proved to be free and
voluntary. (See; Hem Raj vs. State of Ajmer 1954 SCR 1133= AIR 1954 SC 462).
Before a conviction can be based on "Confession", it has to be shown
that it was truthful.

43.
Section 25 which provides that a "Confession" made to a police
Officer shall not be proved against the person accused of an offence, places
complete ban on the making of such confession by that person whether he is in
custody or not. Section 26 lays down that confession made by a person while he
is in the custody of a police Officer shall not be proved against him unless it
is made in the immediate presence of a Magistrate. Section 27 provides that
when any fact is discovered in consequence of information received from a
person accused of any offence who is in the custody of a Police officer, so
much of such information, whether it amounts to a confession or not, as relates
to the fact thereby discovered, may be proved. Section 27 is thus in the form
of a proviso to sections 24,25 and 26. Sections 164,281 and 463 of the code of
Criminal procedure are the other provisions dealing with "Confession"
and the manner in which it is to be recorded.

44.
Section 15 of the TADA Act, however, makes a special provision as to the
admissibility of confession and signals a departure from the normal rule
contained in Sections 25 and 26 of the Evidence Act. It provides that a
confession made by an accused to a police officer of a particular rank or
higher would be admissible in evidence and can be proved against that person
subject to the fulfilment of other requirements indicated in that Section .

45.
According to these requirements, confession has to be made before a police
officer not below the rank of a Superintendent of Police. Before recording the
confession, the police Officer has to explain to the person concerned that he
is not bound to make the confession, the police officer has to explain to the
person concerned that he is not bound to make the confession and that if he
makes the confession it may be used as evidence against him. The Police officer
has also to satisfy himself, after questioning the person concerned, that he is
making the confession voluntarily. The officer recording the confession has
also to record a certificate of having observed the requirements of law.

46.
The Act, like the Evidence Act, does not define "confession" and ,
therefore, the principles enunciated by this Court with regard to the meaning
of "Confession" under the Evidence Act shall also apply to a
"Confession" has either to be an express acknowledgement of guilt of
the offence charged or it must admit substantially all the facts which
constitute the offence. Conviction on "Confession" is based on the
Maxim "habemus optimum testem canfitentem renum" which means that
confession of an accused is the best evidence against him. The rationale behind
this rule is that an ordinary, normal and sane peons would not make a statement
which would incriminate him unless urged by the promptings of truth and
conscience.

47.
Under this Act, although a confession recorded by a police Officer, not below
the rank of Superintendent of police officer, not below the rank of
Superintendent of Police, is admissible in evidence, such Confessional Statement,
if challenged, has to be shown, before a conviction can be based upon it, to
have been made voluntarily and that it was truthful.

48. in
the instant case, Confession of the appellant was recorded by Superintendent of
Police, Jind, on 14.12.1991, which was accompanied by a certificate by the S.P.
Jind, in compliance of the requirement of Section 15 of the Act. The
Confessional Statement has been proved and has been marked as Exh. PW-14/A. The
relevant portion of the Confessional Statement is as under:

"My
father Sucha Singh and Om Parkash Mahajan, R/o Piplatha Purchased some
agricultural land in village Pipaltha since long. After that there was dispute
between them. Om Parkash was a rich man. Om Parkash got implicated my father in
false cases and got challenged through police on the basis of which grudge
increased.

There
is one Kala Singh @ Rukha in our village who has committed two murders in our
village and he is intenglled in the group of terrorists and is residing in Punjab. Kala Singh was on visiting terms
with us 3-4 days. Before committing the murder of Om Parkash, Kala Singh @ Rukha
had come to us. I had asked Kala Singh @ Rukha to commit the murder of Om Parkash
Mahajan R/o Pipaltha. Kala Singh @ Rukha told me that he has no need of money
but he had to pay Rs. 15,000/- to the other terrorist for committing the
murder. I promised to pay Rs. 15,000/- and Kala Singh had asked me to hand over
Rs. 15,000/- to him in Makord Gurudwara. On 18-11-1991 Kala Singh @ Rukha R/o Pipaltha accompanied by six
terrorists, one of them was Nachhatar Singh, names of other not known came to
my house. Kala singh @ rukha had asked me to see as to Whether Om parkash Mahajan
is present at the house or not. On this asking I went to the house of Om Parkash.
Om Parkash was present at his shop. I told Kala Singh @ rukha that m Parkash is
present at a Shop. Kala Singh @ Rukha alongwith his companion terrorist
committed the murder of Om Parkash Mahajan by shots going at his house. Firing
in the street they ran away on the Hero Honda Motor cycle No. HR-32-0218 after
taking he same from the shop of Motor cycle, I went to my home after making
information of Om Parkash Mahajan to Kala singh @ Rukha and started drinks. On
hearing the noise of fires I ran away from my house due to fear. That the sons
of Om Parkash may not named me for the murder of Om Parkash, I had promised to
pay Rs. 15,000/- for the murder of Om parkash
Mahajan." A perusal of the Confessional Statement would indicate that
three or four days prior to the date of incident, which incidentally is
18.11.1991, Kala Singh had come to the appellant and the appellant had
requested Kala Singh to commit the murder of Om Prakash, for which Kala Singh
wanted Rs. 15,000/- to be paid to other terrorists who would be hired for that
job. It was on the basis of this arrangement that Kala Singh came along with
six other terrorists, including Nachhatar Singh, on 18.11.1991 and committed
the murder of Om Prakash. The terrorists, including Kala Singh, went away on
the Hero Honda Motor Cycle.

50. It
has been held above that Kala singh had already been killed in a police
encounter on 31.10.91. There was, therefore, no occasion of his coming to the
appellant and the appellant asking Kala Singh to commit the murder of Om Prakash
on Rs. 15,000/- being paid to him.

51.
The story of Hallucination is repeated in the so called Confessional Statement
by saying that a Dead person came to the appellant, talked to the appellant,
asked the appellant to pay rs. 15,000/- so that "dead person" may pay
it to other terrorists through whom the job of killing Om Prakash would be
performed; the dead person came to the spot along with other terrorists on
18.11.1991 and committed the murder of Om Prakash. The Confessional statement
further makes that dead person to ride on a motorcycle and drive away along
with other terrorists on the same motorcycle. The dead also drives!

52.
The confessional Statement does not admit even substantially the basic facts of
the prosecution story, inasmuch as in the Confessional Statement, no role is
assigned to the appellant while in the prosecution story an active role has
been assigned to him by showing that he too was armed with a gun and had gone
at the spot and participated in the commission of the crime by firing his gun
specially at the injured witness. The Confessional Statement is not truthful
and is part of the Hallucination with which prosecution and its witnesses were
suffering. It is accordingly discarded and cannot be acted upon.

53. A
little effort on the part of the trial court would have revealed to it the
falsity of the prosecution case, but it proceeded in a mechanical manner and
ultimately convicted the appellant ignoring that there was a deliberately
delayed FIR and the case set out therein was sought to be proved through highly
interested witnesses, instead of independant witnesses, and also by bringing on
record a Confessional statement which contained false facts. This leads to the
conclusion that the trial judge was sitting only to convict forgetting that
judiciary holds the SCALES even, not tilted.

54.
For the reasons stated above, the appeal is allowed, the judgment dated
8.2.1994 passed by the trial court is set aside and the appellant is acquitted
of all the charges. He is in jail. He shall be set at liberty forthwith, unless
required in some other case.