- (1.) All the above appeals have been preferred against the common judgment and order dated 8.10.2007 passed by the High Court of Punjab & Haryana at Chandigarh in Criminal Appeal Nos. 864-DB of 2005, 2062-SB of 2005, 2073-SB of 2005, 2074-SB of 2005, 2075-SB of 2005 and order dated 16.10.2007 in Crl. R.P. No. 323 of 2006, whereby the High Court has dismissed the appeals of the appellants filed against the conviction and sentences awarded to them by the Additional Sessions Judge, Patiala, in Sessions Case No. 49-T of 9.5.1998/30.11.2001 vide judgment and order dated 18.11.2005, whereby he had convicted Jaspal Singh, DSP - appellant in Criminal Appeal No. 528 of 2009 and one Amarjit Singh, ASI, under Sections 302/34 of Indian Penal Code, 1860 (hereinafter referred as 'IPC'), and sentenced them to undergo imprisonment for life and to pay a fine of Rs.5,000/- each, in default of payment of fine, to further undergo Rigorous Imprisonment (hereinafter called 'RI') for five months. Both were also convicted under Section 120-B IPC and sentenced to undergo RI for five years and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo RI for two months. They were further convicted under Sections 364/34 IPC and sentenced to undergo RI for seven years and to pay a fine of Rs. 5000/- each, in default of payment of fine, to further undergo RI for five months. They were also convicted under Sections 201/34 IPC and sentenced to undergo RI for two years and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo RI for two months. Prithipal Singh, Satnam Singh, Surinderpal Singh and Jasbir Singh, appellants, were convicted under Section 120-B IPC and sentenced to undergo RI for five years and to pay a fine of Rs.2,000/- each, and in default of payment of fine, to further undergo RI for two months. These four accused/appellants were also convicted under Sections 364/34 IPC and sentenced to undergo for seven years RI and to pay a fine of Rs.5,000/- each, in default of payment of fine, to further undergo RI for five months. The High Court while dismissing the Criminal Appeals filed by appellants, allowed the Criminal Revision Petition No. 323 of 2006 filed by Smt. Paramjit Kaur (PW.2), wife of the deceased, vide order dated 16.10.2007 and enhanced the sentence of the four appellants from seven years RI to imprisonment for life under Section 364 IPC.
(2.) FACTS: A. Shri Jaswant Singh Khalra, a human right activist, having allegiance to Shiromani Akali Dal, was alleged to have been abducted from his residential house No. 8, Kabir Park, Amritsar, on 6.9.1995 at 1.00 O'Clock. Shri Rajiv Singh (PW.15) was present in the house of Shri Khalra at the time of abduction, Kirpal Singh Randhawa (PW.7) had seen appellants, namely, Jaspal Singh, DSP, Surinderpal Singh, Jasbir Singh and Satnam Singh alongwith other accused persons rushing through Kabir Park with the deceased Jaswant Singh Khalra inside a Maruti van. B. Smt. Paramjit Kaur (PW.2) wife of the deceased, came to her house from the University, where she was working, on being informed by Rajiv Singh (PW.15). She made a search for her husband but in vain. She made a complaint on the same day at 4.00 PM making a statement to SI Baldev Singh at Kabir Park that her husband had been kidnapped at 1.00 O'Clock by some persons in police uniform in Maruti van of white colour bearing No. DNB- 5969. On the basis of the said statement, an FIR No. 72 (Ex.PA) was registered on 7.9.1995 at P.S. Islamabad, District Amritsar, at 9.30 AM under Section 365 IPC. However, no progress in investigation could be made and whereabouts of Jaswant Singh Khalra could not be known. C. Smt. Paramjit Kaur (PW.2), wife of the deceased, filed Criminal Writ Petition No. 497 of 1995 before this Court, wherein this Court vide order dated 5.11.1995 transferred the investigation to the Central Bureau of Investigation (hereinafter referred as 'CBI'). The CBI registered R.C.No. 14/S/95/SCB-I/Delhi dated 18.12.1995 (Ex.PO) under Sections 365, 220 and 120-B IPC. In spite of best efforts made by the CBI, whereabouts of said Jaswant Singh Khalra could not be traced. Even an award of Rs.1 lakh was announced for anyone giving information regarding his whereabouts. D. Kulwant Singh (PW.14) in his statement recorded by the CBI under Section 161 Cr.P.C. revealed that he had been detained in a case under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called 'NDPS Act') on 4.9.1995 by the police officials of Police Station Jhabal. Shri Jaswant Singh Khalra was also brought to the said Police Station on 6.9.1995 and Shri Khalra had disclosed his identity to the said witness and told him that he was not knowing as to why he had been brought to the police station by the appellants Satnam Singh and Jaspal Singh, DSP. E. After completion of the investigation, the chargesheet was filed in the court of Special Judicial Magistrate (CBI Cases), Patiala, against the appellants and other accused persons under Sections 120-B, 365 and 220 IPC. The matter was committed to Sessions Court. It was revealed before the Sessions Judge that there was some evidence that Jaswant Singh Khalra had been murdered by the appellants and other accused persons secretly and his dead body had been thrown in the canal near Harike at midnight just after Diwali in the year 1995. So, the prosecution was directed to file supplementary report under Section 173 (8) of Criminal Procedure Code, 1973 (hereinafter referred as 'Cr.P.C.'). F. It was on 2.3.1998, i.e., after filing of the charge-sheet that Kuldip Singh (PW.16) revealed the facts to the CBI (New Delhi Office) in respect of abduction and murder of Jaswant Singh Khalra. Kuldip Singh (PW.16), made voluntary statement to the CBI that he was a privy to all that happened with Shri Jaswant Singh Khalra from the time he was brought to the Police Station, Jhabal till his death. He was Special Police Officer (hereinafter called 'SPO') attached to Satnam Singh, SHO, Police Station Jhabal, and was promised to be inducted into the Punjab Police permanently. Shri Jaswant Singh Khalra had been detained in a room in Police Station Jhabal and the witness had been assigned the duty by Satnam Singh, SHO, to serve him meals etc. He had been directed to keep the matter most secret and not to disclose anything to anybody. He had been serving the meals to Shri Khalra who had become very weak and fragile and was having scratch marks on his body. After 4-5 days, Ajit Singh Sandhu, SSP, Jaspal Singh, DSP, alongwith his bodyguard Arvinder Singh came in a Maruti car without having any registration number at 7.00 PM. After sometime, Satnam Singh, SHO, Jasbir Singh, SHO and Prithipal Singh also came in another Maruti car. They all went to the room where Shri Khalra had been detained and Ajit Singh Sandhu, SSP, asked him to stop his activities. Shri Khalra was beaten by them and, thereafter, they left the said place. After about 3 days of the said incident, in the afternoon, Satnam Singh, SHO, had taken Shri Khalra alongwith the said witness to Taran Taran at the residence of Ajit Singh Sandhu, SSP. Some high officials of police including the then Director General of Police, Punjab, came there and they talked to Shri Jaswant Singh Khalra in a closed room. After sometime, Shri Khalra was brought back to Jhabal Police Station. On one day, at about 7.00 PM, Jaspal Singh, DSP, came there with his bodyguard Arvinder Singh and after sometime, Surinderpal Singh, Jasbir Singh and Prithipal Singh also came. They all went to the room where Shri Jaswant Singh Khalra had been detained and started beating him. The witness had been asked to bring hot water. As he went out of the room for arranging the same, he heard slow noise of gun firing twice. The life of Shri Khalra came to an end. His dead body was kept in a dicky of the van while blood was oozing from his body. All of them including the witness went in three cars to village Harike. The dead body of Shri Khalra was thrown in the canal and all three vehicles came back to the rest house of village Harike. Subsequently, at about midnight, the witness alongwith some appellants came back to police station Jhabal. He could not reveal the incident to anybody because of fear till Ajit Singh Sandhu, SSP, was alive as he was apprehending about the safety of his own life in case he discloses the gruesome murder of Shri Khalra committed by the police. G. The prosecution examined 22 witnesses to prove its case against the appellants and other accused persons. The defence also examined 12 witnesses to rebut the allegations of the CBI. Learned Additional Sessions Judge, Patiala, vide judgment and order dated 18.11.2005 convicted all the appellants and some other accused persons under Sections 364/34 IPC and convicted the appellant Jaspal Singh and one Amarjit Singh under Sections 302/34 IPC and under Sections 201/34 IPC and awarded the sentences as mentioned hereinabove. H. Being aggrieved, the other accused Amarjit Singh filed Criminal Appeal No. 863-DB of 2005 and other appellants filed the criminal appeals as mentioned hereinabove. Smt. Paramjit Kaur (PW.2) filed Criminal Revision No. 323 of 2006 for enhancement of the sentences of the four appellants. I. All the matters were heard together. The High Court vide its impugned judgment and order dated 8.10.2007 acquitted Amarjit Singh, however, the conviction of other appellants was maintained. Notices were issued to the four appellants for enhancing the sentences awarded to them while dismissing their appeals. On 16.10.2007, the High Court enhanced the sentence of four appellants, namely, Satnam Singh, Surinderpal Singh, Jasbir Singh and Prithipal Singh from seven years RI to life imprisonment. Hence, these appeals.
(3.) Shri Sushil Kumar, learned senior counsel appearing for the appellants in Crl. Appeal Nos. 523-527/2008, has submitted that in the instant case, an FIR had been lodged under Section 365 IPC without naming any person. The charge-sheet was filed under Sections 365/220 read with Section 120B IPC and the sanction dated 19.8.1996 had been obtained by the prosecution from the Competent Authority to prosecute the accused persons under Sections 365/220 read with Section 120B IPC. The appellants stood convicted under Section 364 read with Section 34 IPC and were awarded 7 years RI each. In case, the appeals of these appellants had been dismissed by the High Court, there was no justification for enhancing the punishment in exercise of the power under Section 386(e) Cr.P.C. The High Court committed error in observing that it was a fit case for enhancement of punishment though charges had never been framed for the offences providing more rigorous punishment. In case, there had been no material at the time of framing of the charges for a more serious offence, the High Court erred in enhancing the punishment suo motu. The prosecution witnesses failed to identify the abductors. Moreover, there had been inordinate delay in investigation and thus, there were a lot of improvements and manipulations in the record.;