Monday, 27 July 2015

Whether subsequent judgment will operate as issue estoppel ?

We now deal with the case of the other appellants. The
submission advanced by Shri Tulsi that the subsequent judgment will
operate as issue estoppel is not correct. First and foremost the
offences are different and distinct. The rule regarding issue estoppel
relates to admissibility of evidence in subsequent proceedings which
is designed to up-set a finding of fact recorded on the previous
occasion and mandates that the finding so rendered on earlier occasion
must operate as issue estoppel in subsequent proceedings. It makes it
impermissible to lead any such evidence at a subsequent stage or
occasion. The attempt on part of Mr. Tulsi is just the opposite. He
seeks to rely on the finding at a subsequent stage to up-set a finding of
fact recorded on a previous occasion. The law on the point was
succinctly stated by this Court in Sangeetaben Mahendrabhai Patel
v. State of Gujarat (2012) 7 SCC 621 in following words:
“23. This Court has time and again explained the
principle of issue estoppel in a criminal trial
observing that where an issue of fact has been tried
by a competent court on an earlier occasion and a
finding has been recorded in favour of the accused,
such a finding would constitute an estoppel or res
judicata against the prosecution, not as a bar to the
trial and conviction of the accused for a different
or distinct offence, but as precluding the
acceptance/reception of evidence to disturb the

finding of fact when the accused is tried
subsequently for a different offence. This rule is
distinct from the doctrine of double jeopardy as it
does not prevent the trial of any offence but only
precludes the evidence being led to prove a fact in
issue as regards which evidence has already been
led and a specific finding has been recorded at an
earlier criminal trial. Thus, the rule relates only to
the admissibility of evidence which is designed to
upset a finding of fact recorded by a competent
court in a previous trial on a factual issue…”
We therefore reject the submission.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOs.1041-1042 of 2008
Ashwani Kumar @ Ashu & Anr. …. Appellants
Versus
State Of Punjab …. Respondent
WITH
CRIMINAL APPEAL NO.1043 OF 2008
AND
CRIMINAL APPEAL NO.1814 OF 2009
Citation;(2015)6 SCC308
Uday Umesh Lalit, J.

1. These appeals by special leave challenge the judgment and
order dated 15.02.2008 passed by the High Court of Punjab and
Page 2
Haryana. Criminal Appeal Nos.1041-1042 of 2008 are by Ashwani
Kumar @ Ashu and Joginder Singh, Criminal Appeal No.1043 of
2008 is by Anil Kumar while Criminal Appeal No.1814 of 2009 is by
Darshan Singh. The appellants stand convicted under Sections
364/302/307 read with Section 120B IPC. Since these appeals arise
from the same judgment, they are being dealt with and disposed by
this common judgment. Initially eleven persons were sent for trial
while two absconding accused were marked as proclaimed offenders.
The trial court convicted seven out of those eleven accused and
acquitted four accused. In the appeals by the convicted accused, the
High Court acquitted three more accused, confirming the conviction
and sentence of the present appellants. Since the acquittal of others
has attained finality, the facts narrated hereafter are confined to the
appellants herein.
2. One Jaswinder Kaur @ Jassi, normally residing with her
parents in Canada, married PW-15 Sukhwinder Singh resident of
village Kaoka Khosa, District Sangroor, Punjab on 15.04.1999. It was
a court marriage and against the wishes of her parents and her
maternal uncle. Jassi thereafter went to Canada on 02.05.1999 and
while she was there, on the basis of a fax message (Ext.PAO)
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allegedly under her signature, FIR No.38 dated 23.02.2000 was
registered with Police Station Sadar Jagraon against PW 15
Sukhwinder Singh under Sections 342, 467, 468, 471 and 506 of the
IPC. When Jassi got to know about this, she came back to India and
appeared before the police. Her statement was recorded that she had
married PW 15 Sukhwinder Singh out of her free will, that the alleged
signature on the fax message was not hers and that the marriage was
not to the liking of her parents and maternal uncle. Her statement
under Section 164 Cr.P.C. was also recorded and thereafter closure in
respect of said crime was ordered. Jassi then started living with her
husband in the house of PW 20 Sukhdev Singh, maternal uncle of her
husband, in village Narike.
3. On 08.06.2000 PW 15 Sukhwinder Singh and Jassi were
coming back on a scooter from Malerkotla to their village and when
they had reached village Sykhe at about 9.30 PM, four persons armed
with hockey sticks and swords got down from a white Maruti car and
attacked them. PW 15 Sukhwinder Singh received number of injuries.
Leaving him in injured condition, those persons forcibly took away
Jassi in that car. PW 15 Sukhwinder Singh somehow managed to
reach the house of PW 20 Sukhdev Singh who got him admitted in the
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Civil Hospital, Malerkotla, where PW-1 Dr. Amit Modi found him to
have suffered the following injuries:-
1. 2 X 1cm incised wound over left side of face
2 cm below ear pinna.
2. Swelling and tenderness over left side of
mandible.
3. 10 X .5 cm wound over left side of scalp 8
cm over left pinna.
4. 4X .5 cm incised wound over left side of
scalp in temporal area 2 cm above ear pinna.
5. 3 X .5cm incised wound over left side of
scalp 3 cm above ear pinna in temporal area 2 cm
from injury No. 4.
6. 4.5 X .5cm incised wound over left side of
scalp 6 cm above ear pinna 1cm away from injury
No. 4 and 2cm away from injury No. 5
7. 4 X 3cm lacerated wound with this much of
it hanging and attached to remaining scalp by
superficial layer of skin only 1cm from injury No.
6. For injuries No. 1 to 7 X-ray was advised.
8. 8 X 4cm incised wound from web space
between middle and ring finger proximally
towards wrist joint-cutting all structures from skin
to skin from dorsal to ventral aspect of hand,
cutting, skin, nerves, tenden and bone.
9. 2 x .5cm incised wound over right little
finger proximal phalanx over the dorsal aspect.
10. Right ring finger amputated obliquely at
middle phalanx. Wound margins sharp clean cut.
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For injuries No. 8 to 10 X-ray was advised.
In all the injuries except injury No. 2 fresh
bleeding was present. Injuries No. 1 to 8 were kept
under observation, whereas injuries No. 9 and 10
were grievous. Probable duration of injuries was
within six hours. The kind of weapon used for
injuries No. 1,3,4,5,6,8,9 and 10 was sharp,
whereas for injuries No. 2 and 7 was blunt.”
4. PW-1 Dr. Amit Modi sent intimation or ruqa Ext.PB to the
police who recorded the statement of PW 15 Sukhwinder Singh, in
which it was stated as under:-
“….I was coming back alongwith my wife
Jaswinder Kaur on scooter from Malerkotla to
Village Narike and when we reached the Village of
Syhke, a white Maruti car was parked near the
bridge of the drain and when we reached nearby,
then 4 persons came out of said Maruti car who
were armed with hockeys and swords and attacked
us. I received many injuries and I was thrown and
my wife was forcibly kidnapped with intention to
kill her. I, on my scooter in staggering condition,
reached the house of my maternal parents.
Sukhdev Singh, my maternal uncle got me
admitted in the Civil Hospital, Malerkotla. You
have written my statement and it is correct. I have
doubts against Hardev Singh @ Mintu etc. s/o
Darbara Singh, Village Kaonke Khosa who have
done this. I can identify others when brought
before me.”
5. FIR No. 48 was accordingly registered with police station
Amargarh under Sections 307, 364 and 34 IPC at about 1.50 AM on
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09.06.2000. PW 15 Sukhwinder Singh was then referred and taken to
Christian Medical College, Ludhiana for further treatment where he
was attended to by PW 2 Dr. Deepak Bansal and PW 4 Dr. Subhasish
Das. On 09.06.2000 at about 10.00 AM one Bahadur Singh of Village
Bolara while going to his agricultural field found dead body of a
young lady aged about 22-23 years lying in water on the edge of
minor canal. He reported the matter to the police, pursuant to which
FIR No.197 dated 09.06.2000 under Section 302 IPC was registered
with the police station Sadar Ludhiana. The body was identified to be
that of Jassi. In the post mortem conducted by a Board of three
doctors on 10.06.2000 at about 4.00 PM, following injuries were
noticed on the body of Jassi:-
a. An incised wound 7½ inch x 2 ½ inch into
muscle deep in front of the neck.
b. An incised wound just below the chin 4 ½
inch x 2 ½ inch was cutting the skin, sub
coetaneous tissue and muscles.
c. An incised wound 6” x ½ “ x skin deep on
the front of chest placed horizontally.
The post mortem further indicated:-
“..The cause of death in this case in our opinion
was due to shock and hemorrhage as a result of
injury to the vital organs, which were sufficient to
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cause death in the ordinary course of nature. All
the injuries were ante-mortem in nature….”
6. On 09.06.2000 itself a supplementary statement of PW-15
Sukhwinder Singh was recorded in which he gave the number of said
Maruti car as DNJ 4862 and also stated his firm belief that the
occurrence had been committed in connivance with Hardev Singh @
Mintu, Surjeet Singh, Malkiat Singh, Darshan Singh and Gurnek
Singh @ Bhatti. It appears that despite such clear assertions no arrests
were effected. The matter was being investigated by PW 38 Sub-
Inspector Hardeep Singh who had gone to the spot on 09.06.2000 and
prepared the site plan and was able to recover one sandal, a handle of
cricket bat and upper portion of a hockey stick. Under the orders of
the Special Superintendent of Police, investigation was taken up by
PW 40 Inspector Swarn Singh on 20.06.2000. Hardev Singh whose
name was mentioned in the FIR as well as supplementary statement
was arrested on 21.06.2000 while Darshan Singh was arrested on
22.06.2000. On 28.06.2000 Anil Kumar was arrested, while six
others including Ashwani Kumar @ Ashu were arrested on
30.06.2000.
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7. While he was in custody, statement of Anil Kumar was
recorded which led to the discovery of a pistol, three live cartridges
and one Maruti car bearing no. DNJ 4862 from which a mobile having
No.9814011272 and an additional SIM having No.9814038404 were
recovered. Blood stained portion of back seat of the car was cut and
seized. The statement of Ashwani Kumar led to the discovery of a
kirpan and a photograph of Jassi (Ext.P-38) from a farm named Bolara
Farm. On the back side of the photograph, in Gurumukhi was written
her name, physical description including complexion and the clothes
that she would normally wear. The description was meant to enable a
stranger to identify with clarity the person in the photograph. It was a
full photograph taken out from the collection of someone known to
her or the family. From the house of Ashwani Kumar mobiles were
seized with numbers 9814014562 and 9316053404.
8. On 05.07.2000 statement of PW 5 Jagdeep Singh was recorded
under Section 164 Cr.P.C to the effect that about one and a half
months before, one Gurwinder Singh and Ashwani Kumar had taken
him and PW6 Harjeet Singh to the dhaba of one pahlwan in a tempo.
They were told to give beating to PW 15 Sukhwinder Singh as he had
contracted marriage with a girl related to Ashwani Kumar without the
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consent of her family. Said PW 5 Jagdeep Singh and PW 6 Harjeet
Singh not having agreed to, they left the dhaba. Later in the
newspaper he saw the photograph of PW 15 Sukhwinder Singh and
his wife and therefore had appeared before the Investigating Officer to
get the statement recorded before the Magistrate. To the similar effect
was the statement of PW 6 Harjeet Singh which was also recorded
under Section 164 Cr.P.C. on 05.07.2000.
9. On 12.07.2000 a request was made to PW 23 Shri B.S. Deol,
Judicial Magistrate, First Class, Malerkotla to conduct Test
Identification Parade in respect of accused Anil Kumar, Ashwani
Kumar and other named accused. However, he received letters (Ext.
PO, Ext. PO-5 and Ext.PO-6) from the concerned Jail Superintendent
that the accused were not willing to subject themselves to the such
test.
10. On 18.07.2000 statement of PW-7 Jasbir Singh under Section
164 Cr.P.C. was recorded that Anil Kumar, Ashwani Kumar, Ginder
and Tony were his friends and they would often assemble on the farm
of Anil Kumar for drinks and meals. It was further stated that on
16.06.2000 when they had so assembled, Anil Kumar asked him if he
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had read the newspaper of the day and upon his answering in the
negative Anil Kumar stated that news regarding the murder of Jassi
had appeared in the newspaper of that day which murder was
committed by them. Anil Kumar further stated that Joginder Singh
Thanedar was with them and the parents of the girl had given them
money through Joginder Singh, Thanedar for the said murder. On
22.07.2000 PW-8 Bhagwan Singh produced one tempo bearing
No.PB-10/9719 before the police. This was the tempo stated to have
been used by Ashwani Kumar and Gurwinder Singh for taking PW-5
Jagdeep Singh and PW-6 Harjeet Singh to the dhaba of pahlwan.
11. On 26.07.2000 Joginder Singh, serving police officer was
arrested but was released on bail, the same day. He was later rearrested
on 19.01.2001 after his bail was cancelled. On 29.08.2000 an
application was moved by the police for taking specimen hand-writing
of Ashwani Kumar who was then confined in District Jail, Sangroor to
compare with the writing found on the back side of the photograph of
Jassi (Ext.P-38). PW-23 Shri B.S. Deol, Judicial Magistrate asked the
Superintendent of Jail to take the specimen hand-writing of Ashwani
Kumar. However, Ashwani Kumar vide Ext. DK dated 05.09.2000
refused to submit his specimen hand-writing.
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12. After completion of investigation charge-sheet was filed against
eleven persons while Surjeet Singh, maternal uncle and Malkiat Kaur,
mother of Jassi were declared proclaimed offenders. It was the case
of the prosecution that the accused had hatched the conspiracy to
commit the murder of Jassi and had caused injuries to PW-15
Sukhwinder Singh and thus committed the offences with which they
were charged. It was alleged that the marriage of Jassi with PW 15
Sukhwinder Singh, who was simply a three wheeler driver, was not to
the liking of the mother and the maternal uncle of Jassi. The
prosecution in support of its case examined 45 witnesses and
produced number of documents on record while 42 witnesses were
examined in defence. The gist of the testimony of the witnesses
examined by the prosecution, inter alia, was as under:-
i) PW-3 Dr. Jasbir Singh who was one of the doctors
conducting the post-mortem on the body of Jassi, stated
about her injuries and the cause of death and that kirpan
Ext.P-12 recovered pursuant to disclosure statement
could have caused those injuries.
ii) PW-1 Dr. Amit Modi, PW-2 Dr. Deepak Bansal
and PW-4 Dr. Subhasis Das deposed about the injuries of
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PW-15 Sukhwinder Singh and the treatment given to him
by them.
iii) PW-5 Jagdeep Singh and PW-6 Harjeet Singh
stated about their meeting with Ashwani Kumar and
Gurwinder at the dhaba of a pahlwan and that they did
not agree to the proposal of beating PW-15 Sukhwinder
Singh. They identified the tempo and stated about
having given statements under Section 164 Cr.P.C.
iv) PW-7 Jasbir Singh deposed that Ashwani Kumar,
Anil Kumar, Ginder and Tony were his friends, that they
had met at a farm on 16.06.2000 when Anil Kumar had
asked him whether he had read newspaper of the day. He
further deposed that Anil Kumar stated that they had
committed the murder of Jassi, that Joginder Singh
Thanedar was with them and that the money was paid
through said Joginder Singh. He stated about having
given a statement under Section 164 Cr.P.C.
v) PW-8 Bhagwant Singh deposed that his tempo PB-
10/9719 was impounded by CIA staff of which Joginder
Singh was in-charge and that the tempo was released on
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07.06.2000 after he had paid money as demanded. This
version was corroborated by PW-9 Jagir Singh.
vi) PW-14 Barjinder Singh stated that on 08.06.2000
he saw a car of white colour with four persons standing
close by. Later he heard the voice of a woman asking for
help and that those persons had forcibly taken her away.
Though he failed to identify the persons, his version
supported the case as regards the location and the time of
incident.
vii) PW-15 Sukhwinder Singh deposed that he was
married with Jassi on15.03.1999, that it was against the
wishes of her parents, that Malkiat Kaur and Surjeet
Singh viz. mother and maternal uncle of Jassi, used to
give him threats and stated how the incident occurred on
08.06.2000. He had shown his willingness and capacity
to identify the assailants and did identify Ashwani Kumar
and Anil Kumar in court.
viii) PW-20 Sukhdev Singh, uncle of PW-15 Sukhwinder
Singh who had taken him to the hospital, supported the
version of PW-15 Sukhwinder Singh.
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ix) PW-23 B.S. Deol, Judicial Magistrate spoke about the
refusal on part of Anil Kumar and Ashwani Kumar to
participate in test identification parade and refusal by
Ashwani Kumar to give his specimen handwriting.
x) PW-24 constable Bikkar Singh deposed about the
recoveries effected from Bolara Farm pursuant to the
disclosure statement of the accused.
xi) PW-27 Charan Preet Singh stated that he knew
Ashwani Kumar and Anil Kumar and that they used to
call from their telephone numbers.
xi) PW-32 Jaswinder Singh deposed that at the request of
ADGP, Punjab, Intelligence his company had supplied
copies of print outs of telephone Nos.9814014562,
9814031374, 9814011272, 9814090919, 9814075614
and 9814036765. PW-34 Ved Prakash Julka produced
the record pertaining to telephone No.605219 installed in
the name of Joginder Singh.
xii) PW-37 SI Harjinder Singh deposed about the FIR
No.38 dated 23.02.2000 which was registered pursuant to
fax message Ext.PAO and that he had recorded the
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statement of Jassi. He further stated about the statement
of Jassi under Section 164 Cr.P.C. and that he had
recommended cancellation after having found the case to
be false.
xiii) PW-38 SI Hardeep Singh spoke about the
registration of FIR in the present case and the
investigation conducted by him till it was handed over to
PW-41 Inspector Swaran Singh who in turn deposed
about various stages of investigation including the arrests
of the accused, disclosure statements made by the
accused and the recoveries made pursuant thereto and
various other aspects.
13. The trial court after considering the material on record and
hearing rival submissions, vide its judgment dated 21.10.2005 found
that the prosecution had successfully proved its case against seven
accused persons including the appellants. It found them guilty under
Section 302/364/307 read with Section 120B IPC. Accused Anil
Kumar, Ashwani Kumar @ Ashu, Gurwinder Singh @ Ginder and
Gursharan Singh @ Tony were sentenced under Section 302 IPC to
undergo life imprisonment, under Section 364 IPC to undergo RI for
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10 years and under Section 307 IPC to undergo RI for seven years
with separate sentences of fine and sentences in default. Three other
accused, namely, Joginder Singh, Hardev Singh and Darshan Singh
were convicted with the aid of Section 120B IPC and sentenced to
suffer similar imprisonment on the aforesaid three counts. However
benefit of doubt was given to other four accused, namely, Jaswant
Singh @ Soni, Ravinder Singh @ Lilu, Kamaljeet Singh @ Komal
and Gurnek Singh @ Bhatti and they were acquitted of all the charges.
All seven convicted accused filed Criminal Appeal Nos.836-DB/2005
and 921-DB/2005 before the High Court, which gave benefit of doubt
to Hardev Singh, Gurwinder Singh and Gursharan Singh @ Tony and
acquitted them, while it confirmed the conviction and sentence of the
present appellants, which judgment is now under challenge in the
present appeals.
14. As regards appellants Ashwani Kumar and Anil Kumar, the
trial court as well as the High Court have principally relied upon the
evidence regarding assault on PW-15 Sukhwinder Singh as stated by
him and the fact that he identified them to be part of the group of
assailants. The extra judicial confession, as stated by PW-7 Jasbir
Singh and the recoveries effected pursuant to the disclosure
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statements were relied upon. The testimony of PW-5 Jagdeep Singh
and PW-6 Harjeet Singh as well as the communications between the
accused soon before and after the incident of assault on PW-15
Sukhwinder Singh and kidnapping of Jassi were also relied upon. The
other two appellants were found guilty with the aid of Section 120B
IPC as conspirators. The telephonic communications between them
and Ashwani Kumar and Anil Kumar were relied upon as against
Joginder Singh and Darshan Singh.
15. Appearing for Ashwani Kumar and Anil Kumar, Mr. R.K.
Kapoor, learned Advocate submitted that identification by PW-15
Sukhwinder Singh for the first time in court could not be taken as
conclusive evidence. The evidence in the form of extra judicial
confession was also not conclusive inasmuch as certain other accused,
though named in such confession were acquitted by the courts below.
Shri K.T.S. Tulsi, learned senior Advocate appearing for Joginder
Singh submitted that in a subsequent trial initiated against Joginder
Singh on the allegation of demand of bribe for releasing the same
tempo bearing No.PB-10/9719, he was honourably acquitted and as
such said judgment would operate as issue estoppel. Shri Ratnakar
K. Dash learned senior Advocate appearing for Darshan Singh
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submitted that the landline telephone number in question stated to be
that of Darshan Singh was actually in the name of his brother installed
at the residence of said brother and there was no evidence to suggest
that it was exclusively under the control of Darshan Singh. In any
case daughter of Darshan Singh was married to the son of Surjeet
Singh, maternal uncle of Jassi and as such calls from the said landline
number to the number in Canada were completely justified and no
inference could be drawn that said Darshan Singh was one of the
conspirators.
16. Appearing for State of Punjab Shri Jayant K. Sud, Additional
Advocate General assisted by Ms. Jasleen Chahal, Assistant Advocate
General took us through the entire record. It was submitted that the
offence in the present case was an act of conspiracy which was clear
from the fact that fax message Ext.PAO had originated from the same
number in Canada with which the accused Ashwani Kumar @ Ashu
and Anil Kumar were constantly in touch, that the backside of the
photograph (Ext.P-38) and the conversations deposed to by PW-5
Jagdeep Singh and PW-6 Harjeet Singh lend complete corroboration,
that identification by PW-15 Sukhwinder Singh was completely
trustworthy and fully reliable, that the record of telephonic
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conversations show all the four appellants were in touch with each
other as well as with the number in Canada soon before and
immediately after the occurrence, that the recoveries of kirpan, bloodstained
seat cover and photograph (Ext.P-38) corroborated the
prosecution case and that the extra judicial confession as stated by
PW-7 Jasbir Singh further clinched the issue.
17. The evidence of PW-15 Sukhwinder Singh regarding the
occurrence that took place on 08.06.2000 is fully supported by the
medical evidence on record. He was immediately taken for medical
attention and found to have suffered 10 injuries, some of which were
by sharp cutting weapon. His assertion regarding the place of incident
and the manner in which the occurrence took place is also supported
by another witness PW-14 Berjinder Singh. Though said witness
failed to identify the assailants as he had watched the incident from a
distance, he lends complete support to PW-15 as regards other
material particulars. Considering the nature of injuries suffered by
him and the fact that Jassi was forcibly taken by the assailants the
entire incident could certainly have afforded sufficient time and
opportunity to PW-15 to recollect and identify the assailants. The law
on the point is well-settled that if the witness is trustworthy and
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reliable, the mere fact that no test identification parade was conducted
would not be a reason to discard the evidence of the witness. It was
observed by this Court in Ashok Debbarma Vs. State of Tripura1 as
under:-
“21 The abovementioned decisions would indicate
that while the evidence of identification of an
accused at a trial is admissible as substantive piece
of evidence, it would depend on the facts of a
given case as to whether or not such a piece of
evidence can be relied upon as the sole basis of
conviction of an accused. In Malkhansingh V.
State of M.P., this Court clarified that the test
identification parade is not a substantive piece of
evidence and to hold the test identification parade
is not even the rule of law but a rule of prudence so
that the identification of accused inside the
courtroom at the trial can be safely relied upon.
We are of the view that if the witnesses are
trustworthy and reliable, the mere fact that no test
identification parade was conducted, itself, would
not be a reason for discarding the evidence of
those witnesses….”
18. The prosecution had made the witness available for test
identification but the concerned accused had refused to participate in
the test. Though there was no reason for such refusal and adverse
inference could be drawn against the accused, we still looked for other
corroborating material which is available in the form of extra judicial
confession as deposed to by PW-7 Jasbir Singh and the incident which
1 (2014) 4 SCC 747
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had happened at the dhaba of pahlwan as spoken by PW-5 Jagdeep
Singh and PW-6 Harjeet Singh. The fact that a photograph of Jassi
(Ext.P-38) was recovered pursuant to disclosure statement by
Ashwani Kumar is another circumstance. That photograph (Ext.P-38)
was recovered from Bolara Farm which was under the control of Anil
Kumar. The description of Jassi in Gurumukhi on the back side of the
photograph is crucial. Refusal on part of Ashwani Kumar to give his
specimen hand writing must lead to adverse inference against him.
The recovery of weapon, namely, kirpan which according to the
doctor could have resulted in the injuries suffered by PW-15
Sukhwinder Singh and Jassi and the blood-stained seat cover are other
circumstances lending complete corroboration. The communication
by Ashwani Kumar and Anil Kumar with the number in Canada
which itself was the source for the fax-message Ext.PAO is another
circumstance. All these circumstances stand proved and clearly point
in the direction of the guilt of Ashwani Kumar and Anil Kumar and
additionally lend complete support to the testimony of and
identification by PW 15 Sukhwinder Singh. The courts below were
therefore perfectly justified in finding Ashwani Kumar and Anil
Kumar guilty of the offences under Sections 364/307 and 302 IPC.
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19. We now deal with the case of the other appellants. The
submission advanced by Shri Tulsi that the subsequent judgment will
operate as issue estoppel is not correct. First and foremost the
offences are different and distinct. The rule regarding issue estoppel
relates to admissibility of evidence in subsequent proceedings which
is designed to up-set a finding of fact recorded on the previous
occasion and mandates that the finding so rendered on earlier occasion
must operate as issue estoppel in subsequent proceedings. It makes it
impermissible to lead any such evidence at a subsequent stage or
occasion. The attempt on part of Mr. Tulsi is just the opposite. He
seeks to rely on the finding at a subsequent stage to up-set a finding of
fact recorded on a previous occasion. The law on the point was
succinctly stated by this Court in Sangeetaben Mahendrabhai Patel
v. State of Gujarat2 in following words:
“23. This Court has time and again explained the
principle of issue estoppel in a criminal trial
observing that where an issue of fact has been tried
by a competent court on an earlier occasion and a
finding has been recorded in favour of the accused,
such a finding would constitute an estoppel or res
judicata against the prosecution, not as a bar to the
trial and conviction of the accused for a different
or distinct offence, but as precluding the
acceptance/reception of evidence to disturb the
2 (2012) 7 SCC 621
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finding of fact when the accused is tried
subsequently for a different offence. This rule is
distinct from the doctrine of double jeopardy as it
does not prevent the trial of any offence but only
precludes the evidence being led to prove a fact in
issue as regards which evidence has already been
led and a specific finding has been recorded at an
earlier criminal trial. Thus, the rule relates only to
the admissibility of evidence which is designed to
upset a finding of fact recorded by a competent
court in a previous trial on a factual issue…”
We therefore reject the submission.
20. As per deposition of PW-8 Bhagwan Singh and other material
on record, the tempo in question bearing No.PB-10/9719 was under
the control of Joginder Singh. It was this tempo which was used by
Ashwani Kumar as stated by PW-5 Jagdeep Singh and PW 6 Harjeet
Singh. The telephonic conversations between Joginder Singh, a
serving police officer and Ashwani Kumar and Anil Kumar just
before and soon after the incident are extremely crucial. No
explanation has been offered on part of Joginder Singh. The record
further indicates that Joginder Singh was also in touch with the same
number from Canada, in respect of which again there is no
explanation. In the extra judicial confession deposed to by PW-7,
there is clear assertion that parents of Jassi had given money through
Joginder Singh. In the circumstances we fully agree with the
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assessment made by the courts below in finding Joginder Singh guilty
of the offences under Sections 364, 302 and 367 IPC with the aid of
Section 120B IPC. His conviction and sentence, in our considered
view, is completely justified.
21. However, as regards Darshan Singh all that the prosecution has
produced is the record of telephonic conversations. No doubt that
there have been communications with Ashwani Kumar, Anil Kumar,
Joginder Singh and the number from Canada but such
communications are from a landline number which stands in the name
of the brother of Darshan Singh. There is no evidence on record that
the said landline number was under the exclusive control of Darshan
Singh. Secondly, given the fact that his daughter is married with the
son of Surjeet Singh from Canada, the conversations with the number
in Canada are explainable. It is true that suspicion against Darshan
Singh was expressly stated in the first statement of PW-15
Sukhwinder Singh itself. However, apart from telephonic
conversations nothing has been placed on record by the prosecution.
We, therefore, give benefit of doubt to Darshan Singh and acquit him
of the charges leveled against him.
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22. In the circumstances Criminal Appeal Nos.1041-1042 of 2008
preferred by Ashwani Kumar @ Ashu and Joginder Singh and
Criminal Appeal No.1043 of 2008 by Anil Kumar are dismissed
affirming the orders of conviction and sentence recorded against them.
The appeal of Darshan Singh, namely, Crl. Appeal No.1814 of 2009 is
allowed and he is acquitted of all the charges. The bail bonds
furnished by him stand cancelled. Ashwani Kumar @ Ashu, Anil
Kumar and Joginder Singh who were not granted bail, must undergo
the sentences awarded.
....……………………..J.
(Madan B. Lokur)
………………………..J.
(Uday Umesh Lalit)
New Delhi,
April 16, 2015
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