Preface
It is most refreshing to see that the Punjab and Haryana High Court while taking the most firm stand in adopting a zero tolerant approach committed by men in police uniform in a most learned, laudable, landmark, logical and latest judgment titled State of Punjab vs Harbhajan Singh and others in CRA-D-307-DBA-2004 (O&M), CRA-S-1071-SB-2003 (O&M) & CRR-1952-2003 and cited in Neutral Citation No:=2024:PHHC:109434-DB that was reserved on 12.8.2024 and then finally pronounced on 23.8.2024 has nearly three decades after Gamdoor Singh who was a resident of Sangrur who sustained injuries in police custody as he was brutally tortured in police custody before breathing his last in a hospital convicted a Deputy Superintendent of Police (DSP) on count of murder in the 1995 custodial death case. It must be mentioned here that the Chandigarh High Court was hearing an appeal that had been filed by the Punjab Government and complainant against the acquittal of the DSP. It must be disclosed here that along with three others, the Chandigarh High Court also held the DSP guilty for murdering Gamdoor Singh.
Introduction
It must be noted that the matter was placed before the High Court Bench after the fast track court of an Additional Sessions Judge in Sangrur in May 2003 acquitted police officials Harbhajan Singh, Kirpal Singh and Jaswant Singh for murder and common intention while sentencing them to rigorous imprisonment for up to three years for lesser offences. The Division Bench comprising of Hon’ble Mr Justice Sureshwar Thakur and Hon’ble Ms Justice Sudeepti Sharma said unhesitatingly that, “DSP Gursewak Singh is also liable to be convicted for an offence punishable under Section 302 read with Section 34 of the IPC along with the other accused.” The High Court Division Bench reversed the earlier acquittal that was primarily based on medical evidence.
Needless to say, custodial violence and custodial death cannot be justified under any circumstances and those who commit the offence with impunity must be made to face severe consequences and this is exactly what the Punjab and Haryana High Court has done so commendably in this leading case! The Division Bench noted that the star witness has named the DSP for participating in causing the custodial death of the victim. The testimony of star witness Baghel Singh turned the tables against the DSP resulting finally in his being held guilty.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice Sureshwar Thakur for a Division Bench of the Punjab and Haryana High Court at Chandigarh comprising of himself and Hon’ble Mrs Justice Sudeepti Sharma sets the ball in motion by first and foremost putting forth in para 1 that, “Since both the above appeals (supra) as well as the criminal revision (supra) arise from a common verdict, made by the learned trial Judge concerned, hence all the appeals/revision (supra) are amenable for a common verdict being made thereons.”
As we see, the Division Bench then lays bare in para 2 that, “All the appeals/revision (supra) are directed against the impugned verdict, as made on 24.5.2003, upon session case bearing No.25 of 28.11.1996, by the learned Additional Sessions Judge, Fast Track Court, Sangrur, wherethrough in respect of charges drawn against the accused qua offences punishable under Sections 302/325/323/324/34, 343 of the IPC, thus the learned trial Judge concerned, proceeded to record a finding of conviction against appellants-convicts, only for offences punishable under Sections 343 IPC, besides for offences punishable under Sections 325, 324, 323 read with Section 34 of the IPC. Importantly also therebys the learned trial Judge concerned, acquitted the accused namely Harbhajan Singh, Kirpal Singh and Jaswant Singh, for a charge drawn against them for an offence punishable under Section 302 read with Section 34 of the IPC. Moreover, the co-accused Gursewak Singh was acquitted from the charges (supra), as became drawn against him. In addition, through a separate sentencing order of even date, the learned trial Judge concerned, sentenced the appellants convicts in the hereinafter extracted manner.
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Accused Harbhajan Singh, Kirpal Singh and Jaswant Singh are sentenced to undergo RI for one year under Section 343 IPC. Accused Harbhajan Singh, Kirpal Singh and Jaswant Singh are also sentenced to undergo RI for three years and to pay a fine of Rs.2000/- each and in default of payment of fine they shall further undergo RI for nine months, under Section 325 read with Section 34 IPC. Accused Harbhajan Singh, Kirpal Singh and Jaswant Singh are also sentenced to undergo RI for two years under section 324 read with Section 34 IPC. Accused Harbhajan Singh, Kirpal Singh and Jaswant Singh are also sentenced to undergo RI for one year under Section 323 read with Section 34 IPC. All the sentences shall run concurrent.””
Quite naturally, the Division Bench then mentions in para 3 that, “Since the accused-convicts became aggrieved from the above drawn verdict of conviction, besides also, became aggrieved from the consequent thereto sentence(s) of imprisonment, and, of fine as became imposed, upon them, by the learned convicting Court concerned, thereupons they chose to institute thereagainst criminal appeal bearing No.CRA-S-1071- SB-2003.”
Simply put, the Division Bench then states in para 4 that, “The State of Punjab as well as the complainant have also respectively filed criminal appeal bearing No.CRA-D-307-DBA-2004 and criminal revision bearing No.CRR-1952-2003, whereby they respectively, seek the recording of findings of conviction against the convicts-accuseds’, thus for an offence punishable under Section 302 read with Section 34 of the IPC, hence in addition to the charge(s) (supra) qua which they are already convicted, besides also seek the conviction of the acquitted accused, for an offence punishable under Section 302 read with Section 34 of the IPC.”
Factual Background
To put things in perspective, the Division Bench envisages in para 5 that, “The genesis of the prosecution case becomes embodied in the appeal FIR, to which Ex.PS is assigned. The narrations carried in Ex.PS are, that on 15.11.1995 Karam Singh brother-in-law of Gamdoor Singh deceased came to know that on 14.11.1995 at about 7.00 P.M. the Railway Police Sangrur abducted his brother-in-law Gamdoor Singh from village Bhai Ki Pishore and when he made inquiries, he came to know that SHO Harbhajan Singh ASI Kirpal Singh and other Police officials have abducted him from his house and at that time, Charanjit Kaur wife of Gamdoor Singh, Naranjan Singh and Bawa Singh were present in the house. Then they made inquiries from Sangrur and other places but could not find Gamdoor Singh. On the next day Karam Singh went to Railway police, Sangrur where Gamdoor Singh and his wife’s sister’s husband Baghel Singh were found in the custody of the Police with the intervention of respectables, SHO Harbhajan Singh released Gamdoor Singh deceased on 23/11/95 at about 11.00 P.M. in the presence of Kuldip Kaur wife of Karam Singh and Naranjan Singh Sarpanch and handed over Gamdoor Singh to them. At that time, the condition of Gamdoor Singh was very serious and he was unable to move. He was immediately admitted in PGI Chandigarh on 28.11.1995 Baghel Singh reached PGI Chandigarh and told Karam Singh that HC Kirpal Singh had given Danda blows in the head of Gamdoor Singh while HC Jaswant Singh had given injuries on the ribs of Gamdoor Singh and HC Kirpal Singh also drowned him in the water after tieing his hands and feet. He further told Karam Singh that SHO Harbhajan Singh pulled legs of Gamdoor Singh apart. On 7.12.1995 at about 4.35 a.m. Gamdoor Singh died in PGI Chandigarh. SI Avtar Singh reached PGI Chandigarh before whom Karam Singh made statement, on the basis of which formal case was registered against the accused.”
Star Prosecution Witness
Do note, the Division Bench notes in para 11 that, “One Baghel Singh stepped into the witness box as PW-3. In his testification comprised in his examination-in-chief, he has made echoings which are in complete alignment, with his previously recorded statement before the police officer concerned. Obviously therebys he has made inculpatory articulations against the accused. The initial statement of PW-3 was recorded on 13.06.1997. However, the witness (supra) was recalled for further re-examination and during the course of his making his testification on 28.04.1999, he thereins too, proceeded to make pervasive inculpatory speakings against the accused.”
Do further note, the Division Bench then notes in para 12 that, “Be that as it may, when the witness (supra), was subjected to cross-examination by the learned defence counsel, he then resiled from the contents of affidavit Ex.PH, which became tendered by him on 28.04.1999, besides was made a part of his examination-in-chief. The reason which he assigned, for his resiling from his affidavit Ex.PK, became grooved in the factum, that it was made upon, tutorings and threats became meted to him by the investigating officer concerned. Significantly he did not deny the occurrence of his signatures on affidavit Ex.PK wherein he assigned an inculpatory role to the accused but only stated that the contents thereof rather were never read over nor became explained to him.”
It is of immense significance that the Division Bench points out in para 13 that, “Obviously since Baghel Singh reneged from the contents of Ex.PK which became tendered by him in his examination-in-chief, on 28.04.1999 and also became a part of his testification, thereupon with the leave of the learned trial Judge concerned, the Public Prosecutor concerned, subjected him to cross-examination. During the course of his cross-examination he reiterated the contents of Ex.PK. Importantly therein he also he stated that the said contents were dictated by him. Moreover, he also stated that on 23.05.1997 he had filed an application for his being provided security, as he was apprehending danger to his life, as DSP Gursewak Singh was threatening him, besides was asking him to resile from his statement. The said application is Ex.PL.”
As it turned out, the Division Bench enunciates in para 14 that, “Though on 19.05.1999 the witness (supra) on his being put to cross-examination by the learned defence counsel, reneged from Ex.PK, exhibit whereof is an affidavit which was tendered by him in his examination-in-chief, and, which also became a part of his examination-in-chief. Furthermore, the said denial was made on the ground(s) a) qua contents thereof being was neither read over to him nor became explained to him b) qua Ex.PK though becoming signed by him, but after contents thereof remaining uncomprehended by him, c) besides Ex.PK becoming authored by him under duress and compulsion becoming exerted upon him by the investigating officer concerned.”
However, for the reasons to be assigned hereinafter the said resiling is frail and is required to be rejected
Be it noted, the Division Bench notes in para 15 that, “Firstly, on the ground that Baghel Singh, does not deny his authoring Ex.PK, therebys in terms of Section 91 and 92 of the Indian Evidence Act, thus barring and estopping him from leading oral evidence contrary to the recitals carried in Ex.PK, which admittedly became signatured by him, but makes the said denial to be idly and perfunctorily made.”
Even more significantly, the Division Bench then notes in para 16 that, “Secondly, for the reason that when Ex.PK was tendered into evidence by Baghel Singh before the learned trial Judge concerned, whereafter it was also made a part of his examination-in-chief. Moreover, when subsequently he appended his signatures on his testification recorded on 28.04.1999. Therefore, he was required to be adhering to the contents of the provenly authored by him affidavit Ex.PK, rather than his resiling from the contents thereof. Primarily for the reason that Ex.PK was an affidavit sworn by him, whereupon the said affidavit, but was not an unsigned statement recorded under Section 161 Cr.P.C., before the police officer concerned. Therefore, the validly signatured statement on oath occurring in affidavit Ex.PK, especially when authorship thereof is not denied by him, did reiteratedly attract thereto the statutory bar envisaged in the provisions (supra), as carried in Sections 91 and 92 of the Indian Evidence Act, whereupons he became estopped from reneging from the contents of his affidavit Ex.PK, authorship whereof remains undenied by him.”
It is worth noting that the Division Bench notes in para 17 that, “Thirdly, for the reason that after his becoming declared hostile by the learned trial Judge concerned, thus the learned Public Prosecutor concerned, during the course of his making an exacting cross-examination upon him, rather securing from him speakings qua the said affidavit becoming dictated by him. If so, the earlier thereto denial, if any by Baghel Singh (PW-3) qua neither the contents thereof being explained to him nor his comprehending them, thus appears to be a flimsily made denial, rather only through pressure and exertion becoming exerted upon him by one DSP Gursewak Singh.”
Most significantly, the Division Bench points out in para 18 that, “Fourthly, for the reason that when on 23.05.1997, he evidently filed an application Ex.PL, thus asking for security becoming provided to him, on account of his apprehending danger to his life from DSP Gursewak Singh, who was threatening him against his adhereing to the contents of Ex.PK. Resultantly, when thereby it evidently appears that the DSP concerned, thus was exerting pressure upon him (i.e. PW-3), qua his resiling from the contents of affidavit Ex.PK, which became tendered into evidence and also became a part of his examination-in-chief, whereby there was but a complete fortified estoppel against PW-3 qua his resiling from the contents thereof, as he had admitted that he had made his signatures thereon. Moreover, thereby the earlier resiling was generated from evident pressure (supra) becoming exerted upon him by accused DSP Gursewak Singh, whereby he is deemed to be making an inculpatory participation in the crime event.”
Equally significant is that the Division Bench then postulates in para 19 holding that, “In the face of the above appreciation of evidence of Baghel Singh (PW-3) it can be safely concluded that the prosecution has proven to the hilt the charge drawn against the accused.”
Most forthrightly, it just cannot be glossed over that the Division Bench minces absolutely just no words to hold in para 31 that, “Fifthly since neither the author of Ex.PA nor the author of Ex.PG, became ensured to be led into the witness box, for theirs on the basis of texts of medical jurisprudence, making articulations, thus for theirs respectively failing to vindicate Ex.PG or assuring the judicial conscience of the learned trial Judge concerned, that the opinion Ex.PA, rather was required to be declared to be holding evidentiary worth. Resultantly, the above omission, but leads to the conclusion that there was a complete dereliction of duty on the part of the learned trial Judge concerned, besides on the part of the defence counsel concerned. In sequel, omission (supra), also leads to a conclusion that Ex.PG was required to be declared to be holding the field on the ground that it became supported by tangible material i.e. it becoming based upon the report of the chemical examiner. Significantly also since there was consumption of time in the chemical examiner making his opinion comprised in Ex.PE and in Ex.PF, and which ultimately led PW-2 to draw a final opinion (Ex.PF), qua the cause of demise. Therefore, thereby the delay of three months which occurred since the making of an autopsy on the body of the deceased and the rendition of Ex.PG rather becomes completely inconsequential.”
As a corollary, the Division Bench directs in para 32 that, “In sequel, since the demise of the deceased was homicidal, than natural, resultantly the appellants-accused are liable to be convicted for an offence punishable under Section 302 of the IPC apart from the offences, for which they are already convicted.”
Reasons for accepting the appeal/revision filed by the State of Punjab and by the complainant against the verdict of acquittal rendered qua DSP Gursewak Singh, who has been assigned an incriminatory role by PW-3
It is worthwhile to note that the Division Bench notes in para 33 that, “Since DSP Gursewak Singh has been named by Baghel Singh (PW-3), thereupon even if the log book entries suggested that the said was not at the relevant time available at Sangrur yet the said log book entries did not hold any vigor nor therebys the unrebutted incriminatory speakings made against DSP Gursewak Singh by PW-3 became underwhelmed.”
Far most significantly, the Division Bench then mandates in para 34 postulating that, “The reason is comprised in the factum, that Baghel Singh (PW3) during the course of his cross-examination, as became conducted by the Public Prosecutor concerned, after his becoming declared hostile rather not only accepting that the contents thereof becoming authored by him, but also stating that his earlier thereto reneging from Ex.PK, were under pressure, besides upon exertion becoming exerted upon him, by DSP Gursewak Singh. Moreover, when he also stated that on account of the said pressure he had moved an application for security becoming provided to him. Resultantly, thereby when neither in his cross-examination, thus any suggestions became meted to him nor when any exculpatory speaking thereto emanated from PW-3, whereby it may be inferred that speaking (supra), are contrived or false. Therefore, the conclusion therefrom, is naturally that, the reasons (supra) assigned for the making a finding of acquittal qua DSP Gursewak Singh, rather are extremely frail and/or are a sequel of gross misappreciation of evidence (supra), as existed on record. As such, DSP Gursewak Singh is also liable to be convicted for an offence punishable under Section 302 read with Section 34 of the IPC along with the other accused. Moreover, when the DSP concerned, has not denied the threatening becoming extended qua PW-3, thereupon the same is manifestative of his guilt.”
Resultantly, the Division Bench then holds in para 35 that, “Accordingly, in view of the above, the instant appeal/revision are allowed. Consequently after allowing the instant appeal/revision respectively filed by the State of Punjab and the complainant, this Court quashes the impugned verdict of acquittal, as made by the learned trial Judge concerned, wherethrough, he made a finding of acquittal in respect a charge drawn for an offence punishable under Section 302 read with Section 34 of the IPC, and modifies the same to the extent that all the accused are held guilty for an offence punishable under Section 302 read with Section 34 of the IPC, in addition to the offence(s) for which respondents No.1 to 3 stand already convicted. The accused are directed to be produced in custody before this Court, on 03.09.2024 for theirs being heard on the quantum of sentence. If the accused concerned, are on bail, thereby they are ordered to be forthwith taken into custody through the learned trial Judge concerned, forthwith drawing committal warrants against the accused. Moreover, accused DSP Gursewak Singh, is also directed to be produced in Court, for his being heard on the quantum of sentence.”
In a nutshell, we thus see that the Punjab and Haryana High Court has very rightly convicted the DSP after taking into account all the facts and evidence that were presented before it. There definitely has to be complete zero tolerance towards custodial violence and this is exactly what the Chandigarh High Court has demonstrated also so very commendably in this notable judgment! Those who wantonly indulge in merciless custodial violence resulting in custodial death making a complete mockery of human rights must be certainly made to pay the most severe consequences because if guardians themselves become predators then how can a common person be considered safe even in a democratic country like India? It is high time and laws must be made more stricter towards not only custodial death but also towards custodial violence which should be punished most strictly. It definitely brooks no more delay any longer! No denying or disputing it!
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