state vs. arwinder singh @ ghoga & others. sc no.15 of 2017. · surjit singh @ lucky, aged 27...

State Vs. Arwinder Singh @ Ghoga & others. ~1~ SC No.15 of 2017.

IN THE COURT OF RANDHIR VERMA, ADDITIONAL SESSIONS JUDGE,

SHAHEED BHAGAT SINGH NAGAR. (UID No.PB-0165)

Sessions Case No.15 of 2017.Date of institution:22.03.2017. CIS No.SC/37/17.CNR No.PBSB01000970-2017.Date of decision:31.01.2019.

State

Versus

1. Arwinder Singh @ Ghoga, aged about 29 years, son of Gurnam Singh,resident of Village Pallian Khurd, PS Rahon, District SBS Nagar.

2. Surjit Singh @ Lucky, aged 27 years son of Tek Singh, resident ofVillage Bahadur Hussain, PS Rangar Nangal, District Gurdaspur.

3. Ranjit Singh, aged about 29 years, son of Kashmir Singh, resident ofVillage Noch, PS Sadar Kaithal, District Haryana.

FIR No.82 dated 24.05.2016,Under Sections 121 and 121-A IPCand Sections 10 and 13 of the Unlawful Activities (Prevention) Act, 1967,

Police Station, Rahon.

Present:Sh.Davinder Kumar, Additional Public Prosecutor for the State. Accused Arwinder Singh @ Ghoga in custody with Sh.HK Bhambi, Advocate. Accused Surjit Singh @ Lucky in custody with Sh.Rajan Sareen, Advocate. Accused Ranjit Singh in custody with S/Sh.Sarabjit Singh Bains and HL Suman, Advocates.

JUDGMENT:

Station House Officer, Police Station Rahon, District SBS

Nagar has sent the challan against the above named accused for the

offences punishable under Sections 121 and 121-A IPC and Sections 10

and 13 of the Unlawful Activities (Prevention) Act, 1967 (hereinafter


referred as the 1967 Act). The case was received in this Court by way of

entrustment on 22.03.2017.

2. Briefly stated, case of the prosecution is that on 24.05.2016

SI-Gurdial Singh alongwith other police officials was present at T-point,

Jadla Road, Rahon in connection with patrolling duty and checking of

suspected persons, where DSP Mukhtiar Rai, PPS alongwith his gunmen

and other police officials came and joined the police party. Thereafter,

check post was arranged and at about 10:18 pm, he received secret

information to the effect that Arwinder Singh son of Gurnam Singh,

resident of Village Pallian Khurd is active member of terrorist

organization known as ‘Babbar Khalsa’ and has returned to India from

Doha Qatar about 7-8 months ago. He has been enticing Sikh youth for

recruitment in the aforesaid terrorist organization and has been planning

to wage war against India. He has also been indulging in anti national

activities. He can fire a particular community and explode bomb blast.

Finding this information credible and trustworthy, ruqa was scribed and

was sent to the police station. On the basis of which, FIR was registered

and the investigation of this case was taken over by DSP Mukhtiar Rai.

3. On 25.05.2016, accused Arwinder Singh @ Ghoga @ Mitha

Singh was nabbed from bus stand, Rahon and he was arrested in this case.

One mobile phone make Samsung was recovered from him. Thereafter,

Arwinder Singh made disclosure statement. On the basis of which,

remaining accused were arrested and objectionable/anti-national material

was recovered from the possession of the accused. Data from the mobile

phones being used by the accused was also taken out with the help of IT


experts and the same was also taken into police possession. Statements of

witnesses were recorded.

4. After completion of investigation and all other necessary

formalities, the challan was presented against the accused under Sections

121, 121-A IPC and Sections 10 and 13 of the 1967 Act in the Court of

learned Area Magistrate.

5. On appearance of the accused in the Court, copies of challan

and necessary documents as relied upon by the prosecution were supplied

to them free of costs as required under Section 207 Cr.P.C. The learned

Area Magistrate committed the case to the Court of Sessions. The case

was later on entrusted to this Court.

6. Finding a prima facie case under Sections 121 and 121-A IPC

and Sections 10 and 13 of the 1967 Act against the accused, they were

charge sheeted accordingly, to which they pleaded not guilty and claimed

trial.

7. In order to bring home guilt of the accused, prosecution has

examined HC-Prem Kumar as PW-1, HC-Daljit Singh as PW-2, HC-

Jarnail Singh as PW-3, Sudhir Kumar as PW-4, Sukhwinder Singh as PW-

5, Dalbir Singh Virk as PW-6, Gagandeep Singh as PW-7, Amarjyoti as

PW-8, Kulwinder Singh as PW-9, HC-Charanjit Singh as PW-10, HC-

Bagga Singh as PW-11, Sunil Kumar as PW-12, HC-Ram Pal as PW-13,

ASI-Sodhi Singh as PW-14, Mandeep Singh as PW-15, SP Jain, Nodal

Officer as PW-16, Harvinder Singh, Nodal Officer as PW-17, SI-Gurdial

Singh, Investigating Officer as PW-18, Inspector Ved Parkash as PW-19,

Mohinder Pal as PW-20 and DSP-Mukhtiar Rai as PW-21. No other


evidence was led by the prosecution and thereafter, learned Additional

Public Prosecutor for the State closed evidence of the prosecution.

8. On closure of the prosecution evidence, statements of the

accused under Section 313 Cr.P.C. were recorded, in which all the

incriminating evidence appearing against them from the prosecution

evidence was put to them, to which they pleaded false implication and

innocence. They opted to lead evidence in defence.

9. In defence, accused have examined Bhajan Singh as DW-1,

Nirmal Singh as DW-2, Mahal Singh Dhillon as DW-3 and Sukhdev

Singh as DW-4. No other evidence was led by the accused and thereafter,

accused closed their defence evidence through video conferencing.

10. Learned Additional Public Prosecutor has argued that

Arwinder Singh son of Gurnam Singh, being active member of terrorist

group ‘Babbar Khalsa International’, which has been declared unlawful,

has been inciting young Sikh followers to join said organization. The

accused have waged war against India and have also indulged in anti-

national activities. He has further argued that having been doing aforesaid

activities, they could demolish unity and integrity of India. He has also

argued that accused Arwinder Singh inspired accused Surjit Singh

personally on facebook for encouraging armed struggle. 97 books, 198

photographs and 13 photographs of Sikhs, who had died in the Saka of

1978 and 1000 books in connection with biography of Sukhdev Singh

Babbar were recovered from him. He has further argued that accused

Arwinder Singh also inspired accused Ranjit Singh and started working

on the directions of Wadhawa Singh Babbar, Karanvir Singh, resident of


Village Daroli, P.S. Adampur at present Pakistan, Jujhar Singh Babbar son

of Wadhawa Singh Babbar, resident of German, Gurpreet Singh Babbar,

resident of California and Akalroop Singh Babbar, resident of England,

who were connected through facebook and mobile and has worked on

their directions to take this armed war further. A mobile phone make

Samsung having sim No.7087911369 was recovered, which was taken

into police possession. He has further argued that Surjit Singh accused

contacted accused Ranjit Singh for Sikh struggle and they had pasted

posters of the formation of Khalistan on the occasion of Hola Mohalla at

Anandpur Sahib. He has also argued that flex printings regarding

establishment of Khalistan and books in connection with Operation Blue

Star alongwith passport were recovered from accused Ranjit Singh on the

basis of his disclosure statement. He has further argued that organization

‘Babbar Khalsa International’ has been declared illegal under the 1967

Act. Lastly, he has prayed to convict and punish the accused as per law.

11. These contentions have been rebutted by learned defence

counsel contending that accused have been falsely implicated in this case.

They have further argued that the accused remained in police custody and

any confessional statement of the accused recorded in the police custody

is illegal and inadmissible as per Evidence Act. Same can not be read

against the accused. It has also been argued that the passports recovered

from the accused were genuine and possession of posters/flexes and other

material allegedly recovered from the accused do not attract any offence.

It has also been argued that PW-9, independent witness to the alleged

recovery on the basis of disclosure statement of Arwinder Singh has not


supported the prosecution case.

12. They have further argued that nothing has been produced on

record by the prosecution that the money received by the accused from

foreign countries was for unlawful or anti national activities. They have

further argued that neither any weapon of any kind nor any explosive

substance was found in the possession of any of the accused, hence, it can

not be said that the accused have waged or attempted to wage war or

abetted waging of war against the Government of India or conspired to

commit offences for which the accused have been charged. They have

further argued that there is nothing on the file to suggest that the accused

are/were members of unlawful association ‘Babbar Khalsa International’

or that they have taken part in or have committed or have advocated,

abetted, adviced or incited the commission of any unlawful activity. It has

been also contended that the acts of posting objectionable/allegedly

seditious material on social media, such as face book or having received

some money from abroad or sending booklets abroad cannot amount to

waging or attempting or abetting or conspiring to wage war against the

Government of India, nor render the accused liable for any of the offences

for which the accused have been charged.

13. They have further argued that FIRs No.146 dated 18.08.1981

under Sections 302/34 IPC, PS Sadar Bathinda proved as Ex.PW-1/A by

PW-1 HC Prem Kumar, 30 dated 16.05.2010 under Sections 25/54/59 of

Arms Act, PS Mehtiana proved as Ex.PW-2/A by PW-2 HC Daljit Singh,

197 dated 25.09.2009 under Sections 17, 18 and 20 of the 1967 Act, PS

Phase-8 Mohali proved as Ex.PW-3/A by PW-3 HC Jarnail Singh, 72


dated 01.06.1989 under Sections 153-A, 124-A of IPC, proved as Ex.PW-

10/A and 378 dated 20.11.2015 under Sections 121-A, 122, 123 of IPC

read with Sections 4, 5 and 6 of Explosive Act and 25, 54 and 59 of Arms

Act, PS Sadar Jagraon, proved as Ex.PW-11/A have no concern with the

accused. They have also argued that even from the recoveries allegedly

effected from the accused, offences under Sections 121 and 121-A of IPC

and 10 and 13 of the 1967 Act are not made out against the accused.

Lastly, they have prayed to acquit the accused of the charges framed

against them. In support of their contentions, they have relied upon

Sukhchain Singh and Ors. Vs. State of Rajasthan, 2000(2) SCC

183; Jagdev Singh Talwandi Vs. State of Punjab, 1984(2)

RCR(Criminal) 16; Pakkirisamy Vs. State of Tamil Nadu, decided

by Hon’ble Supreme Court of India on 30th September, 1997 in

Criminal Appeal No.466 of 1996; Subhashree Das & Mili Panda

and Others Vs. State of Orissa, 2011(2) OLR 1000; R.Vijaya

Kumar @ Kumar Vs. State, 1994(2) Karnataka High Court 323;

Bhagwan Singh Mokal Vs. Union Territory, Chandigarh, 2001(2)

RCR (Criminal) 238; Balwant Singh and Another Vs. State of

Punjab, 1995 AIR(SC) 1785; Amarjit Singh Vs. State of UP,

1998(8) SCC 613; Balwant Singh and Anr. VS. State of Punjab in

Criminal Appeal No.266 of 1985 decided on 01.03.1995; Arup

Bhuyan Vs. State of Assam, 2011(3) SCC 377 and Megha Singh Vs.

State of Haryana, 1997(2) Recent Criminal Reports 3.

14. From the aforesaid material and arguments raised by learned

Additional Public Prosecutor for the State and learned counsel for the


accused, the following points arise for determination in this case:

(i) Whether on or before 25.05.2016, the accusedabetted waging war against Government of India? (ii) Whether on or before 25.05.2016, the accusedconspired to commit offences punishable under Section121 IPC?

(iii) Whether on the same date and time, the accusedwere members of unlawful assembly, namely ‘BabbarKhalsa International’, which has been declaredunlawful?

(iv) Whether during the aforesaid period, the accused took part, advocated, abetted, advised and enticed the commission of unlawful activities?

(v) Whether the sanction accorded for prosecuting the accused for the offences under Sections 121 and 121-A IPC, and 10 and 13 of the 1967 Act is invalid?

(vi) Whether the prosecution of the accused for the aforesaid offences without sanction is one without jurisdiction?

15. I have considered the rival contentions raised by learned

Additional Public Prosecutor for the State and learned defence counsel for

all the accused. I have also perused the judicial file. My findings on the

aforesaid points are as under:

Points No.(i) to (vi):

16. All these points are taken up together being interlinked,

interconnected and to avoid repetition of discussion. The charges leveled

against the accused can be broadly classified as charges regarding waging

war, conspiracy to commit offence punishable by Section 121 IPC, being

members of unlawful association namely ‘Babbar Khalsa International’,

taking part, advocating, abetting, advising and enticing the commission of


unlawful activities.

17. For proper appreciation of the facts, application of the law to

the said facts and to assess the various aspects raised during arguments by

both the sides, let us analyze the evidence placed on the file by the

prosecution and the accused.

18. PW-1 HC Prem Kumar, No.342/Bathinda has proved on

record FIR No.146 dated 18.08.1981 under Sections 302 and 34 IPC, PS

Sadar Bathinda as Ex.PW-1/A but in his cross-examination, he has

deposed that said FIR was registered against unknown persons. Same is

the position with regard to FIR No.30 dated 16.05.2010 under Sections

25/54/59 of Arms Act, PS Mehtiana, proved as Ex.PW-2/A by PW-2 HC

Daljit Singh, No.1705/Hoshiarpur. PW-3 HC Jarnail Singh, No.541/SAS

has proved FIR No.197 dated 25.09.2009 under Sections 17, 18 and 20 of

the 1967 Act, PS Phase-8 Mohali as Ex.PW-3/A. In his cross-examination

he has deposed that he has no personal knowledge regarding names

mentioned therein nor he knows the final result of the case. He has also

deposed that name of accused Surjit Singh does not find mention in the

said FIR nor there is allegation against accused Surjit Singh.

19. PW-10 HC Charanjit Singh has proved FIR No.72 dated

01.06.1989 under Sections 153-A, 124-A of IPC as Ex.PW-10/A. In his

cross-examination, he has admitted that names of Arwinder Singh, Ranjit

Singh s/o Kashmir Singh and Surjit Singh s/o Tek Singh, r/o Bahadur

Hussain, PS Rangar Nangal, District Gurdaspur do not find mention in the

record produced by him and opinion of the officials in connection with


FIR No.72 is mentioned as untraced and no challan was presented against

anyone.

20. PW-11 HC Bagga Singh, No.268/Ludhiana has proved FIR

No.378 dated 20.11.2015 under Sections 121-A, 122, 123 of IPC; 4, 5 and

6 of Explosive Act and 25, 54 and 59 of Arms Act, PS Sadar Jagraon as

Ex.PW-11/A. In his cross-examination, he has admitted that names of all

the accused namely Surjit Singh, Arwinder Singh and Ranjit Singh do not

find mention in it. Thus, evidence of these witnesses is not of any help to

the prosecution.

21. PW-4 Sudhir Kumar has deposed that he has been running

‘Atam Flex Printing Press’ at Chandigarh Chowk, Nawanshahr since

September, 2014. On 16.04.2016, Arwinder Singh came to him in

connection with preparing of flex banners and placed order of 8 pieces, 4

feet in length and 2 feet in width. On 18.04.2016, he gave him 8 pieces of

flex and received 960/- as consideration. He has also deposed that the₹

make of the hard disk from which he prepared the flex banners is Hitachi,

550 GB, number 5V2HOUPU and he produced the same before the police

vide production memo Ex.PW-4/A. He has also identified his signatures

on the same at point A. He has also proved photocopies of above said flex

banners as Ex.P1 to Ex.P8 and larger view copy of flex banners as Ex.PA

to Ex.PH. He has also proved aforesaid hard disk as MO1.

22. In his cross-examination though he has deposed that he does

not maintain any record regarding placing of order in this case and he has

not brought the receipt record that day in the Court nor he handed over the

record regarding receipt to the police but it is to be seen that he has also


deposed that he maintains day book regarding receipt of money and said

day book regarding receipt of money was not demanded by the accused.

Similarly, though he has deposed that he does not know Arwinder Singh

personally but he was not suggested that accused Arwinder Singh did not

come to him on 16.04.2016 in connection with preparing of flex banners

or that he has not placed order of 8 pieces, 4 feet in length and 2 feet in

width or that on 18.04.2016 he has not given 8 pieces of flex to Arwinder

Singh or has not received 960/- as consideration from Arwinder Singh.₹

Though he has deposed in his cross-examination that one can delete or

subtract data from the hard disk but he has also categorically deposed if

data is deleted, it can be recovered and it also shows the time when it is

subtracted and deleted.

23. PW-5 Sukhwinder Singh has deposed that he has been

running ‘Fateh Printing Press’ at Phillaur Road, near Bus Stand, Rahon

for eight years. On 31.01.2016, Arwinder Singh, r/o Village Palliyan

Khurd came to his shop and produced before him pen drive. That pen

drive contained life history of Jathedar Sukhdev Singh Babbar. He has

further deposed that Arwinder Singh put that life history in a PDF file and

put into pen drive and came to him for taking printouts of that life history.

He prepared 100 copies at the rate of 15 per copy. He gave him 1500 /-₹ ₹

for those copies. He has further deposed that he produced one copy of

those copies before the police and has proved the same as Ex.PW-5/A.

24. He has further deposed that on 15.04.2016, Arwinder Singh

again came to his shop and got prepared prints from him of 13 Singhs got

martyrdom in 1978 saka and he prepared 200 copies of that photograph


and took 3600/- as consideration from him. He produced one copy of₹

that photograph before the police and has proved the same as Ex.PW-5/B.

25. In his cross-examination no doubt he has admitted that any

publication regarding declaration of Khalistan within India would be

deemed to be against the Government of India and necessary permission

of the Government for publishing such material is required but it is to be

seen that this witness has not made any publication and has simply given

the printouts of the material to Arwinder Singh. Interestingly, he was

suggested that Ex.PW-5/A is declaration of Khalistan and foreign

countries will join for the said purpose. By putting this suggestion, the

accused have admitted that Ex.PW-5/A is declaration of Khalistan.

26. He has further deposed that the pen drive from which he took

out the prints was taken away by the said person. He has also deposed that

in the month of May, 2016, DSP Mukhtiar Rai came to his shop and saw

the record of his shop. From that record, it was found that he (PW-5) had

prepared the copies and said record was taken away by the DSP on that

day. He has further deposed that DSP obtained his signatures on Ex.PW-

5/A when he took the same from his shop.

27. PW-6 Dalbir Singh Virk, Assistant Manager, Muthoot

Finance Limited has deposed that on 17.02.2016 Ranjit Singh s/o

Kashmir Singh r/o Village-Nauch District Kaithal came to him for

receiving 30,000/- sent by Kulwant Singh r/o U.K. He verified the code₹

from him and took photocopy of his Aadhaar Card and then gave him

30,000/- after blocking the PIN No.985656665768. He has also proved₹

relevant record of Muthoot Finance Limited as Ex.PW6/A to Ex.PW 6/D


and he has also identified the accused.

28. PW-7 Gagandeep Singh has deposed that he has been running

Skyways Tour and Travels office at Jalandhar road, Batala. On

17.11.2015, at about 4-5 PM Surjit Singh s/o Tek Singh r/o Bahadur

Hussain Kalan, District Gurdaspur came to him for receiving 34,680/-₹

sent by Bhagwant Singh r/o Italy. He has also deposed that he verified the

code from him and took photocopy of his Aadhaar Card and then he gave

him 34,680/- after blocking PIN No.19982349. In his cross-examination₹

though he has deposed that he has no personal knowledge of this

transaction nor he personally knows Surjit Singh but he was not suggested

that 34,680/- were not sent by Bhagwant Singh r/o Italy or that said₹

amount was not received by Surjit Singh.

29. PW-8 Amarjyoti has deposed that he is Branch Manager,

Thomas Cook India Limited, Shop No.1, Ghuman Market, Jalandhar

Road, Batala. On 08.11.2014, Surjit Singh s/o Tek Singh r/o Village

Bahadur Hussain Kalan District Gurdaspur came to their branch for

receiving 48,428 sent by Vikram Raj r/o U.K. He verified the code from₹

him and also took photocopy of his Aadhaar Card and then they gave him

48,428. He has further deposed that this money was sent by Vikram Raj,₹

resident of England through reference No.60620656. In his cross-

examination though he has deposed that he has no personal knowledge

about this transaction and his staff had dealt with said person but he was

not suggested that Surjit Singh has not come to their branch for receiving

48,428 sent by Vikram Raj r/o U.K.₹

30. PW-12 Sunil Kumar has deposed that he has been working at


Cheema International Courier, Saloh Chowk, Nawanshahr. On

18.04.2016, Arwinder Singh r/o Palliyan Kalan, came to him for courier

of 198 photographs, 97 books and 4 flexes to Jatinder Singh, r/o Gilwat

Road, Suprete 55, Gilburt Road, Utara, Auckland 2023, Newzealand,

phone No.0064211086694. He had taken 11,500/- from him and sent the₹

courier of above said articles at the above said address. He has further

deposed that on 19.04.2016, Arwinder Singh again came to him for

courier of one lady suit, one kurta pajama, 7 DVDs and 2 karas to

Kulwinder Singh r/o Mat Gazer, stri 11, Hanau, 63450 Germany phone

No.00491495228487710. He has proved receipt of articles sent through

courier to Jatinder Singh as mark Z and that of Kulwinder Singh as

mark Y.

31. PW-13 HC Ram Pal, No.368/SBSN has deposed that on

26.05.2016, he was posted at PS Rahon. On that day, DSP Mukhtiar Rai

deposited with him one parcel containing mobile phone make Samsung

recovered from Arwinder Singh, sealed with seal impression MR. He

deposited the above said mobile in State Cyber Cell, Phase IV, Mohali,

District SAS Nagar with Incharge Lab Ved Parkash. On 30.05.2016, the

report of mobile Ex.PW-13/A was handed over to him by Incharge Lab SI

Ved Parkash. He deposited that report in the office of SSP, SBS Nagar. On

31.05.2016, mobile of Surjit Singh was handed over to him by DSP

Mukhtiar Rai and has proved report of FSL as Ex.PW-13/B. He has also

deposed that he deposited the mobile in FSL Mohali on the same day. He

has further deposed that on 27.06.2016, DSP Mukhtiar Rai handed over to

him two parcels of hard disk, make Hitachi, 500 GB, for depositing in


Mohali, which he deposited at Mohali on the same day and has proved its

report as Ex.PW-13/C. He has also deposed that report of the hard disk

was given to the Head Clerk, office of DTO, SBS Nagar.

32. In his cross-examination though he has deposed that he was

not posted as MHC at PS Rahon on 26.05.2016, 27.05.2016 and

31.05.2016 and DSP Mukhtiar Rai was not the incharge of malkhana of

PS, Rahon in those days but he has also deposed that his departure and

arrival were duly recorded on 26.05.2016, 27.05.2016 and 31.052016 in

the police station, Rahon, in which it was also mentioned that the parcels

were handed over to him by DSP Mukhtiar Rai.

33. PW-14 ASI Sodhi Singh, No.51/SBSN, has deposed that on

11.06.2016, he was present along with DSP Mukhtiar Rai during the

investigation of the present case. On that day, IO arrested accused Ranjit

Singh and prepared arrest-cum-intimation memo Ex.PW-14/A, which was

attested by him and HC Raj Kumar and was signed by the accused. He

has further deposed that personal search of the accused was conducted by

the IO, regarding which he prepared the personal search memo Ex.PW-

14/B.

34. He has further deposed that on 11.06.2016, accused Ranjit

Singh made disclosure statement Ex.PW-14/C before the IO. Accused

Ranjit Singh produced 10 books of Operation Blue Star and two flexes

before the IO, regarding which the IO prepared memo Ex.PW-14/C/1. On

13.06.2016, accused made his disclosure statement under Section 27 of

Evidence Act before the IO and has proved the same as Ex.PW-14/D. He

has further deposed that on 17.06.2016, Sudhir Kumar produced before


the IO one hard disk, make Hitachi, regarding which the IO prepared

production memo Ex.PW-4/A and all the memos were attested by him.

35. He has further deposed that accused Ranjit Singh was

arrested at about 01:00 PM in the area of Village Usmanpur near the canal

bridge and the DSP had checked and taken into possession the books in

his presence. Though he could not tell the contents of those books but has

also deposed that so far as he knows, the publication of those books was

prohibited by the Government and DSP has taken the possession of hard

disk in his presence.

36. PW-15 Mandeep Singh has deposed that he has been running

Pritam Enterprises shop for 8 years at bus stand, Rahon. On 16.04.2016,

Arwinder Singh s/o Gurnam Singh, r/o Village Pallian Khurd, came to

him at about 09:10 AM for receiving 402.10 ponds sent by Akal Saroop

Singh, r/o U.K. He verified the code from him and also took the

photocopy of his license. He gave him 37,594.62/-. This money was sent₹

by Akal Saroop Singh, from Western Union through MTCN 470-467-

0079, which he had given to the police. He has proved copy of MTCN on

judicial file i.e. Ex.PW-15/A, which was attested by him. On 20.04.2016,

Manjit Singh s/o Gurmukh Singh, r/o Village Pallian Khurd, came to him

for receiving 435 dollars sent by Prabhjit Singh, r/o Newzealand. He did

not give the money to Manjit Singh s/o Gurmukh Singh, r/o Village

Pallian Khurd, as he was under the age of 18 years. Thereafter, he gave

him money on the basis of Aadhar Card of Manjit Singh s/o Ravail Singh,

r/o Dudhala, who is his permanent customer as Manjit Singh s/o Gurmukh

Singh had not produced his ID proof.


37. PW-16 SP Jain, Nodal Officer, Bharti Airtel Limited,

Chandigarh has produced original record of mobile number 70879-11369,

issued in the name of Arwinder Singh s/o Gurnam Singh, r/o PO Kot

Ranjha, Pallian Khurd, PS Rahon, District SBS Nagar. He has also proved

application form given by Arwinder Singh in his office as Ex.PW-16/A,

letter sent by him to the SSP, SBS Nagar, regarding customer application

form of mobile number 70879-11369 as Ex.PW-16/B and has identified

signatures of Munish Bindra at point A on the same, call details of above

said number for the period 20.04.2016 to 24.05.2016 as Ex.PW-16/C

containing 29 leaves, certificate under Section 65-B of the Indian

Evidence Act as Ex.PW-16/D.

38. In his cross-examination though he has deposed that he has

no personal knowledge regarding the present case and customer

application form has not been filled in his presence but he has not been

suggested that mobile number 70879-11369 has not been issued in the

name of Arwinder Singh s/o Gurnam Singh, r/o PO Kot Ranjha, Pallian

Khurd, PS Rahon, District SBS Nagar or that application form Ex.PW-

16/A was not given by Arwinder Singh in his office or that call details

Ex.PW-16/C do not pertain to above said number of Arwinder Singh.

39. PW-17 Harvinder Singh, Nodal Officer, Tata Tele Services

Ltd., Industrial Area, Phase-8, Mohali has produced record of mobile

number 90566-09290, issued in the name of Surjit Singh s/o Tek Singh,

r/o Bahadur Hussain Kalan, PO Masanian, Tehsil Batala, Gurdaspur. He

has proved application form given by Surjit Singh in his office as Ex.PW-

17/A and call details of above said number for the period 02.01.2016 to


24.05.2016 as Ex.PW-17/B containing 10 leaves, cell ID chart as Ex.PW-

17/C and certificate under Section 65-B of the Indian Evidence Act as

Ex.PW-17/D.

40. No doubt this witness has deposed in his cross-examination

that he has no personal knowledge regarding present case, any call details

or customer Surjit Singh and he has not seen customer Surjit Singh with

his own eyes nor he knows as to who has been using the said phone and

the customer application form has not been filled in his presence but he

has not been suggested that mobile number 90566-09290 has not been

issued in the name of Surjit Singh s/o Tek Singh, r/o Bahadur Hussain

Kalan, PO Masanian, Tehsil Batala, Gurdaspur or that application Ex.PW-

17/A was not given by said Surjit Singh or that call details Ex.PW-17/B

do not pertain to above said number.

41. PW-18 SI Gurdial Singh, No.759/HPR has categorically

deposed that on 24.05.2016 he was posted as SHO at PS Rahon. On that

day, he along with police party headed by him was present at T-point Jadla

road, Rahon in connection with patrolling then Mukhtiar Rai, DSP, Sub-

Division Nawanshahr along with his gunmen and other police officials

joined the police party. At about 10:18 PM, when the police party was

checking the vehicles and suspicious persons, secret informer informed

him (PW-18) that Arwinder Singh s/o Gurnam Singh, r/o Pallian Khurd,

PS Rahon, District SBS Nagar, who is a member of terrorist organization

‘Babbar Khalsa’ has now come from country Doha Qatar 7-8 months

back. Now, he has been inducing the young people to join ‘Babbar Khalsa

Jathebandi’ and has been planning for a war against Union of India. He


could be dangerous for the unity and integrity of India. He has further

deposed that secret informer also informed that Arwinder Singh has made

a group and the members of his group have deadly weapons. Arwinder

Singh can start firing and can also explode bomb blasts on the special

community. Due to this, a lot of damage can be caused to the people and

public property. He has further deposed that Arwinder Singh is an active

member of the Jathebandi and finding this information credible and

trustworthy, ruqa Ex.PW-18/A was scribed and was sent to the police

station through HC Manoj Kumar. On the basis of that ruqa, FIR Ex.PW-

18/B was registered and investigation was entrusted to DSP, Mukhtiar

Rai.

42. He has also deposed that on 25.05.2016, accused Arwinder

Singh @ Ghoga was nabbed from bus stand, Rahon and was arrested in

this case. He has proved arrest-cum-intimation memo of accused

Arwinder Singh as Ex.PW-18/C and his personal search memo as Ex.PW-

18/D. He has further deposed that both these memos were attested by him

and HC Manoj Kumar. He has also deposed that accused Arwinder Singh

produced one mobile make Samsung before the DSP and the DSP

prepared production memo Ex.PW-18/E of the mobile phone. On

26.05.2016, accused Arwinder Singh gave his consent regarding opening

of his mobile phone number 70879-11369 and the DSP prepared consent

memo Ex.PW-18/F. On 28.05.2016, accused Arwinder Singh made

disclosure statement Ex.PW-18/G before the DSP and on the basis of his

disclosure statement, accused Arwinder Singh got recovered his two

passports and literature regarding establishment of Khalisthan on


Baisakhi, ‘Bhai Randhir Singh’s Khalisthan Shabdavali’, four flex boards

in English and Punjabi regarding ‘Khalisthan Shabdavali’ in connection

with Baisakhi 13.04.1978 and ‘Band Band Katwaun’. He also got

recovered one passport of Surjit Singh s/o Tek Singh, r/o Bahadur Hussain

Kalan, VPO Machian, Tehsil Batala, District Gurdaspur from his almirah

and the DSP took into police possession above said material vide recovery

memo Ex.PW-9/A.

43. He has further deposed that on 30.05.2016, DSP arrested

accused Surjit Singh and prepared arrest-cum-intimation memo Ex.PW-

18/H and personal search memo Ex.PW-18/J. Accused Surjit Singh made

disclosure statement before the DSP regarding encouragement of Sikh

struggle. Accused Surjit Singh produced one mobile make Samsung

before the DSP vide production memo of his mobile phone Ex.PW-18/K.

He has also categorically deposed that on 13.06.2016, accused Ranjit

Singh on the basis of his disclosure statement got recovered 16 books and

3 flexes, which were taken into police possession by the DSP vide

Ex.PW-18/L and on 20.06.2016, accused Ranjit Singh made his disclosure

statement Ex.PW-18/M before the DSP. On the basis of his disclosure

statement, accused Ranjit Singh got recovered his passport, which was

taken into police possession by the DSP vide recovery memo PW-18/N.

All the memos were attested by him and HC Manoj Kumar and has also

identified the accused.

44. No doubt he has admitted that at any stage he did not inform

the IO that he is complainant of this case and he should not be joined as a

witness but the learned defence counsel have failed to point out that any


prejudice has been caused to the accused on account of it, more

particularly when neither any enmity has been alleged nor has been

proved against him by the accused to falsely implicate them. He has

denied that all the papers were prepared while sitting in the police station

and his signatures were taken on these papers.

45. PW-19 Inspector Ved Parkash has deposed that on

25.05.2016 he was posted as Incharge State Cyber Lab, State Cyber

Crime, SAS Nagar and on that day, he received one sealed parcel

containing one mobile phone Samsung GT-I 9300, bearing IMEI number

353743/05/486752/6 for extraction of data from the said mobile phone.

He has proved covering letter of his office as Ex.PW-19/A/2. He has

further deposed that on 26.05.2016, DSP Mukhtiar Rai along with accused

Arwinder Singh came to the Cyber Lab. Arwinder Singh willfully opened

his face book ID having URL www.facebook.com/arwinder.singh.31521

in the lab. The data of the said face book account was archived and

downloaded by adding the official e-mail ID of Cyber Crime i.e.

[email protected]. The data of said ID was also captured through social

media forensic tool namely X1 Social Discovery. The data downloaded

from the ID and captured through the above said tool was provided to the

Investigation Officer vide letter number 058-16/CC-L dated 30.05.2016

and has proved covering letter of his office as Ex.PW-19/A/1 and has also

deposed that the same bears his signatures.

46. He has further deposed that one sealed parcel, having seal

impression MR, containing one mobile phone Samsung GT-I 9300, IMEI

number 356446/05/724474/6 was sent to the lab by SSP, SBS Nagar for

mailto:[email protected]

http://www.facebook.com/arwinder.singh.31521


extraction of data, which was dealt as lab case number 036-16/CF dated

31.05.2016. He has proved covering letter of his office as Ex.PW-19/A

and has also identified signature of Sh.Hardial Singh Mann, IPS, AIG

Cyber Crime on the same. He has proved report of said mobile as Ex.PW-

13/B and has also identified his signatures on the same. He has further

deposed that one sealed parcel having seal impression MR containing one

hard disk drive make Hitachi, bearing serial number 5V2 HOUPU, 500

GB was sent to the lab by the SSP, SBS Nagar on 27.06.2016 for

extraction of data, which was dealt as lab case number 045-16/CF dated

27.06.2016. He has proved covering letter of his office as Ex.PW-19/B, on

which he has identified signatures of Sh.Praveen Kumar Sinha, IPS the

then IGP Cyber Crime. He has also proved report of said hard disk as

Ex.PW-13/C, verification report as Ex.PW-19/C and other printouts

bearing the stamp of his office as Ex.PA to Ex.PH, Ex.P1 to Ex.P8. He has

further deposed that the data provided by him on the DVDs related to

above exhibits as mentioned in his reports and has proved two CDs as

Ex.PW-19/D and Ex.PW-19/E and two DVDs as Ex.PW-19/F and Ex.PW-

19/G. He has also proved certificate under Section 65-B of the Evidence

Act as Ex.PW-19/H.

47. In his cross-examination he has deposed that Arwinder Singh

willfully opened his face book profile by using his password and they

observed/noted password of Arwinder Singh. He has also voluntarily

deposed that later on the password was changed by them and provided the

same to the IO. No doubt he has admitted that he has not mentioned the

earlier password of Arwinder Singh in his report nor he has mentioned the


above said facts in Ex.PW-19/H but he has categorically deposed that the

details are mentioned in his report. Though he has admitted that no

document of ownership or purchase of sim/cell phone in question, relating

to Arwinder Singh was investigated by him nor he knows Arwinder Singh

personally and he has seen him for the first time when he visited in his

lab, and he has not checked any identity card to ascertain as to whether

the person who was brought to him was Arwinder Singh or not but the

accused can not take any benefit of these depositions as his job was only

to extract the data. He has also voluntarily deposed that the accused was

brought before him by the IO and he opened his face book profile. He has

denied that the accused never used his face book password for opening the

same or that entire matter mentioned in his report regarding cell phone,

sim card and other material has been tampered or that he has submitted

wrong report at the instance of the police.

48. PW-21 DSP Mukhtiar Rai has categorically deposed that on

24.05.2016, SI/SHO Gurdial Singh was posted as SHO at PS Rahon. On

that day SI/SHO along with police party headed by him was present at T-

point Jadla road, Rahon in connection with patrolling, then he along with

his gunmen and other police officials joined police party of SI/SHO. At

about 10:18 PM, when police party was checking the vehicles and

suspicious persons, secret informer informed him that Arwinder Singh s/o

Gurnam Singh, r/o Pallian Khurd, PS Rahon, District SBS Nagar, who is a

member of ‘Terrorist Babbar Khalsa International Jathebandi’ and has

now come from country Doha Qatar 7-8 months back, has been inducing

young people to join ‘Babbar Khalsa International Jathebandi’. Arwinder


Singh is an active member of the ‘Jathebandi’ and is planning for a war

against Union of India. He could be dangerous for the unity and integrity

of India. Secret informer also informed that Arwinder Singh had made a

group and the members of his group have deadly weapons. Arwinder

Singh can start firing and can also explode bomb blasts on a special

community and lot of damage could be caused to the people and public

property.

49. He has further deposed that finding this information credible

and trustworthy, ruqa Ex.PW-18/A was scribed and was sent to the police

station through HC Manoj Kumar. On the basis of that ruqa FIR Ex.PW-

18/B was registered. Thereafter, investigation was entrusted to him and on

25.05.2016, accused Arwinder Singh @ Ghoga was nabbed from bus

stand, Rahon and he was arrested in this case. He has proved arrest-cum-

intimation memo of accused Arwinder Singh as Ex.PW-18/C and his

personal search memo as Ex.PW-18/D. He has further deposed that both

the memos were attested by SI/SHO Gurdial Singh and HC Manoj

Kumar.

50. He has also deposed that on that day, accused Arwinder

Singh gave confessional statement Ex.PW-21/A and produced before him

one mobile make Samsung, regarding which, he prepared production

memo of mobile phone as Ex.PW-18/E. He has further deposed that on

26.05.2016, accused Arwinder Singh gave his consent to open his mobile

phone number 70879-11369 and he prepared consent memo Ex.PW-18/F.

On 28.05.2016, accused Arwinder Singh made disclosure statement

Ex.PW-18/G before me and on the basis of said disclosure statement,


accused Arwinder Singh got recovered his two passports and literature

regarding establishment of Khalisthan on Baisakhi, ‘Bhai Randhir Singh’s

Khalisthan Shabdavali’, four flex boards regarding Baisakhi 13.04.1978

in English and Punjabi regarding Khalisthan Shabdavali in connection

with Baisakhi 13.04.1978 and ‘Band Band Katwaun’. He also got

recovered one passport of Surjit Singh s/o Tek Singh, r/o Bahadur Hussain

Kalan, VPO Machian, Tehsil Batala, District Gurdaspur from his almirah

and he took into police possession the above said material vide recovery

memo Ex.PW-9/A. He prepared the site plan Ex.PW-21/B and has proved

passport of Surjit Singh, bearing No.-J1361912 as Ex.PW-21/C and

passports of Arwinder Singh, bearing Nos.-G1610588 as Ex.PW-21/D and

J6466527 as Ex.PW-21/E.

51. He has also deposed that on 30.05.2016, he arrested accused

Surjit Singh and prepared his arrest-cum-intimation memo Ex.PW-18/H

and has also proved personal search memo of accused Surjit Singh as

Ex.PW-18/J. He has further deposed that accused Surjit Singh made his

disclosure statement before him regarding encouragement of Sikh struggle

and produced one mobile make Samsung before him and has proved

production memo of the same as Ex.PW-18/K.

52. He has further deposed that on 11.06.2016, he arrested

accused Ranjit Singh on the basis of disclosure statements made by

accused Arwinder Singh and Surjit Singh and he prepared arrest-cum-

intimation memo Ex.PW-14/A of accused Ranjit Singh and has also

proved his personal search memo as Ex.PW-14/B. He has also deposed

that both the memos were attested by ASI Sodhi Singh and HC Raj


Kumar.

53. He has also deposed that on 13.06.2016, accused Ranjit

Singh made disclosure statement Ex.PW-14/D to him, which was attested

by the above said witnesses and was also signed by the accused. On the

basis of his disclosure statement, the accused got recovered 16 books and

3 flexes, which were taken into police possession by him vide memo

Ex.PW-18/L and he prepared site plan Ex.PW-21/F. He has further

deposed that on 20.06.2016, accused Ranjit Singh made disclosure

statement Ex.PW-18/M before him and on the basis of his disclosure

statement, accused Ranjit Singh got recovered his passport, which was

taken into police possession by him vide recovery memo PW-18/N and all

the memos were attested by SI/SHO Gurdial Singh and HC Manoj

Kumar. He also prepared site plan Ex.PW-21/G and has proved passport

of Ranjit Singh, bearing number H3745764 as Ex.PW-21/H.

54. He has also categorically deposed that the data was extracted

by FSL from the mobile phones of Arwinder Singh and Surjit Singh. He

took out the printouts of data i.e. from pages number 1 to 1146, relating to

the facebook ID having URL www.facebook.com/arwindersingh.31521

and Whatsapp chat Ex.PW-21/J, containing leaves 1 to 1146 and has also

proved part 2, pages number 1 to 1286 as Ex.PW-21/K. He has also

proved Tata Docomo face book pertaining to material regarding terrorism

i.e. biography of Sukhdev Singh, pages number 1 to 99, material sent by

Arwinder Singh to Wadhawa Singh, pages number 149, pamphlet of saka

1978, pages number 151 to 153, pamphlets regarding formation of

Khalistan, page number 199 to 213, part 3 pages number 1 to 992 and has

http://www.facebook.com/arwindersingh.31521


proved the same as Ex.PW-21/L, containing leaves 1 to 992, pertaining to

face book posts conversation between Arwinder Singh and Harmandeep

Singh, detail of conversation from pages number 4 to 6, objectionable

material from pages number 1 to 199, part 4, from pages number 1 to 802

as Ex.PW-21/M containing 1 to 802 leaves i.e. conversation on Whatsapp

on pages number 17, 27, 29, 36, 59, 63, 65, 67, 73, 75, 77, 87, 101 and

105. He has also proved part 5, pages number 1 to 578 as Ex.PW-21/N

containing 1 to 578 leaves and has deposed that pages number 25, 31, 47,

55, 77, 103, 111, 207, 213, 215, 221, 223, 225, 242, 249, 251, 337, 349,

367, 369, 411, 413, 415, 457, 459, 461, 465, 469, 471, 481, 483, 491, 503,

507, 521, 567 and 573 contain conversation of Arwinder Singh on

Whatsapp. He has also proved part 6, pages number 1 to 1014 as Ex.PW-

21/O containing 1 to 1014 leaves, pertaining to Whatsapp posts and

details of pages. He has also proved attested copy of notification of

Banned Organizations as Ex.PW-21/P. He has also proved mobile phones

recovered from Surjit Singh as MO1 and recovered from Arwinder Singh

as MO2 and two more mobile phones recovered from Surjit Singh as

MO3 and MO4, box containing hard disk as MO5, four flexs as MO6 to

MO9, two flexes as MO10 and MO11, 10 books relating to Operation

Blue Star as MO12 to MO21, one book as MO22, three flexes as MO23

to MO25 and has identified the accused.

55. Though he has admitted that the challan in the present case

was prepared by SI Gurdial Singh and SI Gurdial Singh is complainant in

the present case but he has also deposed that the investigation of the

present case remained with him throughout and has denied that SI Gurdial


Singh was not empowered to prepare the challan. He has voluntarily

deposed that the investigation in the present case was conducted by him

(PW-21 DSP Mukhtiar Rai), hence, it can not be said that the complainant

has conducted any investigation in the present case. Though he has

admitted that SI Gurdial Singh is witness to memos Ex.PW-9/A, Ex.PW-

18/D, Ex.PW-18/C, Ex.PW-18/H, Ex.PW-21/A, Ex.PW-18/G, Ex.PW-

18/M, Ex.PW-18/E, Ex.PW-18/K, Ex.PW-18/L, Ex.PW-18/F and Ex.PW-

18/N but has denied that SI Gurdial Singh is the sole recovery witness to

all the recoveries effected from the accused and has categorically deposed

that there are other witnesses also. He has also categorically deposed that

they had tried to join independent witness but no one was willing.

56. Though he has admitted that no criminal case was pending in

his jurisdiction against the present three accused, except this case and it

has not come out during his investigation that any other criminal case was

pending against them, except the present case but it is not the requirement

of law that to attract the offences for which the accused have been

charged, the accused must have previous criminal record.

57. He has also deposed that he has gone through most of the

face book account of the above accused and has denied that there is

conversation or discussion related to Gurbani on the face book accounts

taken in possession during investigation. Though he has deposed that

articles/materials in the face book account were not taken out by him

personally but has also deposed that same were taken out with the help of

an expert in Cyber Crime Branch and has further deposed that the CDs

and DVDs related to the data extracted from mobile were prepared by the


expert in Cyber Crime Branch in his presence and he (PW-21) had taken

the printouts of the same and had made it part of the challan.

58. He has denied that the accused had not given any consent or

that it has been prepared of its own by them or that accused Arwinder

Singh had not handed over any mobile to the police. Though he could not

tell the exact time when the accused was produced before the Duty

Magistrate but he has categorically deposed that he was produced on

25.05.2016 and has further deposed that the request for police remand was

made to interrogate to inquire about the members of the ‘Babbar Khalsa

International Jathebandi’, to recover objectionable/illegal/anti national

material from the accused and to know about the co-accused. He has also

deposed that they went to Cyber Cell, Mohali with the accused in the

morning around 08:30 AM and remained there for 6-7 hours and phone,

CDs and DVDs received by them from Cyber Cell, Mohali were sealed.

The printouts of the material were taken out at the Cyber Cell, Mohali, by

using their printer. He has denied that case property was not deposited in

the malkhana on 26.05.2016 or the same has been created/manipulated to

falsely implicate the accused or that the time was consumed for preparing

false data or that the accused never suffered any statement as alleged by

him or that signatures of accused were obtained on blank papers.

59. He has also deposed that signatures of accused were obtained

on recovery memo at his house in the afternoon and lambardar also signed

the recovery memo when the accused signed the recovery memo and has

denied that they have prepared false document and signatures of accused

were obtained by misleading him. He has deposed that he prepared the


inventory of the recovered articles in the afternoon and inventory was got

signed from the lambardar and accused. SI Gurdial Singh and HC Manoj

Kumar also signed the inventory. He has denied that the flexes were

manipulated later on or that signatures of lambardar were obtained by

them after calling him to the police station.

60. He has also deposed that accused Ranjit Singh was arrested

by them in the District of Shaheed Bhagat Singh Nagar and was taken to

Haryana on 13.06.2016. They entered their visit in the concerned police

station and above said DDR entries are on record and are part of the

judicial file. He has further deposed that he recovered three flexes and 16

books. Though he has deposed that none of these books was banned or

prohibited but perusal of recovery memo of 16 books and 3 flexes proved

as Ex.PW-18/L reveals that two flexes regarding establishment of

Khalisthan on Baisakhi, ‘Bhai Randhir Singh’s Khalisthan Shabdavali’,

Baisakhi 13.04.1978 and Khalistan Shabdawli ‘Band Band Katwaun’, one

flex of ‘Shaheed Bhai Talwinder Singh Babbar Khalsa’, 15 books of

‘Operation Blue Star’ and one book “Khed Ju Madio Soorma’ were got

recovered by the said accused. He has denied that the accused have no

concern with any anti national or antisocial element or that the accused

did not commit any offence and false recovery has been shown or that the

accused have been falsely implicated in the present case or that they are

not members of any banned organization.

61. PW-21 has categorically deposed that mobile which was

recovered from accused Surjit Singh was in his name. Though he has

admitted that no other recovery in the shape of pamphlets or any writing


material was recovered from accused Surjit Singh but he has voluntarily

deposed that it had come during investigation that he had used pamphlets,

flexes and other writing material. He was not suggested that accused

Surjit Singh has not used pamphlets, flexes and other writing material. He

has denied that accused Surjit Singh has been falsely implicated in the

present case or that false evidence has been created to trap the accused in

the present case or that accused Surjit Singh is innocent.

62. PW-22 HC Sandeep Kumar, No.215/SBSN has produced the

record of register No.19 and has proved attested copy of the same as

Ex.PW-22/A. Entries with regard to the case property of the present case

have been made in this register and nothing has come on record to suggest

that the same was tampered at any stage of the investigation.

63. DW-1 Bhajan Singh and DW-2 Nirmal Singh have deposed

that they personally know Arwinder Singh and he belongs to their Village.

On 24.05.2016 at about 04:00 AM when police of PS Rahon came to their

Village. They accompanied the police to the house of accused Arwinder

Singh. Kulwinder Singh namberdar was also summoned there by the

police. Thereafter, door of house of accused Arwinder Singh was knocked

and got opened. The police party conducted search of the house but

nothing incriminating was recovered. Thereafter, police took Arwinder

Singh to the police station Rahon. On their asking, police told that

Arwinder Singh is to be interrogated. After two days, they went to the

police station and came to know that they have challaned Arwinder Singh.

Signatures of namberdar were also obtained on some blank papers.

Arwinder Singh has not indulged in any activity against the Government


of India or in any act for the formation of Khalistaan.

64. In their cross-examination they have deposed that they have

complained to the SSP, Nawanshahr on wrong implication of the accused

but at the same time they have also deposed that they did not lodge any

complaint in writing nor any telephonic complaint was made to anyone.

65. PW-9 Kulwinder Singh, who as per prosecution story was

associated as independent witness at the time of effecting recovery from

accused Arwinder Singh on 26.05.2016, has not supported the prosecution

story and has deposed that he did not accompany the police to Village

Pallian Khurd. On that day he was working in his fields and he did not

join the police party. On the request of learned Additional Public

Prosecutor he was declared hostile. Learned Additional Public Prosecutor

was permitted to cross-examine this witness.

66. In his cross-examination by learned Additional Public

Prosecutor, he was suggested that he got recorded in his statement that

accused Arwinder Singh by leading the police party got recovered

Khalistan literature, Khalistan Shabdavali, four flex boards relating to

Khalistan Shabdavali and Shabdawali of bhai Randhir Singh or that the

police had taken into possession the above said articles vide recovery

memo. His attention was drawn towards his signatures on recovery memo

Ex.PW-9/A at point A.

67. From the testimony of DW-1 Bhajan Singh and DW-2 Nirmal

Singh it has been proved that independent witness PW-9 Kulwinder Singh

was also associated by the police at the time of apprehension of accused


Arwinder Singh and these witnesses themselves have proved presence of

independent witness PW-9 Kulwinder Singh on the spot and said witness

having appended his signatures, though as per testimony of DW-1 Bhajan

Singh and DW-2 Nirmal Singh, the police obtained signatures of PW-9

Kulwinder Singh on some blank papers but there is nothing on the file to

suggest that the police had taken signatures of PW-9 Kulwinder Singh on

some blank papers.

68. DW-3 Mahal Singh Dhillon has deposed that he knows

accused Ranjit personally. On 03.06.2016, police of PS Rahon had come

to their house in Village Nauch and asked about Ranjit Singh. The police

told that Ranjit Singh was required for interrogation purpose in some case

and they should produce him before the SHO or the SSP, Nawanshahr. On

06.06.2016, they produce Ranjit Singh in the office of SSP, SBS Nagar

and handed over Ranjit Singh to the SSP. The SSP promised to relieve

him after due interrogation and then they came back to their Village. On

12.06.2016, they came to the office of SSP and came to know about

Ranjit Singh and the SSP told them that Ranjit Singh has been challaned.

Ranjit Singh is a good citizen and he is having faith in the unity of India.

He does not indulge in any activity, which may cause danger to the unity

of India and its sovereignty. He is also not indulging in the formation of

Khalistan within India. In his cross-examination he has admitted if

someone is aggrieved of the police handedness, he can complain to the

DGP or any other higher police official but they did not do so.

69. DW-4 Sukhdev Singh has deposed that he knows Ranjit

Singh accused personally. He is a good citizen and is peace loving citizen.


He does not indulge in any such activity, which may cause danger to the

unity of India. He also does not maintain ideology of establishing

Khalistan within India. He is an agriculturist and never behaved in the

Village in any manner from where one can judge that he is involved in

anti social activities or anti India activities. In his cross-examination he

has admitted that other family of the accused has never been challaned by

the police in any case till today.

70. Concept of war embodied in Section 121 IPC is not to be

understood in the international law sense of inter country war involving

military operation by and between two or more hostile countries.

Organizing or joining an insurrection against the Government of India is

also a form of war. Section 121 IPC embraces every description of war

whether by insurrection or invasion. True criterion is the purpose or

intention with which the violent acts are alleged to have been committed.

Object of such violent acts must be to attain by force and violence, an

object of a general public nature thereby striking directly against the

Government's authority.

71. Sections 121 and 121-A IPC are reproduced herein below for

ready reference:

121. Waging, or attempting to wage war , or abetting wagingof war , against the Government of India.-Whoever wageswar against the Government of India, or attempts to wagesuch war , or abets the waging of such war , shall bepunished with death, or imprisonment for life, and shall alsobe liable to fine.

121A. Conspiracy to commit offences punishable by Section121.- Whoever within or without India conspires to any ofthe offences punishable by Section 121, or conspires to


overawe, by means of criminal force or the show of criminalforce the Central Government or any State Government, shallbe punished with imprisonment for life, or withimprisonment of either description which may extend to tenyears, and shall also be liable to fine.

Explanation. To constitute a conspiracy under this Section, itis not necessary that any act or illegal or omission shall takeplace in pursuance thereof.

72. As per Section 2 (o) of the 1967 Act, unlawful activity, in

relation to an individual or association, means any action taken by

such individual or association, whether by committing an act or by

words, either spoken or written, or by signs or by visible

representation or otherwise,

(i) which is intended, or supports any claim, to bringabout, on any ground whatsoever, the cession of a part ofthe territory of India or the secession of a part of theterritory of India from the Union, or which incites anyindividual or group of individuals to bring about suchcession or secession; or

(ii) which disclaims, questions, disrupts or is intended todisrupt the sovereignty and territorial integrity of India;or

(iii) which causes or is intended to cause disaffectionagainst India;

73. As per Section 2 (p) of the 1967 Act, unlawful association

means any association,

(i) which has for its object any unlawful activity, orwhich encourages or aids persons to undertake anyunlawful activity, or of which the members undertakesuch activity; or

(ii) which has for its object any activity which ispunishable under section 153-A or section 153-B of theIndian Penal Code (45 of 1860), or which encourages oraids persons to undertake any such activity, or of whichthe members undertake any such activity:

74. The concept of war embodied in Section 121 IPC is not to be


understood in the international law sense of inter country war involving

military operations by and between two or more hostile countries. This

Section is not meant to punish prisoners of war of a belligerent nation.

Apart from the legislative history of the provision and the understanding of

the expression by various Hon’ble High Courts during the pre-

independence days, the Illustration to Section 121 itself makes it clear that

'war' contemplated by Section 121 is not conventional warfare between

two nations. The organising or joining an insurrection against the

Government of India is also a form of war. ‘Insurrection’ as defined in

dictionaries and as commonly understood connotes a violent uprising by a

group directed against the Government in power or the civil authorities.

‘Rebellion, revolution and civil war' are progressive stages in the

development of civil unrest, the most rudimentary form of which is

insurrection. Unlawful assemblies, riots, insurrections, rebellions, levying

of war are offences which run into each other and not capable of being

marked off by perfectly definite boundaries. All of them have in common

one feature, namely, that the normal tranquillity of a civilised society is, in

each of the cases mentioned, disturbed either by actual force or at least by

the show and threat of it.

75. The offence of waging war was inserted in IPC to accord with

the concept of levying war in the English Statutes of treason, the first of

which dates back to 1351 A.D. The most important is the intention or

purpose behind the defiance or rising against the Government. The

intention and purpose of the war-like operations directed against the

Governmental machinery is an important criterion. If the object and


purpose is to strike at the sovereign authority of the Ruler or the

Government to achieve a public and general purpose in contra-distinction

to a private and a particular purpose; it is an important indicia of waging

war. Of course, the purpose must be intended to be achieved by use of

force, arms and by defiance of Government troops or armed personnel

deployed to maintain public tranquillity. The other settled proposition is

that there need not be the pomp and pageantry usually associated with war

such as the offenders forming themselves in battle-line and arraying in a

war like manner. Even a stealthy operation to overwhelm the armed or

other personnel deployed by the Government and to attain a commanding

position by which terms could be dictated to the Government might very

well be an act of waging war.

76. Section 121 of the IPC embraces every description of war

whether by insurrection or invasion. The true criterion is the purpose or

intention with which the gathering assembled. The object of the gathering

must be to attain by force and violence, an object of a general public nature

thereby striking directly against the Government's authority. The concept

of war embodied in Section 121 IPC has been the subject matter of various

decisions.

77. The observations of LORD HOLT, C.J. in a case reported in

HOLT'S REPORTS (1688-1700) at 681-682 reads as under:-

"Holt L. C.J. in Sir John Friend's case says, 'if persons doassemble themselves and act with force in opposition to somelaw which they think inconvenient, and hope thereby to get itrepealed, this is a levying war and treason". "I tell you thejoint opinion of us all, that, if this multitude assembled with


intent, by acts or force and violence, to compel the legislatureto repeal a law, it is high treason". The question always is,whether the intent is, by force and violence, to attain an objectof a general and public nature, by any instruments; or by dintof their numbers".

78. In 1820 Lord President Hope in his summing up speech to

the jury in Rex Vs. Andrew Hardie, (1820, 1 State Trials N.S., 610)

explained the distinction between levying a war and committing a riot in

the following words:

"Gentlemen, it may be useful to say a few words on thedistinction between levying war against the King andcommitting a riot. The distinction seems to consist in this,although they may often run very nearly into each other.Where the rising or tumult is merely to accomplish someprivate purpose, interesting only to those engaged in it, and notresisting or calling in question the King's authority orprerogative then the tumult, however numerous or outrageousthe mob may be, is held only to be a riot. For example,suppose a mob to rise, and even by force of arms to break intoa particular prison and rescue certain persons therein confined,or to oblige the Magistrates to set them at liberty or to lowerthe price of provisions in a certain market, or to tear downcertain enclosures, which they conceive to encroach on thetown's commons. All such acts, though severely punishable,and though they may be resisted by force, do not amount totreason. Nothing is pointed against either the person orauthority of the King".

"But, gentlemen, wherever the rising or insurrection has for itsobject a general purpose, not confined to the peculiar viewsand interests of the persons concerned in it, but common to thewhole community, and striking directly the King's authority orthat of Parliament, then it assumes the character of treason. Forexample, if mobs were to rise in different parts of the countryto throw open all enclosures and to resist the execution of thelaw regarding enclosures wheresoever attempted, to pull downall prisons or Courts of justice, to resist all revenue officers inthe collecting of all or any of the taxes; in short, all risings toaccomplish a general purpose, or to hinder a general measure,which by law can only be authorised or prohibited by authorityof the King or Parliament, amount to levying of war againstthe King and have always been tried and punished as treason.It is, therefore, not the numbers concerned, nor the forceemployed by the people rising in arms, but the object which


they have in view that determines the character of the crime,and will make it either riot or treason, according as that objectis of a public and general, or private and local nature".

79. Then in 1839, TINDAL, C. J. while summing up the Jury in

the trial of John Frost in the year 1839 [All ER Reprint 1835-1842 P.106

at P.117] stated that it was:

"essential to the making out of the charge of high treason bylevying war, there must be an insurrection, there must be forceaccompanying that insurrection; and it must be for theaccomplishment of an object of a general nature".

80. Hon’ble Apex Court in the case of State (NCT of Delhi)

Vs. Navjot Sandhu Alias Afsan Guru, (2005)11 SCC 600 has

discussed as to what amounts to waging war or abetting or attempting to

waging war, punishable under Section 121 IPC and has held as under:

“258. In interpreting the expression 'waging war', the Indiancases of pre-independence days, though few they are, by andlarge cited with approval the 18th and 19th century Englishauthorities. The term 'wages war' was considered to be asubstitute for 'levying war' in the English Statute of HighTreason of 1351 i.e Statute 25, Edward III, c.2. In the famousbook of Sir James F. Stephen "A History of the Criminal Lawof England" (1883 publication), it was noted that the principalheads of treason as ascertained by that Statute were: (1)'imagining' the King's death" (2) levying war and (3) adheringto the King's enemies.

264. Whether this exposition of law on the subject of levyingwar continues to be relevant in the present day and in thecontext of great socio-political developments that have takenplace is a moot point.

272. Sections 121 and 121-A occur in the chapter "Offencesagainst the State". The public peace is disturbed and thenormal channels of the Government are disrupted by suchoffences which are aimed at subverting the authority of theGovernment or paralyzing the constitutional machinery. Theexpression "war" preceded by the verb "wages" admits ofmany shades of meaning and defies a definition withexactitude.


274. The conspiracy to commit offences punishable underSection 121 attracts punishment under Section 121A and themaximum sentence could be imprisonment for life. The otherlimb of Section 121A is the conspiracy to overawe by meansof criminal force or the show of criminal force, the CentralGovernment or any State Government. The explanation toSection 121-A clarifies that it is not necessary that any act orillegal omission should take place pursuant to the conspiracy,in order to constitute the said offence.

275. War, terrorism and violent acts to overawe the establishedGovernment have many things in common. It is not too easy todistinguish them, but one thing is certain, the concept of warimbedded in Section 121 is not to be understood ininternational law sense of inter-country war involving militaryoperations by and between two or more hostile countries.Section 121 is not meant to punish prisoners of war of abelligerent nation. Apart from the legislative history of theprovision and the understanding of the expression by variousHigh Courts during the pre- independence days, the Illustrationto Section 121 itself makes it clear that 'war' contemplated bySection 121 is not conventional warfare between two nations.Organising or joining an insurrection against the Governmentof India is also a form of war. 'Insurrection' as defined indictionaries and as commonly understood connotes a violentuprising by a group directed against the Government in poweror the civil authorities. "Rebellion, revolution and civil war areprogressive stages in the development of civil unrest the mostrudimentary form of which is 'insurrection' vide PanAmerican World Air Inc. Vs. Actna Cas & Sur Co. [505,F.R. 2d, 989 at P. 1017]. An act of insurgency is differentfrom belligerency. It needs to be clarified that insurrection isonly illustrative of the expression 'war' and it is seen from theold English authorities referred to supra that it would coversituations analogous to insurrection if they tend to underminethe authority of the Ruler or Government.

276. Unlawful assemblies, riots, insurrections, rebellions,levying of war are offences which run into each other and notcapable of being marked off by perfectly definite boundaries.All of them have in common one feature, namely, that thenormal tranquillity of a civilised society is, in each of the casesmentioned, disturbed either by actual force or at least by theshow and threat of it.

277. To this list has to be added "terrorist acts" which are soconspicuous now-a-days. Though every terrorist act does notamount to waging war, certain terrorist acts can also constitutethe offence of waging war and there is no dichotomy betweenthe two. Terrorist acts can manifest themselves into acts of


war. Terrorist acts prompted by an intention to strike at thesovereign authority of the State/Government, tantamount towaging war irrespective of the number involved or the forceemployed.

282. The intention and purpose of the warlike operationsdirected against the Governmental machinery is an importantcriterion. If the object and purpose is to strike at the sovereignauthority of the Ruler or the Government to achieve a publicand general purpose in contradistinction to a private and aparticular purpose, that is an important indicia of waging war.Of course, the purpose must be intended to be achieved by useof force and arms and by defiance of Government troops orarmed personnel deployed to maintain public tranquillity.

283. However, a settled proposition is that there need not bethe pomp and pageantry usually associated with war such asthe offenders forming themselves in battle line and arraying ina warlike manner. Even a stealthy operation to overwhelm thearmed, or other personnel deployed by the Government and toattain a commanding position by which terms could bedictated to the Government might very well be an act ofwaging war.

285. An aspect on which a clarification is called for is inregard to the observation made in the old decisions that"neither the number engaged, nor the force employed, nor thespecies of weapons with which they may be armed" is reallymaterial to prove the offence of levying/waging war. These arenot irrelevant factors. They will certainly help the court informing an idea whether the intention and design to wage waragainst the established Government exists or the offence fallsshort of it. For instance, the firepower or the devastatingpotential of the arms and explosives that may be carried by agroup of persons-may be large or small, as in the present case,and the scale of violence that follows may at times becomeuseful indicators of the nature and dimension of the actionresorted to. These, coupled with the other factors, may giverise to an inference of waging war.

286. In order to give rise to the offence of waging war, theavowed purpose and design of the offence need not be tosubstitute another authority for the Government of India. Evenif the conspired purpose and objective falls short of installingsome other authority or entity in the place of an establishedGovernment, it does not detract from the offence of wagingwar. There is no warrant for such truncated interpretation. Thechances of success of such an operation need not be assessedto judge the nature of criminality”.

81. Section 121-A IPC deals with two kinds of conspiracies, (i)


conspiring within or outside India to commit any of the offences

punishable by Section 121 IPC; (ii) conspiring to overawe the

Government by means of criminal force or the show of criminal force,

hence, the essential ingredients of the offence under this Section would

be:

(i) waging war against the Government of India; or

(ii) attempting to wage war against the Government of India;or

(iii) abetting the waging war against the Government ofIndia.

(iv) conspire to overawe by means of criminal force or theshow of criminal force.

82. A conspiracy is a combination of two or more persons to do

an unlawful act, or to do a lawful act by unlawful means. This section

draws a distinction between the Government of India and State

Government. Any conspiracy to change the form of the Government of

India or any State Government, even though it may amount to an offence

under another Section of the Code, would not be an offence under this

Section, unless it is a conspiracy to overawe such Government by means

of criminal force or show of criminal force, as was illustrated in the matter

of Jhabwala Vs. Emperor, (1933) 55 All 1040.

83. The word 'overawe' clearly imports more than the creation of

apprehension or alarm or even perhaps fears. The phrase "conspiracy to

overawe" has been used in this provision of the IPC. Overawe in lay

man's terms means to subdue, frighten or intimidate. The words 'conspires

to overawe by means of criminal force or the show of criminal force, the


Government of India, or any State Government' in this section clearly

embrace not merely a conspiracy to raise a general insurrection but also a

conspiracy to overawe the Government of India or any State Government

by the organisation of a serious riot or a large and tumultuous unlawful

assembly as was seen in the case of Ramanand Vs. Emperor, (1950) 30

Pat 152.

84. It appears to connote the creation of a situation in which the

members of the Central or the State Government feel themselves

compelled to choose between yielding to force or exposing themselves or

members of the public to a very serious danger. It is not necessary that the

danger should be a danger of assassination or of bodily injury to

themselves. The danger might well be a danger to public property or to

the safety of members of the general public.

85. The explanation to Section 121-A states that to constitute a

conspiracy under this Section, it is not necessary that any act or illegal

omission shall take place in pursuance thereof. The words in the Section

clearly embrace not merely a conspiracy to raise a general insurrection but

also a conspiracy to overawe the Government of India or any State

Government by the organization of a serious riot or a large and

tumultuous unlawful assembly.

86. In the background of aforesaid legal position, before we

proceed to appreciate the evidence and arguments, it is necessary to find

out what is the guilty mind behind the activities of the accused. In other

words, mensrea, i.e. the idealogy has brought all these accused together to


commit the acts, for which they have been prosecuted. In the course of

investigation, the police have seized several incriminating materials

including books, literature and pamphlets from the possession of the

accused. A perusal of the same gives an insight into the activities of these

accused and the ideology which prompted them to indulge in these illegal

activities. All this clearly shows that the accused are not only involved in

propaganda and inciting people to resort to violence with the objective of

waging war against the Government of India with a view to establish an

independent State/Nation by the name ‘Khalistan’ by way of liberating the

Sikhs from India. For this purpose, there is direct incitement to violence

especially by way of targeted killing of members of a particular religious

community, and that such incitement was not only done by the accused

personally by pasting pamphlets etc. encouraging Sikh youths to join the

organization for establishment of “Khalistan” but also by reproducing

similarly provocative and incendiary messages from the leaders of

designated terrorist groups on social media/face book, which is accessible

to innumerable people in India and abroad.

87. Now coming to various recoveries got effected by the

accused as per their disclosure statements. These recoveries have been

strongly assailed by learned defence counsel on the ground that recovery

of incriminating material cannot be said to be at the instance of the

accused and there is always a possibility of the investigating agency

planting the same.

88. Section 27 of the Indian Evidence Act reads as under:


"27. How much of information received from accused maybe proved.--Provided that, when any fact is deposed to asdiscovered in consequence of information received from aperson accused of any offence, in the custody of a policeofficer, so much of such information, whether it amounts to aconfession or not, as relates distinctly to the fact therebydiscovered, may be proved”.

89. If the evidence adduced by the prosecution in this case is

analyzed, it is seen that some incriminating material was seized from the

accused and that too at their instance. The recoveries so made under the

above seizure memos have definitely led to discovery of the fact that only

these accused were aware of the place where the literature regarding

establishment of Khalisthan on Baisakhi, ‘Bhai Randhir Singh’s

Khalisthan Shabdavali’, flex boards regarding Baisakhi 13.04.1978

regarding Khalisthan Shabdavali in connection with Baisakhi 13.04.1978

and ‘Band Band Katwaun’ were kept with the intention of using the same

for propaganda and inciting people to resort to violence with the objective

of waging war against the Government of India, with a view to establish

an independent State/Nation by the name ‘Khalistan’ by way of liberating

the Sikhs from India or Indian Rule. It is difficult to believe that police

could have access to these places and therefore, even if the police were to

be having prior knowledge as to where these accused lived or carried on

their business or profession, that itself cannot be a ground to disbelieve

the prosecution case.

90. The conditions necessary of operation of Section 27 of

Evidence Act are enunciated in Pulukuri Kottaya and Others Vs.

Emperor, Air (34) 1947 Privy Council, wherein it is held that:


"10. Section 27, which is not artistically worded, provides anexception to the prohibition imposed by the preceding Section,and enables certain statements made by a person in policecustody to be proved. The condition necessary to bring theSection into operation is that the discovery of a fact inconsequence of information received from a person accused ofany offence in the custody of a police officer must be deposedto, and thereupon so much of the information as relatesdistinctly to the fact thereby discovered may be proved. TheSection seems to be based on the view that if a fact is actuallydiscovered in consequence of information given, someguarantee is afforded thereby that the information was true,and accordingly can be safely allowed to be given in evidence;but clearly the extent of the information admissible mustdepend on the exact nature of the fact discovered to whichsuch information is required to relate. Normally the Section isbrought into operation when a person in police custodyproduces from some place of concealment some object, suchas a dead body, a weapon, or ornaments, said to be connectedwith the crime of which the informant is accused. Mr.Megaw,for the Crown, has argued that in such a case the "factdiscovered" is the physical object produced, and that anyinformation which relates distinctly to that object can beproved. Upon this view information given by a person that thebody produced is that of a person murdered by him, that theweapon produced is the one used by him in the commission ofa murder, or that the ornaments produced were stolen in adacoity would all be admissible. If this be the effect of Section27, little substance would remain in the ban imposed by thetwo preceding Sections on confessions made to the police, orby persons in police custody. That ban was presumablyinspired by the fear of the legislature that a person under policeinfluence might be induced to confess by the exercise of unduepressure. But if all that is required to lift the ban be theinclusion in the confession of information relating to an objectsubsequently produced, it seems reasonable to suppose that thepersuasive powers of the police will prove equal to theoccasion, and that in practice the ban will lose its effect. Onnormal principles of construction their Lordships think that theproviso to Section 26, added by Section 27, should not be heldto nullify the substance of the Section. In their Lordships' viewit is fallacious to treat the "fact discovered" within the Sectionas equivalent to the object produced; the fact discoveredembraces the place from which the object is produced and theknowledge of the accused as to this, and the information givenmust relate distinctly to this fact. Information as to past user, orthe past history, of the object produced is not related to itsdiscovery in the setting in which it is discovered. Informationsupplied by a person in custody that "I will produce a knifeconcealed in the roof of my house" does not lead to the


discovery of a knife; knives were discovered many years ago.It leads to the discovery of the fact that a knife is concealed inthe house of the informant to his knowledge; and if the knife isproved to have been used in the commission of the offence, thefact discovered is very relevant. But if to the statement thewords be added "with which I stabbed A", these words areinadmissible since they do not relate to the discovery of theknife in the house of the informant”.

91. It may be profitable to refer to the decision of the Hon’ble

Apex Court in the case of Karan Singh Vs. State of U.P., AIR 1973 SC

1385, wherein it is held at para 3 that there was also the fact that the blood

stained knife (Ext.5) with which the murder was committed was recovered

at the instance of the appellant. We are not impressed by the argument on

behalf of the appellant that this evidence is not admissible under the

provisions of Section 27 of the Evidence Act as the police already knew

about the place where the knife could be found. This argument is wholly

without substance. This was based on the fact that the appellant first told

the police that he would show them the knife and then took them to the

place where the knife was hidden.

92. Further in the case of State [NCT of Delhi] Vs. Navjot

Sandhu Alias Afsan Guru, 2005 SCC [Cri] 1715, it is held that:

"Section 27 lifts the ban against the admissibility of theconfession/statement made to the police to a limited extent byallowing proof of information of a specified nature furnishedby the accused in police custody. In that sense Section 27 isconsidered to be an exception to the rules embodied inSections 25 and 26.

The first requisite condition for utilising Section 27 in supportof the prosecution case is that the investigating police officershould depose that he discovered a fact in consequence of theinformation received from a accused person in police custody.Thus, there must be a discovery of fact not within theknowledge of police officer as a consequence of information


received. Of course, it is axiomatic that the information ordisclosure should be free from any element of compulsion.

The next component of Section 27 relates to the nature andextent of information that can be proved. "Discovery of fact"cannot be equated to the object produced or found. It is morethan that. The discovery of fact arises by reason of the fact thatthe information given by the accused exhibited the knowledgeor the mental consciousness of the informant accused inrelation thereto. However, it is only so much of theinformation as relates distinctly to the fact thereby discoveredthat can be proved and nothing more. The rest of theinformation has to be excluded. The word 'distinctly' means'directly', 'indubitably', 'strictly', 'unmistakably'. The word hasbeen advisedly used to limit and define the scope of theprovable information. The phrase 'distinctly related to the factthereby discovered' is the linchpin of the provision. Thisphrase refers to that part of the information supplied by theaccused, which is the direct and immediate cause of thediscovery. It is explicitly clarified in the Section that there isno taboo against receiving such information in evidencemerely because it amounts to a confession. At the same time,the last clause makes it clear that it is not the confessional partthat is admissible but it is only such information or part of it,which relates distinctly to the fact discovered by means of theinformation furnished. Thus, the information conveyed in thestatement to the police ought to be dissected if necessary so asto admit only the information of the nature mentioned in thesection. The reason behind this partial lifting of the ban againstconfessions and statements made to the police, is that if a factis actually discovered in consequence of information given bythe accused, it affords some guarantee of truth of that part, andthat part only, of the information which was the clear,immediate and proximate cause of the discovery. No suchguarantee or assurance attaches to the rest of the statementwhich may be indirectly or remotely related to the factdiscovered.

Lastly, "discovery of fact" does not comprehend a pure andsimple mental fact or state of mind relating to a physical objectdissociated from the recovery of the physical object that is, itdoes not comprehend the second limb of the definition of"fact" contained in Section of the Evidence Act, 1872”.

93. Section 27 of the Evidence Act is considered to be an

exception to the rules embodied in Sections 25 and 26. It enables certain

statements made by a person in police custody to be proved. Normally the


Section is brought into operation when a person in police custody

produces from some place of concealment some object, such as a dead

body, a weapon, or ornaments, said to be connected with the crime of

which the informant is accused.

94. "Discovery of fact" cannot be equated to the object produced

or found. It is more than that. It is only so much of the information as

relates distinctly to the fact thereby discovered that can be proved and

nothing more. The phrase 'distinctly related to the fact thereby discovered'

is the linchpin of the provision. This phrase refers to that part of the

information supplied by the accused, which is the direct and immediate

cause of the discovery. It is not the confessional part that is admissible but

it is only such information or part of it, which relates distinctly to the fact

discovered by means of the information furnished. In fact it is actually

discovered in consequence of information given by the accused, it affords

some guarantee of truth of that part, and that part only, of the information

which was the clear, immediate and proximate cause of the discovery.

95. The discovery of any fact referred to in Section 27 does not

include mental or psychological fact, example, knowledge, i.e. the mental

act of becoming aware of something or intention. The word 'fact' is used

in the sense of physical or material fact, which can be perceived by the

senses and the discovery of such facts alone can eliminate the fear of

confession being induced by improper inducing and confirming the truth

of the information received from the accused. The word 'fact' does not

refer to mental fact. Section 27 comes into operation when some material


object is produced from somewhere in consequence of some information

given by the accused. But the fact discovery includes not merely the

object found but also the place where it lay and the accused knowledge as

to the place. The knowledge of the accused as to the place indicates that

the discovery was due to the information received from him, i.e. he is the

informant as contemplated in the Section. The fact discovery must be such

that the proof of its existence does not depend on the credibility of the

accused or any other person, but is confirmed by the production of the

object itself, which can be perceived by the senses. Section 27 allows

proof of such part of the information as it relates distinctly to the fact

discovery.

96. Hon’ble Apex Court in Karan Singh’s case supra has held

that:

“..though the investigating officer already knew the placewhere the incriminating article was hidden but still if thatincriminating article is recovered in furtherance of thediscovery statement given by the accused under Section 27of the Indian Evidence Act, the recovery of that incriminatingobject is held to be proved at the instance of the accused onthe basis of the evidence of the investigating officer.Therefore, we do not find any substance in the saidcontention of the accused”.

97. No doubt in the present case independent witness PW-9 has

turned hostile but it can not be said that evidence so far as recovery as per

disclosure statement is concerned, cannot be believed. As against this

evidence, we have the evidence of police officials i.e. investigating officer

and recovery witness, who recovered the material objects from the houses

of the accused. All of them have spoken about the recovery of material


objects and the search and seizures conducted by them. All the recovery

memos have been exhibited in this case. Their signatures are also marked.

The question is what is the effect of PW-9 turning hostile.

98. If PW-9 Kulwinder Singh, who as per prosecution story was

associated as independent witness at the time of effecting recovery from

accused Arwinder Singh on 26.05.2016, has not supported the prosecution

story, which happens very often in criminal cases, the evidence of the

person, who effected the recovery would not stand vitiated. There is,

however, no rule of law that the evidence of police officials has to be

discarded or that it suffers from some inherent infirmity. Prudence,

however, requires that the evidence of the police officials, who are

interested in the outcome of the result of the case, needs to be carefully

scrutinized and independently appreciated. The police officials do not

suffer from any disability to give evidence and the mere fact that they are

police officials does not by itself give rise to any doubt about their credit

worthiness.

99. The statement of the investigating officer and other police

official has to be reliable and so trustworthy that even if the attesting

witness to the seizure turns hostile, the same can still be relied upon, more

so, when it is otherwise corroborated by the prosecution evidence. Merely,

because the police witnesses have spoken about the search and the seizure

of above referred documents from the custody of the accused, their

version cannot be disbelieved as the independent witness has not

supported the search and the seizure of literature regarding establishment


of Khalisthan on Baisakhi, ‘Bhai Randhir Singh’s Khalisthan Shabdavali’,

flex boards regarding Baisakhi 13.04.1978 regarding Khalisthan

Shabdavali in connection with Baisakhi 13.04.1978 and ‘Band Band

Katwaun, etc.

100. In the case of Modan Singh Vs. State of Rajasthan, 1978

(4) SCC 435 it was observed thus:

"where the evidence of the investigating officer who recoveredthe material objects is convincing, the evidence as to recoveryneed not be rejected on the ground that seizure witnesses didnot support the prosecution version”.

101. In State Govt. of NCT of Delhi Vs. Sunil & Anr., 2001

[1] Crimes 176 [SC], it has been held there is no requirement either

under the Evidence Act or the Code of Criminal Procedure, to obtain

signature of independent witnesses on the record in which statement of an

accused is written. The legal obligation to call independent and

respectable inhabitants of the locality to attend and witness the exercise

made by the police is cast on the police office when searches are made

under Chapter VII of the Code of Criminal Procedure. Section 100(5) of

the Code of Criminal Procedure requires that such search shall be made in

their presence and a list of all things seized in the course of such search

and of the places in which they are respectively found, shall be prepared

by such officer or other person "and signed by such witnesses". It must be

remembered that search is made to find out a thing or document which the

searching officer has no prior idea where the thing or document is kept.

102. The legislative idea in insisting on such searches to be made


in the presence of two independent inhabitants of the locality is to ensure

the safety of all such articles meddled with and to protect the rights of the

persons entitled thereto. But recovery of an object pursuant to the

information supplied by an accused in custody is different from the

searching endeavour envisaged in Chapter VII of the Code of Criminal

Procedure.

103. It is a fallacious impression that when recovery is effected

pursuant to any statement made by the accused the document prepared by

the investigating officer contemporaneous with such recovery must

necessarily be attested by independent witnesses. Of course, if any such

statement leads to recovery of any article it is open to the investigating

officer to take the signature of any person present at that time, on the

document prepared for such recovery but if no witness was present or if

no person had agreed to affix his signature on the document, it is difficult

to lay down, as a proposition of law, that the document so prepared by the

police officer must be treated as tainted and the recovery evidence

unreliable. The Court has to consider the evidence of the investigating

officer who deposed to the fact of recovery based on the statement

elucidated from the accused on its own worth.

104. It is an archaic notion that action of the police officer should

be approached with initial distrust. We are aware that such a notion was

lavishly entertained during British period and policemen also knew about

it. Its hang over persisted during post-independent years but it is time now

to start placing at least initial trust on the actions and the documents made


by the police. The Court cannot start with the presumption that the police

records are untrustworthy. That official acts of the police have been

regularly performed is a wise principle of presumption and recognised

even by the legislature. When a police officer gives evidence in the Court

that a certain article was recovered by him on the strength of the statement

made by the accused it is open to the Court to believe the version to be

correct if it is not otherwise shown to be unreliable. It is for the accused,

through cross-examination of witnesses or through any other materials, to

show that the evidence of the police officer is either unreliable or at least

unsafe to be acted upon in a particular case. If the Court has any good

reason to suspect the truthfulness of such records of the police, it could

certainly take into account the fact that no other independent person was

present at the time of recovery but it is not a legally approveable

procedure to presume the police action as unreliable to start with, not to

jettison such action merely for the reason that police did not collect

signatures of independent persons in the documents made

contemporaneous with such actions. When the investigation officer makes

some recovery in furtherance of the disclosure statement made by the

accused, it is not necessary that sarpanch, panchs or numberdars should be

present there and they should sign the recovery statement prepared by the

investigation officer.

105. In Vahaji Ravaji Thakore and Another Vs. State of

Gujarat, 2004 Crl. L.J. 119, it is held as under:

“35. In view of aforesaid legal position, we are of consideredview that merely because the panch witnesses do not support


the case of the prosecution, the case of the prosecution neednot be thrown over-board as unreliable. It must be realisedthat the phenomenon of panch witnesses turning hostile tothe prosecution is not unknown and is ever on the increase. Itneeds hardly to be emphasised that the decision of a casedoes not depend solely on the question whether the panchwitnesses support the prosecution or turn their back on it. Ifthe decision of the case were to depend solely on thetestimony of panch witnesses regardless of the evidence ofindependent witnesses, in theory, it would be giving a rightof veto to the panchas so far as the question of culpability ofan accused is concerned. If the evidence of police officer isotherwise found to be true and dependable, judicialpragmatism requires that merely because the panchas do notsupport, it should not be made a ground to discard hisevidence”.

106. In the above referred case, their Lordships held that though

the panch witnesses turned hostile, since the investigation officer

recovered the material objects in furtherance of the disclosure statement

made by the accused, it has to be held that the discovery of material object

is proved at the instance of that accused on basis of the evidence of

investigation officer.

107. Hon’ble Apex Court in Govindaraju @ Govinda Vs. State

by Srirampura P.S, (2012) 4 SCC 722 has held as under:

"However, it is to be noted that in such cases, the statementof the investigating officer has to be reliable and sotrustworthy that even if the attesting witnesses to the seizureturns hostile, the same can still be relied upon, more so, whenit is otherwise corroborated by the prosecution evidence,which is certainly not there in the present case”.

108. In Anil @ Andya Sadashiv Nandoskar Vs. State of

Maharashtra, 1996 SCC (2) 589, it is held that:

"Indeed all the 5 prosecution witnesses who have beenexamined in support of search and seizure were members ofthe raiding party.


They are all police officials. There is, however, no rule oflaw that the evidence of police officials has to be discardedor that it suffers from some inherent infirmity. Prudence,however, requires that the evidence of the police officials,who are interested in the outcome of the result of the case,needs to be carefully scrutinised and independentlyappreciated. The police officials do not suffer from anydisability to give evidence and the mere fact that they arepolice officials does not by itself give rise to any doubt abouttheir credit worthiness. We have carefully and criticallyanalyzed the evidence of all the 5 police officials. There isnothing on the record to show that any one of them washostile to the appellant and despite lengthy cross-examination their evidence has remained unshakenthroughout. These witnesses have deposed in clear terms thedetails of the trap that was laid to apprehend the appellantand the manner in which he was apprehended. Theirevidence regarding search and seizure of the weapons fromthe appellant is straight-forward consistent and specific. Itinspires confidence and learned counsel for the appellant hasnot been able to point out any serious, let alone fatal,infirmity in their evidence. In our opinion, the factum ofsearch and seizure of the country-made revolver from theconscious possession of the appellant has been established bythe prosecution beyond any reasonable doubt. Theexplanation given by the prosecution, for the non-examination of the two panch witnesses, which is supportedby the report Ex.24 filed by PW-4 PI Gaikwad is satisfactory.The evidence on the record shows that the raiding party madesincere efforts to join with them two independent panches atthe time of search and seizure and they were so joined. Theywere also cited as prosecution witnesses and summoned togive evidence. However, despite diligent efforts made by theprosecuting agency to serve them, they could not be locatedor traced and therefore they could not be examined at thetrial. In the face of the facts stated in report Ext.24, thecorrectness of which has remained virtually unchallengedduring the cross-examination of PW4, the non-examinationof the two panchas cannot be said to be on account of anyoblique reason. Their non production at the trial thus has notcreated any dent in the prosecution case. The prosecutioncannot be accused of withholding these witnesses since itmade every effort to trace and produce them at the trial butfailed on account of the fact that they had left the addressesfurnished by them at the time of search and theirwhereabouts could not be traced despite diligent efforts madein that behalf. We, therefore, do not find any reason to doubtthe correctness of the prosecution version relating to theapprehension of the appellant, the search and seizure by theraiding party and the recovery from the appellant of the


country-made revolver and cartridges for which he couldproduce no licence or authority because of the non-examination of the panch witnesses. We find that theevidence of PW1 to PW5 is reliable, cogent and trustworthy.Learned counsel for the appellant then submitted that thedelay in sending the fire arm and the cartridges to theballistic expert rendered the report of the Ballistic ExpertExt. P-17 vulnerable and the conviction of the appellantunsustainable. We cannot agree”.

109. The judicial instrument has a public accountability. The law

would fail to protect the community if it permitted fanciful possibilities

to deflect the course of justice. If the evidence is so strong against a man

as to leave only a remote possibility in his favour which can be dismissed

with sentence 'of course, it is possible but not in the least probable,' the

case is proved beyond reasonable doubt. Under our existing

jurisprudence in a criminal matter, we have to proceed with presumption

of innocence but at the same time, that presumption is to be judged on

the basis of conceptions of a reasonable prudent man. Smelling doubts

for the sake of giving benefit of doubt is not the law of the land. If a case

is proved perfectly, it is argued that it is artificial; if a case has some

flaws inevitable because human beings are prone to err, it is argued that it

is too imperfect. One wonders whether in the meticulous hypersensitivity

to eliminate a rare innocent from being punished, many guilty persons

must be allowed to escape. Proof beyond reasonable doubt is a guideline,

not a fetish. The evil of acquitting a guilty person light-heartedly goes

much beyond the simple fact that just one guilty person has gone

unpunished. If unmerited acquittals become general. they tend to lead to

a cynical disregard of the law, and this in turn leads to a public demand

for harsher legal presumptions against indicted 'persons' and more severe


punishment of those who are found guilty. A miscarriage of justice may

arise from the acquittal of the guilty no less than from the conviction of

the innocent.

110. Exaggerated devotion to the rule of benefit of doubt must

not nurture fanciful doubts or lingering suspicion and thereby destroy

social defence. Justice cannot be made sterile on the plea that it is better

to let hundred guilty escape than punish an innocent. Letting guilty

escape is not doing justice according to law. A judge does not preside

over a criminal trial, merely to see that no innocent man is punished. A

judge also presides to see that a guilty man does not escape. Both are

public duties. If accused persons are let off light heartedly picking holes

in the prosecution case without any sense of responsibility then the very

existence of the Criminal justice delivery system could be questioned,

having regard to the expenses involved in maintaining the administration.

It also amount to abdicating a solemn duty.

111. The evidence on record clearly establishes that each of the

accused is a party to the conspiracy. Conspiracy is hatched in secrecy and

therefore, direct evidence in proof of the same is seldom available. It is a

matter of inference. The law does not require that each and every person,

who is a party to the conspiracy must do some overt act towards the

fulfillment of the object of conspiracy. A conspiracy is nothing but a

partnership for criminal purposes. An over tact of one accused may be

the act of all without any new agreement specifically directed to that act.

One who enters into a conspiratorial relationship is liable for every


reasonably foreseeable crime committed by every other member of the

conspiracy in furtherance of its objectives whether or not, he knew of the

crimes committed or aided in their commission. Whoever is a party to the

conspiracy is liable to be punished under a Section of I.P.C., an act done

by one accused is admissible against the co-conspirators in view of the

Evidence Act. It can, in some cases be inferred from the acts and conduct

of the parties. The conspiracy hatched by these accused is continuous and

renewed as to all the members whenever any member of the conspiracy

acts in furtherance of the common design. The cumulative effects of the

proved circumstances should be taken into account in determining the

guilt of the accused. Where trustworthy evidence establishing all links of

circumstantial evidence is available, the confession of a co-accused as to

conspiracy even without corroborative evidence can be taken into

consideration.

112. From the material on record, common intention and object

which brought the accused together, could be easily gathered from the

documentary evidence such as books, literature, pamphlets which are

seized from them for which, they have offered no explanation at all. The

literature, recovery of which has been proved from the possession of the

accused in this case, clearly establishes the 'mensrea', with which all

these conspirators came together. The pamphlets etc. seized from the

accused also prove the mensrea.

113. In order to achieve their object regarding establishment of

Khalisthan on Baisakhi, they have kept the aforesaid material with them


with the intention of using the same for propaganda and inciting people

to resort to violence with the objective of waging war against the

Government of India, with a view to establish an independent

State/Nation by the name ‘Khalistan’ by way of liberating the Sikhs from

India or Indian Rule. They stealthily declared war against India. They

conspired to overawe the Government of India thus disturbing the normal

tranquillity of a civilised society.

114. Further, there it is also to be noted here that there was no

reason for the complainant to implead the accused falsely in the present

crime. Nothing furnished in the evidence of the prosecution witnesses

points to any inimical relations between the complainant and the accused,

which could have been a motive for the complainant, if at all, to falsely

implicate the accused in this case.

115. Now the question posed before the Court is whether valid

sanction has been accorded for prosecuting the accused for the offences

under Sections 121 and 121-A of IPC and Sections 10 and 13 of the the

1967 Act, if not, whether the entire trial is vitiated for want of

jurisdiction? As per Section 196(1) of the Code of Criminal Procedure, no

Court shall take cognizance of-

(a) any offence punishable under Chapter VI or underSection 153A, Section 295A or Sub Section 1 of Section 505of IPC

(b) a Criminal conspiracy to commit such offence, or

(c) ….

except with the previous sanction of the Central Government or of the


State Government.

116. As per Section 45 of the 1967 Act- Cognizance of

offences .(1) No Court shall take cognizance of any offence:

(i) under Chapter III without the previous sanction ofthe Central Government or any officer authorised by theCentral Government in this behalf;

(ii) under Chapters IV and VI without the previoussanction of the Central Government or, as the case maybe, the State Government, and where such offence iscommitted against the Government of a foreign countrywithout the previous sanction of the CentralGovernment.

(2) Sanction for prosecution under sub-section (1) shallbe given within such time as may be prescribed onlyafter considering the report of such authority appointedby the Central Government or, as the case may be, theState Government which shall make an independentreview of the evidence gathered in the course ofinvestigation and make a recommendation within suchtime as may be prescribed to the Central Government or,as the case may be, the State Government.

117. Sanction to prosecute is an important matter. It constitutes a

condition precedent to the institution of the prosecution. The Government

has an absolute discretion to grant or withhold their sanction. The grant of

sanction is an executive act. The validity of sanction cannot be tested in

the light of the principles applied to quasi judicial orders. The test to be

applied is, whether relevant material that formed the basis of allegations

constituting the offence was placed before the sanctioning authority and

the same was perused before granting the sanction. In order to make it a

valid sanction it must be proved that sanction was given in respect of the


facts constituting the offence charged. It is desirable that the facts should

be referred to on the face of the sanction but this is not an essential

requirement. Similarly, law does not require a sanction to be in any

particular form but if the facts constituting the offence charged are not

shown on the face of the sanction, the prosecution must prove by

extraneous evidence that those facts were placed before the sanctioning

authority.

118. The accused have been prosecuted for the offences under

Sections 121 and 121-A IPC and also under Sections 10 and 13 of the

1967 Act. To prosecute an accused for an offence under Sections 121 and

121-A IPC, previous sanction of the Central Government or of the State

Government is necessary, without which no Court shall take cognizance

of such offence. PW-20 Mohinder Pal, Superintendent, Home

Department, Punjab, Chandigarh has produced record pertaining to

sanction in the present case and has proved the same as Ex.PW-20/A. He

has also identified signatures of Jaswinder Kaur Sidhu, IAS, Special

Secretary, Home Affairs and Jail Department on the same. Though in his

cross-examination, he has deposed that the sanction was not typed and

signed in his presence but as discussed above, he has identified signatures

of Jaswinder Kaur Sidhu, IAS, Special Secretary, Home Affairs and Jails

Department on the same.

119. PW-21 DSP Mukhtiar Rai has categorically deposed that

copy of FIR was sent to the sanctioning authority. Though he has deposed

that he cannot say whether any other document was sent for obtaining


sanction or not but at the same time he has denied that no CDs and DVDs

were sent to the sanctioning authority in the present case.

120. Perusal of Ex.PW-20/A reveals that Additional Chief

Secretary, Department of Home Affairs and Jails, Punjab took note of the

facts of the case and after examining the records i.e. police file and

challan papers thoroughly and being satisfied that the accused have

committed offences punishable under Sections 121 and 121-A of IPC and

Sections 10 & 13 of the 1967 Act and accordingly, the Government

accorded sanction for prosecution of the accused under the aforesaid

Sections. Ex.PW-20/A refers to the facts constituting the offences

charged, the number of persons who are charged and the provisions of law

under which they are charged. Sanction order Ex.PW-20/A shows that

after examination of the records and application of mind, the Government

has accorded sanction for prosecution and, therefore, the legal

requirement contemplated under law is fully satisfied so far as prosecution

of the accused for the offences under Sections 121 and 121-A IPC is

concerned. Therefore, the sanction accorded is valid and legal and does

not suffer from any infirmity.

121. Offences under Sections 10 & 13 of the 1967 Act fall under

Chapter III of the 1967 Act and as per Section 45 (1) (i) of the 1967 Act,

no Court shall take cognizance of any offence under Chapter III

without the previous sanction of the Central Government or any officer

authorised by the Central Government in this behalf but perusal of

Ex.PW-20/A reveals that Additional Chief Secretary, Department of Home

Affairs and Jails, Punjab has accorded sanction for prosecution of the


accused for the offences under Sections 10 & 13 of the 1967 Act, which is

not a valid sanction as nothing has been produced on the file by the

prosecution that Additional Chief Secretary, Department of Home Affairs

and Jails, Punjab was authorised by the Central Government in this

behalf, hence, this Court is not competent to take cognizance of the

offences punishable under Sections 10 and 13 of the 1967 Act for want

of previous sanction of the Central Government or any officer authorised

by the Central Government in this behalf. Hence, trial of the accused so

far as offences under Sections 10 and 13 of the 1967 Act is concerned

stands vitiated. Accordingly, the accused are acquitted of the charges

framed under Sections 10 and 13 of the 1967 Act, however, in view of the

discussion made above, this Court is of the considered view that the

prosecution has proved its case beyond reasonable doubt for the offences

punishable under Sections 121 and 121-A of IPC. All the accused are held

guilty in respect of the offences under Sections 121 and 121-A of IPC and

stand convicted accordingly.

Pronounced. Randhir Verma,Date of order:31.01.2019. Additional Sessions Judge,

Shaheed Bhagat Singh Nagar.(Vinay) (UID No.PB-0165)

state vs. arwinder singh @ ghoga & others. sc no.15 of 2017. · surjit singh @ lucky, aged 27...

Documents