Karnail Singh vs State of Punjab

K.K. Srivastava, J.

In this petition filed under Section 482 of the Code of Criminal Procedure, regarding the alleged kidnapping of Harpal Singh son of the petitioner/Karnail Singh and his subsequent alleged killing in fake encounter, an enquiry into the allegations made in the petition was entrusted to the Session Judge, Gurdaspur, vide order dated July 10, 1996. The relevant part of the order, entrusting the enquiry as aforesaid, reads as under :

"....... After hearing the learned counsel for the parties, I deem it appropriate to entrust the enquiry into the allegations made in the petition insofar as it relates to respondent No. 3 taking Harpal Singh with him on 17.7.1993 in the morning between 5.30 a.m. and 6.00 a.m. from Village Hardo Rewal and about his alleged killing, to the Sessions Judge, Gurdaspur. The Sessions Judge, Gurdaspur shall hold the enquiry into the averments made above regarding the taking of Harpal Singh by respondent No. 3 and record evidence regarding the said averments led by the petitioner and respondent No. 3 and send his enquiry report after recording a finding of the fact on the aforesaid matter. The Sessions Judge, Gurdaspur shall complete the enquiry within a period of two months from the date of receipt of copy of this order from this court and send the same to the Registry of this Court. The Office is directed to send a copy of the petition/the replies with annexures and copy of this order to the learned Sessions Judge, Gurdaspur for enquiry. The Office is further directed to list this case after receipt of the enquiry report from the Session Judge, Gurdaspur."

The learned Session Judge, Gurdaspur conducted the fact finding enquiry and submitted his report dated January 28, 1997, in which the allegations made in the petition were not found established against the respondents.

The petitioner/Karnail Singh filed objections to the enquiry report, which are in the shape of his affidavit, wherein the report of the learned Sessions Judge, Gurdaspur has been assailed on the grounds, inter alia, that the evidence led by the petitioner at the enquiry was not properly appreciated and the statements of the witnesses of the petitioner were wrongly disbelieved. It was further mentioned that the evidence of the witnesses examined by the respondents was wrongly believed as the same was not creditworthy. The conclusions arrived at by the learned Session Judge, it is alleged. are based on conjectures and surmises. Besides it, the petitioner alleged that the learned Sessions Judge completely forgot that it was only a fact finding enquiry and not a criminal trial, wherein the petitioner had to prove the guilt of the culprits beyond reasonable doubt. According to the petitioner, the report of the learned Sessions Judge is not based on any reasons and he has exceeded his jurisdiction and rejected the evidence produced by the petitioner, on flimsy grounds. It was further alleged that the petitioner had amply proved by his statement and the evidence of the independent witnesses that his son/Harpal Singh had, as a matter of fact, been abducted by ASI Harinder Pal Singh on 17th July, 1993 and the person killed in the encounter was the same person, i.e. Harpal Singh. The petitioner has prayed that further enquiry into the matter appears to be necessary and as such, it should be entrusted for investigation to the Central Bureau of Investigation.

On the other hand, the learned counsel for the respondents have defended the report of the learned Session Judge and controverted the allegations made by the petitioner in his objections.

I have heard the learned counsel for the petitioner and the learned counsel for the respondents. I have also perused the report of the learned Sessions Judge, Gurdaspur and have gone through the evidence recorded at the enquiry.

The report of the learned Session Judge, Gurdaspur deals with the following two points, which cropped up from the averments made in the petition :

(1) Whether the respondent No. 3/ASI Harinder Pal Singh of police station Dhilwan visited the house of Harpal Singh on 17.7.1993 between 5.30 a.m. and 6.00 a.m. and took Harpal Singh with him on the pretext of going to the house of the Sarpanch ?

(2) Whether the identity of the person, who is said to have been killed in the night of 20/21.7.1993 in village Maheru as that of Harpal Singh son of the petitioner/Karnail Singh was established beyond any shadow of doubt ?

It may be mentioned that the learned Session Judge, Gurdaspur has recorded his findings on both the points mentioned above against the petitioner inasmuch as he has disbelieved the evidence of the petitioner regarding the incident taking place on 17.7.1993 around 6.00 a.m. at Hardo Rewal, in which respondent No. 3/ASI Harinder Pal Singh allegedly took away Harpal Singh with him. He has also held that the dead body of the unidentified person found in village Maheru and who was said to have been killed in the night of 20/21.7.1993, was in fact of one Kulwant Singh, who had been killed in a shooting incident and the same was not of Harpal Singh son of Karnail Singh. Since the findings on both the crucial points are against the petitioner, the learned counsel appearing for the petitioner referred to the evidence of the witnesses in great detail to show that the evidence of the petitioner''s witnesses was not properly appreciated and, in fact, the learned Session Judge dealt with the case as if he was holding a criminal trial, wherein the entire burden of proof was on the shoulders of the petitioner. It may be mentioned that in the fact finding enquiries in such like matters, the evidence has to be appraised to find out as to whether the incident which is complained of in all reasonableness and likelihood took place and if so, whether the involvement of the culprits, arrayed as respondents, was, prima facie, shown. The principles of holding of the enquiry in such like matters cannot be equated with the trial of a criminal case where the prosecution is required to establish its case beyond shadow of reasonable doubt. All the same, it is to be borne in mind that even while finding out facts, the evidence has to be analysed with a view to find out the disputed facts and if the evidence is clear, cogent and prima facie creditworthy, the same should normally be accepted in reporting about the facts so found. Under these circumstances, it appears to be proper to refer to the evidence led by the petitioner regarding the incident mentioned above, as also the evidence led in rebuttal by the respondents.

The petitioner Karnail Singh examined nine witnesses in all. Out of these nine witnesses, the evidence of Daljit Singh, Additional MHC (PW 1), Dr. Karnail Singh (PW 2), Krishan Chand, Junior Telecom Officer (PW 3), Suresh Chander Sood, Senior Section Supervisor, Central Telegraph Office, Ludhiana (PW 4) and Sukhwinderjit Singh, Sub Editor, Rozana Aaj Di Awaj, Jalandhar (PW 5) is of formal nature. Dr. Karnail Singh (PW 2) had conducted autopsy on the dead body of an unknown person on 22.7.1993, which had been brought before him by Constable Surti Ram No. 316, police station Phagwara Sadar. The age of the deceased was assessed around 33 years and the length of the body was measured as 5''7". The dead body was having long hair on his head and long and loose beard without any turban on the head. The dead body was wearing Kurta and Pyjama of very light green colour, which were stained with blood. He was wearing conventional Kachhera, Giani type, white in colour. This dead body, according to the case of the police was of one Kulwant Singh, resident of village Booh. Smt. Jeeto, wife of Sohan Singh, aged 40 years, claimed herself to be the mother of the deceased. The petitioner, on the other hand, claimed the said dead body to be of his son Harpal Singh. The petitioner relied upon the statement of Dr. Karnail Singh (PW 2) wherein he stated about meeting the petitioner on 24.7.1993 with the photograph of Harpal Singh and on seeing that photograph, he had told the petitioner orally that the dead body was of the same person, whose photograph was shown to him. The petitioner/Karnail Singh stated that he had taken the photograph of his son/Harpal Singh to Dr. Karnail Singh (PW 2) and in view of the said statement of Dr. Karnail Singh, the dead body of the said unknown person be held to be that of Harpal Singh. The matter regarding the identification of the dead body, which had been subjected to post mortem by Dr. Karnail Singh will be referred to later on, as first of all the evidence led by the petitioner regarding the abduction of Harpal Singh is to be considered and discussed. If the evidence led by the petitioner, prima facie, showed that ASI Harinder Pal Singh/respondent No. 3 took Harpal Singh with him on 17.7.1993 from his house in village Hardo Rewal, then the respondents have to explain as to what happened to Harpal Singh. On the other hand, if the evidence of the petitioner regarding ASI Harinder Pal Singh taking away Harpal Singh with him on 17.7.1993 is not held to be trustworthy, then the question regarding the identification of the aforesaid dead body will lose its significance.

Now coming to the evidence of the petitioner regarding the incident in which ASI Harinder Pal Singh took away Harpal Singh with him, it comprises of the statements of Smt. Amarjit Kaur widow of Harpal Singh (PW 6), Hazara Singh Sarpanch (PW 7), Karnail Singh, the petitioner (PW 8) and Jaspal Singh son of Karnail Singh (PW 9). The petitionerKarnail Singh and Hazara Singh Sarpanch, however, were not present on 17.7.1993 when respondent Harinder Pal Singh ASI is said to have visited the house of Harpal Singh and allegedly took him to the Police Station Dhilwan. Karnail Singh (PW 8) has stated about the visit of the police officials to his village Hardo Bathwala on 16.7.1993 at about 5.00 a.m. According to his statement, 45 persons came in a jeep alongwith 7/8 persons in police uniform accompanying them. One of these persons, who was in plain clothes, enquired from him about his son Harpal Singh, when he told the said person that Harpal Singh was living in Hardo Rewal. Thereafter, he said that he (petitioner) had been taken alongwith his son Harinder Singh with the police party to Hardo Rewal, but his son Harpal Singh was not found present there at his house, as he had gone to Amritsar to attend some cases pending against him. Jaspal Singh, the other son of Karnail Singh was present at the house, who had informed the police party about Harpal Singh going to Amritsar to attend court cases there. Karnail Singh stated further that in his presence the police officials had summoned Hazara Singh Sarpanch and had made enquiries from him about Harpal Singh. The police party stayed in village Hardo Rewal upto 12.00 (noon) and then left the village. He also returned to his village alongwith his son Harjinder Singh. It was on the next day, i.e. 17.7.1993 that he received a message that the same police officials had visited the house of his son Harpal Singh in village Hardo Rewal and had taken Harpal Singh with them. He had gone to village Hardo Rewal on 17.7.1993 and there he met his son Jaspal Singh and learnt about this incident from him.

Hazara Singh Sarpanch (PW 7) stated that he was called by Jaspal Singh to his house on 16.7.93 where respondent Harinder Pal Singh was present and he enquired about the conduct of Harpal Singh from him. He stated that he had given in writing also, as Sarpanch of the village. On the next morning, i.e. on 17.7.1993, Jaspal Singh went to him and told him about Harpal Singh having been taken away by the police. Hazara Singh was crossexamined on behalf of the respondents, but nothing material could be elicited in crossexamination. He stated about Harpal Singh used to be taken away earlier also by the police and further stated that several criminal cases were pending against Harpal Singh. He, however, denied the suggestion that he had identified ASI Harinder Pal Singh ASI at the instance of the petitionerKarnail Singh. The statement of Hazara Singh, thus, amply supports the statement of petitionerKarnail Singh regarding the visit of the respondentHarinder Pal Singh to village Hardo Rewal and about the enquiries made by him about Harpal Singh. It is relevant to note that Hazara Singh Sarpanch, as also Karnail Singh, both learnt about the visit of the respondentHarinder Pal Singh with other police officials to village Hardo Rewal and about taking away Harpal Singh with them.

Besides these two witnesses, there is evidence of Smt. Amarjit Kaur (PW 6), widow of Harpal Singh and Jaspal Singh (PW 9), brother of Harpal Singh. Amarjit Kaur (PW 6) has categorically stated about the visit of ASI Harinder Pal Singh and other police officials and making enquiries about her husband Harpal Singh from the Sarpanch Hazara Singh. She stated categorically about the visit of respondentHarinder Pal Singh ASI and other police officials to the house in the next morning, i.e. on 17.7.1993 and taking away Harpal Singh with them. In crossexamination she stated that the police had never arrested Harpal Singh prior to the said occasion and that the police never visited her house on any earlier occasion. She stated that she had not seen A.S.I. Harinder Pal Singh prior to this incident and she herself had never visited the police station to know the identity of the respondent and that she never met him thereafter. The evidence of Amarjit Kaur, prima facie, shows about the visit of the respondent/Harinder Pal Singh ASI and other police officials to her house on 16.7.1993 and 17.7.1993 and on the subsequent day her husband had been taken away by them. The crossexamination does not in any way make the statement of Amarjit Kaur incredible.

Apart from her statement, Jaspal Singh (PW 9), elder brother of Harpal Singh has corroborated the case of the petitioner and has stated about the visit of respondent/Harinder Pal Singh ASI and other police officials to his house on 16th and 17th July, 1993 and taking away Harpal Singh with them on 17th July, 1993. He clearly stated about visiting police station Beas and then police station Dhilwan and met SHO Wassan Singh, who had initially assured them to find out the whereabouts of Harpal Singh, but later on he did not help them. Respondent/Harinder Pal Singh ASI was also present there and Jaspal Singh made enquiries from him, but he flatly denied having taken away Jaspal Singh. Jaspal Singh further stated that he sent telegrams regarding this incident on 18.7.1993 and 20.7.1993. Jaspal Singh was subjected to crossexamination, but his statement regarding the visit of the police and taking away of his brother Harpal Singh could not be shaken.

The respondents examined Wassan Singh Inspector as RW 6 as also Harinder Pal Singh ASI as RW 7. Their evidence is to the effect that no case was registered against Harpal Singh of village Hardo Rewal, nor he was wanted in any matter in the month of July, 1993. Harinder Singh ASI further stated that Harpal Singh was never brought to police station Dhilwan in July, 1993. In his crossexamination, he denied about his visit to village Hardo Rewal for taking Harpal Singh with him and that in the presence of Jaspal Singh he brought Harpal Singh with him. He further denied about getting the antecedents of Harpal Singh verified from Sarpanch Hazara Singh in writing. This witness is eventually interested in denying the allegations made against him.

Inspector Wassan Singh (RW 6) has no role to play in this incident. He, however, referred to Harpal Singh son of Karnail Singh of village Hardo Bathwala, whereas according to the petitioner''s case, Harpal Singh used to reside in village Hardo Rewal. The bare denial by Wassan Singh as well as Harinder Pal Singh about this incident is, in my considered view, not sufficient to rebut the evidence led by the petitioner.

In the enquiries of such type, the standard of proof, as is required at the criminal trial, is not to be adopted. If the evidence led at the enquiry even prima facie, shows the allegations levelled by the petitioner to be believable, the matter requires to be thoroughly probed, as it involves the life and liberty of a citizen in a democratic setup. After referring to the statement of the witnesses aforesaid, it is prima facie, established that the respondent ASI Harinder Pal Singh alongwith other police officials visited the house of Harpal Singh, made enquiries about him and eventually on 17.7.1993, took away Harpal Singh in the presence of his wife, Amarjit Kaur, and brother Jaspal Singh. Thereafter Jaspal Singh accompanied by Sarpanch Hazara Singh visited police station Dhilwan and met SHO Wassan Singh as also respondent Harinder Pal Singh and made enquiries about Harpal Singh. When no satisfactory reply was received by him, he sent telegrams regarding the incident. All the this could not have happened in the air without any such incident having taken place. Viewed from this angle, the report of the learned Inquiry Officer, in which he has disbelieved this incident altogether, cannot and should not be accepted. Once it is shown, prima facie, that respondent/Harinder Pal Singh alongwith other police officials had taken away Harpal Singh, then it is such a matter, which deserves to be thoroughly enquired into. Learned counsel for the petitioner has placed reliance on the judgment dated July 4, 1997, rendered by a learned Single Judge of this Court in Criminal Writ Petition No. 854 of 1995 in case titled Harjinder Kaur and another v. State of Punjab and others, wherein the report of the inquiry officer was not accepted and the case was entrusted for further and deeper probe to the Central Bureau of Investigation. The aforesaid judgment has been annexed as Annexure A1 to the affidavit of the petitioner/deponent Karnail Singh.

So far as the identity of the dead body referred to above, is concerned, the petitioner has, in my considered view, failed to establish the same as that of his son Harpal singh. The said dead body was duly identified as that of Kulwant Singh. The respondents led evidence in that regard and examined Jagir Singh Inspector as RW1, who was leading the police party near the school premises in village Maheru when the encounter took place and in the same that young man lost his life and the dead body of that young man was identified to be of Kulwant Singh by Charan Singh Sarpanch village Booh (RW 2). Smt. Jito (RW 3) wife of Sohan Singh had identified the clothes of her son Kulwant Singh, which were shown to her by the SI. In view of this evidence led by the respondents, wherein the identity of the dead body was found that of Kulwant Singh, the statement of Dr. Karnail Singh (PW 2) cannot be given due weight inasmuch as he did not keep any record regarding his meeting with the petitioner/Karnail Singh and about seeing the photograph of Harpal Singh and on that basis telling the petitioner about the identity of the unidentified body as that of Harpal Singh.

Since the petitioner has failed to establish the identity of the dead body as that of his son/Harpal Singh and since the evidence of the petitioner shows that the respondent/Harinder Pal Singh along with other police officials visited village Hardo Rewal for making enquiries about Harpal Singh on 16.7.1993 and then again on 17.7.1993 and took away Harpal Singh with him and considering the fact that the whereabouts of Harpal Singh are not yet known, I deem it to be a fit case where the enquiry should be entrusted to the Central Bureau of Investigation for a thorough probe into the matter regarding the incident in which Harpal Singh was taken away and has not been heard or seen alive thereafter. The report of learned Sessions Judge, Gurdaspur, in so far as it relates to the alleged incident of kidnapping/abduction of Harpal Singh not taking place, is not accepted and is rejected. The matter regarding the said incident of Harpal Singh having been taken away by respondent/Harinder Pal Singh ASI alongwith other police officials from his village Hardo Rewal on 17.7.1993 and thereafter his not having been heard or seen alive, is entrusted to the Central Bureau of Investigation with the directions to proceed in the matter expeditiously and to investigate the incident of kidnapping and whereabouts of Harpal Singh. I also deem it appropriate to direct that the Director General of Police, Punjab, and the Home Secretary for the State of Punjab will render all possible assistance to the Central Bureau of Investigation in this investigation. Needless to say that the Central Bureau of Investigation will be at liberty to seek any directions from this Court, as and when such a need arises. The investigation will be completed within a period of four months from the date of receipt of a copy of this order, which shall also be sent to the Director, Central Bureau of Investigation, New Delhi, with copies to the Director General of Police, Punjab, Home Secretary, Punjab, and the Chief Secretary, Punjab, for information and necessary action at their respective end.

The case shall be listed after the receipt of the report from the Central Bureau of Investigation.