BALDEV SINGHversusSTATE OF PUNJAB

                      [2013] 9 S.C.R. 547


                        BALDEV SINGH                                  A
                                v.
                     STATE OF PUNJAB
           (Criminal Appeal No.1303 of 2005 etc.)
                    SEPTEMBER 20, 2013
                                                                      B
     [A.K. PATNAIK AND GYAN SUDHA MISRA, JJ.]

    PENAL CODE, 1860:

     ss. 302 read with s. 120-B - Police party picking up 7           c
members of complainant's family - Victims did not return -
Conviction by courts below u/ss 364, 452, 120-B and 302 -
Held: Evidence adduced is that the seven persons abducted
by appellants were seen in different police stations and also
in residential quarters near the police station - On this             0
evidence, court cannot hold that the two appellants have killed
the seven abducted persons only because they have not been
traced or are found missing - No material has been placed
before the court to establish that the last police station in which
the seven persons or any of them were kept was under the              E
control of the appellants - In absence of such evidence, the
finding of guilt recorded by courts below u/s. 302 against
appellants, was not correct either on facts or on law -
Therefore, conviction of appellants u/s. 302 read with s. 120-
B is set aside.
                                                                      F
     ss. 364 and 452 - Seven members of a family picked
up by police party - Victims did not return - Held: It has been
established that appellants had gone to the house of
complainant in the early morning and picked up 7 members
of his family - Therefore, conviction of appellants u/ss 364          G
and 452 was rightly maintained by High Court- The sentence
of three years with fine uls 452 is maintained - However, in
the facts of the case, keeping in view l/lustration (h) to
s.220(1)CrPC, as seven persons had been abducted by
                              547                                     H
    548      SUPREME COURT REPORTS               [2013] 9 S.C.R.


A appellants, they were guilty of seven offences and should be
  punished for each of these offences u/s. 364 - Therefore, it
  is directed that the fine of Rs.40001- as imposed by trial court
  and the period of rigorous imprisonment of five years will be
  for each of the seven offences of abduction and the five years
B rigorous imprisonment for each of the seven offences of
  abduction will run consecutively and not concurrently - Code
  of Criminal Procedure, 1973 - s.220(1), /11.(h).

          Delay!Laches:

C        Delay in lodging of FIR - Held: Delay in lodging of FIR
    often results in embellishment as well as the introduction of
    a distorted version of what may have actually happened, but
    the facts of each case have to be examined to find out
    whether the delay in lodging the FIR is fatal to prosecution
D case - In the instant case, there is enough evidence of the
    fact that complainant was afraid of lodging the complaint to
    local police station which was under the control of one of the
 .. accused-appellants - Delay of 2 months and 21 days in
    lodging the FIR has been explained by the facts and the
E evidence adduced - FIR.
       Delay in recording statements uls 161 CrPC - Held:
  Complainant in the very first complaint had named the
  appellants as the persons who raided their house and picked
  up seven members of his family, and therefore, the fact that
F there was considerable delay of two years from the date of
  lodging the FIR in recording of statements of witnesses does
  not make their evidence in this regard doubtful.

          Evidence:
G
       Witness at enmity with accused - Evidence of - Held:
  Testimony .of such a witness has to be carefully scrutinized
  by the court before it is accepted, but only on account of
  enmity, court cannot discard evidence of the witness
H a/together.
       BALDEV SINGH v. STATE OF PUNJAB                     549

    Code of Criminal Procedure, 1973:                             A

     ss.161 and 162, Explanation - Improvements in
deposition of witness over his statement u/s 161 - Held: In
view of Explanation to s. 162, unless the omission in the
statement recorded uls. 161 of a witness is significant having
                                                                  8
regard to the context in which the omission occurs, it will not
amount to a contradiction to the evidence of the witness
recorded in court - In the instant case, courts below rightly
considered the omissions as not material omissions
amounting to contradictions covered by the Explanation to         C
s.162.

     The appellants (a DSP and a constable of police) and
9 others were prosecuted for commiting offences
punishable u/ss. 120-8, 148, 452, 364, 365, 302 read with
s. 120-8 ands. 201, IPC. The prosecution case was that            D
on 29-10-1991 at about 5:00 am, the appellants and other
policemen raided the house of the complainant (PW 13)
and picked up seven members of his family, who
thereafter never returned. The trial court convicted the
appellants u/ss. 452, 364 and 302 read with s. 120-8 IPC          E
and sentenced them to various terms including
imprisonment for life u/s. 302 IPC. The High Court
dismissed the appeal.

    Allowing the appeals in part, the Court
                                                                  F
     HELD: 1.1. There cannot be any doubt that delay in
the lodging of the FIR often results in embellishment as
well as the introduction of a distorted version of what
may have actually happened, but the facts of each case
have to be examined to find out whether the delay in              G
lodging the FIR is fatal to the prosecution case. In the
instant case, from the evidence of PW-3 it is evident that
the terrorists were active in the State of Punjab and the
police was taking action against the terrorists and in
such a state of affairs, PW-3 was apprehensive of the             H
    550     SUPREME COURT REPORTS              [2013] 9 S.C.R.


A consequences of lodging an FIR against appellants, one
  of whom was a Deputy Superintendent of Police in
  control of several police stations and the other was a
  police constable. Therefore, after seven members of his
  family were picked up on 29.10.1991, PW-3 waited with
B the hope that they would be released by the police and
  only after all his efforts to get them released failed, he
  lodged the complaint on 19.01.1992. The fact that the
  complainant addressed the complaint not to the police
  station but to the Director General of Police is enough
c evidence that PW-3 was afraid of lodging the complaint
  to the local police station which was under the control
  of appellant no. 1. Considering the fact situation, the
  delay of 2 months and 21 days on the part of PW-3 to
  lodge the complaint to the Director General of Police,
  Punjab, had been explained by PW-3 and this is not a
D case where the prosecution case could be disbelieved
  on the ground of delay in lodging the FIR. [Para 16-17]
  [562-F-H; 563-A-B, G-H]

          Gauri Shanker Sharma. vs. State of U.P. 1990 SCR 29   =
E 1990 (Supp) sec 656 - relied on.

       1.2. As regards the delay in recording s.161 statements
  of witnesses, it is evident from the evidence of PW-3 and
  PW-4 that on the stated date and time, the appellants came
F in 3-4 vehicles and took the seven members of their family
  in the Gypsy. Further, in the very first complaint lodged by
  PW-3 on 19.01.1992, he has named the appellants as the
  persons who raided their house and picked up seven
  members of his family. Therefore, the delay of two years
G from the date of lodging the FIR in recording of statements
  of PW-3 and PW-4 and other witnesses does not make their
  evidence that the appellants picked up seven members of
  their family on the stated date and time, doubtful. [Para 18]
  [564-A-B, E-G]

H
        BALDEV SINGH v. STATE OF PUNJAB                  551


    Jagjit Singh alias Jagga vs. State of Punjab 2005 (1)       A
SCR 559 =2005 (3) SCC 689; State of Andhra Pradesh vs.
S. Swamalatha & Ors. 2009 (12) SCR 289 = 2009 (8) SCC
383 - held inapplicable.

     1.3. Where there is previous enmity between the
                                                                B
witness and the accused, the evidence of the witness
has to be carefully scrutinized by the court before it is
accepted, but only on account of such enmity the court
cannot discard the evidence of the witness altogether.
Moreover, witnesses who are not related to a victim of an
offence are in some situations difficult to find. The           c
appellants had gone to the house of the complainant
(PW-3) early in the morning at 5.00 am on 29.10.1991 and
picked up seven members of his family and it is difficult
to find persons witnessing the incident at the stated time.
Moreover, one of the appellants was a Deputy                    D
Superintendent of Police and, therefore, no one would
prefer to narrate the incident either before the
Investigating Officer or before the court. In such a
situation, the court has to consider carefully and
cautiously the evidence of witnesses who may have had           E
enmity with the accused. On such careful and cautious
consideration, it is difficult to discard the evidence of PW-
3 when it is corroborated by the evidence of PW-4 as well
as the complaint dated 19.01.1992 (Ext. PB) of PW-3
which had been registered as the FIR. Therefore, the            F
evidence of PW-3 and PW-4 cannot be rejected on the
ground of enmity. [Para 20] [566-B-G]

   State of U. P. vs. Kishanpal and Others 2008 (11)
SCR 1048 = 2008 (16) sec 73 - relied on.
                                                                G
    1.4. With regard to the plea of improvements in the
deposition of PW-3 over his statements recorded u/s. 161
Cr.P.C, in view of Explanation to s. 162 Cr.P.C, unless the
omission in the statement recorded u/s. 161, Cr.P.C. of a
witness is significant and relevant having regard to the        H
     552    SUPREME COURT REPORTS               [2013] 9 S.C.R.


 A context in which the omission occurs, it will not amount
   to a contradiction to the evidence of the witness recorded
   in court. There is no omission in the evidence of PW-3
   with regard to the facts about the picking up of sever.
   members of his family from his house on the stated date
~, and time and the names of the victims in his statement
   u/s. 161 Cr.P.C. The trial court and the High Court had
   rightly considered the omissions with regard to the
   nature, number and colour of the vehicles and the
   number of men who had come as well as what happened
 C after the incident as not material omissions amounting to
   contradictions covered by the Explanation to 162, Cr.P.C.
   Therefore, the High Court rightly maintained the
   conviction of the appellants u/ss. 364 and 452 IPC. [Para
   21] [566-H; 567-A, B-C, E-H]
 D      2.1. From the evidence of PW-3 to PW-6, it is evident
   that the victims abducted by the appellants were
   subsequently seen in different police stations and also
   in residential quarters near the police station. No material
   has been placed before the court to establish that the last
 E police station in which the seven persons or any of them
   was kept was under the control of the appellants. In
   absence of such evidence, the finding of guilt recorded
   by courts below u/s. 302 IPC against the appellants, was
   not correct either on facts or on law. [Para 27] [571-D, E-
 F F; 572-B-C]
        2.2. Therefore, the conviction of the two appellants
   u/s. 302 read with s. 120-B, IPC is set aside, but their
   conviction u/ss. 364 and 452, IPC is maintained. The
   sentence of three years rigorous imprisonment and a fine
 G of Rs.3000/- for the offence punishable u/s. 452, IPC is
   maintained. But so far as the sentence and fine u/s. 364,
   IPC is concerned, in view of Illustration (h) to s. 220(1) of
  ·the Cr.P.C., as seven persons had been abducted by the
   appellants, they were guilty of seven offences u/s. 364,
 H IPC, and they should be punished for each of these
       BALDEV SINGH v. STATE OF PUNJAB                   553

offences. Therefore, it is directed that the fine of Rs.4000/   A
- as imposed by the trial court and the period of rigorous
imprisonment of five years, will be for each of the seven
offences of abduction; and the five years rigorous
imprisonment for each of the seven offences of abduction
will run consecutively and not concurrently. [Para 28]          8
[572-C-G]

     Meharaj Singh (UNk.) vs. State of U.P. 1994 (5) SCC
188; Vishnu Davare vs. State of Maharashtra 2004 (9) SCC
431; Radha Kumar vs. State of Bihar (Jharkhand) 2005 (10)
SCC 216; Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. Vs. C
                                           =
State of Maharashtra 2010 (15) SCR 452 2010 (13) SCC
657; Sahadevan and Another vs. State of Tamil Nadu 2012
(4) SCR 366 = 2012 (6) SCC 403; L/C of India vs. Anuradha
                   =
2004 (3) SCR 629 2004 (10) SCC 131; Prithipal Singh &
Ors. vs. State of Punjab & Anr. 2012(14) SCR 862 = 2012 (1) D
SCC 10; Gu/am Chaudhary & Ors. Vs. State of Bihar 2001
                     =
(3) Suppl. SCR 279 2001 (8) SCC 311; Badshah and Ors.
                                                  =
Vs. State of Uttar Pradesh 2008 (2) SCR 766 2008 (3)
sec 681 - cited.
                                                            E
                      Case Law Reference:
  1990 SCR 29                  relied on          para
  2005 (1) SCR 559             held inapplicable para 7
  2009 (12) SCR 289            held inapplicable para 7         F
  2008 (11) SCR 1048           relied on          para 7
  1994 (5) sec 188             cited              para 7
  2004 (9) sec 431             cited              para 7
  2005 (1 o) sec 216           cited              para 7        G
  2010 (15) SCR 452            cited              para 7
  2012 (4) SCR 366             cited              para 10
  2004 (3) SCR 629             cited              para 11
                                                                H
    554      SUPREME COURT REPORTS               [2013] 9 S.C.R.


A     2012(14) SCR 862             cited               para 12
      2001 (3) Suppl. SCR 279 cited                    para 15
      2008 (2) SCR 766             cited               para 15

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
B   No 1303 of 2005.

        From the Judgment & Order dated 06.04.2005 of the High
    Court of Punjab & Haryana at Chandigarh in Criminal Appeal
    No. 221-DB of 1998.
c                                 WITH
    Crl. A. No. 1380 of 2005

         Amarender Saran, Kawaljit Kochar, Kusum Chaudhary for
    the Appellant.
D
         V. Madhukar, AAG, Paritosh Anil, Anivta Cowshish,
    Srajita Mathur, Kuldip Singh for the Respondent.

          The Judgment of the Court was delivered by

E       A.K. PATNAIK, J. 1. These are appeals by way of special
    leave under Article 136 of the Constitution against the common
    judgment dated 06.04.2005 of the High Court of Punjab and
    Haryana in Criminal Appeal No.221-DB of 1998.

F   Facts of the case:

       2. The facts very briefly are that lnder Singh sent an
  application dated 19.01.1992 by registered post with A.O. to
  the Director General of Police, Punjab, for releasing seven
  members of his family. In the application, lnder Singh alleged
G that on 29.10.1991 at 5.00 a.m. Baldev Singh, Deputy
  Superintendent of Police, and Balwinder Singh, Police
  Constable (the appellants herein) and other police men raided
  their house and picked up seven members of his family. They
  are Sadhu Singh (his father), Hardev Singh (his son), Gurdip
H
                                                                        ......
        BALDEV SINGH v. STATE OF PUNJAB                     555
                [A.K. PATNAIK, J.]
Singh and Amanjit Singh (his brothers), Sharanjit Singh (son        A
of his younger brother Sajjan Singh) and Davinder Singh and
Sukhdev Singh (two sons of his younger brother Khazan Singh).
lnder Singh further stated in the aforesaid application that he
has seen his family members, who were picked up, in
Fatehgarh Churian, Police Station Kalanaur, Dera Baba Nanak         B
and Police Station Kathu Nangal and on 08.01.1992, his son
Sarwan Singh has seen these persons in the police vehicle in
Amritsar. In the application, lnder Singh stated that he had fear
that the appellant-Baldev Singh may kill his family members or
may implicate in some case and he requested that they be            c
released from illegal detention of the police at the earliest. By
Memo dated 21.03.1994, the Inspector General of Police,
Crime Branch directed the Senior Superintendent of Police,
Majitha, to get the case registered and accordingly a formal
FIR was registered under Section 364 of the Indian Penal Code
                                                                    0
(for short 'IPC') on 23.03.1994 in Police Station, Kathunangal,
District Majitha. After investigation, charges were framed
against nine accused persons including the appellants and as
per the amended charges, nine accused persons were tried
for offences under Sections 120-B, 148, 452, 364, 365, 302
read with Section 120-B and 201, IPC.
                                                                    E

     3. At the trial, fourteen prosecution witnesses were
examined. lnder Singh was examined as PW-3 and he stated
that on 29.10.1991 the two appellants accompanied by twenty
to twenty five persons came in vehicles to the house and took       F
away the seven members of his family. PW-3 has further
deposed that he and his other relatives had approached the
higher authorities but all his efforts to get the seven persons
released did not yield any result. The evidence of PW-3 was
corroborated by his brother Sajjan Singh who was examined           G
as PW-4 as well as Jarnail Singh, a relation of PW-3, who was
examined as PW-5. Sarwan Singh, the son of PW-3, was also
examined as PW-6 and he stated that on 08.01.1992 he
happened to be present at the shop near the bus stand at
Amritsar when he noticed a Police Gypsy going on the road           H
    556      SUPREME COURT REPORTS                  [2013] 9 S.C.R.


A and saw that his brother Hardev Singh was sitting in the vehicle
  and even he gave a signal by raising his hand. He also stated
  that there were other persons sitting in the vehicle but he did
  not see them and made an attempt to chase the vehicle but he
  could not do so. The appellants also examined as many as
B eleven witnesses in their defence that they have not taken
  anybody in their custody as alleged by the prosecution.

         4. The trial court rejected the defence of the appellants and
    convicted the appellants under Sections 452, 364, and 302
    read with Section 120-8, IPC, by its judgment dated
C   30.03.1998. The trial court thereafter heard the appellants on
    the question of sentence and sentenced the appellants to three
    years rigorous imprisonment and a fine of Rs.3,000/- for the
    offence of house trespass for wrongful restraint under Section
    452, IPC, five years rigorous imprisonment and a fine of
D   Rs.4,000/- for the offence of abduction of Sadhu Singh, Gurdip
    Singh, Hardev Singh, Amanjit Singh, Sharanjit Singh, Davinder
    Singh and Sukhdev Singh in order to murder under Section
    364, IPC and rigorous imprisonment for life and a fine of
    Rs.50,000/- for the offence of murder of Sadhu Singh, Gurdip
E   Singh, Hardev Singh, Amanjit Singh, Sharanjit Singh, Davinder
    Singh and Sukhdev Singh under Section 302 read with Section
    120-8, IPC. Aggrieved, the appellants filed Criminal Appeal
    No.221-DB of 1998 before the High Court and by the impugned
    judgment dated 06.04.2005, the High Court dismissed the
F   appeal.

    Contentions on behalf of the Appellants:

       5. Mr. Amarendra Sharan, learned senior counsel
  appearing for the appellants, submitted that while the incident
G was alleged to have taken place on 29.10.1991, the FIR was
  registered on 19.01.1992 and there was, thus, a delay of two
  months and twenty one days in lodging the FIR. He submitted
  that this delay is sought to be explained by the prosecution by
  saying that the complainant approached the S~nior
H Superintendent of Police and the Director General of Police
       BALDEV SINGH v. STATE OF PUNJAB                     557
               [A.K. PATNAIK, J.]
and thereafter the Courts and even a writ petition before this    A
Court and only thereafter the complaint was registered as an
FIR. Mr. Sharan submitted that PW-3 belonged to a family of
prosperous farmers and his son PW-6 was serving in the police
and his fri~nd PW-5 was also a member of Punjab State
Congress Committee and had easy access to the Chief               8
Minister of the State and, therefore, the explanation given by
the prosecution for the delay of two months and twenty one days
in lodging the FIR cannot be accepted by the Court. He cited
the decision in Meharaj Singh (UNk.) v. State of UP. [(1994)
5 SCC 188] in which this Court has held that delay in lodging
the FIR often results in embellishment as well as introduction    C
of a coloured version or exaggerated story and the FIR loses
its value and authenticity.

     6. Mr. Sharan next submitted that there was enough
evidence to show that there was enmity between the                D
complainant and the appellants. In this regard, he referred to
the evidence of PW-3, the complainant himself, that the brother
of the appellant-Baldev Singh was earlier kidnapped by the
terrorists on 18.10.1991 and the appellant-Baldev Singh was
under the impression that Gurdip Singh (brother of PW-3) was      E
responsible for getting Kuldip Singh kidnapped and earlier
Kundan Singh, who was a co-accused with the appellants but
acquitted by the trial court, had asked the family of PW-3 to
accept some girl for marriage with the son of PW-3 Hardev
Singh, but Hardev Singh rejected the proposal. He submitted       F
that as there was enmity between the family of PW-3 and the
appellants, PW-3 has lodged the false complaint against the
appellants.

      7. Mr. Sharan next submitted that the evidence of PW-3
and PW-4 on which the trial court and the High Court relied on    G
for holding the appellants guilty, is not reliable because the
statements were recorded under Section 161, Cr.P.C., for the
first time in July, 1994 more than two years after the incident
and this fact has been admitted by the Investigating Officer
                                                                  H
    558    SUPREME COURT REPORTS                [2013) 9 S.C.R.


A (PW-10), who recorded the statements. He cited the decisions
  of this Court in Jagjit Singh alias Jagga v. State of Punjab
  [(2005) 3 SCC 689) and State of Andhra Pradesh v. S.
  Swarnalatha & Ors. [(2009) 8 SCC 383) for the proposition that
  the delay in examination of a witness in the course of
B investigation if not properly explained creates a serious doubt
  about the reliability of the evidence of the witness.

      8. Mr. Sharan referred to several improvements in the
  deposition of PW-3 over his statements recorded during
  investigation under Section 161, Cr.P.C. He cited Ashok
C Vishnu Davare v. State of Maharashtra [(2004) 9 SCC 431],
  Radha Kumar v. State of Bihar (now Jharkhand) [(2005) 10
  SCC 216) and Sunil Kumar Sambhudayal Gupta (Dr.) & Ors.
  v. State of Maharashtra [(2010) 13 SCC 657), in which this
  Court has not believed the evidence of prosecution witnesses
D on account of improvements in the deposition of the witnesses
  made over their statements recorded under Section 161,
  Cr.P.C.

       9. Mr. Sharan submitted that police personnel, namely,
E SSP Sita Ram and SSP Hardeep Singh Dhillon, whose names
  find place in the evidence of PW-3, PW-4 and PW-5, were
  material witnesses and yet have not been examined by the
  prosecution. He submitted that similarly, Sukhbans Kaur
  Bhinder, Member of Parliament, and Beant Singh, Chief
F Minister of the State, whose names also find place in the
  evidence of PW-3, were material witnesses, but have not been
  examined. He submitted that their evidence would have thrown
  sufficient light on the prosecution case and the Court should
  draw adverse inference against the prosecution for non-
  examination of these material witnesses.
G
        10. Mr. Sharan submitted that there is no evidence
  whatsoever on record to show that the seven persons alleged
  to have been abducted by the police have been killed by the
  appellants. He cited the decision of this Court in State of
H Karnataka v. M. V. Mahesh [(2003) 3 SCC 353) in which it has
        BALDEV SINGH v. STATE OF PUNJAB                     559
                [A.K. PATNAIK, J.]
been held that in the absence of definite evidence to indicate     A
that Beena had been done to death, the accused could not
have been convicted merely on the circumstance that the
accused and Beena were last seen together. He submitted
that in this case, PW-3, PW-4 and PW-5 have stated that they
had seen the seven persons in Fatehgarh Churian Police             B
Station and Kalanaur Police Station and PW-6 has further
stated that he saw and identified his brother Hardev in a Police
Van on 08.01.1992 at Amritsar. Mr. Sharan submitted that on
these facts, therefore, Section 106 of the Indian Evidence Act
was not attracted and the burden was not on the appellants to      c
prove that they had not killed the seven persons who were
abducted by them. He cited Sahadevan and Another v. State
of Tamil Nadu [(2012) 6 SCC 403] in which this Court has held
that the last seen theory should be applied while taking into
consideration the prosecution case in its entirety and keeping     0
in mind the circumstances that precede and follow the point of
being so last seen. He submitted that if the aforesaid principle
as laid down by this Court in Sahadevan and Another v. State
of Tamil Nadu (supra) is applied then the appellants could not
be held guilty of the offence of murder of the seven persons.
                                                                   E
      11. Mr. Sharan next submitted that there is no evidence
whatsoever before the court that the seven persons are dead
and are not alive and the trial court has erroneously drawn the
presumption that the seven persons are dead by applying
Section 108 of the Indian Evidence Act. He cited the judgment      F
of this Court in UC of India v. Anuradha [(2004) 10 SCC 131
in which the principle behind Section 108 of the Indian
Evidence Act is explained. He submitted that in any case, if
there was any evidence against the appellants for the offence
of murder of the seven persons under Section 302, IPC, the         G
same should have been put to the appellants by the Court under
Section 313, Cr.P.C., but this has not been done in this case.
He vehemently argued that the conviction of the appellants for
the offence of murder of seven persons under Section 302, IPC
is without any evidence whatsoever.                                H
    560     SUPREME COURT REPORTS                   [2013] 9 S.C.R.


A   Contentions on behalf of the State:

         12. Mr. V. Madhukar, learned counsel appearing for the
    State of Punjab, in his reply, submitted that in this case though
    the complaint was filed by PW-3 on 19.01.1992 nothing was
B   done for quite sometime and, therefore, PW-3 approached this
    Court in a habeas corpus petition to secure the release of the
    seven members of his family and on 15.09.1994 this Court
    passed an order directing that an inquiry should be conducted
    by the Central Bureau of Investigation. He submitted that
    pursuant to the said order of this Court, the Director of the
C   Central Bureau of Investigation submitted his report dated
    15.12.1994 and thereafter the investigation was carried out by
    the Crime Branch of the Punjab Police and the charge-sheet
    was filed against the two appellants and others. He submitted
    that the delay in lodging the FIR in this case on the part of PW-
D   3 must be on acc;ount of the fact that the complaint was against
    the police personnel themselves and PW-3 must be
    contemplating whether or not to lodge such a complaint. He
    submitted that this was, therefore, an extra-ordinary case and
    this Court has held in Prithipal Singh & Ors. v. State of Punjab
E   & Anr. [(2012) 1 sec 1OJ that in such an extra-ordinary
    situation, the Court has to bear in mind the peculiar facts and
    innovate the law accordingly. He submitted that in the extra-
    ordinary facts in which PW-3, had to lodge the FIR, the delay
    in lodging the FIR should be ignored by the Court.
F
       13. Mr. Madhukar next submitted that the evidence of PW-
  3, PW-4 and PW-5 on material aspects of the case are that
  the appellants took into custody seven persons, who were
  members of the family of PW-3, on 29.10.1991 and this was
G the case of PW-3 in the complaint filed by him on 19.01.1992
  as well as in his statement recorded under Section 161,
  Cr.P.C., in the course of the investigation. The omissions in the
  statements recorded under Section 161, Cr.P.C., which have
  been supplied during the evidence of the witnesses in Court,
H do not detract from this basic prosecution story and, therefore,
        BALDEV SINGH v. STATE OF PUNJAB                     561
                [A.K. PATNAIK, J.]
are not "contradictions" covered by the Explanation under          A
Section 162, Cr.P.C. He further submitted that the delay in
recording the statements under .Section 161, Cr.P.C. in this
extra-ordinary case should not be held fatal to the prosecution
case as the main prosecution story that the appellants abducted
seven members of the family of PW-3 has been consistently          B
reiterated all throughout, from the date of the complaint made
on 19.01.1992 to the dates of the examination of witnesses by
the Court. He submitted that the motive of the appellants to
abduct the seven members of the family of PW-3 obviously was
revenge as will be clear from the evidence of PW-3 and thus        c
the trial court and the High Court rightly believed the evidence
of PW-3, PW-4 and PW-5.

     14. Mr. Madhukar submitted that seven other police
personnel who went along with the appellants to abduct the
seven members of the family of PW-3 were not examined as           D
prosecution witnesses as they were also accused persons and
these seven persons, namely Kundan Singh, Sukhwinder
Singh, Balwinder Singh, Gurmukh Singh, Amrik Singh, Nirmal
Singh and Randhir Singh, have been acquitted by the trial court.
He submitted that the only evidence which has come on record       E
regarding Sita Ram, SSP, Batala, is that a message was
received from him that seven persons will be collected from the
office of Sita Ram, SSP. He submitted that if Sita Ram, SSP,
would have been examined he would ha' 1e only denied that he
had given such message and hence non-examination of Sita           F
Ram, SSP, as a witness in court should not be held against
the prosecution.

     15. Mr. Madhukar vehemently submitted that the appellant-
Baldev Singh was a DSP in the Police Department and had            G
control over all the Police Stations under him and if this fact
along with the fact that the appellant-Baldev Singh abducted the
seven members of the family of PW-3 are taken into
consideration, then the burden of proving as to what happened
to the seven persons abducted by him was on him under
                                                                   H
    562     SUPREME COURT REPORTS                    [2013) 9 S.C.R.


A   Section 106 of the Indian Evidence Act. He submitted that as
    the appellants have not discharged this burden of proving facts
    especially within their knowledge, the trial court and the High
    Court rightly held that the seven abducted persons have been
    murdered by the appellants. In support of this argument, he cited
B   the decisions of this Court in Ram Gu/am Chaudhary & Ors.
    v. State of Bihar [(2001) 8 SCC 311) and Badshah & Ors. v.
    State of Uttar Pradesh [(2008) 3 SCC 681). He submitted that
    in these two cases it was held that even though the dead-body
    of a person alleged to have been murdered was not
c   discovered, conviction for murder under Section 302, IPC, can
    still be recorded if there exists strong circumstantial evidence
    and if the accused is unable to offer any explanation regarding
    facts especially within his knowledge as provided under
    Section 106 of the Indian Evidence Act. He submitted that this
    is, therefore, not a fit case where this Court should interfere with
0
    the concurrent findings of fact recorded by the trial court and
    the High Court against the appellants and should dismiss the
    appeal.

    Findings of the Court:
E
         16. The first question that we have to decide is whether
    the delay of 2 months and 21 days in lodging the FIR could
    make the prosecution case one which is not believable. There
    cannot be any doubt that delay in the lodging of the FIR often
F results in embellishment as well as the introduction of a
  . distorted version of what may have actually happened, but the
    facts of each case have to be examined to find out whether the
    delay in lodging the FIR is fatal for the prosecution case. In the
    present case, we find from the evidence of PW-3 that the
G terrorists were active in the State of Punjab and the police was
    taking action against the terrorists and in such a state of affairs,
    PW-3 was apprehensive of the consequences of lodging an
    FIR against appellants, one of whom was a Deputy
   ,Superintendent of Police in control of several police stations
    and the other was a police constable. Hence, after seven
H
        BALDEV SINGH v. STATE OF PUNJAB                      563
                [A.K. PATNAIK, J.]
members of his family were picked up on 29.10.1991, PW-3            A
waited for 2 months and 21 days with the hope that they would
be released by the police and only after all his efforts to get
them released failed, he lodged the complaint on 19.01.1992
(Ex.PB). The fact that the complainant addressed the complaint
(Ex. PB) not to the police station but to the Director General of   B
Poiice, Punjab, is enough evidence of the fact that PW-3 was
afraid of lodging the complaint to the local police station which
was under the control of the appellant Baldev Singh.

     17. To illustrate this point, we may refer to Gauri Shanker    C
Sharma vs. State of U.P. [1990 (Supp) SCC 656]. In this case,
the facts were that Ram Dhiraj died of injuries received by him
after his arrest while he was in police custody. The prosecution
version was that he was beaten in police custody on 19.10.1971
by accused no.1 and his two companions after he was arrested
from his residence and brought to the police station. Even          D
though the High Court came to the conclusion that the deceased
was beaten after his arrest, the High Court refused to place
reliance on the direct testimony of three witnesses insofar as
involvement of the Station House Officer of Police Station was
concerned and one of the grounds for rejecting the evidence         E
of the three prosecution witnesses was that the telegram was
sent by PW-5 who had requested the Station House Officer not
to beat the deceased on 23.10.1971, where as the prosecution
case was that the injuries on the person of the deceased were
caused on the evening of 19.10.1971. This Court held that the       F
High Court has failed to appreciate that everyone thinks twice
before deciding to make so serious a complaint against a
police officer and there was no serious delay as to throw out
the evidence of the three witnesses on the ground of delay. In
our view, considering the fact situation, the delay of 2 months     G
and 21 days on the part of PW-3 to lodge the complaint to the
Director General of Police, Punjab, had been explained by PW-
3 and this is not a case where the prosecution case could be
disbelieved on the ground of delay in lodging the FIR.
                                                                    H
      564      SUPREME COURT REPORTS                  [2013] 9 S.C.R.


 A          18. We may next consider the contention of Mr. Sharan that
      the trial court and the High Court should not have relied on the
      evidence of witnesses when their statements under Section
      161, Cr.P.C. were recorded for the first time in July, 1994,
      almost more than two years after the incident and lodging of
. B   the FIR. In Jagjit Singh alias Jagga v. State of Punjab (supra)
      cited by Mr. Sharan, the relevant facts were that PW-6, who was
      a young girl of 7 years age and resided in a different village
      than that of Jagjit Singh did not say in her earlier statements
      that she knew him, but in her statement recorded by the
 c    Investigating Officer under Section 161, Cr.P.C. she claimed
      to have known him and on these facts this Court held that in
      her earlier statements she did not name him and the delay in
      examining her in course of investigation also creates a serious
      doubt in the absence of any explanation for her late examination
 0    after 3 days and further held that though she may have
      witnessed the occurrence, she did not know Jagjit Singh and
      she had no opportunity of knowing or seeing him earlier and
      she has involved him at the instance of her father when her
      statement was recorded by the Investigating Officer. In the facts
      of the present case, on the other hand, PW-3 and PW-4, who
 E    have stated in their evidence before the court that on
      29.10.1991 the appellants Baldev Singh and Balvinder Singh
      came in 3-4 vehicles and took the seven members of their
      family in the Gypsy and knew the two appellants who lived in
      village Ram Diwali which was at a small distance from the
 F    village of PW-3 and PW-4. Further, in the very first complaint
       lodged by PW-3 on 19.01.1992, PW-3 has named the
      appellants Baldev Singh and Balvinder Singh as the persons
      who raided their house and picked up seven members of his
      family. Hence, the fact that there was considerable delay of two
 G    years from the date of lodging the FIR and recording of
      statements of PW-3 and PW-4 and other witnesses does not
       make their evidence, that the appellants picked up seven
      members of their family on 29.10.1991 at 5.00 a.m., doubtful.

 H          19. In State of Andhra Pradesh v. S. Swamalatha & Ors.
       BALDEV SINGH v. STATE OF PUNJAB                    565
               [A.K. PATNAIK, J.]
(supra) also cited by Mr. Sharan, the prosecution relied on the A
evidence of PW-3, a taxi driver, who claimed to have taken the
accused persons to the house where the two persons died
homicidal death and he also said that the accused persons
entered into the house and asked him to stay on at that place
and after half an hour all of them came out of the house and B
asked him to drop them at Ring Road, Dilsukhnagar. This
Court found that PW-3 in his statement under Section 161,
Cr.P.C. had mentioned the names of only two accused persons,
but in his deposition before the Court, he took the names of
six accused persons and further PW-3 was not taken by the C
Investigating Officer to the house in question to identify the
house where the incident has taken place. On these facts, this
Court held that the statement of PW-3 which was recorded by
the Investigating Officer only on 31.01.1999 when the murder
of the deceased had taken place on 03.12.1997 was not
reliable, particularly when his statement was also recorded D
under Section 164, Cr.P.C. before the recording of his
statement under Section 161, Cr.P.C. Thus, considering the
peculiar facts of this case, the delay in recording the statement
of witnesses by the Investigating Officer under Section 161,
Cr.P.C. was held against the prosecution by this Court. In the E
facts of the present case, the investigation was against the
Deputy Superintendent of Police and several other police
persons and the investigation was being conducted by the
Investigating Officer of the Crime Branch of the State Police.
There was, therefore, resistance within the police against the F
investigation and it was only on account of intervention of this
Court in Writ Petition (Criminal) No. 221 of 1994 that there was
progress in the investigation and the statements of witnesses
came to be recorded by the Investigating Officer. This being
explanation for the delay in examining the witnesses under G
Section 161 Cr.P.C., we are not inclined to accept the
statement on behalf of the appellants that the prosecution
witnesses should not be relied on because of delay in recording
the statements under Section 161, Cr.P.C.
                                                                  H
    566     SUPREME COURT REPORTS                    [2013) 9 S.C.R.


A         20. We are also unable to accept the submission of Mr.
    Sharan that the evidence of PW-3 and PW-4 ought not to be
    relied on by the trial court and the High Court when there was
    evidence to show that there was enmity between PW-3 and
    PW-4 on the one hand and the appellants on the other hand.
B   Where there is previous enmity between the witness and the
    accused, the evidence of the witness has to be carefully
    scrutinized by the Court before it is accepted, but only on
    account of such enmity the Court cannot discard the evidence
    of the witness altogether [See State of U.P. vs. Kishanpa/ and
C   Others (2008) 16 SCC 73). Moreover, witnesses who are not
    related to a victim of an offence are in some situations difficult
    to find. This is one such situation where the appellants have
    come to the house of the complainant (PW-3) early in the
    morning at 5.00 am on 29.10.1991 and picked up seven
    members of his family and it is difficult to find persons
0
    witnessing this incident at 5.00 a.m. during the last part of
    October. Moreover, one of the appellants was a Deputy
    Superintendent of Police and therefore even if some one had
    witnessed the incident, he would prefer not to narrate the
    incident either before the Investigating _Officer or before the
E   Court. In such a situation, the Court has to consider carefully
    and cautiously the evidence of witnesses who may have had
    enmity with the accused. On such careful and cautious
    consideration, it is difficult to discard the evidence of PW-3 that
    the appellants picked up seven members of his family on
F   29.10.1991 at 5.00 a.m. from his house particularly when it is
    corroborated by the evidence of PW-4 as well as the complaint
    dated 19.01.1992 (Ext. PB) of PW-3 which had been
    registered as the FIR. In our considered opinion, therefore, the
    trial court and the High Court could not have rejected the
G   evidence of PW-3 and PW-4 on the ground of enmity between
    PW-3 and PW-4 on the one hand and the appellants on the
    other hand.

       21. We may now consider the submission of Mr. Sharan
H that there were improvements in the deposition of PW-3 over
        BALDEV SINGH v. STATE OF PUNJAB                     567
                [AK. PATNAIK, J.]

his statements recorded during the investigation under Section      A
161 Cr.P.C. The Explanation under Section 162, Cr.P.C.
provides that an omission to state a fact or circumstance in the
statement recorded by a police officer under Section 161,
Cr.P.C. may amount to contradiction if the same appears to
be significant and otherwise relevant having regard to the          B
context in which such omission occurs and whether any
omission amounts to a contradiction in the particular context
shall be a question of fact. Thus, unless the omission in the
statement recorded under Section 161, Cr.P.C. of a witness
is significant and relevant having regard to the context in which   c
the omission occurs, it will not amount to a contradiction to the
evidence of the witness recorded in court. The evidence of PW-
3 is that on 29.10.1991, the appellant Baldev Singh
accompanied by the appellant Balwinder Singh accompanied
by twenty to twenty five persons came in three to four vehicles     0
to his house and Sadhu Singh (his father), Hardev Singh (his
son), Gurdip Singh (his brother), Amanjit Singh (his son),
Sharanjit Singh (son of his brother, Salian Singh), Davinder
Singh and Sukhdev Singh (sons of his brother Khazan Singh)
in all seven persons were made to sit in the Gypsy and the
                                                                    E
appellants took these seven persons with them. There is no
omission with regard to these facts about the picking up of
seven members of his family from his house on 29.10.1991 and
the names of these seven members of his family in the
statement of PW-3 recorded under Section 161 Cr.P.C. The
omissions in the statement of PW-3 recorded under Section           F
161 Cr.P.C. are with regard to the nature, number and colour
of the vehicles and the number of men who had come as well
as what happened after the afores41id incident on 29.10.1991.
In our view, the trial court and the High Court had rightly
considered these omissions as not material omissions                G
amounting to contradictions covered by the Explanation under
Section 162, Cr.P.C. In our view, therefore, the High Court
rightly maintained the conviction of the appellants under
Sections 364 and 452 IPC.
                                                                    H
    568      SUPREME COURT REPORTS                 [2013] 9 S.C.R.


A        22. We may now come to the submission of Mr. Sharan
    that there is no evidence whatsoever on record to show that
    the seven persons alleged to have been abducted by the
    appellants have been killed by the appellants.

B         23. We find that PW-3 has stated in his evidence:

          "All our men who kidnapped, were found present in PS
          Fatehgarh Churian and they were kept there for 10 days.
          We kept on meeting them during this period. Their
          condition was very bad. We used to go to them to supply
c         food and articles and clothing to meet their needs. Then
          these persons were shifted from Fatehgarh Churian to
          Kalanaur. I and my relatives Jarnail Singh, Kuldip Singh,
          Sallan Singh used to go to meet our men in the said police
          station also. We found that all these persons had been
D         given severe beatings and out of them Gurdip Singh my
          brother and Amanjit Singh, his son, had received more
          serious injuries as compared to others. The conditions of
          these persons were very bad. After keeping our men at
          PS Kalanaur for ten days, then they were kept in PS
E         Fatehgarh Churian. Subsequently, 3 persons were taken
          to PS Dera Baba Nanak and 4 were taken to PS
          Kahnuwal. Sadhu Singh, Gurdip Singh and Amanjit Singh
          had been kept in PS Dera Baba Nanak, where as the other
          4 were kept in PS Kahnuwal. We continued meeting them
F         from time to time in these police stations also. On
          08.12.1991 4 persons, namely, Hardev Singh, Davinder
          Singh, Sukhdev Singh and Sharanjit Singh were shifted to
          PS Sadiq Faridkot from Kahnuwal Police Station."

          "I mentioned that we kept on meeting our men during the
G         period of 10 days when they were detained in Police
          Station Fatehgarh Churian and also that their condition
          was very bad and we used to go there to supply food and
          articles and clothing to meet their needs."

H         "In my statement in court I had mentioned that we had been
       BALDEV SINGH v. STATE OF PUNJAB                      569
               [A.K. PATNAIK, J.]
    meeting our men at various Police Stations at Kalanaur,        A
    Fatehgarh Churian etc. and we had also been supplying
    food articles to them."

Thus, as per the evidence of PW-3, after the seven members
of his family were abducted, he had met them at different police
                                                                   B
stations and was supplying them food and articles and clothing
to meet their needs.

    24. We also find that PW-4 in his statement has stated:

    "We again approached Baldev Singh accused and he told          c
    us that our men will be sent back after his brother was
    traced. Thereafter, we continued to contact SSP of Batala
    for getting our men released because accused Baldev
    Singh was working as DSP under his control. SSP Sita
    Ram, however, continued postponing the matter promising        0
    that he would get our men released. Our men were kept
    from time to time at Police Station Fatehgarh Churian,
    Kalanaur, again Fatehgarh Churian and then to Kahnuwal
    and Dera Baba Nanak. We had been meeting our men
    from time to time in these Police Stations and we used to      E
    provide our men with food and clothes and other eatables.
    Subsequently 4 persons were sent to PS Sadiq."

    "Our men used to be kept in the residential quarters near
    the Police Station and we used to meet them there. Other
    men from public were not present there on these · F
    occasions. I had mentioned in my police statement that our
    men were taken to Police Station Fatehgarh Churian
    because our men had been subsequently seen by us."

Hence, the evidence of PW-4 also is that the seven persons         G
picked up by the appellants were kept at different places
including Police Stations and residential quarters near the
Police Station and their family members used to provide them
with food and clothes and other articles and used to meet them.

    25. We further find that PW-5 has stated in his evidence:      H
    570      SUPREME COURT REPORTS                 [2013] 9 S.C.R.


A         "I then went to Gurdaspur. Then I learnt that our men were
          kept in Police Station Kahnuwal. I went there and I could
          find only 4 persons present there. The other 3 persons
          namely Sadhu Singh, his son Gurdip Singh and Son of
          Gurdip were not there."
8
          "I had also disclosed that I, lnder Singh, Sajjan Singh and
          wife, brother of Salian Singh has gone to PS Kalanaur and
          had met 7 persons."

          "I had mentioned in my statement before Police about our
c         going to PS Kahnuwal and meeting 4 persons there."

          "I did not meet the SHO of PS Kalanaur as the SHO could
          never permit us to meet our men. Voluntarily explained that
          I had met them in a stealthy manner, when a Head
D         Constable who had earlier remained posted at Quadian,
          had helped us in seeing them. I cannot tell his name. Head
          Constable had taken our 7 men, out of the particular room,
          so that we may meet them. All this, however, happened in
          the premises of the Police Station. We had gone there
          during the day. There were other police officials and guard
E
          there. It is incorrect that I have given false evidence."

          "We had gone to PS Kahnuwal. There was MHC there. I
          told him that I wanted to see my men who were detained
          there in the adjoining room in the Police Station and the
F         said MHC told me that I could meet them hurriedly and go
          away as there was lot of strictness in the quarters."

          Thus, the evidence of PW-5 is also that he had met the
          seven persons after they were abducted by the appellants
G         in different Police Stations where there were other police
          officials and guards.

        26. We also find that PW-6, who was the son of PW-3 and
    working as Police Constable at Amritsar has said in his
    evidence:
H
        BALDEV SINGH v. STATE OF PUNJAB                      571
                [A.K. PATNAIK, J.]

    "On 08.01.1992 I happened to be present near the shops           A
    near Bus Stand. I noticed a police gypsy going on the road.
    I noticed that in the body of that vehicle my brother Hardev
    Singh was sitting. He also gave me a signal with his hand.
    There were other persons also in that vehicle, but I could
    see only my brother. I tried to pursue that vehicle but due      B
    to rush I could not reach the vehicle, and it slipped away.
    On the same day I sent a message to my father that I had
    seen my brother being taken away in a vehicle. Police also
    recorded my statement during investigation."

Hence, PW-6 also had seen his brother sitting in a police gypsy
                                                                     c
at Amritsar.
     27. We, therefore find that the evidence adduced by PW-
3, PW-4, PW-5 and PW-6 is that the seven persons abducted
by the appellants were found in different police stations and also   D
in residential quarters near the police station. On this evidence,
the court cannot hold that the two appellants have killed the
seven abducted persons only because the seven persons have
hot been traced or are found missing. Learned counsel for the
State submitted that the appellant Baldev Singh was in control       E
of all the police stations in his area but no material has been
placed before the court to show which were the police stations
which were under the control of the appellant Baldev Singh. No
material has been placed before the Court to establish that the
last police station in which the seven persons or any of the seven   F
persons were kept was under the control of the appellant
Baldev Singh and the other appellant Balwinder Singh. From
the evidence of PW-3, we find that terrorism was prevailing in
the State of Punjab at the time when the seven persons were
abducted and action was being taken by the police against the
terrorists. When the seven persons abducted by the appellants
did not go missing immediately after their abduction and were
found in different police stations in the State of Punjab and one
of them was also found going in a Gypsy at Amritsar, the Court
cannot hold that the seven abducted persons were last in the
custody of the appellants and hence they must discharge the
    572     SUPREME COURT REPORTS                   [2013] 9 S.C.R.


A burden under Section 106 of the Evidence Act and must explain
  what they did to the seven abducted persons. The prosecution
  should have examined witnesses from amongst the police
  personnel or the Police Station to establish that the seven
  abducted persons were last seen in the custody of the
B appellants. In absence of such evidence, the finding of guilt
  recorded by the trial court and the High Court under Section
  302 IPC against the appellants, in our view, was not correct
  either on facts or on law.
         28. We, therefore, set aside the conviction of the two
C appellants under Section 302 read with Section 120-B, IPC but
   maintain the conviction of the appellants under Sections 364
   and 452, IPC. The trial court has imposed a punishment of three
   years rigorous imprisonment and a fine of Rs.3000/- for the
   offence under Section 452, IPC and five years rigorous
D imprisonment and a fine of Rs.4000/- for the offence under
   Section 364, IPC, and the High Court has maintained the
   aforesaid sentences for the two offences. We maintain the
   sentence and fine under Section 452, IPC. But so far as the
   sentence and fine under Section 364, IPC is concerned, we find
E from illustration (h) under Section 220 of the Cr.P .C. that where
   an accused commits the same offence against three persons,
   then he can be charged with three offences. As seven persons
   had been abducted by the appellants, the appellants were guilty
   of seven offences under Section 364, IPC, and they should be
F punished for each of these offences under Section 364, IPC.
   We, therefore, direct that the fine amount as imposed by the
   trial court will be Rs.4000/- for each of the seven offences of
   abduction and the period of rigorous imprisonment will be five
   years for each of the seven offences of abduction and these
G five years rigorous imprisonment for each of the seven offences
   of abduction will not run concurrently but consecutively. In case,
   the fine amount of Rs.4,000/- is not paid, the appellants will
 ··have to undergo one more year of rigorous imprisonment. The
   appeals are allowed to the extent indicated above.
H R.P.                                     Appeals partly allowed.