Order
1. The appellant before us was charged for offences punishable under Sections 302, 450 read with Section 34 IPC and Section 3 read with Section 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (“TADA”) for having committed the murder of Kapur Singh, Sham Kaur, Karnail Singh and Dhira Singh on the evening of 2-5-1988. The Additional Judge, Designated Court, Bhatinda by his judgment dated 5-5-2000, while acquitting the appellant of the charges framed under TADA, convicted him for the offences punishable under Sections 450, 302 read with Section 34 IPC. Hence this appeal.
2. The prosecution case in brief is that on 2-5-1988 the appellant along with co-accused Kulwant Singh, Hari Singh and Daya Deepak Singh (now reported to be dead), in furtherance of the common intention of committing the murder of the abovesaid deceased persons, went to the house of Kapur Singh with firearms and caused the death of the said four persons.
3. The prosecution, in support of its case, examined PW 3 Gurmail Kaur and PW 4 Gurmail Singh who were said to be eyewitnesses and also relied upon the confessional statement made by the appellant before PW 10 Satish Kumar Sharma, IPS, DIG, marked in the evidence as Ext. PCC/5. The abovesaid two eyewitnesses have not supported the prosecution case, hence, the trial court relied solely upon the confessional statement while acquitting him of the charges under TADA, found the appellant guilty of the offences punishable under Section 302 IPC read with Section 34 IPC and sentenced him as stated above.
4. In this appeal, Ms Jaspreet Gogia, learned counsel for the appellant has contended that the evidence by way of the confessional statement, being the sole material before the trial court, the same cannot be relied on to base a conviction and there being no other evidence the appellant is entitled to be acquitted of the charges levelled against him. At this stage, it is fairly conceded by Ms Geetanjali Mohan, learned counsel appearing for the State of Punjab that this Court, in the case of Bilal Ahmed Kaloo v. State of A.P (1997) 7 SCC 431 on similar fact situation has held:
“5. While dealing with the offences of which the appellant was convicted there is no question of looking into the confessional statement attributed to him, much less relying on it since he was acquitted of all offences under TADA. Any confession made to a police officer is inadmissible in evidence as for these offences and hence it is fairly conceded that the said ban would not wane off in respect of offences under the Penal Code merely because the trial was held by the Designated Court for offences under TADA as well. Hence the case against him would stand or fall depending on the other evidence.”
5. It is clear from the said judgment that the confessional statement recorded during the investigation in a TADA case cannot be used for convicting an accused for offences punishable under the Penal Code, when offences against such accused under TADA have failed.
6. In the instant case, it is an admitted fact that the appellant has been acquitted of the charges framed under TADA and that, apart from the confessional statement referred to hereinabove, there is no other material before the court to support the prosecution case. In that view of the matter, relying upon the judgment referred to hereinabove, this appeal has to be allowed. Accordingly, the present appeal is allowed. The judgment under appeal is set aside. Consequently the conviction and sentence passed by the trial court also has to be set aside.
7. The accused shall be set at liberty forthwith.