Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.993 OF 2012
Amrik Singh ...Appellant
Versus
The State of Punjab ...Respondent
With
CRIMINAL APPEAL NO.992 OF 2012
Subhash Chander …Appellant
Versus
The State of Punjab …Respondent
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 01.04.2011 passed by the High
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2022.07.11
16:56:58 IST
Reason:
Court of Punjab and Haryana at Chandigarh in Criminal
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Appeal No.645 of 2004 and Criminal Appeal No.563 of 2004
by which the Division Bench of the High Court has dismissed
the said appeals preferred by the accused and has confirmed
the conviction and sentence passed by the learned Trial Court
convicting the accused Amrik Singh and Subhash Chander for
the offences punishable under Section 302 read with Section
34 and Section 392 of the IPC, the accused Amrik Singh and
Subhash Chander have preferred the present appeals.
2. That the appellant herein was charged along with one
Subhash Chander and Pritpal Singh for committing robbery
and murdering one Gian Chand (deceased) during the course
of the robbery. As per the prosecution case, the deceased
Gian Chand, one Munshi Ram, father of the deceased along
with the complainant Des Raj (PW1) were proceeding from the
office of Subregistrar District Fazilka and after dropping of
the father of the deceased at the local bus stand, they
proceeded towards their village. It was further alleged that on
route to their village, three persons came on a scooter and
tried stopping them. When the complainant who was driving
the scooter did not stop, coaccused Subhash Chander thrown
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red chilli powder into the eyes of the complainant after which
the scooter stopped and the complainant was temporarily
blinded. That all the three tried to snatch the scooter of the
complainant and in the said scuffle, present appellant –
accused – Amrik Singh shot the deceased Gian Chand in the
chest. The complainant arrived into the fields and upon his
return he saw that the assailants have taken away the scooter
and Gian Chand was lying unconscious with blood oozing out
of his chest. As per the case of the prosecution the motive
was that the father of the deceased had executed a sale deed
in favour of sons of the complainant (PW1) for the purpose of
which they had gone to the office of the Subregistrar. The
consideration for the sale had not been paid and an amount of
Rs.5 lakhs was in the dicky of the scooter, which the
assailants had stolen. That thereafter PW1 proceeded to the
police station. His statement was recorded by PW11 Inspector
Karamjit Singh who proceeded to the scene of occurrence and
found the dead body of Gian Chand lying over there. He
prepared inquest report. He collected the necessary evidence.
PW6 Dr. M.M. Singh conducted post mortem examination on
the dead body of Gian Chand. Post mortem was conducted on
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08.05.2001 at about 6.30 p.m. As per the medical evidence
death could have occurred about 6 hours prior to the
examination. In course of the investigation Subhash Chander
and Amrik Singh – accused were arrested on the basis of the
disclosure statement of the appellant accused – Amrik Singh.
ASI PW7 recovered a sum of Rs.1 lakh alleged to have been
looted out of Rs.5 lakhs which according to the complainant
PW1 was kept in the dicky of the scooter. On the basis of the
disclosure statement of the coaccused Subhash Chander a
further sum of Rs.1 lakh was recovered. After completion of
the investigation, the IO filed the chargesheet. As the case
was exclusively triable by the Court of Sessions, the case was
committed to the Sessions Court. The accused pleaded not
guilty and therefore they came to be tried by the Sessions
Court for the offence punishable under Sections 302/34 and
392 read with Section 397 IPC.
2.1 To bring home the guilt of accused, prosecution
examined as many as 11 witnesses which included PW1 the
original complainant the eye witness Karamjit Singh,
Inspector PW11, Dr. M.M. Singh – PW6 and other police
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officials. After the crossexamination of the prosecution
witnesses the accused were examined and their further
statements under Section 313 Cr.P.C. were recorded. All the
incriminating circumstances appeared against them in the
prosecution evidence were put to them in order to enable
them to explain the same. They denied all such
circumstances and pleaded their innocence. That thereafter
on appreciation of evidence and mainly relying upon the
deposition of PW1 – original complainant who was cited as
eyewitness and on the recovery of Rs.1 lakh from the place
suggested by the accused, the learned Trial Court held the
accused guilty for the offences punishable under Sections
302/34 and 392 IPC and sentenced the accused to undergo
life imprisonment for having committed the murder of
deceased Gian Chand.
2.2 Feeling aggrieved and dissatisfied with the judgment and
order of conviction and sentence by the learned Trial Court
convicting the accused for the offence punishable under
Sections 302/34 and 392 IPC, the accused Amrik Singh and
Subhash Chander preferred the Criminal Appeal No.645DB
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of 2004 and Criminal Appeal No.563 of 2004 before the High
Court. By the impugned judgment and order the High Court
has dismissed the said appeals and has confirmed the order of
conviction and sentence passed by the learned Trial Court.
The judgment and order passed by the High Court is the
subject matter of present appeals.
3. Ms. Roohina Dua, learned counsel appearing on behalf of
the accused has vehemently submitted that in the facts and
circumstances of the case and on the evidence on record both,
the learned Trial Court as well as the High Court have
committed serious error in convicting the accused for the
offence punishable under Section 302 read with Section 34
and Section 392 IPC respectively.
3.1 It is submitted that as such the appellants have been
convicted on the deposition of PW1 – original complainant –
informant and the identification of the accused in the Court
by PW1.
3.2 It is submitted that in the present case admittedly no
Test Identification Parade (hereinafter referred to as ‘TIP’) has
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been conducted to identify the accused. It is submitted that
in the present case as such nonconducting the TIP is fatal to
the case of the prosecution more particularly when PW1 is the
original complainant who did not disclose any description of
the accused before the I.O. and even in the FIR.
3.3 It is submitted that even the conviction of the accused on
the alleged recovery of Rs.1 lakh each is also not sustainable.
It is submitted that even the learned Trial Court has also
disbelieved the case on behalf of the prosecution that the
complainant and the deceased were carrying Rs.5 lakhs in the
dicky of the scooter. It is submitted therefore that the factum
of Rs.5 lakhs being carried in the scooter by the complainant
and the deceased has not been established and proved, the
recovery of Rs.1 lakh each from the accused becomes
insignificant. It is submitted that the prosecution has to
prove by leading cogent evidence that the complainant and the
deceased were carrying Rs.5 lakhs in the dicky of the scooter
as alleged and the amount which is recovered from the
accused is the very amount which the complainant and the
deceased were carrying in the scooter.
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3.4 It is submitted that therefore the accused cannot be
convicted on the basis of the identification of the accused by
PW1 in the Court which is for the first time and on the basis
of the recovery of Rs.1 lakh each from the accused.
3.5 It is submitted that therefore in absence of any cogent
evidence on the identification of the accused and it can be
seen that the prosecution has failed to prove the identification
of the accused beyond doubt, to convict the accused solely on
the basis of the identification of the accused by PW1 for the
first time in the Court is not warranted. It is submitted that
in the facts and circumstances of the case it is not safe to rely
upon the identification of the accused for the first time in the
Court.
Making above submissions, it is prayed to acquit the
accused.
4. Present appeals are vehemently opposed by Ms. Richa
Kapoor, learned counsel appearing for the respondent – State.
4.1 It is vehemently submitted by learned counsel for the
State that in the present case when PW1 – eyewitness has
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identified the accused in the Court Room, nonconducting the
TIP would not vitiate the trial and the case of the prosecution.
4.2 It is submitted that PW1 – complainant is an eye
witness. It is submitted that he has deposed in the Court that
“One of those boys fired a gun shot at Gian Chand which hit
him at his chest on the seat of heart. All the three said young
persons are the accused who are present in Court today.
(Witness has pointed out towards one of the accused as a
person who had fired at Gian Chand and that accused has
disclosed his name as Amrik Singh). The accused who is
standing on one side had put the chili powder in my eyes (the
name of accused pointed out by the witness has been
disclosed as Subhash Chander)”.
4.3 It is vehemently submitted by learned counsel on behalf
of the State that in every case nonconducting the TIP would
not vitiate the trial and/or case of the prosecution. It is
submitted that the TIP is conducted only to make sure by the
Investigating Officer that the investigation is going on in the
right direction as against the real culprit. It is submitted that
it is also conducted to refresh the memory of the witnesses
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who saw the accused. It is submitted that as held by this
Court in a catena of decisions, TIP is not substantive evidence
and in fact the substantive evidence is that of identification in
Court. It is submitted that holding of TIP, if the accused is
not known to the complainant earlier is to ascertain whether
the investigation is being conducted in a proper manner and
with proper direction and is admissible in evidence as
corroborative evidence under Section 9 of the Indian Evidence
Act. It is submitted that however, the absence of test
identification parade may not ipsofacto sufficient to discard
the testimony of witness who has identified the accused in the
Court. It is submitted that even in a given case, the Court if
comes to the conclusion that the testimony of the prosecution
witness specially of an eyewitness is of a sterling quality, and
trustworthy, the testimony of such a witness can be accepted
with regard to identification of the accused in court and
conviction can be sustained without any doubt upon the said
testimony. In support of the above learned counsel appearing
for the State has heavily relied upon the decisions of this
Court in the case of Malkhansingh and Ors. Vs. State of
Madhya Pradesh; (2003) 5 SCC 746 (paras 16 and 17) and
10
Md. Kalam Vs. State of Rajasthan, (2008) 11 SCC 352
(para 7).
4.4 It is submitted that even in the present case there is a
recovery of Rs.1 lakh from the accused and from the place
disclosed by the accused. It is submitted that as such the
accused have failed to explain and/or failed to account the
recovery of Rs.1 lakh each.
4.5 It is submitted that therefore the High Court as well as
the learned Trial Court have not committed any error in
convicting the accused for the offence punishable under
Sections 302 and 392 read with Section 34 IPC (so far as the
accused Subhash Chander is concerned).
Making above submissions it is prayed to dismiss the
present appeals.
5. Heard. We have gone through the impugned judgment
and order passed by the learned Trial Court as well as the
High Court convicting the accused and the findings recorded.
We have minutely gone through the entire evidence on record
more particularly the FIR as well as the deposition of PW1.
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6. At the outset, it is required to be noted that the
appellants – accused have been convicted mainly on the
identification of the accused by PW1 in the Court Room and
on the recovery of Rs.1 lakh each from the accused persons
which were recovered from the places suggested by the
accused. Thus, the conviction of the accused in the present
case is solely on the identification of the accused by PW1 in
the court room. Prior thereto no TIP has been conducted by
the Investigating Agency.
6.1 Now so far as the conviction based on the recovery of
Rs.1 lakhs each from the accused is concerned, at the outset
it is required to be noted that even the learned Trial Court has
also specifically given the finding that the prosecution has
failed to prove that the original complainant and the deceased
were carrying Rs.5 lakhs cash in the dicky of the scooter as
alleged. To connect the accused for having conducted the
evidence of loot of Rs.5 lakhs, primarily the prosecution was
required to establish and prove that the person from whom
the amount which was having to have looted. Thereafter the
prosecution is required to establish and prove that the
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amount which is recovered from the accused is the very
amount which the complainant/the person from whom the
amount is looted. Even the learned Trial Court has also not
given much stress on the recovery of Rs.1 lakh each from the
accused. Be that it may we are of the opinion that when the
prosecution has failed to prove that the complainant and the
deceased were carrying Rs.5 lakhs cash in the dicky of the
scooter and it was the very looted amount which was
recovered from the accused, the accused cannot be convicted
on the basis of recovery of some cash.
6.2 Now so far as the conviction of the accused on the PW1 –
eyewitness identifying the accused in the Court Room and
nonconducting the TIP is concerned, while appreciating the
said aspect the averments in the FIR which was given by PW1
eyewitnesses are required to be referred to. It may be true
that as per the settled position of law the FIR cannot be
encyclopedia. However, at the same time when no TIP was
conducted the first version of the complainant reflected in the
FIR would play an important role. It is required to be
considered whether in the FIR and/or in the first version the
eyewitness either disclosed the identity and/or description of
13
the accused on the basis of which he can recollect at the time
of deposition and identify the accused for the first time in the
Court Room? Having gone through the FIR on the identity of
the accused it is stated as under:
“I was driving the scooter and Gian Chand was
sitting behind me. When we were at link road shaterwala
1/2
from Fazilka A bohar G.T. road about 11 kilometer
ahead, three young persons reached with us on a scooter
from the backside, out of them, two clean shaven young
persons having ages of 3035 year and one Sikh (sardar)
who had tied a (Thathi) a piece of cloth having the age of
about 30 32 years, who was sitting in the middle was
having a 12 bore gun of small barrel all these three young
persons while reaching with us tried us to stop. When we
did not stop then a cleanshaven young person who was
sitting on the rear seat of the scooter thrown chilly powder
on our faces and eyed with his hand as a result of which
we could not see and we stopped our scooter being
helpless a and opened our eyes after placing hand on the
eyes. In the meantime these young persons stopped their
scooters ahead of our scooter and came forward to snatch
our scooter. We tried to prevent them, in the meantime, a
Sikh Youngman fired a shot at Gian Chand in a strength
way with his 12 bore gun hitting him on the chest as a
result of which he fell down on the ground.”
6.3 Thus, from the aforesaid it is seen that except stating
that the accused were three young persons out of which two
were clean shaven and the one Sikh (sardar) who had tied a
(Thathi) having the age of 3032 years no further description
had been given by the complainant – PW1. Nothing has been
mentioned in his first statement that he had seen the accused
earlier and that he will be able to identify the accused. In
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light of the above, the deposition of PW1 in the Court and his
identifying the accused for the first time in the Court is
required to be appreciated. In the examinationinchief, PW1
has stated as under:
“When at about 130 p.m. when we had covered a
distance of about eight k.m.s from G.T. road and were
going on the link road of Shaterwala, three young
persons came from our back side on a scooter. They
tried to stop us but we did not stop. They over took our
scooter and put chillies powder in my eyes. That chilly
powder entered in my right eye and I had to stop my
scooter. After rubbing the eye I opened the same. Gain
Chand alighted from my scooter.”
xxx xxx xxx
“Out of three young persons, two young boys tried
to snatch my scooter. Gian Chand came parallel to me
and tried to prevent those boys from snatching the
scooter. One of those boys fired a shot at Gian Chand
which hit him at his chest on the seat of heart. All the
three said young persons are the accused who are
present in the court today (witness has pointed towards
one of the accused as the person who had fired at Gian
Chand and that accused has disclosed his name as
Amrik Singh). The accused who is standing on one side
had put the chili powder in my eyes (the name of the
accused pointed out by the witness has been disclosed
as Subhash Chand).”
In the crossexamination he had deposed as under:
“I had not stated before the police that the chilli
powder had effected only my right eye and I opened the
same after rubbing it. I had stated before the police that
chilli powder was put in our eyes as a result of which
were not in position to see.”
xxx xxx xxx
“In connection with the investigation of this case I
had been going to the police station quite often. The
accused were never shown to me during investigation.)
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Before the occurrence, I had seen them in the City on
one or two occasions. I After the occurrence I have seen,
them in the court today for the first time. At the time of
occurrence their names were not known to me. I do not
know where they had been residing before the
occurrence. When I made my statement before police I
had only disclosed the age of accused and not their
description. It is incorrect that I have deposed falsely, lit
is incorrect that accused were known the earlier. It is
further incorrect that accused have been falsely
implicated in this case as Pritpal Singh had filed writ
petition against the police in the month of
August/September 2001.”
6.4 From the aforesaid it can be seen that as such there are
some contradictions in the first statement of the complainant
recorded in the form of FIR and in the deposition before the
Court. In the deposition before the Court, he has tried to
improve the case by deposing that he had seen the accused in
the city on one or two occasions. The aforesaid was not
disclosed in the FIR. Even in the crossexamination as
admitted by PW1 he did not disclose any description of the
accused. At this stage it is to be noted that PW1 has
specifically and categorically admitted in the cross
examination that it is incorrect that the accused were known
earlier. He disclosed only the age of the accused. In that view
of the matter conducting of TIP was necessitated and,
therefore in the facts and circumstances of the case, it is not
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safe to convict the accused solely on their identification by
PW1 for the first time in the Court.
6.5 Now so far as the reliance placed upon the decision of
this Court in the case of Malkhansingh (supra) relied upon by
learned counsel appearing on behalf of the State in support of
her submissions that the TIP is not substantive evidence and
in fact the substantive evidence is that of identification in
Court is concerned, on facts the said decision shall not be
applicable to the facts of the case on hand. Even in the said
decision it is observed what weight must be attached to the
evidence of identification in court, which is not preceded by a
test identification parade, is a matter for the courts of fact to
examine. In the case before this Court, it was found that the
crime was perpetrated in broad daylight; the prosecutrix had
sufficient opportunity to observe the features of the appellants
who raped her one after the other; before the rape was
committed, she was threatened and intimated by the accused;
after the rape was committed, she was again threatened and
intimidated by them. On such facts it was found that it was
17
not a case where the identifying witness had only a fleeting
glimpse of the accused on a dark night.
6.6 Similarly, another decision of this Court in the case of
Md. Kalam (supra) relied upon by learned counsel appearing
on behalf of the State also shall not be applicable to the facts
of the case on hand. It is observed in the said decision that
the evidence of mere identification of the accused person at
the trial for the first time is from its very nature inherently of
a weak character. It is observed that the purpose of TIP
therefore is to test and strengthen the trustworthiness of that
evidence. It is observed that it is accordingly considered a
safe rule of prudence to generally look for corroboration of the
sworn testimony of witnesses in Court as to the identity of the
accused who are strangers to them, in the form of earlier
identification proceedings. It is further observed that the said
rule of prudence, however, is subject to exceptions, when, for
example, the Court is impressed by a particular witness on
whose testimony it can safely rely without such or other
corroboration. Therefore, on facts it was observed that failure
to hold a TIP would not make inadmissible the evidence of
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identification in Court. It is further observed that the weight
to be attached to such identification should be a matter for
the courts of fact.
6.7 Even applying the law laid down by this Court in the
aforesaid decisions and looking to the facts narrated
hereinabove, we are of the opinion that it would not be safe
and/or prudent to convict the accused solely on the basis of
their identification for the first time in the Court.
7. In view of the above and for the reasons stated above, we
are of the firm opinion that both, the learned Trial Court as
well as the High Court have committed a grave error in
convicting the accused. The judgment and orders passed by
the learned Trial Court confirmed by the High Court
convicting the accused for the offence under Sections 302
read with Section 34 and Section 392 IPC respectively are
unsustainable and they deserve to be quashed and set aside
and the accused are to be acquitted for the purpose for which
they were tried.
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8. In view of the above and for the reasons stated above the
appeals succeed. The impugned judgment and order passed
by the learned Trial Court as well as the High Court convicting
the accused for the offences punishable under Sections 302
read with Section 34 and Section 392 IPC are hereby quashed
and set aside.
The accused are acquitted from the charges for which
they were tried. The appellants – accused be released
forthwith, if they are not required in any other case.
The Appeals are allowed accordingly.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(ANIRUDDHA BOSE)
New Delhi,
July,11 2022.
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ITEM NO.1501 COURT NO.11 SECTION II-B
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 993/2012
AMRIK SINGH Appellant(s)
VERSUS
THE STATE OF PUNJAB Respondent(s)
([HEARD BY : HON. M.R. SHAH AND HON. ANIRUDDHA BOSE, JJ.] )
WITH
Crl.A. No. 992/2012 (II-B)
Date : 11-07-2022 These appeals were called on for pronouncement
of judgment today.
For Appellant(s) Mr. Shree Pal Singh, AOR
For Respondent(s) Ms. Richa Kapoor, Adv.
Ms. Shivani Sharma, Adv.
Mr. Prateek Bhandari, Adv.
Ms. Jaspreet Gogia, AOR
Hon'ble Mr. Justice M.R. Shah pronounced the reportable
judgment of the Bench comprising His Lordship and Hon’ble Mr.
Justice Aniruddha Bose.
The operative portion of the judgment reads thus:
“8. In view of the above and for the reasons stated above the
appeals succeed. The impugned judgment and order passed by
the learned Trial Court as well as the High Court convicting
the accused for the offences punishable under Sections 302
read with Section 34 and Section 392 IPC are hereby quashed
and set aside.
The accused are acquitted from the charges for which they
were tried. The appellants – accused be released forthwith,
if they are not required in any other case.
The Appeals are allowed accordingly.”
Pending applications, if any, stand disposed of.
(R. NATARAJAN) (NISHA TRIPATHI)
ASTT. REGISTRAR-cum-PS ASSISTANT REGISTRAR
(Signed reportable judgment is placed on the file)