Amrik Singh vs The State Of Punjab

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

JUDGMENT

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

Court of Punjab and Haryana at Chandigarh in Criminal Reason:

1

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

2 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

3 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

4 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

5 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

6 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.

7 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

8 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

9 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. 11

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

12 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 from Fazilka A bohar G.T. road about 1­1 1/2 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 14 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.)

15 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

16 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

18 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.

19

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.

20

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)