Sukhbir Singh & Anr vs State Of Punjab

Sukhbir Singh & Anr. ......Appellants

Vs.

State of Punjab .......Respondent

WITH SLP(CRL) No. 5580 of 2008

O R D E R

1. This judgment will dispose of Criminal Appeal No. 1198 of 2007

and Special Leave Petition (Crl.) No. 5580 of 2008. The facts have been

taken from Criminal Appeal No. 1198 of 2007.

2. At about 9 p.m. on the 26th December 1991 Naranjan Singh PW-2

son of Jaswant Singh deceased a resident of village Vinjwan was in his

house along with his father when there was a knock at the door.

Naranjan Singh and his father, who happened to be the Sarpanch of the

village, thereupon opened the door. Two Sikh youth, who were

subsequently identified as the appellants herein, Sukhbir Singh and

Dilbagh Singh, were standing outside carrying AK-47 rifles. They told

Jaswant Singh that he was raising an unnecessary dispute with regard

to the school land, part of which under the possession of Mohanjit Singh,

Amir Singh and Bhupender Singh sons of Harbans Singh (all accused).

Jaswant Singh answered that he alone was not the deciding factor and

Crl. Appeal No.1198/2007 2 the other members of

the Panchayat and the Lambardar be also called. Jaswant Singh was

then taken towards the house of Mohinder Singh Lambardar, by the two

appellants followed by Naranjan Singh. Mohinder Singh too was called

out of his house and the entire group then went on to the house of

Hardev Singh, Member Panchayat. Hardev Singh too was called out and

the appellants told them that the dispute should be settled then and

there. They also took Jaswant Singh, Lambardar Mohinder Singh and

Member, Panchayat Hardev Singh towards the side of the school outside

the village again followed by Naranjan Singh. The three were thereafter

told to sit on the ground whereupon one of the appellants went to call

Harbans Singh appellant. He returned about 5/6 minutes later

accompanied by Harbans Singh and directed Jaswant Singh to stand up

and after telling him that he alone was not permitting Harbans Singh

and his family to live peacefully and that he was attempting to construct

a school building over his land, they fired a burst each from their rifles

killing Jaswant Singh on the spot. Naranjan Singh then ran away but

returned after some time and seeing his father's dead body, left for the

police station. He, however, came across a police party at about 4.45

a.m. on the canal bridge near village Taragarh and made a statement to

Inspector Jarnail Singh PW-8 and on its basis an FIR was registered at

Police Station, Sadar Batala. The Special Report was delivered to the

Magistrate in Batala itself at 6.30 a.m. In the FIR, Naranjan Singh

Crl. Appeal No.1198/2007 3 stated that two Sikh

youth who had killed his father were militants 25-30 years of age, of

medium build, wearing kurta pajamas and that he could identify them, if

confronted. He further stated that he suspected that Harbans Singh and

his sons Mohanjit Singh, Amir Singh and Bhupender Singh had entered

into a conspiracy along with the appellants to commit the murder.

Harbans Singh and his three sons were arrested soon after the incident

but Sukhbir Singh and Dilbagh Singh were arrested on the 21st May

1992 by Sub-Inspector Pyara Singh. On the completion of the

investigation, all the accused were brought to trial for offences

punishable under section 302 read with Section 149 and 120-B of the

IPC.

3. The prosecution in support of its case placed reliance on the

evidence of Sukhdip Singh PW-1, the doctor who had carried out the

post-mortem on the dead body, Naranjan Singh PW-2, Mohinder Singh

Lambardar PW-3 who too supported the prosecution story and further

stated that he had seen Harbans Singh and his sons talking to one of the

appellants, and PW-8 Sub-Inspector Jarnail Singh who had recorded the

statement of Naranjan Singh near the canal minor bridge and which had

led to the registration of the formal FIR.

4. The trial court relying on the aforesaid evidence convicted all the

accused for offences punishable under Section 120-B of the IPC and

Crl. Appeal No.1198/2007 4 sentenced them to RI of

7 years and to fine, Sukhbir Singh and Dilbagh Singh appellants under

Section 302 of the IPC and sentenced them to life imprisonment along

with fine and Harbans Singh, Mohanjit Singh, Amir Singh and

Bhupender Singh under Section 302/149 of the IPC also to serve a life

sentence. The matter was thereafter taken in appeal to the High Court

and during the pendency of the appeal Harbans Singh passed away. The

appeal against him has dismissed as having abated. The High Court

observed that there was no delay in the lodging of the FIR in which the

names of Harbans Singh, Mohanjit Singh, Amir Singh and Bhupender

Singh alias Shastri had been mentioned, and although the two main

accused (the appellants herein) had not been named, but they fitted the

description given in the FIR and that further support with regard to the

occurrence was to be found from the statements of Naranjan Singh and

Mohinder Singh PWs. as to the manner in which the entire incident

happened which clearly revealed that the two sets of accused had

entered into a conspiracy to eliminate Jaswant Singh as he was an

impediment in the efforts of Harbans Singh and others to take over the

school land. The High Court observed that the two primary assailants

Sukhbir Singh and Dilbagh Singh had opened fire on Jaswant Singh only

after getting a green signal from Harbans Singh and his sons. The Court

also observed that the identification of the appellants in Court for the

first time fully satisfied the test of proper identification notwithstanding

Crl. Appeal No.1198/2007 5 the fact that they had

been arrested long after the incident on the 21st May 1992 by Sub-

Inspector Pyara Singh who had not been produced as a witness. The

High Court also observed that as PW-3 Mohinder Singh was an

independent witness, there was no reason whatsoever to disbelieve his

testimony. Two appeals have been filed against the judgment of the High

Court. Criminal Appeal No. 1198 of 2007 by Sukhbir Singh and Dilbagh

Singh and Special Leave Petition (Crl) No. 558 of 2008 by Amir Singh,

Mohanjit Singh and Bhupender Singh. We grant leave in this Special

Leave Petition as well. As already indicated above, the facts have been

taken from Criminal Appeal No. 1198 of 2007.

5. Mr. Patwalia, the learned senior counsel for the appellants has

raised one primary argument during the course of hearing of the appeals.

He has pointed out that there was absolutely no evidence with regard to

the identification of the appellants and their identification for the first

time in Court during the course of the trial would not be sufficient to

record a conviction in the absence of any other evidence. In this

connection, the learned counsel has placed reliance on Dana Yadav vs.

State of Bihar 2002 (7) SCC 295 and Ramesh vs. State of Karnataka

2009(15) SCC 35. Mr. Kuldip Singh, the learned counsel has, however,

placed reliance on Malkhansingh & Ors. vs. State of M.P. 2003(5) SCC

746 to contend that there was no inflexible rule that an identification

made in Court for first time could not be taken as a good piece of

Crl. Appeal No.1198/2007 6 evidence and as in the

present matter the description of the appellants had been given in the

FIR that itself was a corroborative circumstance to the prosecution story.

Mr. Patwalia has also urged that once it was held that the appellants, the

main accused were not involved in the incident as their identification was

suspect, the involvement of the others with the aid of Section 120-B or

149 of the IPC too could not be spelt out.

6. We have considered the arguments advanced by the learned

counsel for the parties. It will be seen that the incident happened at

about 9 p.m. on the 26th December 1991. In the FIR recorded about 8

hours later, the appellants had been described as two Sikh youth 25/30

years of age wearing kurta pajamas. The appellants were arrested on the

21st May 1992 by Sub-Inspector Pyara Singh, (who was not examined as

a witness) and they were identified for the first time in Court by Naranjan

Singh on the 21st September 1993. We are of the opinion that the

physical description of the appellants given in the FIR would fit millions

of youth in Punjab, and could not by itself pin the murder on them. The

prosecution has also not come out with the steps in the investigation

which had led to their identification as the primary assailants. It was, in

this background, obligatory on the part of the prosecution to have

produced Sub-Inspector Pyara Singh who could have testified to the

steps in the investigation made by him which had enabled him to identify

the appellants as the killers. This was not done. In this view of the

Crl. Appeal No.1198/2007 7 matter, the judgments

cited by Mr. Patwalia fully apply to the facts of the case. There is

absolutely no evidence other than in the identification in court made by

Naranjan Singh long after the incident. It is true that there is no

inflexible rule that an identification made for the first time in Court has

to be always ruled out of consideration but the broad principle is that in

the background there is no other evidence against an accused on

identification in Court made long after the event is clearly not acceptable.

The judgment cited by Mr. Kuldip Singh of Malkhansingh's case (supra)

is on the facts of that particular case, as a prosecutrix, who was the

victim of a gang rape, had identified some of the accused for the first

time in Court on which this Court opined that the identification was

acceptable as a good piece of evidence.

7. We now consider the case of the appellants in the connected

matter. The suggestion made by the prosecution is that Sukhbir Singh

and Dilbagh Singh had been engaged by the other appellants to settle

scores with Jaswant Singh as he was apparently an obstacle in their way

with respect to the school land. We have, in this connection, gone

through the evidence of Naranjan Singh PW-2 and Mohinder Singh PW-3,

in the background of these facts. We are of the opinion that the

involvement of Sukhbir Singh and Dilbagh Singh has to be ruled out as

they were not properly identified and the charge qua them under Section

302 read with Section 120-B of the IPC must fail. It is the prosecution

Crl. Appeal No.1198/2007 8 story that a dispute

regarding the school land existed between Jaswant Singh and Naranjan

Singh on the one side and Harbans Singh and his sons Amir Singh,

Mohanjit Singh and Bhupender Singh appellants on the other. It is also

clear that in this dispute PW-3 Mohinder Singh, the Lambardar was

siding with Jaswant Singh. We have gone through the evidence of PW-2

and PW-3 very carefully. We see very substantial improvements in the

statements made by PW-2 in Court vis-a-vis his statement made to the

Police. Confronted with these statements, he could not give any cogent

explanation for making them. It is also clear that except for his ipse-dixit

with regard to the dispute, there is no other evidence that any dispute

did exist. It has come in the evidence that no threat had ever been

received by Jaswant Singh from militants prior to the incident. We are,

therefore, of the opinion that the statement of this witness cannot be

relied upon. The statement of PW-3 is equally uncertain. PW-3 made

very substantial improvements in his evidence as well. The story that

after seeing the murder, he had not made any attempt to meet Naranjan

Singh, and his plea that after the incident he had returned home and

had gone to sleep is difficult to swallow as it would be contrary to normal

human behaviour. He also stated that a grant of Rs.1,00,000/- had

been received for the school about 12 days prior to the incident and that

the Qanungo had demarcated the school land which was legitimately in

possession of Harbans Singh. No cogent evidence to this effect has been

Crl. Appeal No.1198/2007 9 produced by the

prosecution. We are, therefore, of the opinion that the evidence of this

witness cannot also be believed.

8. We therefore have no option but to allow Criminal Appeal No. 1198

of 2007 as well as Criminal Appeal No........../2011 arising out of SLP

(Crl.) No. 5580 of 2008 filed by Amir Singh and others. The judgment of

the trial court dated 7th August 1997 and that of the High Court dated

12th January 2007 are set aside.

.................................J.

(HARJIT SINGH BEDI)

..................................J.

(CHANDRAMAULI KR. PRASAD)

JANUARY 27, 2011

NEW DELHI.