AMRIK SINGH versus THE STATE OF PUNJAB on 11 July 2022

AMRIK SINGH

v.

THE STATE OF PUNJAB

(Criminal Appeal No. 993 of 2012)

JULY 11, 2022

[M. R. SHAH AND ANIRUDDHA BOSE, JJ.]

Criminal Trial: Test Identification Parade-TIP – Non-conductof – Effect of, on prosecution case – Appellant and two othersallegedly committed robbery and murdered the victim during thecourse of the robbery – FIR by complainant-eye-witness – Convictionu/ss. 302 r/w 34 and 392 and sentenced to life imprisonment bycourts below – On appeal, held: Prosecution failed to prove thatthe complainant and the deceased were carrying cash and it waslooted by the accused persons – Conviction solely on the basis ofthe identification of the accused by the complainant-eye-witnessfor the first time in the court room – Prior thereto no TIP wasconducted by the investigating agency – When no TIP wasconducted the first version of the complainant reflected in the FIRwould play an important role – However, there were somecontradictions in the first statement of the complainant recorded inthe form of FIR and in the deposition before the court, thus, TIPwas necessary – It would not be safe and/or prudent to convict theaccused solely on the basis of their identification for the first timein the Court – Conviction of the accused is unsustainable – Judgmentand order of the trial court as well as of the High Court is quashedand set aside – Penal Code, 1860 - ss. 302 r/w s. 34, s. 392.

Allowing the appeals, the Court

HELD: 1.1 It is required to be noted that the appellants-accused have been convicted mainly on the identification of theaccused by PW1 in the Court Room and on the recovery of Rs.1lakh each from the accused persons which were recovered fromthe places suggested by the accused. Thus, the conviction of theaccused in the instant case is solely on the identification of theaccused by PW1 in the court room. Prior thereto no TIP has beenconducted by the Investigating Agency. [Para 6][458-G-H]

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A1.2 As regards, the conviction based on the recovery ofRs.1 lakhs each from the accused is concerned, it is required tobe noted that even the trial court specifically gave the findingthat the prosecution has failed to prove that the originalcomplainant and the deceased were carrying Rs.5 lakhs cash inthe dicky of the scooter as alleged. To connect the accused forBhaving conducted the evidence of loot of Rs.5 lakhs, primarilythe prosecution was required to establish and prove that theperson from whom the amount which was having to have looted.Thereafter the prosecution is required to establish and provethat the amount which is recovered from the accused is the veryCamount which the complainant/the person from whom the amountis looted. Even the trial court has also not given much stress onthe recovery of Rs.1 lakh each from the accused. When theprosecution failed to prove that the complainant and the deceasedwere carrying Rs.5 lakhs cash in the dicky of the scooter and itwas the very looted amount which was recovered from theDaccused, the accused cannot be convicted on the basis of recoveryof some cash. [Para 6.1][459-A-D]

1.3 As regards, the conviction of the accused on the PW1-eye-witness identifying the accused in the Court Room and non-conducting the TIP is concerned, while appreciating the saidEaspect the averments in the FIR which was given by PW1-eye-witnesses are required to be referred to. It may be true that theFIR cannot be encyclopedia. However, at the same time when noTIP was conducted the first version of the complainant reflectedin the FIR would play an important role. It is required to beFconsidered whether in the FIR and/or in the first version theeye-witness either disclosed the identity and/or description ofthe accused on the basis of which he can recollect at the time ofdeposition and identify the accused for the first time in the CourtRoom? Nothing has been mentioned in his first statement that

he had seen the accused earlier and that he will be able to identifyGthe accused. In light of the above, the deposition of PW1 in theCourt and his identifying the accused for the first time in theCourt is required to be appreciated. [Paras 6.2, 6.3][459-D-G;460-D-E]

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1.4 There are some contradictions in the first statement ofthe complainant recorded in the form of FIR and in the depositionbefore the Court. In the deposition before the Court, he has triedto improve the case by deposing that he had seen the accused inthe city on one or two occasions. The said was not disclosed inthe FIR. Even in the cross-examination as admitted by PW1 hedid not disclose any description of the accused. At this stage it isto be noted that PW1 specifically and categorically admitted inthe cross- examination that it is incorrect that the accused wereknown earlier. He disclosed only the age of the accused. In thatview of the matter conducting of TIP was necessitated and,therefore in the facts and circumstances of the case, it is not safeto convict the accused solely on their identification by PW1 forthe first time in the Court. [Para 6.4][461-E-H]

1.5 Both, the trial court as well as the High Court committeda grave error in convicting the accused. The judgment and orderspassed by the trial court confirmed by the High Court convictingthe accused for the offence under Sections 302 read with Section34 and Section 392 IPC respectively are unsustainable and arequashed and set aside and the accused are acquitted from thecharges for which they were tried. [Para 7][463-A-B]

Malkhansingh and Ors. v. State of Madhya Pradesh(2003) 5 SCC 746 : [2003] 1 Suppl. SCR 443; Md.Kalam v. State of Rajasthan (2008) 11 SCC 352 : [2008]5 SCR 22 – distinguished.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.993 of 2012.

From the Judgment and Order dated 01.04.2011 of the High Courtof Punjab and Haryana at Chandigarh in Criminal Appeal No. 645-DBof 2004.

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Criminal Appeal No. 992 of 2012.

Ms. Roohina Dua, Ms. Mansi Gupta, Sangram Saron, Shree PalSingh, Advs. for the Appellant.

BMs. Richa Kapoor, Ms. Jaspreet Gogia, Ms. Aishwarya Mishra,Kunal Anand, Advs. for the Respondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentCand order dated 01.04.2011 passed by the High Court of Punjab andHaryana at Chandigarh in Criminal Appeal No.645 of 2004 and CriminalAppeal No.563 of 2004 by which the Division Bench of the High Courthas dismissed the said appeals preferred by the accused and hasconfirmed the conviction and sentence passed by the learned Trial CourtDconvicting the accused Amrik Singh and Subhash Chander for theoffences punishable under Section 302 read with Section 34 and Section392 of the IPC, the accused Amrik Singh and Subhash Chander havepreferred the present appeals.

2. That the appellant herein was charged along with one SubhashEChander and Pritpal Singh for committing robbery and murdering oneGian Chand (deceased) during the course of the robbery. As per theprosecution case, the deceased Gian Chand, one Munshi Ram, father ofthe deceased along with the complainant Des Raj (PW1) were proceedingfrom the office of Sub-registrar District Fazilka and after dropping ofthe father of the deceased at the local bus stand, they proceeded towardsFtheir village. It was further alleged that on route to their village, threepersons came on a scooter and tried stopping them. When thecomplainant who was driving the scooter did not stop, co-accusedSubhash Chander thrown red chilli powder into the eyes of thecomplainant after which the scooter stopped and the complainant wasGtemporarily blinded. That all the three tried to snatch the scooter of thecomplainant and in the said scuffle, present appellant – accused – AmrikSingh shot the deceased Gian Chand in the chest. The complainant arrivedinto the fields and upon his return he saw that the assailants have takenaway the scooter and Gian Chand was lying unconscious with bloodoozing out of his chest. As per the case of the prosecution the motiveH

was that the father of the deceased had executed a sale deed in favourof sons of the complainant (PW1) for the purpose of which they hadgone to the office of the Sub-registrar. The consideration for the salehad not been paid and an amount of Rs.5 lakhs was in the dicky of thescooter, which the assailants had stolen. That thereafter PW1 proceededto the police station. His statement was recorded by PW11 InspectorKaramjit Singh who proceeded to the scene of occurrence and foundthe dead body of Gian Chand lying over there. He prepared inquestreport. He collected the necessary evidence. PW6 Dr. M.M. Singhconducted post mortem examination on the dead body of Gian Chand.Post mortem was conducted on 08.05.2001 at about 6.30 p.m. As perthe medical evidence death could have occurred about 6 hours prior tothe examination. In course of the investigation Subhash Chander andAmrik Singh – accused were arrested on the basis of the disclosurestatement of the appellant accused – Amrik Singh. ASI - PW7 recovereda sum of Rs.1 lakh alleged to have been looted out of Rs.5 lakhs whichaccording to the complainant PW1 was kept in the dicky of the scooter.On the basis of the disclosure statement of the co-accused SubhashChander a further sum of Rs.1 lakh was recovered. After completion ofthe investigation, the IO filed the charge-sheet. As the case wasexclusively triable by the Court of Sessions, the case was committed tothe Sessions Court. The accused pleaded not guilty and therefore theycame to be tried by the Sessions Court for the offence punishable underSections 302/34 and 392 read with Section 397 IPC.

2.1 To bring home the guilt of accused, prosecution examined asmany as 11 witnesses which included PW1 the original complainant -the eye witness Karamjit Singh, Inspector - PW11, Dr. M.M. Singh –PW6 and other police officials. After the cross-examination of theprosecution witnesses the accused were examined and their furtherstatements under Section 313 Cr.P.C. were recorded. All the incriminatingcircumstances appeared against them in the prosecution evidence wereput to them in order to enable them to explain the same. They denied allsuch circumstances and pleaded their innocence. That thereafter onappreciation of evidence and mainly relying upon the deposition of PW1– original complainant who was cited as eye-witness and on the recoveryof Rs.1 lakh from the place suggested by the accused, the learned TrialCourt held the accused guilty for the offences punishable under Sections302/34 and 392 IPC and sentenced the accused to undergo lifeimprisonment for having committed the murder of deceased Gian Chand.

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A2.2 Feeling aggrieved and dissatisfied with the judgment and orderof conviction and sentence by the learned Trial Court convicting theaccused for the offence punishable under Sections 302/34 and 392 IPC,the accused Amrik Singh and Subhash Chander preferred the CriminalAppeal No.645-DB of 2004 and Criminal Appeal No.563 of 2004 beforethe High Court. By the impugned judgment and order the High CourtBhas dismissed the said appeals and has confirmed the order of convictionand sentence passed by the learned Trial Court. The judgment and orderpassed by the High Court is the subject matter of present appeals.

3. Ms. Roohina Dua, learned counsel appearing on behalf of theaccused has vehemently submitted that in the facts and circumstancesCof the case and on the evidence on record both, the learned Trial Courtas well as the High Court have committed serious error in convicting theaccused for the offence punishable under Section 302 read with Section34 and Section 392 IPC respectively.

3.1 It is submitted that as such the appellants have been convictedDon the deposition of PW1 – original complainant – informant and theidentification of the accused in the Court by PW1.

3.2 It is submitted that in the present case admittedly no TestIdentification Parade (hereinafter referred to as ‘TIP’) has beenconducted to identify the accused. It is submitted that in the presentEcase as such non-conducting the TIP is fatal to the case of the prosecutionmore particularly when PW1 is the original complainant who did notdisclose any description of the accused before the I.O. and even in theFIR.

3.3 It is submitted that even the conviction of the accused on theFalleged recovery of Rs.1 lakh each is also not sustainable. It is submittedthat even the learned Trial Court has also disbelieved the case on behalfof the prosecution that the complainant and the deceased were carryingRs.5 lakhs in the dicky of the scooter. It is submitted therefore that thefactum of Rs.5 lakhs being carried in the scooter by the complainant and Gthe deceased has not been established and proved, the recovery of Rs.1lakh each from the accused becomes insignificant. It is submitted thatthe prosecution has to prove by leading cogent evidence that thecomplainant and the deceased were carrying Rs.5 lakhs in the dicky ofthe scooter as alleged and the amount which is recovered from theaccused is the very amount which the complainant and the deceasedHwere carrying in the scooter.

3.4 It is submitted that therefore the accused cannot be convictedon the basis of the identification of the accused by PW1 in the Courtwhich is for the first time and on the basis of the recovery of Rs.1 lakheach from the accused.

3.5 It is submitted that therefore in absence of any cogent evidenceon the identification of the accused and it can be seen that the prosecutionhas failed to prove the identification of the accused beyond doubt, toconvict the accused solely on the basis of the identification of the accusedby PW1 for the first time in the Court is not warranted. It is submittedthat in the facts and circumstances of the case it is not safe to rely uponthe 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 Statethat in the present case when PW1 – eye-witness has identified theaccused in the Court Room, non-conducting the TIP would not vitiatethe trial and the case of the prosecution.

4.2 It is submitted that PW1 – complainant is an eye-witness. It issubmitted that he has deposed in the Court that “One of those boys fireda 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 inCourt today. (Witness has pointed out towards one of the accused as aperson who had fired at Gian Chand and that accused has disclosed hisname as Amrik Singh). The accused who is standing on one side had putthe chili powder in my eyes (the name of accused pointed out by thewitness has been disclosed as Subhash Chander)”.

4.3 It is vehemently submitted by learned counsel on behalf of theState that in every case non-conducting the TIP would not vitiate thetrial and/or case of the prosecution. It is submitted that the TIP isconducted only to make sure by the Investigating Officer that theinvestigation 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 thewitnesses who saw the accused. It is submitted that as held by thisCourt in a catena of decisions, TIP is not substantive evidence and infact the substantive evidence is that of identification in Court. It issubmitted that holding of TIP, if the accused is not known to the A

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Acomplainant earlier is to ascertain whether the investigation is beingconducted in a proper manner and with proper direction and is admissiblein evidence as corroborative evidence under Section 9 of the IndianEvidence Act. It is submitted that however, the absence of testidentification parade may not ipso-facto sufficient to discard the testimonyof witness who has identified the accused in the Court. It is submittedBthat even in a given case, the Court if comes to the conclusion that thetestimony of the prosecution witness specially of an eye-witness is of asterling quality, and trustworthy, the testimony of such a witness can beaccepted with regard to identification of the accused in court andconviction can be sustained without any doubt upon the said testimony.CIn support of the above learned counsel appearing for the State hasheavily relied upon the decisions of this Court in the case ofMalkhansingh and Ors. Vs. State of Madhya Pradesh; (2003) 5SCC 746 (paras 16 and 17) and Md. Kalam Vs. State of Rajasthan,(2008) 11 SCC 352 (para 7).

D4.4 It is submitted that even in the present case there is a recoveryof Rs.1 lakh from the accused and from the place disclosed by theaccused. It is submitted that as such the accused have failed to explainand/or failed to account the recovery of Rs.1 lakh each.

4.5 It is submitted that therefore the High Court as well as theElearned Trial Court have not committed any error in convicting the accusedfor the offence punishable under Sections 302 and 392 read with Section34 IPC (so far as the accused Subhash Chander is concerned).

Making above submissions it is prayed to dismiss the presentappeals.F5. Heard. We have gone through the impugned judgment and orderpassed by the learned Trial Court as well as the High Court convictingthe accused and the findings recorded. We have minutely gone throughthe entire evidence on record more particularly the FIR as well as thedeposition of PW1.

G6. At the outset, it is required to be noted that the appellants –accused have been convicted mainly on the identification of the accusedby PW1 in the Court Room and on the recovery of Rs.1 lakh each fromthe accused persons which were recovered from the places suggestedby the accused. Thus, the conviction of the accused in the present caseis solely on the identification of the accused by PW1 in the court room.HPrior thereto no TIP has been conducted by the Investigating Agency.

6.1 Now so far as the conviction based on the recovery of Rs.1lakhs each from the accused is concerned, at the outset it is required tobe noted that even the learned Trial Court has also specifically given thefinding that the prosecution has failed to prove that the originalcomplainant and the deceased were carrying Rs.5 lakhs cash in thedicky of the scooter as alleged. To connect the accused for havingconducted the evidence of loot of Rs.5 lakhs, primarily the prosecutionwas required to establish and prove that the person from whom theamount which was having to have looted. Thereafter the prosecution isrequired to establish and prove that the amount which is recovered fromthe accused is the very amount which the complainant/the person fromwhom the amount is looted. Even the learned Trial Court has also notgiven 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 failedto prove that the complainant and the deceased were carrying Rs.5lakhs cash in the dicky of the scooter and it was the very looted amountwhich was recovered from the accused, the accused cannot be convictedon the basis of recovery of some cash.

6.2 Now so far as the conviction of the accused on the PW1 –eye-witness identifying the accused in the Court Room and non-conducting the TIP is concerned, while appreciating the said aspect theaverments in the FIR which was given by PW1- eye-witnesses arerequired to be referred to. It may be true that as per the settled positionof law the FIR cannot be encyclopedia. However, at the same timewhen no TIP was conducted the first version of the complainant reflectedin the FIR would play an important role. It is required to be consideredwhether in the FIR and/or in the first version the eye-witness eitherdisclosed the identity and/or description of the accused on the basis ofwhich he can recollect at the time of deposition and identify the accusedfor the first time in the Court Room? Having gone through the FIR onthe identity of the accused it is stated as under:

“I was driving the scooter and Gian Chand was sitting behindme. When we were at link road shaterwala from Fazilka A boharG.T. road about 1-1[1/2] kilometer ahead, three young personsreached with us on a scooter from the backside, out of them, twoclean shaven young persons having ages of 30-35 year and oneSikh (sardar) who had tied a (Thathi) a piece of cloth having theage of about 30- 32 years, who was sitting in the middle was AB

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Ahaving a 12 bore gun of small barrel all these three young personswhile reaching with us tried us to stop. When we did not stop thena clean-shaven young person who was sitting on the rear seat ofthe scooter thrown chilly powder on our faces and eyed with hishand as a result of which we could not see and we stopped ourscooter being helpless a and opened our eyes after placing handBon the eyes. In the meantime these young persons stopped theirscooters ahead of our scooter and came forward to snatch ourscooter. We tried to prevent them, in the meantime, a SikhYoungman fired a shot at Gian Chand in a strength way with his12 bore gun hitting him on the chest as a result of which he fellCdown on the ground.”

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6.3 Thus, from the aforesaid it is seen that except stating that theaccused were three young persons out of which two were clean shavenand the one Sikh (sardar) who had tied a (Thathi) having the age of 30-32 years no further description had been given by the complainant –DPW1. Nothing has been mentioned in his first statement that he hadseen the accused earlier and that he will be able to identify the accused.In light of the above, the deposition of PW1 in the Court and his identifyingthe accused for the first time in the Court is required to be appreciated.In the examination-in-chief, PW1 has stated as under:

E“When at about 1-30 p.m. when we had covered a distanceof about eight k.m.s from G.T. road and were going on the linkroad of Shaterwala, three young persons came from our backside on a scooter. They tried to stop us but we did not stop. Theyover took our scooter and put chillies powder in my eyes. Thatchilly powder entered in my right eye and I had to stop my scooter.FAfter rubbing the eye I opened the same. Gain Chand alightedfrom my scooter.”

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“Out of three young persons, two young boys tried to snatchmy scooter. Gian Chand came parallel to me and tried to preventthose boys from snatching the scooter. One of those boys fired ashot 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 presentin the court today (witness has pointed towards one of the accusedas the person who had fired at Gian Chand and that accused has G

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disclosed his name as Amrik Singh). The accused who is standingon one side had put the chili powder in my eyes (the name of theaccused pointed out by the witness has been disclosed as SubhashChand).”

In the cross-examination he had deposed as under:

“I had not stated before the police that the chilli powderhad effected only my right eye and I opened the same after rubbingit. I had stated before the police that chilli powder was put in oureyes as a result of which were not in position to see.”

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“In connection with the investigation of this case I had beengoing to the police station quite often. The accused were nevershown to me during investigation.) Before the occurrence, I hadseen them in the City on one or two occasions. I After theoccurrence I have seen, them in the court today for the first time.At the time of occurrence their names were not known to me. Ido not know where they had been residing before the occurrence.When I made my statement before police I had only disclosed theage of accused and not their description. It is incorrect that I havedeposed falsely, lit is incorrect that accused were known the earlier.It is further incorrect that accused have been falsely implicated inthis case as Pritpal Singh had filed writ petition against the policein the month of August/September 2001.”

6.4 From the aforesaid it can be seen that as such there are somecontradictions in the first statement of the complainant recorded in theform of FIR and in the deposition before the Court. In the depositionbefore the Court, he has tried to improve the case by deposing that hehad seen the accused in the city on one or two occasions. The aforesaidwas not disclosed in the FIR. Even in the cross-examination as admittedby PW1 he did not disclose any description of the accused. At this stageit is to be noted that PW1 has specifically and categorically admitted inthe cross-examination that it is incorrect that the accused were knownearlier. He disclosed only the age of the accused. In that view of thematter conducting of TIP was necessitated and, therefore in the factsand circumstances of the case, it is not safe to convict the accusedsolely on their identification by PW1 for the first time in the Court.

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A6.5 Now so far as the reliance placed upon the decision of thisCourt in the case of Malkhansingh (supra) relied upon by learnedcounsel appearing on behalf of the State in support of her submissionsthat the TIP is not substantive evidence and in fact the substantiveevidence is that of identification in Court is concerned, on facts the saiddecision shall not be applicable to the facts of the case on hand. Even inBthe said decision it is observed what weight must be attached to theevidence of identification in court, which is not preceded by a testidentification parade, is a matter for the courts of fact to examine. In thecase before this Court, it was found that the crime was perpetrated inbroad daylight; the prosecutrix had sufficient opportunity to observe theCfeatures of the appellants who raped her one after the other; before therape was committed, she was threatened and intimated by the accused;after the rape was committed, she was again threatened and intimidatedby them. On such facts it was found that it was not a case where theidentifying witness had only a fleeting glimpse of the accused on a darknight.D

6.6 Similarly, another decision of this Court in the case ofMd. Kalam (supra) relied upon by learned counsel appearing on behalfof 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 identificationof the accused person at the trial for the first time is from its very natureEinherently of a weak character. It is observed that the purpose of TIPtherefore is to test and strengthen the trustworthiness of that evidence.It is observed that it is accordingly considered a safe rule of prudence togenerally look for corroboration of the sworn testimony of witnesses inCourt as to the identity of the accused who are strangers to them, in the Fform of earlier identification proceedings. It is further observed that thesaid rule of prudence, however, is subject to exceptions, when, forexample, the Court is impressed by a particular witness on whosetestimony it can safely rely without such or other corroboration.Therefore, on facts it was observed that failure to hold a TIP would notmake inadmissible the evidence of identification in Court. It is furtherGobserved that the weight to be attached to such identification should bea matter for the courts of fact.

6.7 Even applying the law laid down by this Court in the aforesaiddecisions and looking to the facts narrated hereinabove, we are of theopinion that it would not be safe and/or prudent to convict the accusedHsolely 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 areof the firm opinion that both, the learned Trial Court as well as the HighCourt have committed a grave error in convicting the accused. Thejudgment and orders passed by the learned Trial Court confirmed by theHigh Court convicting the accused for the offence under Sections 302read with Section 34 and Section 392 IPC respectively are unsustainableand they deserve to be quashed and set aside and the accused are to beacquitted for the purpose for which they were tried.

8. In view of the above and for the reasons stated above theappeals succeed. The impugned judgment and order passed by the learnedTrial Court as well as the High Court convicting the accused for theoffences punishable under Sections 302 read with Section 34 and Section392 IPC are hereby quashed and set aside.

The accused are acquitted from the charges for which they weretried. The appellants – accused be released forthwith, if they are notrequired in any other case.

The Appeals are allowed accordingly.

Nidhi Jain

Appeals allowed.

(Assisted by : Shashwat Jain, LCRA)

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