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Saturday, September 20, 2014

Extra - Judicial Confession - Both unidentified persons ran away on scooter with the money bag. - After more than 7 years i.e. on 18th July, 2006, a special team was constituted to apprehend the perpetrators of the crime. - application was moved for conducting Test Identification Parade (TIP) of the accused persons but the accused declined the same through separate statements Ex.PM/1 and Ex.PM/2. - Apex court held that We are conscious of the fact that extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with great deal of care and caution. Where an extra-judicial confession is warranted by suspicious circumstances, its credibility becomes doubtful and it loses its importance. It is for this reason that Courts generally look for independent reliable corroboration before placing any reliance upon such a confession. (See Balwinder Singh v. State of Punjab, (1995) Supp (4) SCC 259, which was cited by the counsel for the appellants). However, we find that his statement is corroborated not by any circumstantial evidence but cast iron evidence in the form of two eye-witnesses. Furthermore, even if for the sake of arguments, we discard the testimony of PW-1, the evidence of two eye-witnesses who are found to be credible, is sufficient to uphold the conviction of the appellants.= CRIMINAL APPEAL NO.47 OF 2014 |PARGAN SINGH |…..APPELLANT(S) | | | | |VERSUS | | |STATE OF PUNJAB & ANR. |…..RESPONDENT(S) = 2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41885

 Extra - Judicial Confession - Both unidentified persons ran away on scooter with the  money  bag. -  After more than 7 years i.e. on 18th July, 2006, a  special  team  was constituted to  apprehend  the  perpetrators  of  the  crime. - application  was  moved  for conducting Test Identification Parade (TIP) of the accused persons  but  the accused declined the same through separate statements Ex.PM/1  and  Ex.PM/2. - Apex court held that   We  are  conscious  of  the
fact that extra-judicial confession by its very  nature  is  rather  a  weak type of evidence and requires appreciation  with  great  deal  of  care  and caution.  Where an extra-judicial  confession  is  warranted  by  suspicious circumstances,  its  credibility  becomes  doubtful   and it   loses   its importance.   It  is  for  this  reason  that  Courts  generally  look   for independent reliable corroboration before placing any reliance upon  such  a confession.  (See Balwinder Singh v. State of Punjab, (1995)  Supp  (4)  SCC 259, which was cited by the counsel for the appellants).  However,  we  find that his statement is corroborated not by any  circumstantial  evidence  but cast iron evidence in the form of two eye-witnesses.  Furthermore,  even  if for the sake of arguments, we discard the testimony of  PW-1,  the  evidence of two eye-witnesses who are found to be credible, is sufficient  to  uphold the conviction of the appellants.=

Both unidentified persons ran away on scooter with the  money  bag.Complainant
Naveen Kumar and other persons arranged the vehicle  and  sent  Varun  Kumar
and Kamaljit Singh to Civil Hospital, Phagwara.  When  the  complainant  was
going to police station to report the matter, the police party met  him  and
his statement was got recorded by ASI Iqbal Singh  (Investigating  Officer),
Police Station City Bhagwara at 6.00 p.m. on the same day.   Ruqa  was  sent
to the police station on the  basis  of  which  FIR  was  registered.   Then
Investigating Officer alongwith complainant and police party went to  Chadha
Market, City Phagwara and saw the dead body of Varun Kumar and  one  injured
Kamaljit Singh at the  spot.   The  injured  was  sent  to  Civil  Hospital,
Phagwara.  Inquest proceedings were prepared and  the  dead  body  of  Varun
Kumar was sent for postmortem examination.  Blood stained earth  was  lifted
from the spot and the same was taken into police possession after  preparing
a sealed parcel.  Vespa scooter lying  at  the  spot  was  also  taken  into
police possession.  As can be seen from the aforesaid  statement  of  Naveen
Sharma, the two perpetrators of the aforesaid crime were sikh gentlemen  but
unknown to the complainant or other persons.  The Police tried to trace  the
culprits but was unsuccessful for number of years.

4.    After more than 7 years i.e. on 18th July, 2006, a  special  team  was
constituted to  apprehend  the  perpetrators  of  the  crime.   As  per  the
prosecution version, the investigating  officer  (I.O.)  received  a  secret
information on 24.07.2006 that the two appellants herein were  actually  the
persons who had committed the said crime.=

Further  allegation  of  the  prosecution  is  that  on
02.08.2006, one Vishwa  Mitter  (PW-1)  informed  the  I.O.  that  both  the
accused had confessed  before  him  that  they  had  shot  the  persons  and
committed the aforesaid robbery.  His statement was recorded by the I.O.  on
02.08.2006 to this effect.  
On 07.08.2006, a naka  was  laid  and  at  about
6:45 p.m. both the accused were seen coming on a  scooter  which  was  being
driven by Pargan Singh and Harminder  Singh  was  sitting  on  the  pillion.
Both the accused were apprehended and arrested.   
On  08.08.2006,  both  the
accused were produced  before  the  Court  and  application  was  moved  for
conducting Test Identification Parade (TIP) of the accused persons  but  the
accused declined the same through separate statements Ex.PM/1  and  Ex.PM/2.
Statements of  witnesses  were  recorded.  =

In any case, we are of the opinion that both  the  courts  below  have
believed the statement of PW-1 who was the Pradhan of his  Mohalla  and  not
only a respectable person and had no axe to grind.   We  see  no  reason  to
differ with the conclusions of the two courts below accepting the  statement
of PW-1 to the effect that these  two  appellants  had  made  extra-judicial
confession before him.  More so, we find that his  version  is  corroborated
by the two eye-witnesses namely PW-1 and PW-2.   We  are  conscious  of  the
fact that extra-judicial confession by its very  nature  is  rather  a  weak
type of evidence and requires appreciation  with  great  deal  of  care  and
caution.  Where an extra-judicial  confession  is  warranted  by  suspicious
circumstances,  its  credibility  becomes  doubtful   and   it   loses   its
importance.   It  is  for  this  reason  that  Courts  generally  look   for
independent reliable corroboration before placing any reliance upon  such  a
confession.  (See Balwinder Singh v. State of Punjab, (1995)  Supp  (4)  SCC
259, which was cited by the counsel for the appellants).  However,  we  find
that his statement is corroborated not by any  circumstantial  evidence  but
cast iron evidence in the form of two eye-witnesses.  Furthermore,  even  if
for the sake of arguments, we discard the testimony of  PW-1,  the  evidence
of two eye-witnesses who are found to be credible, is sufficient  to  uphold
the conviction of the appellants.

22.   For the aforesaid reasons, we are of the opinion  that  these  appeals
are bereft of any merit and are accordingly dismissed.

2014 - Sept. Month - http://judis.nic.in/supremecourt/filename=41885

                                                                 REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                        CRIMINAL APPEAL NO.47 OF 2014


|PARGAN SINGH                               |…..APPELLANT(S)                 |
|                                           |                                |
|VERSUS                                     |                                |
|STATE OF PUNJAB & ANR.                     |…..RESPONDENT(S)                |

                                    WITH

                       CRIMINAL APPEAL NO.1929 OF 2014
               (arising out of S.L.P. (Crl.) No.4071 of 2013)


|HARMINDER SINGH                            |…..APPELLANT(S)                 |
|                                           |                                |
|VERSUS                                     |                                |
|STATE OF PUNJAB                            |…..RESPONDENT(S)                |



                               J U D G M E N T

A.K. SIKRI, J.


                 Leave granted in Special Leave Petition (Criminal)  No.4071
of 2013.


2.    By these appeals, the two appellant  challenge  the  veracity  of  the
judgment of the High Court dated 13.12.2012   whereby  the  High  Court  has
dismissed their appeals which were  preferred  against  the  judgment  dated
25.09.2008 and order of sentence dated 27.09.2008  passed  by  the  Sessions
Judge, Kapurthala,  Punjab.   The  Sessions  Judge  had,  by  the  aforesaid
judgment, convicted the  appellants  under  Section  302,  397  as  well  as
Section 307 IPC read with Section 34 IPC.  For  the  offence  under  Section
302  IPC,  both  the  appellants  were  given  the  sentence   of   rigorous
imprisonment of life and fine of Rs.50,000/- each and in default of  payment
of fine, they have to undergo further rigorous imprisonment for  two  years.
For conviction under Section 307 IPC read with Section 34 IPC,  sentence  of
10 years rigorous imprisonment and fine of Rs.25,000/-  is  imposed  and  in
default  of  payment  of  fine,  they  have  to  undergo  further   rigorous
imprisonment for one year.  Likewise, for offences under  Section  397  IPC,
rigorous imprisonment for a period  of  10  years  is  imposed.   All  these
sentences were ordered to run concurrently.

3.    The prosecution case, as contained in  the  chargesheet  presented  in
the trial court, runs as under:
                 One Naveen Sharma reported the matter  to  the  Police,  on
the basis of which FIR was registered, that  on  25.03.1999  at  about  5:00
p.m., he had gone to Bank of Punjab on scooter No.PB-08-5477.   Varun  Kumar
alias Kaka was accompanying him though he was driving his  own  scooter  LML
Vespa.  Both of them reached the Bank and withdrew a sum of Rs.4 lakhs  from
the Bank.  Varun Kumar placed the bag containing money in front  of  scooter
and they started coming back to their  office  which  is  at  Gandhi  Chowk,
Phagwara.  Varun Kumar was ahead of Naveen Sharma.   When  they  reached  at
Chadha Market at about 5.30 p.m., one black colour scooter came  from  their
backside on which two sikh gentlemen with trimmed beard,  one  was  tall  in
height and other was of middle  height,  both  of  them  wearing  pants  and
shirts, started firing with pistol on Varun Kumar which hit  him  and  Varun
Kumar fell down from the scooter.  The person  sitting  on  the  pillion  of
scooter, snatched the money bag from Varun Kumar which was also  having  one
cheque book and they turned back their scooter. Then  Kamaljit  Singh  tried
to stop them but out of whom one sikh gentleman,  who  was  sitting  on  the
pillion, fired with pistol  on  Kamaljit  Singh  and  he  fell  down.   Both
unidentified persons ran away on scooter with the  money  bag.   Complainant
Naveen Kumar and other persons arranged the vehicle  and  sent  Varun  Kumar
and Kamaljit Singh to Civil Hospital, Phagwara.  When  the  complainant  was
going to police station to report the matter, the police party met  him  and
his statement was got recorded by ASI Iqbal Singh  (Investigating  Officer),
Police Station City Bhagwara at 6.00 p.m. on the same day.   Ruqa  was  sent
to the police station on the  basis  of  which  FIR  was  registered.   Then
Investigating Officer alongwith complainant and police party went to  Chadha
Market, City Phagwara and saw the dead body of Varun Kumar and  one  injured
Kamaljit Singh at the  spot.   The  injured  was  sent  to  Civil  Hospital,
Phagwara.  Inquest proceedings were prepared and  the  dead  body  of  Varun
Kumar was sent for postmortem examination.  Blood stained earth  was  lifted
from the spot and the same was taken into police possession after  preparing
a sealed parcel.  Vespa scooter lying  at  the  spot  was  also  taken  into
police possession.  As can be seen from the aforesaid  statement  of  Naveen
Sharma, the two perpetrators of the aforesaid crime were sikh gentlemen  but
unknown to the complainant or other persons.  The Police tried to trace  the
culprits but was unsuccessful for number of years.

4.    After more than 7 years i.e. on 18th July, 2006, a  special  team  was
constituted to  apprehend  the  perpetrators  of  the  crime.   As  per  the
prosecution version, the investigating  officer  (I.O.)  received  a  secret
information on 24.07.2006 that the two appellants herein were  actually  the
persons who had committed the said crime.  On  receiving  this  information,
I.O. conducted the raids at the houses of these accused  persons  but  could
not  arrest  them.   Further  allegation  of  the  prosecution  is  that  on
02.08.2006, one Vishwa  Mitter  (PW-1)  informed  the  I.O.  that  both  the
accused had confessed  before  him  that  they  had  shot  the  persons  and
committed the aforesaid robbery.  His statement was recorded by the I.O.  on
02.08.2006 to this effect.  On 07.08.2006, a naka  was  laid  and  at  about
6:45 p.m. both the accused were seen coming on a  scooter  which  was  being
driven by Pargan Singh and Harminder  Singh  was  sitting  on  the  pillion.
Both the accused were apprehended and arrested.   On  08.08.2006,  both  the
accused were produced  before  the  Court  and  application  was  moved  for
conducting Test Identification Parade (TIP) of the accused persons  but  the
accused declined the same through separate statements Ex.PM/1  and  Ex.PM/2.
Statements of  witnesses  were  recorded.   After  necessary  investigation,
challan against the appellants was presented before the Court.

5.    The trial court framed the charges against these  appellants  for  the
offences under Section 302, 307 and 397 IPC read with Section 34  IPC.   The
appellants pleaded innocence and claimed trial.   The  prosecution  examined
as many as 14 witnesses.  It is not necessary to  mention  about  deposition
of all these witnesses.  Material witnesses are PW-1 (Vishwa  Mitter),  PW-2
(Kamaljit Singh – an  injured  eye  witness),  PW-3  (Naveen  Sharma  –  the
complainant and eye witness), PW-5 (Dr. Kamaljit Singh  –  Medical  Officer)
who has conducted the postmortem examination  of  the  dead  body  of  Varun
Kumar on 26.03.1999 along with two other Doctors i.e. PW-6 (Dr. Ajay  Kumar,
Medical Officer, Civil  Hospital,  Phagwara),  Dr.  Gurdit  Singh,  who  had
medically examined Kamaljit Singh, the  injured  person,  PW-10  (ASI  Iqbal
Singh) and PW-12 (SI Inder Singh) who deposed  regarding  the  investigation
of the case.

6.    PW-1 had mainly stated about the extra-judicial confession  which  the
appellants had allegedly made to him on  30th  July,  2006.   PW-2  Kamaljit
Singh who sustained injury and had seen the occurrence,  deposed  about  the
incident that occurred on  25th  March,  1999.   PW-5  Dr.  Kamaljit  Singh,
Medical Officer, Civil Hospital, Phagwara, deposed regarding conducting  the
postmortem examination on the dead body of Varun Kumar on  26.03.1999  along
with Dr. Ajay Kumar and Dr. Gurdit Singh and found a lacerated wound 1.75  x
1.5 cm round to oval inverted margins situated just on left side of  midline
in the area of described upper half of  scapula  and  back  bone.   Blackish
staining with burned margins  present.   In  the  opinion  of  the  doctors,
injuries were ante-mortem in nature and the cause of death in this case  was
severe haemorrhage and shock and injury to  vital  organs  lung,  liver  and
major vessels which was sufficient to cause  death  in  ordinary  course  of
nature.  PW-6 Dr. Ajay Kumar, Medical  Officer,  Civil  Hospital,  Phagwara,
mainly  deposed  regarding  conducting  the  medico  legal  examination   of
Kamaljit Singh and found the following injuries:-

1.  Multiple lacerated wounds 8 in number of size 3 mm x 3  mm  x  2  mm  in
front of right shoulder.  Red in colour and  bleeding  from  the  wound  was
present.

2.  Lacerated wounds four in numbers of size 3 mm x 3 mm x 2 mm in front  of
right side of neck.  Bleeding from the  wound  was  present.   It  was  kept
under observations and advised x-ray on nect.

3.  Three lacerated wounds 3 mm x 3 mm x 3 mm below the lower leg  and  chin
on right side.  Bleeding from the wound was  present.   It  was  kept  under
observation and advised x-ray.

4.  Four lacerated wounds 3 mm x 3 mm x 2 mm one above  and  one  below  the
right eye, two  on  its  lateral  side.   Bleedings  from  the  wounds  were
present, upper and lower eye lids  were  swollen  and  blackened.   Eye  was
closed.  It was kept under observation.  X-ray was advised and eye check  up
was advised.

5.  Lacerated wound on right side and below the tongue, which was 4 mm  x  4
mm.  Bleeding from the mouth was present.   Toungue  was  edematous.   X-ray
was advised and kept under observation.

All injuries were caused with fire arm.


7.    After the prosecution concluded  its  evidence,  the  appellants  were
examined under Section 313 of  the  Code  of  Criminal  Procedure  and  were
confronted with the incriminating evidence which had come on record  against
them.   They denied the correctness of  the  evidence  and  maintained  that
they were innocent.  No defence evidence was, however, led by  them.   After
hearing the arguments, the trial court  convicted  and  sentenced  both  the
appellants, which has been upheld by the High Court, as mentioned above.

8.    A perusal of the judgment of the High  Court  reveals  that  the  High
Court has accepted the version of PW-2 on the ground that he was an  injured
eye witness to  the  occurrence  and,  therefore,  his  presence  cannot  be
doubted.  It is further observed  by  the  High  Court  that  similarly  the
presence of Naveen Sharma, the complainant (PW-3)  also  cannot  be  doubted
who had reported the matter to the Police within no time  and  the  FIR  was
prompt one.  In the opinion of the High Court, the testimony  of  both  PW-2
and PW-3 was consistent on material points;  that  there  were  no  material
improvements or material contradictions which could shake  the  veracity  of
their version.

9.    The defence had strongly  pleaded  before  the  High  Court  that  the
statements of PW-2 and PW-3 identifying the appellant in the Court  was  not
credible as the persons who committed the offence  were  admittedly  unknown
to these witnesses.  Therefore, it was not possible to  remember  the  faces
of said criminals after a period of  7  years.   This  argument  is  brushed
aside by the High Court on the ground that the  appellants  had  refused  to
take part in the  TIP.   Plea  of  the  appellants  that  their  refusal  to
participate in the identification parade was because of the reason that  the
Police had already shown their  faces  to  these  witnesses  in  the  Police
Station after their arrest, also did not find by the High  Court  to  be  of
any merit.  Another reason given by the High Court in accepting the  version
of PW-2 and PW-3 is  that  there  is  no  enmity  or  motive  of  these  eye
witnesses to  deposed  falsely  against  these  appellants  and  that  their
version was corroborated by the medical evidence in  this  case.   Likewise,
statement of PW-1 Vishwa Mitter who is stated to be Pradhan of  Mohalla  has
been accepted as he would not be telling a lie that the appellants had  made
extra judicial confession before him about the  incident.   Thus,  observing
that there was no reason  for  these  witnesses  to  falsely  implicate  the
appellants and to let off the actual culprits, the High Court took the  view
that these witnesses were truthful and trustworthy.  These are, then,  other
reasons recorded by the courts below in convicting the two appellants.

10.   It is clear from the above that the conviction is primarily  based  on
the depositions of PW-1 to PW-3.  PW-1 is the person  who  stated  that  the
two appellants had confessed their guilt before him and PW-2  and  PW-3  are
the eye witnesses who have identified the appellants.

11.   Before us, it was argued with all  vehemence  by  Mr.  Shreepal  Singh
(who appeared for appellant Pargan Singh) and  Shri  Shiv  Kumar  Suri  (who
argued for the appellant Harminder Singh) that the entire prosecution  story
was a suspect in the manner in which it was woven and the  circumstances  in
which it was created.  Drawing our attention to the cross-examination of PW-
2 Kamaljit Singh it was argued that he had  accepted  that  on  8th  August,
2006, he had visited the Police Station and at that time, Police  asked  him
to identify the accused persons in the Police Station.   From  statement  of
this witness, the submission raised by the learned counsel for  the  defence
was that since PW-2 had already visited the  Police  Station  on  06.08.2006
and the appellants faces were  shown  to  him,  there  could  not  have  any
purpose of Test Identification Parade  thereafter  inasmuch  as  application
for Test Identification Parade was moved before the Magistrate only  on  8th
August, 2006.  It was further argued that even as per these witnesses,  they
had not seen the  appellants  before  the  said  occurrence.   It  was  thus
pleaded that when they were totally unknown faces to PW-2 and PW-3  and  the
incident lasted for one and half minute, it was  beyond  comprehension  that
these two persons  would  remember  the  faces  of  the  perpetrators.   The
learned counsel, thus, argued that the appellants  were  falsely  framed  in
the said crime which was not committed by them.

12.   Learned counsel for the respondent/State, on the other hand, made  his
submissions on the same lines on which  conclusions  are   recorded  by  the
Courts below.  He argued that PW-1 and PW-2 were the eye-witnesses  and  out
of them, PW-2 was even an injured  eye-witness.   Therefore,  there  was  no
reason to disbelieve their testimonies, which aspect was dealt with  by  the
two courts below  in  sufficient  details  and  the  finding  of  facts  was
recorded to the effect that their statements were worthy  of  credence.   He
further submitted that 90 seconds was more than sufficient  time  for  these
witnesses to observe the assailants namely the appellants herein and  absorb
them in their memory, more so, when these  witnesses  are  attacked  by  the
said appellants.  He further submitted  that  the  High  Court  has  rightly
pointed out that PW-1 before  whom  confession  was  made,  was  a  reliable
witness as he was an independent witness.  The argument  of  the  appellants
that their faces were shown by the Police to PW-2 in the Police Station  and
that was the reason to refuse to  participate  in  the  Test  Identification
Parade, was also refuted with the submission that  no  such  case  was  ever
pleaded in the courts below.

13.   We have considered the aforesaid submissions  with  reference  to  the
record.

14.   Let us first discuss the testimonies of PW-2 and PW-3 who  are  stated
to be the eye-witnesses.  Both of them have narrated the incident in  unison
and their version is almost the same.  PW-2, who  is  the  injured  witness,
has even in his  cross-examination,  narrated  that  deceased  was  attacked
first by the accused and after firing the shot at him, the accused fired PW-
2 when they were flee with the bag of money.   The occurrence lasted for  1½
minutes.  He has further stated  that  few  seconds  after  the  receipt  of
injury, he became unconscious and  regain  consciousness  after  4  days  of
receipt of the injury.  The testimony  of  this  witness  is  sought  to  be
discredited by arguing that when the incident lasted for  only  90  seconds,
it was difficult to remember the faces  of  the  accused  persons  after  7½
years  of  the  incident,  particularly   in   the   absence   of   previous
acquaintance.
15.   Before entering upon the discussion on this aspect  specific  to  this
case, we would like to make some  general  observations  on  the  theory  of
“memory”.  Scientific understanding of how  memory  works  is  described  by
Geoffrey R. Loftus while commenting upon  the  judgment  dated  January  16,
2002 rendered in the case of Javier  Suarez  Medina  v.  Janie  Cockrell  by
United States Court of Appeals, Fifth Circuit in Case No.01-10763.   He  has
explained that a  generally  accepted  theory  of  this  process  was  first
explicated in detail by Neisser (1967)  and  has  been  continually  refined
over the intervening quarter-century.  The basic tenets of  the  theory  are
as follows: First, memory does not work like  a  video  recorder.   Instead,
when a person  witnesses  some  complex  event,  such  as  a  crime,  or  an
accident, or a wedding, or a basketball game, he or she  acquires  fragments
of information from the environment.  These fragments  are  then  integrated
with other information from other sources.  Examples of  such  sources  are:
information previously stored in memory that  leads  to  prior  expectations
about what will  happen,  and  information-both  information  from  external
sources, and information generated internally in  the  form  of  inferences-
that is  acquired  after  the  event  has  occurred.   The  result  of  this
amalgamation  of  information  is  the  person's  memory  for   the   event.
Sometimes this memory is accurate, and other times  it  is  inaccurate.   An
initial memory of some event,  once  formed,  is  not  “cast  in  concrete.”
Rather,  a  memory  is  a  highly  fluid  entity  that  changes,   sometimes
dramatically, with the passage of time.  Every time a witness  thinks  about
some event-revisits his or her memory  of  it-the  memory  changes  in  some
fashion.  Such changes take many forms.  For instance, a  witness  can  make
inferences about how things probably happened, and these  inferences  become
part of the memory.  New information that is consistent with  the  witness's
beliefs about what must have happened can be  integrated  into  the  memory.
Details that do not seem to fit a coherent story of  what  happened  can  be
stripped away.  In short, the memory possessed by the witness at some  later
point (e.g., when the witness testifies in court)  can  be  quite  different
from the memory that the witness  originally  formed  at  the  time  of  the
event.  Memory researchers  study  how  memory  works  using  a  variety  of
techniques.  A common technique is to try to  identify  circumstances  under
which memory is  inaccurate  versus  circumstances  under  which  memory  is
accurate.  These efforts have revealed  four  major  sets  of  circumstances
under  which  memory  tends  to  be  inaccurate.   The  first  two  sets  of
circumstances involve what is happening at  the  time  the  to-be-remembered
event is originally experienced, while the second two sets of  circumstances
involve things that happen after the event has  ended.   The  first  set  of
circumstances involves the state of the environment at the  time  the  event
is experienced.  Examples of  poor  environmental  conditions  include  poor
lighting, obscured or interrupted vision, and  long  viewing  distance.   To
the degree that environmental conditions are poor, there is relatively  poor
information on which to base an initial perception and the  memory  that  it
engenders to begin with.  This will ultimately result in a  memory  that  is
at best incomplete and, as will be described in more  detail  below,  is  at
worst systematically distorted.  The second set  of  circumstances  involves
the state of the observer at the time the event  is  experienced.   Examples
of suboptimal observer states include high  stress,  perceived  or  directly
inflicted  violence,  viewing  members  of  different  races,  and  diverted
attention.  As with poor environmental factors, this will ultimately  result
in a memory that is at best incomplete and, as will  be  described  in  more
detail below, is at  worst  systematically  distorted.   The  third  set  of
circumstances involves  what  occurs  during  the  retention  interval  that
intervenes between the to-be-remembered event and the time the person  tries
to remember aspects of the event.  Examples  of  memory-distorting  problems
include a  lengthy  retention  interval,  which  leads  to  forgetting,  and
inaccurate information learned by the person during the  retention  interval
that can get incorporated into the person's memory for the  original  event.
The fourth set of circumstances involves errors introduced at  the  time  of
retrieval, i.e., at the time the person is trying to  remember  what  he  or
she experienced.  Such problems include biased tests and leading  questions.
 They can lead to a biased report  of  the  person's  memory  and  can  also
potentially change and bias the memory itself.
16.   While discussing the present case, it is to be borne in mind that  the
manner in which the incident occurred and description  thereof  as  narrated
by PW-2, has not been questioned on the ground that narration should not  be
believed because of lapse of time.   Instead,  the  appellants  have  joined
issue on a very limited aspects viz.  their  identification  on  the  ground
that faces of the culprits could not have been remembered after 7½ years  of
the occurrence as memory fades by that time.

17.   We are of the opinion that under the given circumstances  and  keeping
in view the nature of incident, 90 seconds  was  too  long  a  period  which
could enable the eye-witness (PW-2) to watch the accused persons and such  a
horrible experience would not be easily forgotten.  Death of  a  friend  and
near death experience by the witness himself would be etched in  the  memory
for  long.   Therefore,  faces  of  accused  persons  would  not  have  been
forgotten even after 7½ years.

18.   Whether a  particular  event  or  the  faces  of  a  person  could  be
remembered would depend upon the circumstances under which those  faces  are
seen.  One cannot lose sight of the fact that here is a case where  the  two
accused persons are the assailants who had shot dead Varun Kumar,  companion
of PW-2.  Thereafter, they had fired at PW-2 as  well.   For  PW-2,  it  was
clearly a horror scene resulting into traumatic experience.  In a case  like
this, even when these two assailants had remained before  his  face  for  90
seconds, these 90  seconds  was  sufficiently  long  time  to  observe  them
closely and the person encountering such an event  would  not  forget  those
faces even for a life time, what to talk for 7½ years that have  elapsed  in
between.  We would like to support our hypothesis with an anecdote.  Once  a
friend of Einstein, the  renowned  scientist  who  invented  the  theory  of
relativity, asked him to explain that theory.  Mr. Newton explained it in  a
simple manner for common man's understanding as under: If a boy  is  sitting
with his girlfriend/lover, he would feel the time fly away  and  60  minutes
would seem as 60 seconds.  On the other hand, if a person  puts  his  finger
in a hot boiling water, 60 seconds would feel like 60 minutes.  This is  the
theory of relativity.

19.   In the present case, the circumstances on  which  the  PW-2  seen  the
accused persons even for 90 seconds, that was  sufficient  to  absorb  their
faces.  In contrast, things would be different if  it  is  a  case  of  some
large get together where two unknown persons have a chance  meeting  for  90
seconds.  Therefore, we reject the  argument  of  learned  counsel  for  the
appellants that PW-2 could not recollect the face of  the  appellants  after
7½ years and thus, he was not telling the truth.  We have to  keep  in  mind
that PW-2 suffered serious injury because of the shot fired at  him  by  the
assailants and seriousness of the injury has resulted into conviction  under
Section 307 IPC as well.   The testimony of an injured  witness  requires  a
higher degree of  credibility  and  there  have  to  be  strong  reasons  to
describe the same.  The appellants have not been able  to  demonstrate  that
the  courts  below  unreasonably  reached   the   conclusion   as   to   the
admissibility  of  the  testimony  of  PW-2.   Apart  from  a  very   feeble
submission that this witness identified the appellants 7½  years  after  the
incident, their arguments do not address the issue of whether  testimony  of
PW-2 was false.  We are, thus, not at all impresses by this argument of  the
learned counsel for the appellants.  Except that PW-3 is not an injured eye-
witness, he has also seen the occurrence and the reasons  given  in  support
of attaching credibility to the statement of PW-2 would apply  in  his  case
as well.

20.   We also do not find any merit in the argument of  the  appellants  qua
their refusal  to  participate  in  the  Test  Identification  Parade.   The
argument that PW-2 was shown the faces of the appellants in  Police  Station
after their arrest is raised for the first time before us and  that  too  at
the hearing of the case.  No reason was  given  as  to  why  the  appellants
refused to participate in Test Identification Parade before the trial  court
at the time of refusal or even in their statements  recorded  under  Section
313 of the Cr.P.C.  It was not an argument raised at  the  time  of  hearing
before the trial court or even before the High Court  when  we  examine  the
matter in the aforesaid prospective, the argument advanced  by  the  learned
counsel for the appellants to discredit the testimony of  PW-1,  also  pales
into insignificance.

21.   In any case, we are of the opinion that both  the  courts  below  have
believed the statement of PW-1 who was the Pradhan of his  Mohalla  and  not
only a respectable person and had no axe to grind.   We  see  no  reason  to
differ with the conclusions of the two courts below accepting the  statement
of PW-1 to the effect that these  two  appellants  had  made  extra-judicial
confession before him.  More so, we find that his  version  is  corroborated
by the two eye-witnesses namely PW-1 and PW-2.   We  are  conscious  of  the
fact that extra-judicial confession by its very  nature  is  rather  a  weak
type of evidence and requires appreciation  with  great  deal  of  care  and
caution.  Where an extra-judicial  confession  is  warranted  by  suspicious
circumstances,  its  credibility  becomes  doubtful   and   it   loses   its
importance.   It  is  for  this  reason  that  Courts  generally  look   for
independent reliable corroboration before placing any reliance upon  such  a
confession.  (See Balwinder Singh v. State of Punjab, (1995)  Supp  (4)  SCC
259, which was cited by the counsel for the appellants).  However,  we  find
that his statement is corroborated not by any  circumstantial  evidence  but
cast iron evidence in the form of two eye-witnesses.  Furthermore,  even  if
for the sake of arguments, we discard the testimony of  PW-1,  the  evidence
of two eye-witnesses who are found to be credible, is sufficient  to  uphold
the conviction of the appellants.

22.   For the aforesaid reasons, we are of the opinion  that  these  appeals
are bereft of any merit and are accordingly dismissed.



                                   …......................................J.
                                                            (J. Chelameswar)



                                   …......................................J.
                                                                (A.K. Sikri)
New Delhi;
September 05, 2014.

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