Section 148 of the Indian Penal Code, 1860 (for short, ‘the IPC’), Section 460 read with Section 149 of the IPC and Section 302 read with Section 149 of the IPC. All the five accused were convicted.
2024 INSC 91
Criminal Appeal no.1465 of 2011 Page 1 of 11
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1465 OF 2011
Kishore & Ors. … Appellants
versus
State of Punjab … Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. The appellants are the accused nos.2, 3 and 5 – Kishore,
Bala, and Banaras respectively. Five accused faced trial for the
offences punishable under Section 148 of the Indian Penal
Code, 1860 (for short, ‘the IPC’), Section 460 read with Section
149 of the IPC and Section 302 read with Section 149 of the
IPC. All the five accused were convicted. For the offences
punishable under Section 148 of the IPC, they were sentenced
to undergo imprisonment for two years. For the second offence
punishable under Section 460, read with Section 149 of the
IPC, they were sentenced to undergo rigorous imprisonment for
ten years. For the offence punishable under Section 302 read
Criminal Appeal no.1465 of 2011 Page 2 of 11
with Section 149 of the IPC, they were sentenced to undergo
life imprisonment.
2. The accused preferred an appeal before the High Court of
Punjab and Haryana at Chandigarh. By the impugned
judgment dated 27th April 2010, the High Court acquitted the
accused no.1–Raka and the accused no.4–Lakhan but
confirmed the conviction of the present appellants.
3. According to the prosecution case, on the intervening
night of 3rd and 4th July 2003, PW-8 (Khushbir Singh) was
sleeping with his parents Pratap Singh and Gurpal Kaur, in
their bedroom. Khushbir Singh is the complainant. His
brother Satbir Singh and his wife Narinder Kaur (PW-9) were
sleeping in another room. The two daughters of Satbir Singh
and Narinder Kaur were sleeping in another room. PW-8 heard
the cries of his nieces, and therefore, he was awakened from
sleep. According to him, four to five persons who had entered
his house assaulted PW-8, PW-9 and her husband–Satbir
Singh. They broke the locks of the almirah in the house and
took away ornaments and cash. The accused assaulted Pratap
Singh and Gurpal Kaur. Both of them were injured and
succumbed to injuries in the hospital.
SUBMISSIONS
4. The learned counsel appearing for the appellants has
taken us through the evidence of the material prosecution
witnesses. The learned counsel submitted that though the two
eye-witnesses, PW-8 (Khushbir Singh) and PW-9 (Narinder
Criminal Appeal no.1465 of 2011 Page 3 of 11
Kaur), did not know the accused, a test identification parade
was not conducted. The witnesses purported to identify the
accused in the Court for the first time one year after the
incident. Moreover, both the witnesses have not stated that
they had seen any of the accused assaulting the deceased –
Pratap Singh and Gurpal Kaur. The learned counsel pointed
out that the most crucial witnesses, Lovepreet Kaur and
Amritpal Kaur, whose respective ages were 17 and 8 years,
were not examined. The learned counsel pointed out that only
after hearing the shouts of these two girls that PW-8 and PW-9
were awakened. Therefore, the prosecution needed to examine
at least one of them. Secondly, Satbir Singh – the husband of
PW-9 (Narinder Kaur), who was the injured witness, has not
been examined. Inviting our attention to the evidence of PW-8
and PW-9, the learned counsel submitted that their evidence is
entirely doubtful and cannot be believed at all.
5. The learned counsel invited our attention to the evidence
of PW-7, who is a witness to the disclosure statements made
by the accused and the consequent recovery. The ornaments
were recovered based on the disclosure statements of all five
accused. Though recovery was also made from Raka (accused
no.1) and Lakhan (accused no.4), they have been acquitted by
the High Court by the impugned judgment. She pointed out
that PW-7 deposed that the seized ornaments were mixed with
other ornaments for the purposes of identification. He stated
that a goldsmith was called for the identification of ornaments.
However, the goldsmith was not examined. Therefore, serious
Criminal Appeal no.1465 of 2011 Page 4 of 11
doubt is created about the prosecution case regarding the
identification of the stolen ornaments by PW-9.
6. The learned counsel appearing for the respondent–State
of Punjab, urged that both PW-8 and PW-9 had seen the
accused for a sufficiently long time during the incident, and
their examination had been recorded within one year from the
date of the incident. Therefore, the test identification parade
was not necessary at all. He urged that the failure to hold the
test identification parade was not fatal to the prosecution as
the testimony of PW-8 and PW-9 was reliable. The learned
counsel relied upon a decision of this Court in the case of Raju
Manjhi v. State of Bihar1. He submitted that the
eyewitnesses have identified the present appellants and
therefore, no interference is called for.
CONSIDERATION OF SUBMISSIONS
7. We find that as the appellants had undergone sentence
for more than seven years, by the order dated 25th July 2011
of this Court, they have been enlarged on bail till the disposal
of this appeal. We must note here that all the five accused were
convicted for the offence punishable under Section 148 of the
IPC, which is the offence of “rioting, armed with deadly
weapon”. Section 146 of the IPC provides that whenever force
or violence is used by unlawful assembly or by any member
thereof in prosecution of the common object of such assembly,
every member of the unlawful assembly is guilty of the offence
1 (2019) 12 SCC 784
Criminal Appeal no.1465 of 2011 Page 5 of 11
of rioting. Therefore, the condition precedent for attracting
Section 148 of the IPC is that there has to be an unlawful
assembly. Under Section 141 of the IPC, the unlawful
assembly must be of five or more persons. All five accused have
been convicted for the offences punishable under Sections 460
and 302 with the aid of Section 149. Section 149 incorporates
vicarious liability of all the members of an unlawful assembly
for the acts done with a common object. In the present case,
the High Court has acquitted two out of three accused of all
charges. Therefore, we will have to proceed on the footing that
there was no unlawful assembly within the meaning of Section
141 of the IPC. Thus, the conviction under Section 148 of the
IPC cannot be sustained. Even the conviction for the offences
under Sections 460 and 302 with the aid of Section 149 of the
IPC cannot be upheld as there was no unlawful assembly.
Perhaps the High Court could have altered the charge by
applying Section 34 of the IPC, provided there was evidence on
record. But that has not been done.
8. It is true that a test identification parade is not
mandatory. The test identification parade is a part of the
investigation. It is useful when the eyewitnesses do not know
the accused before the incident. The test identification parade
is usually conducted immediately after the arrest of the
accused. Perhaps, if the test identification parade is properly
conducted and is proved, it gives credence of the identification
of the accused by the concerned eyewitnesses before the Court.
Criminal Appeal no.1465 of 2011 Page 6 of 11
The effect of the prosecution's failure to conduct a test
identification parade will depend on the facts of each case.
9. In this case, the evidence of both eyewitnesses was
recorded within one year of the date of the incident. There is
no significant time gap between the date of the incident and the
identification by the witnesses before the Court. If the evidence
of these two witnesses is reliable and inspires confidence, the
conviction can be based on their testimonies.
10. Therefore, we must analyse the testimonies of PW-8 and
PW-9 to ascertain whether their version inspires confidence.
PW-8 (Khushbir Singh) is the son of the deceased Pratap Singh
and Gurpal Kaur. He deposed that his two nieces, Lovepreet
Kaur and Amritpal Kaur (daughters of PW-9 Narinder Kaur),
were sleeping in a room next to the room where he, along with
his deceased parents, were sleeping. PW-8 stated that around
3 to 4 a.m., he heard the cries of his nieces. Thereafter, he
found that there were three to four persons in the house, who
were in the age group of 32 to 35 years. He claimed that the
lights in the house were on. He identified only three accused
(the appellants). The witness claimed that he challenged one
of them, who gave a blow by ‘Sarva’ on his right ear. He stated
that the blow was given by accused no.3-Bala (appellant no.2).
Thereafter, he vaguely stated that his parents challenged the
accused, but they also caused injuries to them as well.
Further, he stated that his brother – Satbir Singh and PW-9
also woke up, and both suffered injuries. However, the witness
has not stated which accused and in what manner, the accused
Criminal Appeal no.1465 of 2011 Page 7 of 11
assaulted his parents (the deceased). There is only one vague
statement that when the deceased challenged them, the
accused caused injuries to them. Thereafter, he stated that
they demanded keys to open the cupboard, and due to the
threat administered by them, the keys were handed over to
them. Later, the accused walked away with cash and
ornaments. In the cross-examination, he reiterated that he
was awakened after hearing the cries of his nieces. He also
accepted that he had not seen the accused before the
occurrence, and therefore, he could not tell the names of the
accused.
11. PW-9 (Narinder Kaur) stated that around 2 to 3 a.m., she
heard the cries of her family members. At that time, the lights
in her house were put on. She stated that two persons entered
her room, and one of them inflicted injuries on her husband–
Satbir Singh. She stated that she received injuries from
accused no.2–Kishore (appellant no.1), and she became
unconscious. After pointing out to accused no.5 – Banaras
(appellant no.3), she stated that he caused injuries to her
husband – Satbir Singh. But she has not stated anything
about the weapon of assault used by them for assault. Then,
she described the ornaments which were taken by the accused.
She deposed that on 22nd October 2003, she identified the
ornaments in the police station in the presence of the
witnesses. In the cross-examination, she was confronted with
her statement recorded under Section 161 of Cr. PC. She
accepted that in the statement, she had not stated that she
Criminal Appeal no.1465 of 2011 Page 8 of 11
could identify the accused. Her explanation was that no such
question was put to her. She stated that she had not seen the
accused before the occurrence of the incident. She stated that
the ornaments produced in the Court could be procured from
Sarafa Bazaar, and she had not given any specific mark of
identity on the ornaments except stones.
12. Thus, PW-9 has not even stated that she had seen any of
the accused assaulting the deceased. As pointed out earlier,
even the version of PW-8 is very vague about the accused
assaulting the deceased. Another important aspect is that PW8 stated that he was awakened due to the cries of his nieces,
Lovepreet Kaur and Amritpal Kaur. Though he accepted that
Lovepreet Kaur was 16 to 17 years old, the prosecution has not
examined Lovepreet Kaur. Similarly, Satbir Singh, husband of
PW-9, who was the injured witness, has not been examined.
The prosecution has not come out with any reason for not
examining these two vital witnesses. It is very difficult to
connect any accused with the injuries sustained by the
deceased in the absence of any cogent evidence. Therefore, it
is not possible to uphold the conviction for the offence
punishable under Section 302 of the IPC.
13. At the highest, from their evidence, it can be deduced that
accused no.3–Bala caused injuries to PW-8, accused no.5–
Banaras assaulted PW-9’s husband and accused no.2 –
Kishore assaulted PW-9. As far as Satbir Singh is concerned,
PW-1 has deposed that injury no.1 (lacerated wound
measuring 6cm×2cm on the posterior carpel of the left ear and
Criminal Appeal no.1465 of 2011 Page 9 of 11
to the pinna) was dangerous. However, he has not deposed
about any fracture suffered by him. As far as PW-9 is
concerned, she suffered a horizontal fracture of the temporal
bone. As regards PW-8, PW-1 has not deposed that he suffered
any fracture. He deposed about the wound on the right ear
pinna and lacerated wound measuring 4cm×0.6 cm on the
back of the base of the right ear. In the absence of the charge
under Section 34 of the IPC, at the highest, accused Banaras
and Bala could have been convicted of the offence punishable
under Section 323 of the IPC and accused no.2–Kishore could
have been held to be guilty of the offences punishable under
Section 326 of the IPC. However, all of them have undergone
sentences of more than seven years, which is more than what
can be imposed for these offences in the facts of this case.
Therefore, in any case, they will have to be let off.
14. Now, we turn to the evidence of recovery of ornaments.
Two of the five accused from whom the recovery was made,
have been exonerated by the High Court. PW-7 (ASI Ajaib
Singh) deposed that PW-9 identified the recovered ornaments
from the other ornaments which were arranged through MHC.
In the cross-examination, he stated that the other ornaments
were arranged by a goldsmith and were mixed with the
ornaments recovered at the instance of the accused. However,
he stated that he was not aware of the fact how MHC had
procured the said ornaments. The examination of the
goldsmith or the person from whom the other ornaments were
brought was necessary to prove that the ornaments were
Criminal Appeal no.1465 of 2011 Page 10 of 11
identical to the ones recovered at the instance of the accused.
But that was not done. Therefore, even the identification of the
ornaments by PW-9 becomes doubtful. The prosecution case
regarding the recovery of the ornaments at the instance of the
appellants also becomes doubtful.
15. Moreover, as regards the offence punishable under
Section 460 of the IPC, there was no specific role attributed to
any of the accused by PW-8 and PW-9, and all of them have
been convicted only with the aid of Section 149 of the IPC. It
is established that there was no unlawful assembly as two out
of five accused have been acquitted. The High Court could have
altered the charge by applying Section 34 instead of Section
149 of the IPC, but that was not done. Now, twenty-one years
after the incident, at this stage, we cannot modify or alter the
charge, especially when all three appellants accused have
undergone incarceration for more than seven years. Even if we
do that, even otherwise, the prosecution has failed to prove the
commission of the offence.
16. Accordingly, the appeal must succeed. We set aside the
impugned judgment and order dated 27th April 2010 of the
High Court of Punjab and Haryana at Chandigarh rendered in
the Criminal Appeal no.197-DB of 2009 and the impugned
judgment and order passed in SC No.32/T dated 20th February
2004 by the Additional Sessions Judge, Patiala on 12th January
2009 insofar as the present appellants are concerned and
acquit them of the charges framed against them. As the
Criminal Appeal no.1465 of 2011 Page 11 of 11
appellants are presently on bail, their bail bonds stand
cancelled.
17. The appeal is, accordingly, allowed.
….…………………….J.
(Abhay S. Oka)
…..…………………...J.
(Ujjal Bhuyan)
New Delhi;
February 7, 2024.
