1. Conviction for rioting, house-breaking, and murder under Sections 148, 460, and 302 read with Section 149 of the IPC — Appeal against confirmation of conviction. (Para 1 , 2 , 3 )
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2024 Supreme(SC) 105
SUPREME COURT OF INDIA
ABHAY S. OKA, UJJAL BHUYAN, JJ.
Kishore and Others – Appellants
Versus
State of Punjab – Respondent
Criminal Appeal No. 1465 of 2011
Decided On : 07-02-2024
Important Points
IMPORTANT POINT
Test Identification Parade – Test identification parade is not mandatory – Test identification parade is a part of investigation – It is useful when eyewitnesses do not know accused before incident.
Test Identification Parade – Test identification parade is not mandatory – Test identification parade is a part of investigation – It is useful when eyewitnesses do not know accused before incident.
Subject
Criminal Law - Murder
Act Referred
Headnote
(A) Indian Penal Code, 1860 – Sections 302/149, 460/149 and 148 – Murder, lurking house trespass and rioting – Common object of unlawful assembly – Life sentence – Section 149 incorporates vicarious liability of all members of an unlawful assembly for acts done with a common object – In present case, High Court has acquitted two out of three accused of all charges – Evidence of both eyewitnesses was recorded within one year of date of incident – There is no significant time gap between date of incident and identification by witnesses before Court – If evidence of two witnesses is reliable and inspires confidence, conviction can be based on their testimonies – It is very difficult to connect any accused with injuries sustained by deceased in absence of any cogent evidence – It is not possible to uphold conviction for offence punishable under Section 302 of IPC – Examination of goldsmith or person from whom other ornaments were brought was necessary to prove that ornaments were identical to ones recovered at instance of accused – But that was not done – Even identification of ornaments by eye-witness becomes doubtful – Prosecution case regarding recovery of ornaments at instance of appellants also becomes doubtful – High Court could have altered charge by applying Section 34 instead of Section 149 of IPC, but that was not done – Now, twenty-one years after incident, at this stage, Court cannot modify or alter charge, especially when appellants accused have undergone incarceration for more than seven years – Even otherwise, prosecution has failed to prove commission of offence – Impugned judgment and order set aside and appellants acquitted. (Paras 7, 9, 12, 14, 15 and 16)
(B) Criminal Law – Test Identification Parade – Test identification parade is not mandatory – Test identification parade is a part of investigation – It is useful when eyewitnesses do not know accused before incident – Test identification parade is usually conducted immediately after arrest of accused – If test identification parade is properly conducted and is proved, it gives credence of identification of accused by concerned eyewitnesses before Court – Effect of prosecution's failure to conduct test identification parade will depend on facts of each case. (Para 8)
Facts of the case:
Appellants are accused nos.2, 3 and 5 – Kishore, Bala, and Banaras respectively. Five accused faced trial for offences punishable under Section 148 of Indian Penal Code, 1860, Section 460 read with Section 149 of the IPC and Section 302 read with Section 149 of IPC. All five accused were convicted. For offences punishable under Section 148 of IPC, they were sentenced to undergo imprisonment for two years. For second offence punishable under Section 460, read with Section 149 of IPC, they were sentenced to undergo rigorous imprisonment for ten years. For offence punishable under Section 302 read with Section 149 of the IPC, they were sentenced to undergo life imprisonment. Accused preferred an appeal before the High Court of Punjab and Haryana at Chandigarh. By impugned judgment dated 27th April 2010, High Court acquitted accused no.1–Raka and the accused no.4–Lakhan but confirmed conviction of present appellants.
Findings of Court:
Impugned Judgment and order dated 27th April 2010 of High Court of Punjab and Haryana at Chandigarh rendered in Criminal Appeal no.197-DB of 2009 and impugned judgment and order passed in SC No.32/T dated 20th February 2004 by Additional Sessions Judge, Patiala on 12th January 2009 insofar as present appellants are concerned, set aside.
Result : Appeal allowed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Advocates appeared:
For Appellant(s) : Ms. Asha Gopalan Nair, AOR Ms. Nivedita Nair, Adv.
For the Respondent(s): Mr. Avishkar Singhvi, Adv. Mr. Karan Sharma, AOR Mr. Mohit Siwach, Adv. Ms. Princy Sharma, Adv. Ms. Urvi Kashiwal, Adv. Mr. Mohd Irshad, Adv.
For Appellant(s) : Ms. Asha Gopalan Nair, AOR Ms. Nivedita Nair, Adv.
For the Respondent(s): Mr. Avishkar Singhvi, Adv. Mr. Karan Sharma, AOR Mr. Mohit Siwach, Adv. Ms. Princy Sharma, Adv. Ms. Urvi Kashiwal, Adv. Mr. Mohd Irshad, Adv.
Table of Contents
2. Absence of test identification parade, non-examination of material witnesses, and doubtful recovery of stolen property — Reliability of eyewitness testimony. (Para 4 , 5 , 6 )
3. Lack of evidence regarding assault on deceased, failure to examine vital witnesses, and absence of an unlawful assembly following partial acquittals. (Para 7 , 10 , 11 , 12 , 14 , 15 )
4. Conviction under Section 149 IPC requires an unlawful assembly of five or more persons; partial acquittals negating this number invalidate vicarious liability. (Para 7 )
5. Impugned judgments set aside and appellants acquitted of all charges. (Para 16 , 17 )
6. What is the effect of acquitting some accused on a conviction based on Section 149 of the IPC?
Section 149 incorporates vicarious liability for members of an unlawful assembly. Since an unlawful assembly under Section 141 requires five or more persons, the acquittal of enough accused to bring the number below five negates the existence of an unlawful assembly, thus invalidating convictions under Section 148 and Section 149. (Para 7 )
7. Is a test identification parade mandatory for conviction based on eyewitness testimony?
A test identification parade is not mandatory; it is a part of the investigation useful when witnesses do not know the accused. If eyewitness testimony is reliable and inspires confidence, conviction can be based on it even without a parade, depending on the facts of the case. (Para 8 , 9 )
8. How does the non-examination of material or injured witnesses affect a criminal prosecution?
The failure to examine vital witnesses, such as injured witnesses or those who first raised the alarm, creates gaps in the prosecution's case, making it difficult to connect the accused to specific injuries or crimes without other cogent evidence. (Para 12 )
JUDGMENT :
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 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 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 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 thei
