A two-Judge Bench of the Supreme Court comprising of Justice Abhay S. Oka and Justice Ujjal Bhuyan passed an Order dated 07.02.2024 in Criminal Appeal No. 1465 Of 2011 in Kishore & Ors. Vs. State of Punjab and set aside the Order of the High Court in the wrongful conviction under Section 141 of the Indian Penal Code, 1860 (Unlawful Assembly).
i) The Appellants, Kishore, Bala and Banaras are Accused nos. 2, 3 and 5 respectively who faced trial and were convicted for offences punishable under Section 148 of the Indian Penal Code, 1860 (IPC) (Rioting, armed with deadly weapon) they were sentenced to undergo imprisonment for two years, Section 460 of IPC(All persons jointly concerned in lurking house-trespass or house-breaking by night punishable where death or grievous hurt caused by one of them) read with Section 149 of IPC (Every member of unlawful assembly guilty of offence committed in prosecution of common object) they were sentenced to undergo rigorous imprisonment for 10 years and Section 302 of IPC (Punishment for murder) read with Section 149 of IPC they were sentenced to undergo life imprisonment.
ii) According to the Prosecution case, on the intervening night of 03.07.2003 and 04.07.2003, Khushbir Singh (PW-8) was sleeping with his parents Pratap Singh and Gurpal Kaur, in their bedroom. Khushbir Singh was 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.
iii) The Appellant-Accused preferred an Appeal before the High Court of Punjab and Haryana at Chandigarh. The Court vide Order dated 27.04.2010 acquitted the Accused no. 1 Raka and the Accused no. 4 Lakhan but confirmed the conviction of the other Accused.
iv) Aggrieved by the Order dated 27.04.2010, the Appellants filed Criminal Appeal No. 1465 Of 2011 before the Supreme Court.
SUPREME COURT ANALYSIS
The Apex Court vide Order dated 07.02.2024, made the following observations:
1) The Apex Court observed that the Appellants had undergone sentence for more than seven years vide Order dated 25.07.2011 of the Supreme Court, and they have been enlarged on bail till the disposal of the present Appeal.
2) The Bench further observed 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”. That 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 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.
3) Further, as the High Court had acquitted two of the Accused of all charges, the Apex Court had to proceed on the footing that there was no unlawful assembly within the meaning of Section 141 of IPC. Thus, the conviction under Section 148 of the IPC was set aside. 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. The High Court could have altered the charge by applying Section 34 of the IPC, provided there was evidence on record, but the same was not done.
4) The Apex Court further observed that both the eye witnesses’ evidence was recorded within one year of the date of the incident. The Court further held that there was no significant time gap between the date of the incident and the identification by the witnesses before the Court. That if the evidence of these two witnesses was reliable and inspires confidence, the conviction could be based on their testimonies.
5) That the Bench had to ascertain that the testimonies of PW-8 and PW-9 inspired confidence. PW-8 (Khushbir Singh) was 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 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.
6) 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 22.10.2003, 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 the Code of Criminal Procedure, 1973 ( PC.) She accepted that in the statement, she had not stated that she could identify the Accused. She explained 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.
7) Further, PW-9 has not even stated that she had seen any of the Accused assaulting the Deceased. That even the version of PW-8 was very vague about the Accused assaulting the Deceased. It was an important observation 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. That it was very difficult to connect any Accused with the injuries sustained by the Deceased in the absence of any cogent evidence. Therefore, it was not possible to uphold the conviction for the offence punishable under Section 302 of the IPC.
8) The Apex Court observed that in the absence of the charge under Section 34 of the IPC (Acts done by several persons in furtherance of common intention), Accused Banaras and Bala could have been convicted of the offence punishable under Section 323 of the IPC (Punishment for voluntarily causing hurt) and Accused no.2–Kishore could have been held to be guilty of the offences punishable under Section 326 of the IPC (Voluntarily causing grievous hurt by dangerous weapons or means). However, all of them had undergone sentences of more than seven years, which was more than what could be imposed for these offences in the facts of this case. Therefore, they would have to be let off.
9) Further the Bench on the evidence of recovery of ornaments observed that two of the five Accused from whom the recovery was made, had 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 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 became doubtful. The Prosecution case regarding the recovery of the ornaments at the instance of the Appellants also became doubtful.
The Supreme Court held that as for 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 was established that there was no unlawful assembly as two out of five Accused had 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. The Court held that after twenty-one years after the incident, at this stage, the Supreme Court cannot modify or alter the charge, especially when all three Appellants Accused had undergone incarceration for more than seven years. Even if the Court did that, even otherwise, the Prosecution had failed to prove the commission of the offence. Accordingly, the Appeal was allowed. The Judgment and Order dated 27.04.2010 of the High Court of Punjab and Haryana at Chandigarh rendered in the Criminal Appeal no.197-DB of 2009 and the Judgment and Order passed in SC No.32/T dated 20.02.2004 by the Ld. Additional Sessions Judge, Patiala on 12.01.2009 insofar as the present Appellants were concerned were set aside and the Appellants were acquitted of the charges framed against them. As the Appellants were presently on bail, their bail bonds stand cancelled.
The Indian Lawyer & Allied Services
In this case, the facts put by the Prosecution failed to establish that the Accused were guilty beyond reasonable doubt. Because of the lapses in the evidence of the witnesses, a clear case of guilt could not be established. Further, the fact that there was no evidence to show how the 3 Accused in this Appeal had caused the death of the 2 Deceased, further led to doubt in the Court’s mind about the role of the 3 Accused in causing the death. All in all, lack of proper evidence failed to establish guilt beyond reasonable doubt, which resulted in the acquittal of the Accused on all the charges framed against them.
Sushila Ram Varma
The Indian Lawyer & Allied Services