Page 1 1

[ REPORTABLE

]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No…505…/2015

(arising out of SPECIAL LEAVE PETITION (Crl) No. 1873/2011)

Manmeet Singh Alias Goldie ……..Appellant

Vs.

State of Punjab ……Respondent

J U D G M E N T

Amitava Roy,J.

Leave granted.

2.The instant appeal launches a challenge to the conviction of

the appellant herein under section 396 of the Indian Penal Code

(for short hereinafter referred to as the “Code”) for committing

dacoity as well as murder of one Mohinder Singh and the

consequential sentence of imprisonment for life and fine of

Rs.3,000/-, in default of further rigorous imprisonment for two

months held out by the judgment and order dated 17.1.2007

passed in Sessions Case No.RT-4/15.3.05/17.5.05 by the learned

Page 2 2

Additional Sessions Judge, Rupnagar and affirmed by the

judgment and order dated 1.11.2010 rendered by the High Court

of Punjab and Haryana at Chandigarh in CRLA No.133/2007.

3.We have heard the learned counsel for the parties.

4.Stated briefly, the prosecution case is traceable to the First

Information Report (for short the “FIR”) lodged with Morinda Police

Station on 28.05.2004. The FIR disclosed that the informant,

Gursatinder Singh had lodged it on the date of the incident i.e.

28.0.5.2004 contending that he along with Mohinder Singh,

Cashier, Surinder Pal, Accountant City Sub-Division, PSEB and

Balbir Singh, Cashier at about 11.00 a.m. had travelled in a

Matador vehicle No.PB-11-6119 driven by Gurcharan Singh to

collect the salary of the employees from the State Bank of Patiala,

Kharar Branch and that in due course an amount of Rs. 7,78,156/-

was collected from the bank and put in a green colour bag.

According to the informant, an amount of Rs. 7,18,715/- towards

salary of the City Sub-Division was put in another bag and both

the bags were taken in the Matador vehicle. At 2.30 p.m. when

the party reached the Suburban Sub Division Office, Morinda,

Page 3 3

Mohinder Singh, Cashier alighted from the vehicle with the bag

containing Rs.7,78,156/-. It was then, according to the informant,

that a gentleman aged about 25/30 years with Mulla looks and

wearing a cap confronted him (Mohinder Singh) with a pistol like

article in his hand and tried to snatch the bag of money from him.

It was stated further that as Mohinder Singh resisted, the intruder

fired from his pistol for which he (Mohinder Singh) fell down. The

shot had injured him on the left side of his chest. The assailant

then carried the bag of money on a Bajaj Chetak Scooter No.5648

along with another young man of the same age who was standing

nearby. The informant mentioned that both the persons then in

the scooter drove towards Kurali. That he raised an alarm on

which people gathered and thereafter Mohinder Singh was taken

to the Government Hospital, Morinda where he was declared dead

was also stated. In the FIR the informant did not name any of the

offenders but claimed that he would be able to identify the two

persons.

5.On the basis of the recorded statement of Gursatinder Singh

son of Jit Singh, Accountant, Sub Division, Morinda, the

information was registered as FIR No.69 dated 28.05.2004 under

Page 4 4

section 302/397/34 IPC and 24/25/29 of Arms Act and on the

completion of the investigation, a charge sheet was laid under

Section 173 of the Cr.P.C.. On the completion of the committal

proceedings, five accused persons including the appellant were

sent up for trial. At the trial before the learned Addl. Sessions

Judge, Rupnagar in the aforementioned sessions case, charges

were framed as hereunder:

“That you Satnam Singh, Sukhwinder Singh,

Malkiat Singh, Manmeet Singh, Balwinder Singh

along with Gurcharan Singh (Proclaimed offender

vide Order dt.30.11.2004) on 28.5.2004 in the

area of Morinda agreed to do an illegal act i.e. to

commit dacoity or to commit murder and in

pursuance of that agreement you all the above

said accused committed the dacoity of Rs.

7,78,156/- and committed the murder of

Mohinder Singh and thereby you all committed

an offence punishable under Section 120-B of

the IPC and within my cognizance.

Secondly, on the same date and time you all

the accused namely Satnam Singh, Sukhwinder

Singh, Malkiat Singh, Manmeet Singh, Balwinder

Singh and Gurbachan Singh were present near

Suburban Office PSEB Morinda and you accused

Malkiat Singh in furtherance of common object

of you co-accused committed the murder by

intentionally causing the death of Mohinder

Singh and thereby you accused Malkiat Singh

committed an offence punishable under section

302 of the IPC whereas your co-accused Satnam

Singh, Sukhwinder Singh, Manmeet Singh,

Page 5 5

Balwinder Singh and Gurbachan Singh (P.O) have

committed an offence punishable under section

302 of IPC read with section 149 of the IPC, and

within my cognizance.

Thirdly, on the same date, time and place

you all the accused namely Satnam Singh,

Sukhwinder Singh, Malkiat Singh, Manmeet

Singh, Balwinder Singh and Gurbachan Singh

(P.O) committed dacoity by using deadly weapon

i.e. revolver 32 bore and snatched a sum of

Rs.7,78,156/- from the possession of Mohinder

Singh and thereby you all the above said

accused have committed an offence punishable

under section 397 of the IPC and within my

cognizance.”

6.All the persons who had been sent up for trial, namely the

appellant Manmeet Singh alias Goldie, Satnam Singh, Sukhwinder

Singh, Malkiat Singh and Balwinder Singh denied the charges.

The prosecution examined 27 witnesses including the Doctor who

had conducted the post-mortem examination on the dead body of

Mohinder Singh and the investigating officer. It projected PW1

Gursatinder Singh the informant, PW3 Gurcharan Singh the driver

of the vehicle and PW4 Balbir Singh, Cashier, to be the eye

witnesses of the incident. The incriminating evidence brought on

record by the prosecution was then explained to the accused

persons who in their statements under Section 313, Cr.P.C. stood

Page 6 6

by their denial of the charges and the accusations made against

them. They thereafter examined 13 witnesses in defence

principally trying to explain the varying sums of money seized

from them by the police in course of the investigation. The

learned trial court on the evidence on record and after hearing the

learned counsel for the parties convicted and sentenced the

appellant as above but acquitted the four co-accused persons.

The appeal filed by the appellant from the decision however stood

dismissed, as herein before mentioned. The appellant in his

relentless pursuit for redress is thus before this Court.

7.Mr. Huzefa Ahmadi, the learned senior counsel for the

appellant has emphatically argued that having regard to the

charges framed and the evidence adduced by the prosecution,

conviction of the appellant in no way is permissible under Section

396 of the IPC and thus he is entitled to be acquitted. According

to the learned senior counsel, in the face of the essential

ingredients of an offence under section 396, IPC, in absence of

any evidence or finding that the alleged offence had been

committed on the basis of a conspiracy and perpetrated by five

Page 7 7

or more persons as charged, the appellant could not have been

convicted of the said offence in the teeth of the acquittal of the

four co-accused persons. Mr. Ahmadi has urged that not only the

prosecution has failed to identify the perpetrators of the alleged

offence through an identification test parade or otherwise, it

having failed to adduce any direct and convincing evidence to

establish that the appellant was the assailant, his conviction, if

allowed to stand, would result in travesty of justice. The learned

senior counsel maintained that it being apparent from the findings

recorded by the learned trial court that the prosecution had failed

to connect the other four co-accused persons with the crime

involved, it was impermissible in law to convict the appellant

under section 396, IPC as no independent charge under section

302 had been framed against him. Having regard to the state of

evidence on record, the learned trial court has grossly erred in law

and on facts in convicting the appellant under the said provision

of the Code, he urged. Without prejudice to these, the learned

counsel insisted as well that the prosecution had failed to adduce

any cogent or reliable evidence to prove any of the charges

against the persons on trial and thus the impugned conviction of

Page 8 8

the appellant and the sentence awarded ought to be interfered

with in the interest of justice. Reliance has been placed on the

decisions of this Court in endorsement of the above on Ram Bilas

Singh & Ors. Vs. The State of Bihar 1964 (1) SCR 775 and Raj

Kumar vs. State of Uttaranchal 2008(11) SCC 709.

8.Per contra, the learned counsel for the State has argued that

the complicity of the appellant having been unmistakably proved

by the witnesses PW1, PW3 and PW4, his conviction is

unassailable in law. While contending that the evidence on record

does prove the charges against all the five persons including the

appellant, he has urged that in any view of the matter, the

participation of all of them in the offence can, by no means, be

ruled out. According to him therefore, in view of the concurrent

findings recorded by the learned trial court and the High Court of

Punjab and Haryana, no interference is warranted.

9.We have carefully weighed the rival submissions. In the

normal course, in the face of concurrent findings, this Court would

have been disinclined to advert to the evidence bearing on the

essential factual aspects, but having regard to the grounds urged

Page 9 9

on behalf of the appellant, it construed it to be expedient to

undertake the exercise to the extent necessary. This is more so

as the appellant has been sentenced to undergo imprisonment for

life.

10.The testimony of PW1 Gursatinder Singh is in substantial

reiteration of his account of the incident, as narrated in the FIR.

He, however, did add in his deposition at the trial that he did not

know the name of the two accused persons, but would be able to

identify them. In Court, he indeed identified the appellant. In

cross-examination this witness, inter-alia, stated that he had been

shown the bag and the pistol but denied to have been shown any

cartridge/bullet. He stated that at the time of the preparation of

the memo pertaining to the pistol, Sukhwinder Singh was also

present. He too affirmed that in the Matador vehicle, he had

travelled along with Mohinder Singh, Darshan Singh and

Gurcharan Singh, the driver. He stated as well that there was no

scuffle between the assailant and the deceased and admitted that

the occurrence took place near the front window of the matador

vehicle.

Page 10 10

10 A. The statement of PW2 Sukhwinder Singh is to the

effect that on the same day, when he was coming back from

different villages, where he had gone for distribution of electricity

bills, he at about 2.45 p.m. had seen one white Maruti car with

three persons standing nearby of whom one was wearing a cap

and the others were sikh gentlemen. According to him, the

scooter on which he was travelling developed a snag for which he

stopped and that in course of his halt there he overheard the

conversation of the persons over some delay. The witness stated

that then one Bajaj scooter did come from the Morinda side and

two persons alighted whereafter all left in the car towards village

Rangian. This witness at the trial did identify four accused

persons but was doubtful about the fifth, Malkiat Singh.

10 B. PW3 Gurcharan Singh stated that he had driven the

vehicle to the State Bank of Patiala, Kharar Branch to collect the

salary amount therefrom about 11.00 a.m. on the date of

incident. According to him, they started from the bank with the

cash put in a bag. He stated that Mohinder Singh was sitting on

the back seat of the vehicle and that one bag was with

Page 11 11

Gursatinder and the other with Balbir Singh. According to the

witness, he stopped the van at the office of the Suburban Sub

division of main Morinda Kharar road. Mohinder Singh alighted

from the vehicle and Gursatinder gave him one bag containing

cash and at that point of time two persons made an attempt to

snatch the bag from Mohinder Singh and as the latter resisted

there was a scuffle and he fell down. The witness stated that the

two persons then fired from a revolver which struck Mohinder

Singh on the left side of the chest. Though this witness identified

the appellant in Court, he could not identify the others. He stated

further that he did not know as to what had happened with the

bag which Mohinder Singh had been carrying.

11.PW4 Balbir Singh who at the relevant time was the Cashier,

City Sub Division PSEB, stated on oath that he was a member of

the party that had travelled in the Matador vehicle bearing No.PB-

11-6119 of which Gurcharan Singh was the driver. He similarly

stated that when the vehicle returned after carrying the cash for

the salary of the employees and had stopped at the Suburban Sub

Division at about 2.30 p.m., Mohinder Singh alighted from the

vehicle with a bag containing money. According to this witness,

Page 12 12

Gursatinder Singh did also disembark and that at that point of

time one person tried to snatch the bag from Mohinder Singh and

when he resisted he was fired at by the assailant. This witness

stated that the assailant was alone. He however stated that after

the assault he along with another person drove away on the

scooter Kurali side. In the course of the trial, the witness

identified the appellant but failed to recognize the others. In

cross-examination, this witness admitted that he did not know

accused Manmeet Singh by name and that he had not seen him

before the incident. He admitted as well that he had seen him for

the first time in Court.

12.Though as many as 27 witnesses in all had been examined

by the prosecution, except the evidence of PW14, the Doctor who

had conducted the autopsy, PW18 SI Gurbachan Singh, PW19 ASI

Tara Singh and PW21 SI Balwant Singh, the investigating officer,

that of others is not of any decisive significance.

13.PW14 in his testimony, referring to the post-mortem, did

opine that there was “a punctured wound on the left side of the

sternum, 2 cm away with margin inveterate charred black in 4

Page 13 13

and 5

th

intercosted space”. According to him, the cause of death

was bullet injury causing haemorrhage shock and death with

heart failure and that the injury was ante mortem in nature.

14.PW18 S.I. Gurbachan Singh, is the witness to the disclosure

statements made by the appellant and Malkiat Singh on the basis

whereof certain amounts were recovered from the possession of

the accused persons.

15.PW21 S.I. Balwant Singh, the investigating officer, mentioned

about the report made to him by Sanjiv Joshi on 30.07.2004 that

he had overheard one person talking on telephone at the Bus

Stand Morinda that whenever he would give a missed call, the

other side should understand that the car carrying cash of the

Electricity Board had started from Kharar.

16.According to this witness acting on this information,

Gurbachan Singh and thereafter Satnam Singh and Sukhwinder

Singh were arrested. Further on 5.8.2004 from Balwinder Singh

an amount of Rs.20,000/- was recovered. This witness further

stated that on 8.8.2004, Sanjiv Joshi identified all the accused

persons. He further stated that on 11.8.2004 a scooter and a

Page 14 14

revolver was seized. He also stated that the accused Balwinder

Singh, Satnam Singh, Manmeet Singh and Malkiat Singh had

admitted their involvement in various similar such incidents.

16 A. Sanjiv Joshi, PW25, in his testimony however

stated that on 28.5.2004 while he was standing near the State

Bank of Patiala, Kharar Branch, one Maruti car bearing No.PB-10X

1665 was parked nearby and one sikh gentleman having beard

was present there and was talking on a mobile phone. This

witness stated that the sikh gentleman conveyed through his

phone that he would give three missed calls once the vehicle

carrying the money of PSEB would start. This witness deposed

that when he came to know about the incident after 2/3 months,

he passed on this information to the Police Station. Noticeably,

this witness did omit to give the identification of the accused

persons.

17.The learned trial court to reiterate, after a due appraisal of

the evidence on record concluded that the recovery of the

different amounts of money from the accused persons was not

only not in consonance with the disclosure statements but also

Page 15 15

did not establish any nexus with the offence in absence of the

identification of the currency notes with those delivered by the

bank. The evidence of the defence witness explaining the

circumstances under which these amounts had remained

deposited with them was also taken note of in reaching this

conclusion. The learned trial court rightly discarded the

statements of the accused persons to the effect that the amount

recovered had been the booty of the dacoity being inadmissible

under section 27 of the Indian Evidence Act, 1872. It rejected as

well the test identification parade conducted in course of the

investigation being flawed for various legal infirmities. It recorded

too that the witnesses had not been able to disclose the

registration numbers of the scooter or the car referred to in their

evidence and also noticed the contradictions in the registration

number of the scooter used in the commission of the offence.

The seizure of the revolver was also rejected to be of no probative

value vis-à-vis the offence alleged.

18.The testimony of PW2 was also disregarded as not believable

to connect the accused persons with the crime. It, however, acted

on the testimony of PW1, PW3 and PW4 at the trial to conclude

Page 16 16

that the appellant had entered into a scuffle with the deceased

and had eventually shot at him. The trial court thus returned a

finding that the prosecution could connect only the appellant with

the offence and none other. It thus, as a corollary, recorded that

conspiracy had not been made out. The appellant was convicted

and sentenced in this background. The High Court affirmed in toto

the analysis of the evidence as undertaken by the learned trial

court and its ultimate conclusions in all respects.

19.A plain perusal of the charges framed would demonstrate

that whereas all the accused persons had been indicted for the

offence of conspiracy under section 120-B, IPC and of murder

under Section 302,IPC read with section 149 of the Code, accused

Malkiat Singh was exclusively charged for murder under section

302 IPC. All of them, additionally were arraigned for having

committed the offence punishable under section 396 as well.

20.It is thus patent that the accused persons including the

appellant, in terms of the charge so framed could be convicted, if

proved, for the offences under section 120B, 302, 396 IPC.

Page 17 17

21.Both the courts below have concluded that the prosecution

had failed to prove the charge of conspiracy and had in fact

unreservedly recorded that the other four co-accused persons

could not be connected with the offences charged. On being

queried by us the learned counsel for the State has fairly

conceded that the State of Punjab has not preferred any appeal

against the acquittal of the four co-accused persons. It has thus

accepted the verdict of the learned courts below in this regard.

The acquittal of these four co-accused persons for lack of

evidence about their identification and participation in the

commission of the alleged offence has thus become final.

21 A. On an assessment of the entire gamut of the

evidence on record, the inescapable conclusion is that the

prosecution has failed to prove either the identification of the four

co-accused persons or their involvement in the offences as

members of the assembly for the offence of dacoity with murder.

The evidence of PW1, PW3 and PW4 if read together also does not

unimpeachably prove that the appellant was the assailant and

that he had fired from the pistol in his possession at Mohinder

Singh. Their evidence in fact is contradictory in material terms.

Page 18 18

Not only the informant, at the time of the incident, did not know

the appellant by his name, admittedly it was for the first time that

he claimed to identify him in Court at the trial. The same is the

state of PW3 and PW4 as well.

21 B. To reiterate, the test identification parade held by the

investigating agency had been discarded and rightly for being

vitiated by contraventions of procedural safeguards mandated by

law. There is thus no direct evidence as well to establish the

culpability of the appellant qua any of the offences. As a matter

of fact, the evidence of the above eye witnesses does not indicate

the involvement of five or more persons in the perpetration of the

crime. With the failure of the State to prefer an appeal against the

acquittal of the four co-accused persons, the finding to this effect

has also become final and binding. There is no overwhelming

evidence to the contrary to overturn the concurrent findings of

the courts below on the failure of the prosecution to prove for

participation of five or more persons in the commission of the

alleged offences.

Page 19 19

22.Section 391,IPC defines dacoity to be an offence, if five or

more persons conjointly commit or attempt to commit a robbery

or where the whole number of persons conjointly committing or

attempting to commit a robbery and persons present and aiding

such commission of attempt, amount to five or more. In terms of

section 391,IPC in such an eventuality every person so

committing, attempting or aiding is said to commit dacoity.

Section 396 which comprehends dacoity with murder is a

contingency where one of the five or more persons who are

conjointly committing dacoity, commits murder in so committing

dacoity. In such a case, every one of those persons shall be

punished with death or imprisonment for life or rigorous

imprisonment for a term which may extend to 10 years and would

also be liable to pay fine.

23.A combined reading of section 391 and 396, IPC would bring

to the fore, the essential pre-requisite of joint participation of five

or more persons in the commission of the offence of dacoity and if

in the course thereof any one of them commits murder, all

members of the assembly, would be guilty of dacoity with murder

and would be liable to be punished as enjoined thereby.

Page 20 20

24.Axiomatically, thus, the indispensable pre condition to

perceive an offence of dacoity with murder is a participating

assembly of five or more persons for the commission of the

offence. In absence of such an assembly, no such offence is

made out rendering the conviction therefor of any person in

isolation for murder, even if proved, impermissible in law. To

convict such a person of the offence only of murder, if proved

otherwise, there ought to be specific charge to that effect.

25.This Court in Ram Bilas Singh & Ors. Vs. The State of

Bihar 1964 (1) SCR 775 while dilating on the scope and purport

of Section 149 of the IPC had held:

“What has been held in this case would apply

also to a case where a person is convicted with the

aid of s.149, Indian Penal Code instead of s.34.

Thus all the decisions of this court to which we

have referred make it clear that it is competent for

a court to come to the conclusion that there was an

unlawful assembly of five or more persons, even if

less than that number have been convicted by it if

(a) the charge states that apart from the persons

named, several other unidentified persons were

also members of the unlawful assembly whose

common object was to commit an unlawful act and

evidence led to prove this is accepted by the court;

(b) or that the first information report and the

Page 21 21

evidence shows such to be the case even though

the charge does not state so, (c) or that though the

charge and the prosecution witnesses named only

the acquitted and the convicted accused persons

there is other evidence which discloses the

existence of named or other persons provided, in

cases (b) and (c), no prejudice has resulted to the

convicted person by reason of the omission to

mention in the charge that the other unnamed

persons had also participated in the offence.”

26.Their Lordships thus enunciated, on an exhaustive survey of

the judicial renderings on the issue that it is competent for a

Court to come to the conclusion that there had been an unlawful

assembly of five or more persons and yet convict a lesser

number of persons if the charge stated that, apart from the

persons named, several other unidentified persons were also

members of the unlawful assembly whose common object was to

commit an unlawful act and that the evidence led to prove the

same is accepted by the Court or if the FIR and the evidence

shows such to be the case even though the charges does not

state or if though the charge and the prosecution witnesses

named only the acquitted and convicted persons, there is other

evidence which disclosed the existence of named or other

persons provided, that in the last two contingencies, no

Page 22 22

prejudice would result to the convicted persons by the reason of

omission to mention in the charge that the other unnamed

persons had also participated in the offence.

27.With reference to the offence of dacoity under section 391,

IPC in particular and the import of section 149, IPC, this Court in

Raj Kumar vs. State of Uttaranchal 2008 (11) SCC 709 had

propounded that in absence of a finding about the involvement of

five or more persons, an accused cannot be convicted for such an

offence. Their Lordships, however, clarified that in a given case it

could happen that there might be five or more persons and the

factum of their presence either is not disputed or is clearly

established, but the Court may not be able to record a finding as

to their identity resulting in their acquittal as a result thereof. It

was held that in such a case, conviction of less than five persons

or even one can stand, but in the absence of a finding about the

presence or participation of five or more persons, less than five

persons cannot be convicted for an offence of dacoity.

27 A. The above pronouncements do acknowledge the

extension of the concept of collective culpability enshrined in

Page 23 23

section 149, IPC in section 396, IPC contemplating murder with

dacoity. An assembly of five or more persons participating in the

offence is thus the sine qua non for an offence under section 396,

IPC permitting conviction of any one or more members thereof

even if others are acquitted for lack of their identity. In absence

of such an assembly of five or more persons imbued with the

common object of committing dacoity with murder, any member

thereof cannot be convicted for the said offence irrespective of

his/her individual act of murder unless independently and

categorically charged for that offence.

28.As adverted to hereinbefore above, the prosecution has

completely failed in the instant case to either prove the

participation of five or more persons in the commission of the

offence or establish their identity. In that view of the matter

having regard to the above principle of law as authoritatively laid

down by this Court and in absence of a singular charge under

section 302, IPC against the appellant sans the assembly, we are

of the unhesitant opinion that his conviction for dacoity with

murder punishable under section 396, IPC, in the facts and

circumstances of the case, cannot be sustained in law. The

Page 24 24

attention of the courts below we understand had not been drawn

to this vital and determinative facet of the case.

29.Be that as it may, in our considered view, the conviction and

sentence of the appellant being repugnant to letter and spirit of

section 391 and 396 of the IPC, the same is liable to be interfered

with. We order accordingly.

30.The appeal is thus allowed and the impugned judgments and

orders are hereby set aside. The appellant is acquitted of the

charges and is hereby ordered to be set at liberty forthwith. The

lower courts records be transmitted immediately for necessary

follow up steps.

…………………………………J.

(M.Y.Eqbal)

…………………………………J.

( Amitava Roy)

New Delhi,

Dt. March 24, 2015