Page 1 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.

Criminal Appeal No. 47 of 2014 & connected matter Page 1 of 19

Page 2 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.

Criminal Appeal No. 47 of 2014 & connected matter Page 2 of 19

Page 3 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

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Page 4 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 18

th

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

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Page 5 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

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Page 6 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 30

th

July, 2006. PW-2

Kamaljit Singh who sustained injury and had seen the occurrence,

deposed about the incident that occurred on 25

th

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:-

Criminal Appeal No. 47 of 2014 & connected matter Page 6 of 19

Page 7 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.

Criminal Appeal No. 47 of 2014 & connected matter Page 7 of 19

Page 8 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

Criminal Appeal No. 47 of 2014 & connected matter Page 8 of 19

Page 9 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

Criminal Appeal No. 47 of 2014 & connected matter Page 9 of 19

Page 10 had accepted that on 8

th

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 8

th

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

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Page 11 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

Criminal Appeal No. 47 of 2014 & connected matter Page 11 of 19

Page 12 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

Criminal Appeal No. 47 of 2014 & connected matter Page 12 of 19

Page 13 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.

Criminal Appeal No. 47 of 2014 & connected matter Page 13 of 19

Page 14 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

Criminal Appeal No. 47 of 2014 & connected matter Page 14 of 19

Page 15 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

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Page 16 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.

Criminal Appeal No. 47 of 2014 & connected matter Page 16 of 19

Page 17 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.

Criminal Appeal No. 47 of 2014 & connected matter Page 17 of 19

Page 18 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

Criminal Appeal No. 47 of 2014 & connected matter Page 18 of 19

Page 19 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.

Criminal Appeal No. 47 of 2014 & connected matter Page 19 of 19