//
you're reading...
legal issues

Extra – Judicial Confession – Both unidentified persons ran away on scooter with the money bag. – After more than 7 years i.e. on 18th July, 2006, a special team was constituted to apprehend the perpetrators of the crime. – 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. – Apex court held that We are conscious of the fact that extra-judicial confession by its very nature is rather a weak type of evidence 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.= CRIMINAL APPEAL NO.47 OF 2014 |PARGAN SINGH |…..APPELLANT(S) | | | | |VERSUS | | |STATE OF PUNJAB & ANR. |…..RESPONDENT(S) = 2014 – Sept. Month – http://judis.nic.in/supremecourt/filename=41885

Extra – Judicial Confession – Both unidentified persons ran away on scooter with the  money  bag. –  After more than 7 years i.e. on 18th July, 2006, a  special  team  was constituted to  apprehend  the  perpetrators  of  the  crime. – 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. – Apex court held that   We  are  conscious  of  the

fact that extra-judicial confession by its very  nature  is  rather  a  weak type of evidence 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.=

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 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 18th 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.=

Further  allegation  of  the  prosecution  is  that  on

02.08.2006, one Vishwa  Mitter  (PW-1)  informed  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.  =

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 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.

2014 – Sept. Month – http://judis.nic.in/supremecourt/filename=41885

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.
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. 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 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 18th 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 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
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 30th July, 2006. PW-2 Kamaljit
Singh who sustained injury and had seen the occurrence, deposed about the
incident that occurred on 25th 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:-

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.

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 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 had accepted that on 8th 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 8th
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 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 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 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. 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 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 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.

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.

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 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.

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,700,156 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,851 other followers

Follow advocatemmmohan on WordPress.com