SUKHBIR SINGH AND ANR.versusSTATE OF PUNJAB

                    [2011] 3 S.C.R. 581


                SUKHBIR SINGH AND ANR.                         A
                             v.
                    STATE OF PUNJAB
            (Criminal Appeal No. 1198 of 2007)
                    JANUARY 27, 2011
                                                               8
   [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                  PRASAD, JJ.]

      Penal Code, 1860: s. 302 r. w. s. 149 ands. 120-8 - Murder
- Dispute over school land between the victim-deceased and C
his son on one hand and the accused on the other -
 Deceased was the village sarpanch - FIR described that two
 sikh youths aged 25130 wearing kurta pajamas came to the
 house of deceased carrying rifles and asked him to settle the
 dispute over school land - Deceased was taken from his        o
house by them - The /ambardar and the member of
panchayat were also taken - Son of the deceased followed
 them - The two sikh youths in the presence of other accused
fired at the deceased resulting in his death - FIR recorded
after 8 hours - Appellants arrested after 6 months of incident E
and identified for the first time in court by son of the deceased
as those two sikh youths - Conviction of appellants uls.302
r. w. s. 120-8 - High Court upheld the conviction - On appeal,
held: The physical description of the appellants given in FIR
would fit millions of youth in Punjab and could not by itself F
pin the murder on them - Prosecution did not come out how
the investigation led to their identification as the primary
assailants - The sub-inspector who arrested the appellants
was not examined - There was substantial improvement in
the statement made by son of deceased in court vis-a-vis G
statement made before the police - No threat was ever
received by the deceased from appellants prior to the incident
- Statement of /ambardar was uncertain and he also made
very substantial improvements in his evidence - The

                            581                                H
                                                                       -
    582       SUPREME COURT REPORTS                [2011] 3 S.C.R.


A appellants were not properly identified and, therefore, their
    involvement is ruled out.

       Dana Yadav v. State of Bihar (2002) 7 SCC 295;
    Ramesh v. State of Kamataka 2009 (15) SCC 35 - relied on.
8         Malkhansingh and Ors. v. State of M.P. 2003 (5) SCC
    746 - distinguished.
                          Case Law Reference:
          (2002) 1 sec 295         relied on            Para 5
c
          2009 (15) sec 35         relied on            Para 5
          2003 (5) sec 746         distinguished        Paras 5, 6
      CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
D No. 1198 of 2007.
        From the Judgment & Order dated 12.1.2007 of the High
    Court of Punjab and Haryana at Chandigarh at Criminal Appeal
    Nos. 584 and 610-DB of 1997.
E                                WITH
    Criminal Appeal Nos. 770 of 2011.

      P.S. Patwalia, Jagjit Singh Chhabra, Ashok Kr. Saini,
F Rajesh Sharma, Shalu Sharma and Kuldip Singh for the
  appearing parties.
          The following order of the Court was delivered
                              ORDER
G
          1. This judgment will dispose of Criminal Appeal No. 1198
    of 2007 and Criminal appeal No. 77012011 @ Special Leave
    Petition (Crl.) No. 5580 of 2008. The facts have been taken from
    Criminal Appeal No. 1198 of 2007.
H
-
       SUKHBIR SINGH AND ANR. v. STATE OF PUNJAB 583


            2. At about 9 p.m. on the 26th December 1991 Naranjan A
      Singh PW-2 son of Jaswant Singh deceased a resident of
      village Vinjwan was in his house along with his father when
      there was a knock at the door. Naranjan Singh and his father,
      who happened to be the Sarpanch of the village, thereupon
      opened the door. Two Sikh youth, who were subsequently B
      identified as the appellants herein, Sukhbir Singh and Dilbagh
      Singh, were standing outside carrying AK-47 rifles. They told
      Jaswant Singh that he was raising an unnecessary dispute with
      regard to the school land', part of which under the possession
      of Mohanjit Singh, Amir Singh and Bhupender Singh sons of         c
      Harbans Singh (all accused). Jaswant Singh answered that he
      alone was not the deciding factor and the other members of
      the Panchayat and the Lambardar be also called. Jaswant
      Singh was then taken towards the house of Mohinder Singh
      Lambardar, by the two appellants followed by Naranjan Singh.
                                                                          0
      Mohinder Singh too was called out of his house and the entire
      group then went on to the house of Hardev Singh, Member
      Panchayat. Hardev Singh too was called out and the appellants
      told them that the dispute should be settled then and there. They
      also took Jaswant Singh, Lambardar Mohinder Singh and E
      Member, Panchayat Hardev Singh towards the side of the
      school outside the village again followed by Naranjan Singh.
      The three were thereafter told to sit on the ground whereupon
      one of the appellants went to call Harbans Singh appellant. He
      returned about 5/6 minutes later accompanied by Harbans
      Singh and directed Jaswant Singh to stand up and after telling F
      him that he alone was not permitting Harbans Singh and his
    _ family to live peacefully and that he was attempting to construct
      a school building over his land, they fired a burst each from their
      rifles killing Jaswant Singh on the spot. Naranjan Singh then ran
      away but returned after some time and seeing his father's dead G
      body, left for the police station. He, however, came across a
      police party at about 4,45 a.m. on the canal bridge near village
      Taragarh and made a statement to Inspector Jarnail Singh PW-
      8 and on its basis an FIR was registered at Police Station,
      Sadar Batala. The Special Report was delivered to the H
          ;
    584     SUPREME COURT REPORTS                   [2011] 3 S.C.R.


A   Magistrate in Batala itself at 6.30 a.m. In the FIR, Naranjan
    Singh stated that two Sikh youth who had killed his father were
    militants 25-30 years of age, of medium build, wearing kurta
    pajamas and that he could identify them, if confronted. He further
    stated that he suspected that Harbans Singh and his sons
8   Mohanjit Singh, Amir Singh and Bhupender Singh had entered
    into a conspiracy along with the appellants to commit the
    murder. Harbans Singh and his three sons were arrested soon
    after the incident but Sukhbir Singh and Dilbagh Singh were
    arrested on the 21st May 1992 by Sub-Inspector Pyara Singh.
c   On the completion of the investigation, all the accused were
    brought to trial for offences punishable under section 302 read
    with Section 149 and 120-B of the IPC.

       3. The prosecution in support of its case placed reliance
  on the evidence of Sukhdip Singh PW-1, the doctor who had
D carried out the post-mortem on the dead body, Naranjan Singh
  PW-2, Mohinder Singh Lambardar PW-3 who too supported
  the prosecution story and further stated that he had seen
  Harbans Singh and his sons talking to one of the appellants,
  and PW-8 Sub-Inspector Jarnail Singh who had recorded the ·
E statement of Naranjan Singh near the canal minor bridge and
  which had led to the registration of the formal FIR.

        4. The trial court relying on the aforesaid evidence
  convicted all the accused for offences punishable under Section
F 120-8 of the IPC and sentenced them to RI of 7 years and to
  fine, Sukhbir Singh and Dilbagh Singh appellants under Section
  302 of the IPC and sentenced them to life imprisonment along
  with fine and Harbans Singh, Mohanjit Singh, Amir Singh and
  Bhupender Singh under Section 302/149 of the IPC also to
G serve a life sentence. The matter was thereafter taken in appeal
  to the High Court and during the pendency of the appeal
  Harbans Singh passed away. The appeal against him has
  dismissed as having abated. The High Court observed that
  there was no delay in the lodging of the FIR in which the names
H of Harbans Singh, Mohanjit Singh, Amir Singh and Bhupender
 SUKHBIR SINGH AND ANR. v. STATE OF PUNJAB                       585


Singh alias Shastri had been mentioned, and although the two             A
main accused (the appellants herein) had not been named, but
they fitted the description given in the FIR and that further
support with regard to the occurrence was to be found from the
statements of Naranjan Singh and Mohinder Singh PWs. as to
the manner in which the entire incident happened which clearly           B
revealed that the two sets of accused had entered into a
conspiracy to eliminate Jaswant Singh as he was an
impediment in the efforts of Harbans Singh and others to take
over the school land. The High Court observed that the two
primary assailants Sukhbir Singh and Dilbagh Singh had                   C
opened fire on Jaswant Singh only after getting a green signal
from Harbans Singh and his sons. The Court also observed
that the identification of the appellants in Court for the first .time
fully satisfied the test of proper identification notwithstanding the
fact that they had been arrested long after the incident on the          o
21st May 1992 by Sub-Inspector Pyara Singh who had not been
produced as a witness. The High Court also observed that as
PW-3 Mohinder Singh was an independent witness, there was
no reason whatsoever to disbelieve his testimony. Two appeals
have been filed against the judgment of the High Court. Criminal         E
Appeal No. 1198 of 2007 by Sukhbir Singh and Dilbagh Singh
and Special Leave Petition (Crl) No. 558 of 2008 by Amir
Singh, Mohanjit Singh and Bhupender Singh. We grant lea\(e
in this Special Leave Petition as well. As already indicated
above, the facts have been taken from Criminal Appeal No.
                                                                         F
1198 of 2007.

     5. Mr. Patwalia, the learned senior counsel for the
appellants has raised one primary argument during the course
of hearing. of the appeals. He has pointed out that there was
absolutely no evidence with regard to the identification of the          G
appellants and their identification for the first time in Court
during the course of the trial would not be sufficient to record a
conviction in the absence of any other evidence. In this
connection, the learned counsel has placed reliance on Dana
Yadav vs. State of Bihar 2002 (7) SCC 295 and Ramesh vs.                 H
    586      SUPREME COURT REPORTS                  [2011] 3 S.C.R.


A State of Karnataka 2009(15) SCC 35. Mr. Kuldip Singh, the
  learned counsel has, however, placed reliance on
  Malkhansingh & Ors. vs. State of M.P. 2003(5) SCC 746 to
  contend that there was no inflexible rule that an identification
  made in Court for first time could not be taken as a good piece
B of evidence and as in the present matter the description of the
  appellants had been given in the FIR that itself was a
  corroborative circumstance to the prosecution story. Mr.
  Patwalia has also urged that once it was held that the
  appellants, the main accused were not involved in the incident
C as their identification was suspect, the involvement of the others
  with the aid of Section 120-B or 149 of the IPC too could not
  be spelt out.

          6. We have considered the arguments advanced by the
    learned counsel for the parties. It will be seen that the incident
0
    happened at about 9 p.m. on the 26th December 1991. In the ·
    FIR recorded about 8 hours later, the appellants had been
    described as two Sikh youth 25/30 years of age wearing kurta
    pajamas. The appellants were arrested on the 21st May 1992
    by Sub-Inspector Pyara Singh, (who was not examined as a
E   witness) and they were identified for the first time in Court by
    Naranjan Singh on the 21st September 1993. We are of the
    opinion that the physical description of the appellants given in
    the FIR would fit millions of youth in Punjab, and could not by
    itself pin the murder on them. The prosecution has also not
F   come out with the steps in the investigation which had led to
    their identification as the primary assailants. It was, in this
    background, obligatory on the part of the prosecution to have
    produced Sub-Inspector Pyara Singh who could have testified
    to the steps in the investigation made by him which had enabled
G   him to identify the appellants as the killers. This was not done.
    In this view of the matter, the judgments cited by Mr. Patwalia
    fully apply to the facts of the case. There is absolutely no
    evidence other than in the identification in court made by
    Naranjan Singh long after the incident. It is true that there is no
H   inflexible rule that an identification made for the first time in
                                              '
 SUKHBIR SINGH AND ANR. v. STATE OF PUNJAB. 587


Court has to be always ruled out of consideration but the broad A
principle is that in the background there is no other evidence
against an accused on identification in Court made long after
the event is clearly not acceptable. The judgment cited by Mr.
Kuldip Singh of Malkhansingh's case (supra) is on the facts of
that particular case, as a prosecutrix, who was the victim of a B
gang rape, had identified some of the accused for the first time
in Court on which this Court opined that the identification was
acceptable as a good piece of evidence.

         7. We now consider the case of the appellants in the         C
 connected matter. The suggestion made by the prosecution is
 that Sukhbir Singh and Dilbagh Singh had been engaged by
 the other appellants to settle scores with Jaswant Singh as he
 was apparently an obstacle in their way with respect to the
  school land. We have, in this connection, gone through the
  evidence of Naranjan Singh PW-2 and Mohinder Singh PW-3,            D
  in the background of these facts. We are of the opinion that the
  involvement of Sukhbir Singh and Dilbagh Singh has to be ruled
  out as they were not properly identified and the charge qua them
  under Section 302 read with Section 120-B of the IPC must fail.
  It is the prosecution story that a dispute regarding the school     E
   land existed between Jaswant Singh and Naranjan Singh on
  the one side and Harbans Singh and his sons Amir Singh,
   Mohanjit Singh and Bhupender Singh appellants on the other.
   It is also clear that in this dispute PW-3 Mohinder Singh, the
   Lambardar was siding with Jaswant Singh. We have gone              F
  through the evidence of PW-2 and PW-3 very carefully. We see
  very substantial improvements in the statements made by PW-
- 2 in Court vis-a-vis his statement made to the Police.
  Confronted with these statements, he could not give any cogent
  explanation for making them. It is also clear that except for his   G
  ipse-dixit with regard to the dispute, there is no other evidence
  that any dispute did exist. It has come in the evidence that no
  threat had ever been received by Jaswant Singh from militants
  prior to the incident. We are, therefore, of the opinion that the
  statement of this witness cannot be relied u·pon. The statement     H
    588      S.UPREME COURT REPORTS                 [2011] 3 S.C.R.


A   of PW-3 is equally uncertain. PW-3 made very substantial
    improvements in his evidence as well. The story that after
    seeing the murder, he had not made any attempt to meet
    Naranjan Singh, and his plea that after the incident he had
    returned home and had gone to sleep is difficult to swallow as
B   it would be contrary to normal human behaviour. He a.lso stated
    that a grant of Rs.1,00,000/- had been received for the school
    about 12 days prior to the incident and that the Qanungo had
    demarcated the school land which was legitimately in
    possession of Harbans Singh. No cogent evidence to this effect
c   has been produced by the prosecution. We are, therefore, of
    the opinion that the evidence of this witness cannot also be
    believed.


       8. We therefore have no option but to allow Criminal
D Appeal No. 1198 of 2007 as well as Criminal Appeal
  No ......... ./2011 arising out of SLP (Crl.) No. 5580 of 2008 filed
  by Amir Singh and others. The judgment of the trial court dated
  7th August 1997 and that of the High Court dated 12th January
  2007 are set aside.
E
    D.G.                                          Appeals allowed.