[REPORTABLE]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1198 OF 2007

Sukhbir Singh & Anr.                                              ……Appellants

Vs.

State of Punjab                                                      …….Respondent

WITH SLP(CRL) No. 5580 of 2008   

O R D E R

1. This judgment will dispose of Criminal Appeal No. 1198 of 2007  

and Special Leave Petition (Crl.) No. 5580 of 2008.  The facts have been  

taken from Criminal Appeal No. 1198 of 2007.

2. At about 9 p.m. on the 26th December 1991 Naranjan 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  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 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.  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  

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 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 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  

Magistrate  in  Batala  itself  at  6.30  a.m.   In  the  FIR,  Naranjan  Singh  

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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 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.   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 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  

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  120-B of  the  IPC and  

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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 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 of Harbans Singh, Mohanjit Singh, Amir Singh and Bhupender  

Singh alias  Shastri  had been mentioned,  and although the  two 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  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 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  

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the  fact  that  they  had  

been  arrested  long  after  the  incident  on  the  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 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 leave in this Special  

Leave Petition as well.  As already indicated above, the facts have been  

taken from Criminal Appeal No. 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 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. 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  of  

Crl. Appeal No.1198/2007

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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 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 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 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 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 him to identify  

the appellants as the killers.  This was not done.  In this view of the  

Crl. Appeal No.1198/2007

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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  

inflexible rule that an identification made for the first time in Court has  

to be always ruled out of consideration but the broad 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 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  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,  

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  

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story  that  a  dispute  

regarding the school 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 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 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 upon.  The statement 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 it would be contrary to normal  

human behaviour.   He also 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 has been  

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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 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.   

……………………………J. (HARJIT SINGH BEDI)

…….………………………J.     (CHANDRAMAULI KR. PRASAD)

JANUARY 27, 2011 NEW DELHI.

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