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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.

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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.  

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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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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  

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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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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 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:-

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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.

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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  

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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  

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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  

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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  

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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  

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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.  

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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  

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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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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.   

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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.

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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  

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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.

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