MANMEET SINGH ALIAS GOLDIE Vs. STATE OF PUNJAB
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 505 of 2015, Judgment Date: Mar 24, 2015
[ REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No...505.../2015
(arising out of SPECIAL LEAVE PETITION (Crl) No. 1873/2011)
Manmeet Singh Alias Goldie ........Appellant
Vs.
State of Punjab ......Respondent
J U D G M E N T
Amitava Roy,J.
Leave granted.
2. The instant appeal launches a challenge to the conviction of the
appellant herein under section 396 of the Indian Penal Code (for short
hereinafter referred to as the "Code") for committing dacoity as well as
murder of one Mohinder Singh and the consequential sentence of imprisonment
for life and fine of Rs.3,000/-, in default of further rigorous
imprisonment for two months held out by the judgment and order dated
17.1.2007 passed in Sessions Case No.RT-4/15.3.05/17.5.05 by the learned
Additional Sessions Judge, Rupnagar and affirmed by the judgment and order
dated 1.11.2010 rendered by the High Court of Punjab and Haryana at
Chandigarh in CRLA No.133/2007.
3. We have heard the learned counsel for the parties.
4. Stated briefly, the prosecution case is traceable to the First
Information Report (for short the "FIR") lodged with Morinda Police Station
on 28.05.2004. The FIR disclosed that the informant, Gursatinder Singh had
lodged it on the date of the incident i.e. 28.0.5.2004 contending that he
along with Mohinder Singh, Cashier, Surinder Pal, Accountant City Sub-
Division, PSEB and Balbir Singh, Cashier at about 11.00 a.m. had travelled
in a Matador vehicle No.PB-11-6119 driven by Gurcharan Singh to collect the
salary of the employees from the State Bank of Patiala, Kharar Branch and
that in due course an amount of Rs. 7,78,156/- was collected from the bank
and put in a green colour bag. According to the informant, an amount of
Rs. 7,18,715/- towards salary of the City Sub-Division was put in another
bag and both the bags were taken in the Matador vehicle. At 2.30 p.m. when
the party reached the Suburban Sub Division Office, Morinda, Mohinder
Singh, Cashier alighted from the vehicle with the bag containing
Rs.7,78,156/-. It was then, according to the informant, that a gentleman
aged about 25/30 years with Mulla looks and wearing a cap confronted him
(Mohinder Singh) with a pistol like article in his hand and tried to snatch
the bag of money from him. It was stated further that as Mohinder Singh
resisted, the intruder fired from his pistol for which he (Mohinder Singh)
fell down. The shot had injured him on the left side of his chest. The
assailant then carried the bag of money on a Bajaj Chetak Scooter No.5648
along with another young man of the same age who was standing nearby. The
informant mentioned that both the persons then in the scooter drove towards
Kurali. That he raised an alarm on which people gathered and thereafter
Mohinder Singh was taken to the Government Hospital, Morinda where he was
declared dead was also stated. In the FIR the informant did not name any
of the offenders but claimed that he would be able to identify the two
persons.
5. On the basis of the recorded statement of Gursatinder Singh son of
Jit Singh, Accountant, Sub Division, Morinda, the information was
registered as FIR No.69 dated 28.05.2004 under section 302/397/34 IPC and
24/25/29 of Arms Act and on the completion of the investigation, a charge
sheet was laid under Section 173 of the Cr.P.C.. On the completion of the
committal proceedings, five accused persons including the appellant were
sent up for trial. At the trial before the learned Addl. Sessions Judge,
Rupnagar in the aforementioned sessions case, charges were framed as
hereunder:
"That you Satnam Singh, Sukhwinder Singh, Malkiat Singh, Manmeet
Singh, Balwinder Singh along with Gurcharan Singh (Proclaimed offender vide
Order dt.30.11.2004) on 28.5.2004 in the area of Morinda agreed to do an
illegal act i.e. to commit dacoity or to commit murder and in pursuance of
that agreement you all the above said accused committed the dacoity of Rs.
7,78,156/- and committed the murder of Mohinder Singh and thereby you all
committed an offence punishable under Section 120-B of the IPC and within
my cognizance.
Secondly, on the same date and time you all the accused namely Satnam
Singh, Sukhwinder Singh, Malkiat Singh, Manmeet Singh, Balwinder Singh and
Gurbachan Singh were present near Suburban Office PSEB Morinda and you
accused Malkiat Singh in furtherance of common object of you co-accused
committed the murder by intentionally causing the death of Mohinder Singh
and thereby you accused Malkiat Singh committed an offence punishable under
section 302 of the IPC whereas your co-accused Satnam Singh, Sukhwinder
Singh, Manmeet Singh, Balwinder Singh and Gurbachan Singh (P.O) have
committed an offence punishable under section 302 of IPC read with section
149 of the IPC, and within my cognizance.
Thirdly, on the same date, time and place you all the accused namely
Satnam Singh, Sukhwinder Singh, Malkiat Singh, Manmeet Singh, Balwinder
Singh and Gurbachan Singh (P.O) committed dacoity by using deadly weapon
i.e. revolver 32 bore and snatched a sum of Rs.7,78,156/- from the
possession of Mohinder Singh and thereby you all the above said accused
have committed an offence punishable under section 397 of the IPC and
within my cognizance."
6. All the persons who had been sent up for trial, namely the appellant
Manmeet Singh alias Goldie, Satnam Singh, Sukhwinder Singh, Malkiat Singh
and Balwinder Singh denied the charges. The prosecution examined 27
witnesses including the Doctor who had conducted the post-mortem
examination on the dead body of Mohinder Singh and the investigating
officer. It projected PW1 Gursatinder Singh the informant, PW3 Gurcharan
Singh the driver of the vehicle and PW4 Balbir Singh, Cashier, to be the
eye witnesses of the incident. The incriminating evidence brought on
record by the prosecution was then explained to the accused persons who in
their statements under Section 313, Cr.P.C. stood by their denial of the
charges and the accusations made against them. They thereafter examined 13
witnesses in defence principally trying to explain the varying sums of
money seized from them by the police in course of the investigation. The
learned trial court on the evidence on record and after hearing the learned
counsel for the parties convicted and sentenced the appellant as above but
acquitted the four co-accused persons. The appeal filed by the appellant
from the decision however stood dismissed, as herein before mentioned. The
appellant in his relentless pursuit for redress is thus before this Court.
7. Mr. Huzefa Ahmadi, the learned senior counsel for the appellant has
emphatically argued that having regard to the charges framed and the
evidence adduced by the prosecution, conviction of the appellant in no way
is permissible under Section 396 of the IPC and thus he is entitled to be
acquitted. According to the learned senior counsel, in the face of the
essential ingredients of an offence under section 396, IPC, in absence of
any evidence or finding that the alleged offence had been committed on the
basis of a conspiracy and perpetrated by five or more persons as charged,
the appellant could not have been convicted of the said offence in the
teeth of the acquittal of the four co-accused persons. Mr. Ahmadi has
urged that not only the prosecution has failed to identify the perpetrators
of the alleged offence through an identification test parade or otherwise,
it having failed to adduce any direct and convincing evidence to establish
that the appellant was the assailant, his conviction, if allowed to stand,
would result in travesty of justice. The learned senior counsel maintained
that it being apparent from the findings recorded by the learned trial
court that the prosecution had failed to connect the other four co-accused
persons with the crime involved, it was impermissible in law to convict the
appellant under section 396, IPC as no independent charge under section 302
had been framed against him. Having regard to the state of evidence on
record, the learned trial court has grossly erred in law and on facts in
convicting the appellant under the said provision of the Code, he urged.
Without prejudice to these, the learned counsel insisted as well that the
prosecution had failed to adduce any cogent or reliable evidence to prove
any of the charges against the persons on trial and thus the impugned
conviction of the appellant and the sentence awarded ought to be interfered
with in the interest of justice. Reliance has been placed on the decisions
of this Court in endorsement of the above on Ram Bilas Singh & Ors. Vs. The
State of Bihar 1964 (1) SCR 775 and Raj Kumar vs. State of Uttaranchal
2008(11) SCC 709.
8. Per contra, the learned counsel for the State has argued that the
complicity of the appellant having been unmistakably proved by the
witnesses PW1, PW3 and PW4, his conviction is unassailable in law. While
contending that the evidence on record does prove the charges against all
the five persons including the appellant, he has urged that in any view of
the matter, the participation of all of them in the offence can, by no
means, be ruled out. According to him therefore, in view of the concurrent
findings recorded by the learned trial court and the High Court of Punjab
and Haryana, no interference is warranted.
9. We have carefully weighed the rival submissions. In the normal
course, in the face of concurrent findings, this Court would have been
disinclined to advert to the evidence bearing on the essential factual
aspects, but having regard to the grounds urged on behalf of the appellant,
it construed it to be expedient to undertake the exercise to the extent
necessary. This is more so as the appellant has been sentenced to undergo
imprisonment for life.
10. The testimony of PW1 Gursatinder Singh is in substantial reiteration
of his account of the incident, as narrated in the FIR. He, however, did
add in his deposition at the trial that he did not know the name of the two
accused persons, but would be able to identify them. In Court, he indeed
identified the appellant. In cross-examination this witness, inter-alia,
stated that he had been shown the bag and the pistol but denied to have
been shown any cartridge/bullet. He stated that at the time of the
preparation of the memo pertaining to the pistol, Sukhwinder Singh was also
present. He too affirmed that in the Matador vehicle, he had travelled
along with Mohinder Singh, Darshan Singh and Gurcharan Singh, the driver.
He stated as well that there was no scuffle between the assailant and the
deceased and admitted that the occurrence took place near the front window
of the matador vehicle.
10 A. The statement of PW2 Sukhwinder Singh is to the effect that on
the same day, when he was coming back from different villages, where he had
gone for distribution of electricity bills, he at about 2.45 p.m. had seen
one white Maruti car with three persons standing nearby of whom one was
wearing a cap and the others were sikh gentlemen. According to him, the
scooter on which he was travelling developed a snag for which he stopped
and that in course of his halt there he overheard the conversation of the
persons over some delay. The witness stated that then one Bajaj scooter
did come from the Morinda side and two persons alighted whereafter all left
in the car towards village Rangian. This witness at the trial did identify
four accused persons but was doubtful about the fifth, Malkiat Singh.
10 B. PW3 Gurcharan Singh stated that he had driven the vehicle to the
State Bank of Patiala, Kharar Branch to collect the salary amount therefrom
about 11.00 a.m. on the date of incident. According to him, they started
from the bank with the cash put in a bag. He stated that Mohinder Singh
was sitting on the back seat of the vehicle and that one bag was with
Gursatinder and the other with Balbir Singh. According to the witness, he
stopped the van at the office of the Suburban Sub division of main Morinda
Kharar road. Mohinder Singh alighted from the vehicle and Gursatinder gave
him one bag containing cash and at that point of time two persons made an
attempt to snatch the bag from Mohinder Singh and as the latter resisted
there was a scuffle and he fell down. The witness stated that the two
persons then fired from a revolver which struck Mohinder Singh on the left
side of the chest. Though this witness identified the appellant in Court,
he could not identify the others. He stated further that he did not know
as to what had happened with the bag which Mohinder Singh had been
carrying.
11. PW4 Balbir Singh who at the relevant time was the Cashier, City Sub
Division PSEB, stated on oath that he was a member of the party that had
travelled in the Matador vehicle bearing No.PB-11-6119 of which Gurcharan
Singh was the driver. He similarly stated that when the vehicle returned
after carrying the cash for the salary of the employees and had stopped at
the Suburban Sub Division at about 2.30 p.m., Mohinder Singh alighted from
the vehicle with a bag containing money. According to this witness,
Gursatinder Singh did also disembark and that at that point of time one
person tried to snatch the bag from Mohinder Singh and when he resisted he
was fired at by the assailant. This witness stated that the assailant was
alone. He however stated that after the assault he along with another
person drove away on the scooter Kurali side. In the course of the trial,
the witness identified the appellant but failed to recognize the others.
In cross-examination, this witness admitted that he did not know accused
Manmeet Singh by name and that he had not seen him before the incident. He
admitted as well that he had seen him for the first time in Court.
12. Though as many as 27 witnesses in all had been examined by the
prosecution, except the evidence of PW14, the Doctor who had conducted the
autopsy, PW18 SI Gurbachan Singh, PW19 ASI Tara Singh and PW21 SI Balwant
Singh, the investigating officer, that of others is not of any decisive
significance.
13. PW14 in his testimony, referring to the post-mortem, did opine that
there was "a punctured wound on the left side of the sternum, 2 cm away
with margin inveterate charred black in 4 and 5th intercosted space".
According to him, the cause of death was bullet injury causing haemorrhage
shock and death with heart failure and that the injury was ante mortem in
nature.
14. PW18 S.I. Gurbachan Singh, is the witness to the disclosure
statements made by the appellant and Malkiat Singh on the basis whereof
certain amounts were recovered from the possession of the accused persons.
15. PW21 S.I. Balwant Singh, the investigating officer, mentioned about
the report made to him by Sanjiv Joshi on 30.07.2004 that he had overheard
one person talking on telephone at the Bus Stand Morinda that whenever he
would give a missed call, the other side should understand that the car
carrying cash of the Electricity Board had started from Kharar.
16. According to this witness acting on this information, Gurbachan Singh
and thereafter Satnam Singh and Sukhwinder Singh were arrested. Further on
5.8.2004 from Balwinder Singh an amount of Rs.20,000/- was recovered. This
witness further stated that on 8.8.2004, Sanjiv Joshi identified all the
accused persons. He further stated that on 11.8.2004 a scooter and a
revolver was seized. He also stated that the accused Balwinder Singh,
Satnam Singh, Manmeet Singh and Malkiat Singh had admitted their
involvement in various similar such incidents.
16 A. Sanjiv Joshi, PW25, in his testimony however stated that on
28.5.2004 while he was standing near the State Bank of Patiala, Kharar
Branch, one Maruti car bearing No.PB-10X 1665 was parked nearby and one
sikh gentleman having beard was present there and was talking on a mobile
phone. This witness stated that the sikh gentleman conveyed through his
phone that he would give three missed calls once the vehicle carrying the
money of PSEB would start. This witness deposed that when he came to know
about the incident after 2/3 months, he passed on this information to the
Police Station. Noticeably, this witness did omit to give the
identification of the accused persons.
17. The learned trial court to reiterate, after a due appraisal of the
evidence on record concluded that the recovery of the different amounts of
money from the accused persons was not only not in consonance with the
disclosure statements but also did not establish any nexus with the offence
in absence of the identification of the currency notes with those delivered
by the bank. The evidence of the defence witness explaining the
circumstances under which these amounts had remained deposited with them
was also taken note of in reaching this conclusion. The learned trial court
rightly discarded the statements of the accused persons to the effect that
the amount recovered had been the booty of the dacoity being inadmissible
under section 27 of the Indian Evidence Act, 1872. It rejected as well the
test identification parade conducted in course of the investigation being
flawed for various legal infirmities. It recorded too that the witnesses
had not been able to disclose the registration numbers of the scooter or
the car referred to in their evidence and also noticed the contradictions
in the registration number of the scooter used in the commission of the
offence. The seizure of the revolver was also rejected to be of no
probative value vis--vis the offence alleged.
18. The testimony of PW2 was also disregarded as not believable to
connect the accused persons with the crime. It, however, acted on the
testimony of PW1, PW3 and PW4 at the trial to conclude that the appellant
had entered into a scuffle with the deceased and had eventually shot at
him. The trial court thus returned a finding that the prosecution could
connect only the appellant with the offence and none other. It thus, as a
corollary, recorded that conspiracy had not been made out. The appellant
was convicted and sentenced in this background. The High Court affirmed in
toto the analysis of the evidence as undertaken by the learned trial court
and its ultimate conclusions in all respects.
19. A plain perusal of the charges framed would demonstrate that whereas
all the accused persons had been indicted for the offence of conspiracy
under section 120-B, IPC and of murder under Section 302,IPC read with
section 149 of the Code, accused Malkiat Singh was exclusively charged for
murder under section 302 IPC. All of them, additionally were arraigned
for having committed the offence punishable under section 396 as well.
20. It is thus patent that the accused persons including the appellant,
in terms of the charge so framed could be convicted, if proved, for the
offences under section 120B, 302, 396 IPC.
21. Both the courts below have concluded that the prosecution had failed
to prove the charge of conspiracy and had in fact unreservedly recorded
that the other four co-accused persons could not be connected with the
offences charged. On being queried by us the learned counsel for the State
has fairly conceded that the State of Punjab has not preferred any appeal
against the acquittal of the four co-accused persons. It has thus accepted
the verdict of the learned courts below in this regard. The acquittal of
these four co-accused persons for lack of evidence about their
identification and participation in the commission of the alleged offence
has thus become final.
21 A. On an assessment of the entire gamut of the evidence on record,
the inescapable conclusion is that the prosecution has failed to prove
either the identification of the four co-accused persons or their
involvement in the offences as members of the assembly for the offence of
dacoity with murder. The evidence of PW1, PW3 and PW4 if read together also
does not unimpeachably prove that the appellant was the assailant and that
he had fired from the pistol in his possession at Mohinder Singh. Their
evidence in fact is contradictory in material terms. Not only the
informant, at the time of the incident, did not know the appellant by his
name, admittedly it was for the first time that he claimed to identify him
in Court at the trial. The same is the state of PW3 and PW4 as well.
21 B. To reiterate, the test identification parade held by the
investigating agency had been discarded and rightly for being vitiated by
contraventions of procedural safeguards mandated by law. There is thus no
direct evidence as well to establish the culpability of the appellant qua
any of the offences. As a matter of fact, the evidence of the above eye
witnesses does not indicate the involvement of five or more persons in the
perpetration of the crime. With the failure of the State to prefer an
appeal against the acquittal of the four co-accused persons, the finding to
this effect has also become final and binding. There is no overwhelming
evidence to the contrary to overturn the concurrent findings of the courts
below on the failure of the prosecution to prove for participation of five
or more persons in the commission of the alleged offences.
22. Section 391,IPC defines dacoity to be an offence, if five or more
persons conjointly commit or attempt to commit a robbery or where the
whole number of persons conjointly committing or attempting to commit a
robbery and persons present and aiding such commission of attempt, amount
to five or more. In terms of section 391,IPC in such an eventuality every
person so committing, attempting or aiding is said to commit dacoity.
Section 396 which comprehends dacoity with murder is a contingency where
one of the five or more persons who are conjointly committing dacoity,
commits murder in so committing dacoity. In such a case, every one of those
persons shall be punished with death or imprisonment for life or rigorous
imprisonment for a term which may extend to 10 years and would also be
liable to pay fine.
23. A combined reading of section 391 and 396, IPC would bring to the
fore, the essential pre-requisite of joint participation of five or more
persons in the commission of the offence of dacoity and if in the course
thereof any one of them commits murder, all members of the assembly, would
be guilty of dacoity with murder and would be liable to be punished as
enjoined thereby.
24. Axiomatically, thus, the indispensable pre condition to perceive an
offence of dacoity with murder is a participating assembly of five or more
persons for the commission of the offence. In absence of such an assembly,
no such offence is made out rendering the conviction therefor of any person
in isolation for murder, even if proved, impermissible in law. To convict
such a person of the offence only of murder, if proved otherwise, there
ought to be specific charge to that effect.
25. This Court in Ram Bilas Singh & Ors. Vs. The State of Bihar 1964 (1)
SCR 775 while dilating on the scope and purport of Section 149 of the IPC
had held:
"What has been held in this case would apply also to a case where a
person is convicted with the aid of s.149, Indian Penal Code instead of
s.34. Thus all the decisions of this court to which we have referred make
it clear that it is competent for a court to come to the conclusion that
there was an unlawful assembly of five or more persons, even if less than
that number have been convicted by it if (a) the charge states that apart
from the persons named, several other unidentified persons were also
members of the unlawful assembly whose common object was to commit an
unlawful act and evidence led to prove this is accepted by the court; (b)
or that the first information report and the evidence shows such to be the
case even though the charge does not state so, (c) or that though the
charge and the prosecution witnesses named only the acquitted and the
convicted accused persons there is other evidence which discloses the
existence of named or other persons provided, in cases (b) and (c), no
prejudice has resulted to the convicted person by reason of the omission to
mention in the charge that the other unnamed persons had also participated
in the offence."
26. Their Lordships thus enunciated, on an exhaustive survey of the
judicial renderings on the issue that it is competent for a Court to come
to the conclusion that there had been an unlawful assembly of five or more
persons and yet convict a lesser number of persons if the charge stated
that, apart from the persons named, several other unidentified persons were
also members of the unlawful assembly whose common object was to commit an
unlawful act and that the evidence led to prove the same is accepted by
the Court or if the FIR and the evidence shows such to be the case even
though the charges does not state or if though the charge and the
prosecution witnesses named only the acquitted and convicted persons,
there is other evidence which disclosed the existence of named or other
persons provided, that in the last two contingencies, no prejudice would
result to the convicted persons by the reason of omission to mention in the
charge that the other unnamed persons had also participated in the
offence.
27. With reference to the offence of dacoity under section 391, IPC in
particular and the import of section 149, IPC, this Court in Raj Kumar vs.
State of Uttaranchal 2008 (11) SCC 709 had propounded that in absence of a
finding about the involvement of five or more persons, an accused cannot be
convicted for such an offence. Their Lordships, however, clarified that in
a given case it could happen that there might be five or more persons and
the factum of their presence either is not disputed or is clearly
established, but the Court may not be able to record a finding as to their
identity resulting in their acquittal as a result thereof. It was held
that in such a case, conviction of less than five persons or even one can
stand, but in the absence of a finding about the presence or participation
of five or more persons, less than five persons cannot be convicted for an
offence of dacoity.
27 A. The above pronouncements do acknowledge the extension of the concept
of collective culpability enshrined in section 149, IPC in section 396,
IPC contemplating murder with dacoity. An assembly of five or more persons
participating in the offence is thus the sine qua non for an offence under
section 396, IPC permitting conviction of any one or more members thereof
even if others are acquitted for lack of their identity. In absence of
such an assembly of five or more persons imbued with the common object of
committing dacoity with murder, any member thereof cannot be convicted for
the said offence irrespective of his/her individual act of murder unless
independently and categorically charged for that offence.
28. As adverted to hereinbefore above, the prosecution has completely
failed in the instant case to either prove the participation of five or
more persons in the commission of the offence or establish their identity.
In that view of the matter having regard to the above principle of law as
authoritatively laid down by this Court and in absence of a singular charge
under section 302, IPC against the appellant sans the assembly, we are of
the unhesitant opinion that his conviction for dacoity with murder
punishable under section 396, IPC, in the facts and circumstances of the
case, cannot be sustained in law. The attention of the courts below we
understand had not been drawn to this vital and determinative facet of the
case.
29. Be that as it may, in our considered view, the conviction and
sentence of the appellant being repugnant to letter and spirit of section
391 and 396 of the IPC, the same is liable to be interfered with. We order
accordingly.
30. The appeal is thus allowed and the impugned judgments and orders are
hereby set aside. The appellant is acquitted of the charges and is hereby
ordered to be set at liberty forthwith. The lower courts records be
transmitted immediately for necessary follow up steps.
.......................................J.
(M.Y.Eqbal)
.......................................J.
( Amitava Roy)
New Delhi,
Dt. March 24, 2015
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