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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.47 OF 2014
PARGAN SINGH
VERSUS
STATE OF PUNJAB & ANR.
Dated;September 05, 2014.
A.K. SIKRI, J.
Leave granted in Special Leave Petition (Criminal) No.4071 of
2013.
Criminal Appeal No. 47 of 2014 & connected matter
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.
Criminal Appeal No. 47 of 2014 & connected matter
Page 2 of 19
Page 2
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 18 th 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 30 th July, 2006.
PW-2
Kamaljit Singh who sustained injury and had seen the occurrence,
deposed about the incident that occurred on 25 th 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 11⁄2 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 71⁄2 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.
Criminal Appeal No. 47 of 2014 & connected matter
Page 13 of 19
Page 13
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,
interrupted vision, and long viewing distance.
obscured
or
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
Criminal Appeal No. 47 of 2014 & connected matter
Page 14 of 19
Page 14
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 71⁄2 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
Criminal Appeal No. 47 of 2014 & connected matter
Page 15 of 19
Page 15
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 71⁄2 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 71⁄2 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.
Criminal Appeal No. 47 of 2014 & connected matter
Page 16 of 19
Page 16
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 71⁄2 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 71⁄2 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.
Criminal Appeal No. 47 of 2014 & connected matter
Page 17 of 19
Page 17
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
Criminal Appeal No. 47 of 2014 & connected matter
Page 18 of 19
Page 18
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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