Case title: Kishore & Ors. vs The state of Punjab
Case no.: Criminal Appeal No. 1465 of 2011
Decided on: 07.02.2024
Quorum: Hon’ble Justice Abhay S. Oka, Hon’ble Justice Ujjal Bhuyan
FACTS OF THE CASE:
The present appeal is from the judgment of high court of Punjab and Haryana. The trail court has sentenced the five accused and they appeal to the high court. The high court acquitted the accused no. 1 and 4 but confirmed the conviction of the present appellants. Hence this appeal.
It should be noted that all five of the accused were convicted of the offence punishable under Section 148 of the IPC, which is “rioting, armed with a deadly weapon.” Section 146 of the IPC states that whenever an unlawful assembly or any member thereof uses force or violence to achieve the common object of such assembly, every member of the unlawful assembly is guilty of rioting. As a result, the condition precedent for triggering Section 148 of the IPC is the presence of an unlawful assembly. Section 141 of the IPC requires that the unlawful assembly consist of five or more people. With the help of Section 149, all five accused were convicted of the offences punishable under Sections 460 and 302. Section 149 contains vicarious liability for all members of an unlawful assembly for acts committed with a common purpose.
The appellants contended that despite the fact that the two eyewitnesses, Khushbir Singh and Narinder Kaur, did not know the accused, a test identification parade was not conducted. The learned counsel pointed out that the most important witnesses, Love Preet Kaur and Amritpal Kaur, who were 17 and 8 years old, were not examined. Satbir Singh, Narinder Kaur’s husband and injured witness, has not been examined. The learned counsel called our attention to the evidence of Khushbir Singh and Narinder Kaur, claiming that it is completely doubtful and cannot be believed at all.
The learned counsel for the respondent-State of Punjab argued that both Khushbir Singh and Narinder Kaur had seen the accused for an extended period of time during the incident, and that their examination had taken place within one year of the incident. Thus, the test identification parade was unnecessary. He argued that the failure to hold the test identification parade was not fatal to the prosecution because Khushbir Singh and Narinder Kaur’s testimony was reliable.
COURT ANALYSIS AND JUDGEMENT:
The court ruled that a test identification parade is not mandatory. It is useful when eyewitnesses did not know the accused prior to the incident. The consequences of the prosecution’s failure to conduct a test identification parade will vary depending on the circumstances of each case. After reviewing Khushbir Singh and Narinder Kaur’s statements, the court determined that they had not seen the accused prior to the incident and thus could not provide their names.
The court determined that Narinder Kaur had not even stated that she witnessed any of the accused assaulting the deceased. Khushbir Singh’s version of the accused assaulting the deceased is extremely vague. Another significant point is that Khushbir Singh stated that his nieces, Love Preet Kaur and Amritpal Kaur, woke him up. Despite accepting that Love Preet Kaur was 16 to 17 years old, the prosecution has not examined her. Similarly, Satbir Singh, Narinder Kaur’s husband and injured witness, has not been examined. The prosecution has not provided any reason for not questioning these two critical witnesses. In the absence of any credible evidence, it is extremely difficult to connect any accused to the deceased’s injuries. As a result, the conviction for violating Section 302 of the IPC cannot be upheld.
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Written by – Surya Venkata Sujith