Case Note & Summary
The Supreme Court allowed the appeal of Kishore, Bala, and Banaras (appellants) against their conviction for offences under Sections 148, 302/149, and 460/149 IPC. The case arose from an incident on the night of July 3-4, 2003, where five accused allegedly entered the house of the complainant, Khushbir Singh (PW-8), assaulted the occupants, and committed dacoity, resulting in the deaths of Pratap Singh and Gurpal Kaur. The trial court convicted all five accused, but the High Court acquitted two (Raka and Lakhan) while confirming the conviction of the appellants. The Supreme Court held that with the acquittal of two accused, the requirement of an unlawful assembly of five or more persons under Section 141 IPC was not met, rendering the convictions under Section 148 and with the aid of Section 149 unsustainable. The Court also found the identification evidence of PW-8 and PW-9 unreliable: they did not know the accused before the incident, no test identification parade was conducted, and their testimony was vague regarding which accused assaulted the deceased. The prosecution failed to examine key witnesses (the two nieces and the injured Satbir Singh) without explanation. Consequently, the Court set aside the convictions and sentences, acquitting the appellants.
Headnote
A) Criminal Law - Unlawful Assembly - Section 141, 148, 149 IPC - Requirement of Five or More Persons - Where two out of five accused are acquitted, the remaining three cannot be convicted under Section 148 or with the aid of Section 149 as there is no unlawful assembly of five or more persons. The High Court could have altered the charge to Section 34 IPC if evidence permitted, but did not do so. (Paras 7-8) B) Evidence Law - Identification - Test Identification Parade - Not Mandatory - The failure to hold a test identification parade is not fatal per se, but the court must assess the reliability of in-court identification. In this case, the eyewitnesses did not know the accused before the incident and their identification was vague and unsupported by other evidence. (Paras 8-12) C) Criminal Law - Murder - Section 302 IPC - Insufficient Evidence - The eyewitnesses did not specifically state which accused assaulted the deceased. The prosecution failed to examine crucial witnesses (the two nieces and the injured Satbir Singh) without explanation. Hence, conviction for murder cannot be sustained. (Paras 10-12)
Issue of Consideration
Whether the conviction of the appellants under Sections 148, 302/149, and 460/149 IPC can be sustained when two co-accused have been acquitted, and whether the identification evidence of the eyewitnesses is reliable.
Final Decision
The Supreme Court allowed the appeal, set aside the conviction and sentences of the appellants, and acquitted them of all charges.
Law Points
- Unlawful assembly requires five or more persons
- Section 149 IPC vicarious liability fails if less than five convicted
- Test identification parade not mandatory but its absence considered with other evidence
- Conviction cannot be based on vague identification evidence
