Singh Vs. State of Haryana  Insc 90 (20 February 2001)
Shah & K.G. Balakrishnan. Shah, J.
Appeal (crl.) 773 of 1998
Sessions Case No.44 of 1989, 14-accused were tried for various offences
including Sections 3 and 5 of the Terrorists and Disruptive Activities
(Prevention) Act, 1987 (hereinafter referred to as the TADA Act) by the
Additional Judge, Designated
Court, Karnal at Ambala.
The Additional Judge by his judgment and order dated 19th February, 1998 convicted the appellant Daya Singh
for committing the offence of murder of Gurdeep Singh and attempting to commit
murder of PWs Dr. Harnam Singh and Smt. Jaswant Kaur. The appellant is also
convicted under Section 302 read with Section 34 IPC for committing murder of Khushdev
Singh, Gurpreet Kaur and his co-accused Gurjant Singh and sentenced to suffer
imprisonment for life and to pay a fine of Rs.10000/- in default of payment of
fine to undergo further RI for a period of one year. He is also convicted for
the offence punishable under Section 307 read with Section 34 IPC for
attempting to cause death of Ram Singh, Somnath and Hira Singh by fire- arms
and is sentenced to undergo RI for a period of ten years and to pay a fine of
Rs.5000/-, in default of payment of fine to undergo RI for a period of six
months. In addition, he is convicted for the offence punishable under Section 5
of TADA Act for possessing one AK 47 rifle with cartridges and is sentenced to
undergo RI for seven years and to pay a fine of Rs.3000/-, in default of
payment of fine to undergo RI for three months. All the sentences were ordered
to run concurrently. The Designated
Court acquitted rest
of the accused.
the order of conviction passed by the learned Judge, accused Daya Singh has
preferred Criminal Appeal No.416 of 1998. In this appeal, learned senior counsel
Mr. U.R. Lalit appearing for the appellant has confined his submissions mainly
with regard to reliability of evidence of PW37 Jaswant Kaur and PW38 Dr. Harnam
Singh qua the identification of the appellant.
State has filed Criminal Appeal No.773 of 1998 against the acquittal order and
also for enhancement of sentence. With regard to the appeal filed by the State,
after going through the evidence on record, it is apparent that the order
passed by the Additional Judge does not call for any interference. Confessional
statements are found to be not voluntary and are held to be unreliable. There
is no other evidence to connect the acquitted accused with the crime.
incident relates to attack by the terrorists on 9.4.1988 in the house of one
Dr. Harnam Singh at Kurukshetra which has resulted in loss of his son Khushdev
Singh, daughter-in-law Gurpreet Kaur, Gurdeep Singh son of his brother-in-law
and one assailant Gurjant Singh and injuries to other persons. At the time of
hearing of this appeal, prosecution version relating to the incident of the
murder of four persons at the place of incident and injuries to the witnesses
is not disputed. For considering the submissions and appreciating the evidence
relating to the contentions raised by the learned counsel for the parties, we
would refer to the evidence of Dr. Harnam Singh, PW38 and his wife Smt. Jaswant
Kaur, PW37. It is the say of Dr. Harnam Singh that he is a worker of communist
party and was elected as MLA in the year 1987 from Shahabad. On 9th April, 1988 at about 8.15 to 8.30 p.m. when he
was present in his house, one person came in his courtyard and called upon him.
In the courtyard two electric bulbs were on at that time. When he came out from
his room, he saw one well-built Sikh gentleman aged about 26-27 years having
small beard holding a revolver in his hand. He ran towards him and caught hold
of him. On hearing the noise, his wife came out of the room. She also caught
hold of that Sikh from his hairs. At that time, one other person came from
outside holding stengun type arm. He was having a long beard and having eyes
like that of a cat. That man started firing and a pellet hit his left arm. The
shots also hit abdomen of his wife. At that time his son, Khushdev Singh,
daughter-in-law Gurpreet Kaur and Gurdeep Singh son of his brother-in-law who
were watching TV came outside. The man who was having eyes like a cat fired
shots towards them and because of the injury sustained, Gurdeep Singh fell down
on the main gate. His son Khushdev Singh caught hold of that man and tried to
take away the stengun. It is his further say that when Khushdev Singh was
holding the person, he fired shots from his fire-arm towards Khushdev Singh and
Gurpreet Kaur. When Khushdev was grappling with him, he rushed to his room to
make a telephone call and informed at police station that he was attacked and
shots were being fired. He has further deposed that when he went outside the
room, the third miscreant who was standing on the main door fired shots towards
that room. During the grappling, one blanket, one shoe, one turban, one Jutti
had fallen down in the courtyard. The magazine of the stengun had also fallen
down. When he came out of the room after telephonic call, the miscreants had
fled and saw that Gurdeep Singh was lying dead at the entrance gate. Khushdev
Singh and Gurpreet Kaur, who were dragged outside by Daya Singh and with whom
they were grappling, were lying in the street on the right side of the main
gate in an injured condition. The terrorist who was caught and dragged out by
his wife was also lying dead. Khushdev and Gurpreet were removed to the civil
hospital. They succumbed to their injuries within few minutes in the hospital.
Thereafter, he alongwith his wife and Hira Singh were referred to PGI Hospital.
He has also deposed with regard to the investigation carried out by the police
including the recovery of certain articles from the scene of offence. It is his
further say that on 7th May 1988, he and his wife were taken by the police to
Civil Hospital, Rajpura as it was stated that two terrorists had been shot dead
and they were to be identified by them. Out of the two dead bodies, they
identified one as the person who had fired shots towards him while he was
standing on the main gate. With regard to the identification of the accused he
stated that he could identify and recognize the person who fired shots and has
identified the appellant Daya Singh.
learned Judge has noted that at that time as there was no electricity in the
Court room, the accused, witnesses, advocates and he himself went outside the
court room where the accused was identified by Dr. Harnam Singh in second round
which took 3 to 4 minutes. In cross-examination, he has stated that he was
using spectacles since last more than 40 years and he could see up to a
distance of 30 to 40 or 100 yards with the help of spectacles and could
identify a person from a distance of 20 to 25 yards. He has also stated that
during the time of identification as there was no electric light in the court
room and was dark, he was required to go outside the court room and there he
had identified the accused. He has clarified what he understood by catty eyes
and stated that eyes were like that of a cat and nothing more. The witness was
asked whether he could say that the eye of other accused named Inderjeet Singh
was like cat. To that, his reply was his eyes were normal and not like that of
a cat. He has also stated that he has seen accused Daya Singh on the date of
incident from a distance ranging from one yard to 3-4 yards and that Daya Singh
had fired from a distance of 3 yards in the courtyard. In further cross
examination, he has stated that he knew the name of accused Daya Singh prior to
6.2.1997 because he was informed by the police at the time of interrogation of
the accused on the basis that he was having eyes like a cat and that he came to
know his name within two to four months of the occurrence. He has also stated
that he along with his wife visited Central Jail, Ambala for identification of
the accused, but they were informed that accused Daya Singh had refused to
participate in the identification parade. It was his say that he identified the
accused Daya Singh after wearing and even after removing spectacles and that at
the time of identification, he had removed the spectacles in order to satisfy
himself that accused Daya Singh was the same person. He had denied the
suggestion that he had wrongly identified the accused at the instance of the
police. In view of the limited contention raised in the appeal, other part of
the evidence is not required to be referred in this appeal.
is the evidence of Jaswant Kaur PW37. It is her say that on 9.4.1988 at about
8.15 to 8.30 p.m. her husband Dr. Harnam Singh was working in his room and her
son Khushdev Singh, daughter-in-law Gurpreet Kaur and Gurdeep Singh were
watching T.V. programme. At that time, one person came from outside and called
Doctor Sahib (her husband). In the courtyard, two bulbs of electricity were on
at that time. On hearing the call of her husband, she went out and saw one Sikh
gentleman, aged about 25-26 years-who was well built, having small beard and
holding a pistol in his hand, was caught hold by her husband. She also caught
hold of his hairs. Subsequently, one other Sikh who was also well built, having
thick beard and eyes like cat holding firearms came towards them. He fired and
the shots hit on the left arm of her husband and also on her abdomen. On
hearing the sound of fire shots, Gurdeep Singh followed by her son Khushdev
Singh and daughter-in-law Gurpreet Kaur came out. It is her say that again that
Sikh fired shot towards Gurdeep Singh which hit his body and he died on the
spot. Thereafter, Khushdev Singh and Gurpreet Kaur grappled with that Sikh who
was firing shots. In the process of grappling, that Sikh, Gurpreet Kaur and Khushdev
Singh went out in the street. Other Sikh who was held by her came out in the
process of grappling and his pistol had fallen down in that process. One
blanket, one turban and one of the shoes of that Sikh gentleman also fell in
the courtyard of her house. It is her say that when they came out, they found
another Sikh gentleman who was well built, tall, having whitish complexion and
black and round eyes.
Sikh also fired shots from his fire-arm towards Khushdev Singh, Gurpreet Kaur
and herself. Khushdev Singh and Gurpreet Kaur received injuries on various
parts of their bodies. During that firing, the Sikh who was held by her also
received injuries and he fell down. Khushdev Singh, Gurpreet Kaur and the Sikh
who received fire shots died at the spot in the street. It is her further say
that her brother Hira Singh, (PW40) also reached at the scene of occurrence on
hearing noise. He received injuries by firearm. One Somnath PW47 also came
there and he also received injuries. It is her say that she could identify the
Sikh who had entered the courtyard of her house and had fired shots from his
firearm upon her and her husband. She has admitted that her eye-sight was weak.
After looking at the accused, she raised suspicion on one of the accused whose
name on inquiry was revealed Daya Singh (appellant).
said that this accused is the same person who had fired shots on her and her
husband. She again stated that she had recognized this accused, but as he was
not opening his eyes, she has used the words that she was identifying on
suspicion. The learned Judge has noted that the witness had taken nearly five
minutes in identifying the accused out of all the accused present in the Court.
In cross-examination, it was pointed out to her that she had identified the
dead body of one person who was shot dead during the incident and that body was
of the miscreant who was having blackish and round shape eyes and whose height
was between 5 ½ to 6 feet.
has further stated that at the time of incident her eye sight was normal, but
subsequently one of her eyes was operated and nothing was visible from that eye
and at present she could see an object from a distance of about one feet with
the help of spectacle. She has also stated that accused Daya Singh has similar
features which she remembered since the date of occurrence and, therefore, she
was in a position to identify him even though he had not opened his eyes. She
has denied the suggestion that she has wrongly identified Daya Singh at the
instance of police. She has pointed out that during the incident, electric
bulbs were fitted in the courtyard. She was asked with regard to the complexion
of the accused and she replied that Daya Singh was having whitish complexion
and that it was incorrect to suggest that Daya Singh was of fair complexion. To
her, other accused namely Parshottam Singh and Jaspal Singh were shown and she
was asked to differentiate between the complexion of the accused Daya Singh and
those two persons.
that, she replied that she can not differentiate.
PW39 Ram Singh was passing by near the house of Dr. Harnam Singh and near
electric poll, he was injured by a shot but had not seen as to who fired the
shot. He has stated that it was dark at the scene of occurrence.
Hira Singh PW40, brother-in-law and a neighbour of Dr. Harnam Singh had also
received injury at the time of incident when he came out of the house and gave Lalkara.
He was also removed to the hospital. He failed to identify the accused.
Similarly, one Somnath (PW47) after hearing the noise and sound of fire came to
know that terrorists have come. He was going from the house of his uncle
towards his house. On the way two persons came running and struck against him.
One was holding a small firearm which was perhaps a revolver and other was
holding firearm like stengun. He tried to catch hold of one person and collided
with him. At that time, there was firing from the opposite direction and one
shot hit him on his right arm. It is his say that the person who was collided
with him was not present in the Court room. It is the prosecution version that
FIR was lodged by one Gagandeep Singh (PW29) who was returning to his house in
the evening and after hearing sound of fire shots he rushed at the scene of
occurrence and found that Khushdev Singh and Gurpreet Kaur were grappling with
3 to 4 Sikhs. He raised a noise addressing to those persons and one of them ran
towards him with a stengun and so being frightened he came back and hid
himself. He again went at the house of Harnam Singh after 4 to 5 minutes and
found that terrorists had already left. He found that Gurpreet Kaur and Khushdev
Singh were seriously injured and his elder brother Gurdeep Singh was lying dead
at the spot.
rushed to the police station but on the way the police met him and his
statement was recorded.
has also relied upon Harbans Singh PW43, Land Acquisition Officer who was
posted as Tehsildar, Kurukshetra on 2nd June 1988. He had gone for conducting
identification parade in Central Jail, Ambala at the instance of S.P. Kurukshetra.
It is his say that he reached Central Jail at 5.00 p.m. and Daya Singh was produced before him by the jail
authorities. He informed Daya Singh that he had come for conducting
identification parade, but Daya Singh refused to participate on the ground that
he had already been shown by the police to the expected witnesses. His
statement was accordingly recorded by him and the said statement alongwith his
report was sent to the S.P. Kurukshetra. In cross-examination, he has stated
that he was not knowing accused Daya Singh personally, but was identified by
the jail authorities. He further stated that he could not identify the accused Daya
Singh out of the accused persons present in the court. He has also stated that
he was not knowing Jaswant Kaur PW37 personally and could not say whether she
was present outside the jail premises on that day or not. He denied the
suggestion that accused Daya Singh never refused for such an identification
parade and that he was deposing falsely.
Singh, DIG, CISF, New
Delhi has deposed
that on 5.5.1988, 22.5.1998, 2.6.1998 and 14.6.1998, he had recorded the
confessional statements of number of accused.
his say that on 29.6.1998, he visited CIA, Kurukshetra and recorded the
confessional statement of Daya Singh, which was produced as Ex. PW45/W. It is
his say that the accused made the statement voluntarily which was read over to
him and his signatures were taken. He also appended the certificate Ex.
PW45/W-1 below the confessional statement and the said confessional statement
was sent to the C.J.M., Kurukshetra on the same day in a sealed envelope. He
has stated that he could not identify the persons including Daya Singh whose
confessional statements were recorded by him on various dates mentioned above.
In cross-examination, he has admitted that many police officers were present in
the police station when confessional statements were recorded.
as discussed by the learned Judge, he has not followed the necessary procedure
of recording confessional statement and that the same is not voluntary.
Therefore, the said confessional statement is rightly not relied upon by the
trial court. Further almost all the confessional statements of the accused
persons except that of Parshottam Singh were recorded by the Reader of the
S.P., who is not examined. Other part of the prosecution evidence is not
required to be reiterated as the controversy in the appeal is in a
learned counsel Mr. Lalit submitted that conviction of the appellant is based
solely on the identification of the accused in the Court by PW37 and PW38. He
contended that the incident took place in April, 1988 and identification in the
Court by Smt. Jaswant Kaur (PW37) is in November, 1996 i.e. after lapse of
seven and half years.
identification by Dr. Harnam Singh (PW38) is after eight years. Therefore, on
this sole ground of delay in identification, their evidence can not be relied
upon for convicting the accused. He contended that it is difficult for the
witnesses to identify the accused after long lapse, unless they are repeatedly
seen. He pointed out that in this case there is possibility that accused could
have been seen in the court before identification. He further contended that
other injured witnesses namely PW29 Gagandeep Singh, who lodged FIR, PW40 Hira
Singh and PW47 Somnath have not identified the accused. He pointed out that
PW29 has not specifically stated about the light in the courtyard but has only
stated that because of the street light he could see the accused and that Ram
Singh admits that it was night time and dark at the scene of occurrence. Even Hira
Singh has admitted that because of long lapse of time, he could not identify
the assailants. Independent witness Tehsildar (PW43) who had gone for test
identification parade has also failed to identify the accused. Similarly, the
SP (PW45) who allegedly recorded the confessional statement has also failed to
identify the accused. In such circumstances, it would not be safe to rely upon
the evidence of the aforesaid two witnesses for convicting the accused. Lastly,
he contended that even deposition of PW37 and PW38 qua identification is
halting one and, therefore, also benefit of doubt is required to be given to
the accused. In support of his contention he placed reliance on decision of
this Court in Hari Nath and Another v. State of U.P. [AIR 1988 SC 345]. Learned counsel for the appellant has
also relied upon the decisions of this Court in Mohd. Abdul Hafeez v. State of
Andhra Pradesh [AIR 1983 SC 367], Wakil Singh and Others v. State of Bihar [AIR
1981 SC 1392] and Soni v. State of UP [(1982) 3 SCC 368] wherein the Court has
observed that identification parade after some time lapse would be of no
consequence and, therefore, on the basis of such identification, accused cannot
against this, learned counsel for the State submitted that the Designated Court has rightly convicted the accused
on the basis of clinching evidence of PW37 and PW38 who apart from being
injured witnesses have lost their son and daughter-in-law during the incident
which had taken place in their house. It is submitted that accused were
terrorists and in such cases, there is no question of having other independent
witnesses. Even if independent witnesses were available, they would not dare to
make any statement against the accused. He pointed out that as held by the learned
Judge, investigation was sluggish but that is no ground for not relying upon
the evidence of PW37 and PW38. It is his contention that it would be
unreasonable to expect Superintendent of Police, who recorded the confessional
statement of number of accused in the case in the year 1988, to identify the
accused after lapse of seven to eight years.
the Tehsildar who had gone to hold identification parade also is not expected
to identity the accused. It his contention that court has rightly relied upon
the evidence of injured affected witnesses and for this purpose he referred to
the observations made by the Designated Court to the effect that physical
features of accused Daya Singh must have been embedded in the memory of Jaswant
Kaur just like a gali stone because it was he who with his co- assailants
committed the gruesome crime.
this stage we would first refer to the decisions upon which reliance is placed.
In the case of Soni (Supra), this Court observed that delay of 42 days in
holding the identification parade throws a doubt on genuineness thereof apart
from the fact that it is difficult that after lapse of such a long time the
witnesses would be remembering facial expression of the appellant. In the case
of Mohd. Abdul Hafeez (Supra), the Court while dealing with a robbery case
observed that as no identification parade was held, no reliance can be placed
on the identification of accused after lapse of four months in the court. In
the case of Hari Nath (Supra), the Court observed that evidence of test
identification is admissible under Section 9 of Evidence Act. But the value of
test identification, apart from the other safeguards appropriate to a fair test
of identification depends upon the promptitude in point of time with which the
suspected persons are put up for test identification. If there is an
unexplained and unreasonable delay in putting up the accused persons for a test
identification, the delay by itself detracts from the credibility of the test.
The Court further referred to (Para 9) Prof. Borchards
Convicting the Innocent on the basis of error in identification of the accused.
The learned author has observed: The emotional balance of the victim or
eye-witness is so disturbed by his extra-ordinary experience that his powers of
perception become distorted and his identification is frequently most
untrustworthy. Into the identification enter other motives not necessarily
stimulated originally by the accused personally the desire to requite a crime,
to exact vengeance upon the person believed guilty, to find a scapegoat, to
support, consciously or unconsciously, an identification already made by
another. Thus, doubts are resolved against the accused.
paragraphs 10 and 11, the Court has observed as under:-
The evidence of identification merely corroborates and strengthens the oral
testimony in Court which alone is the primary and substantive evidence as to
identity. In Hasib v. State of Bihar [AIR
1972 SC 283] this Court observed:
purpose of test identification is to test that evidence, the safe rule being
that the sworn testimony of the witness in Court as to the identity of the
accused who is a stranger to him, as a general rule, requires corroboration in
the form of an earlier identification proceeding.
Singh v. State of J & K, [AIR 1972 SC 102], this Court observed (at p.104):
be remembered that the substantive evidence of a witness is his evidence in
court, but when the accused person is not previously known to the witness
concerned then identification of the accused by the witness soon after the
formers arrest is of vital importance because it furnishes to the investigating
agency an assurance that the investigation is proceeding on right lines in
addition to furnishing corroboration of the evidence to be given by the witness
later in court at the trial.
is, no doubt, true that absence of corroboration by test identification may not
assume any materiality if either the witness had known the accused earlier or
where the reasons for gaining an enduring impress of the identity on the mind
and memory of the witness are, otherwise, brought out. It is also rightly said
that Courts ought not to increase the difficulties by magnifying theoretical
possibilities. It is their province to deal with matters actual and material to
promote order and not surrender it by excessive theorising or by magnifying
what in practice is really unimportant.
question, therefore, iswhether the evidence of injured eyewitnesses PW37 and
PW38 is sufficient to connect the appellant with the crime beyond reasonable
doubt. For this purpose, it is to be borne in mind that purpose of test
identification is to have corroboration to the evidence of the eyewitnesses in
the form of earlier identification and that substantive evidence of a witness
is the evidence in the Court. If that evidence is found to be reliable then
absence of corroboration by test identification would not be in any way
material. Further, where reasons for gaining an enduring impress of the
identity on the mind and memory of the witnesses are brought on record, it is
no use to magnify the theoretical possibilities and arrive at conclusion - what
in present day social environment infested by terrorism is really unimportant.
In such cases, not holding of identification parade is not fatal to the
prosecution. The purpose of identification parade is succinctly stated by this
Court in State of Maharashtra v. Suresh [(2000) 1 SCC 471] as
remind ourselves that identification parades are not primarily meant for the court.
They are meant for investigation purposes. The object of conducting a test
identification parade is two fold. First is to enable the witnesses to satisfy
themselves that the prisoner whom they suspect is really the one who was seen
by them in connection with the commission of the crime. Second is to satisfy
the investigating authorities that the suspect is the real person whom the
witnesses had seen in connection with the said occurrence.
present case, there is no lapse on the part of the Investigating Officer in
holding the test identification parade. The appellant was arrested on 28th May, 1988 and the identification parade was
to be held on 2nd June, but on that day accused refused to take part in the
parade. For his arrest, PW45 Resham Singh, DIG and PW46 Bishan Singh, CIA
Inspector have specifically stated that the appellant was arrested on 27th May,
1988 by the Punjab Police and was brought at Kurukshetra on 28th May, 1988 and
was sent in judicial custody as he was to be identified. Further, there is no
reason to disbelieve the evidence of Tehsildar who had gone there for holding
the test identification parade of accused. Learned Senior Counsel Mr. Lalit
repeatedly submitted that investigating officer has not produced on record the
statement of the accused recorded by Tehsildar and the report submitted by him
and, therefore, no credence should be given to the evidence of Tehsildar. In
our view, this submission is totally misconceived. It is true that if the
investigating officer had produced on record the statement of accused and the
report submitted by Tehsildar, it would have corroborated his say. But in our
view the evidence of such disinterested, independent, official witness does not
require any corroboration. In cross-examination, the Tehsildar has specifically
stated that he did not know the accused Daya Singh personally but accused was
identified by the jail authorities. He has also denied the suggestion that Daya
Singh never refused for such identification parade and that he was deposing
was least interested in the prosecution or falsely involving the accused.
Further, he is not expected to know the accused personally nor to remember his
face for years.
discharging his official functions and is not expected to memorise the identity
of the persons whose statements he had recorded. There is no reason to hold
that jail authorities have committed any mistake in producing Daya Singh before
the Tehsildar for parade. Further, the evidence of Tehsildar that he had gone to
Central Jail for identification parade gets corroboration from the evidence of
PW38 who also went to the Central Jail, Ambala for identifying the accused, but
they were informed that the accused had refused to participate in the test
parade. It is to be stated that in such a situation, this Court in Suraj Pal v.
State of Haryana [(1995) 2 SCC 64] held that substantive evidence identifying
witness is his evidence made in the Court and if the accused in exercise of his
own volition declined to submit for test parade without any reasonable cause,
he did so on his own risk for which he cannot be heard to say that in the
absence of test parade, dock identification was not proper and should not be
accepted, if it was otherwise found to be reliable. The Court observed it is
true that they could not have been compelled to line up for test parade but
they did so on their own risk for which the prosecution could not be blamed for
not holding the test parade. In that case also, the Court disbelieved the
justification given by the accused for not participating in the identification
parade on the ground that accused were shown by the police to the witnesses.
is the position in the present case.
there is no reason to disbelieve the evidence of Dr. Harnam Singh and his wife Jaswant
Kaur when they identified the accused out of 14 persons who were facing the
trial. Their evidence is cogent and consistent with regard to the
identification of appellant. The conduct of Dr. Harnam Singh was natural in the
court premises. As there was no electricity in the court room, he identified
the accused after going outside the court room in the second round which took
3-4 minutes. He had seen accused Daya Singh grappling with his son and
daughter-in-law. The identification by this witness was tested in the
cross-examination and in our view, he stood the test of cross-examination. He
gave specific physiognomy of the accused by stating that he was having catty
eyes meaning thereby the eyes like a cat. He has also stated that he had seen
the accused from a distance ranging from 1 yard to 3-4 yards and that the
appellant-accused had fired from 3-4 yards in the courtyard. This witness alongwith
his wife has also identified the dead body of one other co-assailant Daljinder
Singh alias Chandibaba on 7.5.88. In the cross-examination, he further stated
that he could identify the appellant after wearing and removing the spectacles
and has done so in the court room. Similarly, Jaswant Kaur also identified the
appellant as the assailant. Her evidence is so natural that it is impossible to
believe that she is falsely involving the accused-appellant. In the beginning,
she raised suspicion on one of the accused who was not opening his eyes as the
appellant and identified the said person as the person who had fired shots on
her and her husband. This identification was done after taking five minutes.
She deposed that Daya Singh was having similar features which she remembers
since the date of occurrence and has denied the suggestion that she has wrongly
identified the accused at the instance of police. PW38 Dr. Harnam Singh who was
a Doctor and also an MLA would not involve the appellant falsely in such a
was no reason suggested to the witness for involving the appellant in the crime.
Similarly, Jaswant Kaur was also not having any interest in the accused.
However, the learned counsel for the appellant, Mr. Lalit referred the say as
noted by Professor Borchardsthe emotional balance of the victim or eye-witness
is so disturbed by his extra-ordinary experience that his powers of perception
become distorted and his identification is untrustworthy...
true that PWs 37 and 38 have lost their son, daughter-in-law and son of
brother-in- law and that it was extraordinary experience for them to be
assaulted by terrorists. But, it would be difficult to hold that at that time,
they had lost their power of perception.
in some cases what has been noted by the learned author may be true. For that
purpose, the evidence of the witness is required to be appreciated with extra
care and caution. But, where evidence is cogent, consistent and without any
motive, it is no use to imagine and magnify theoretical possibilities with
regard to the state of mind of the witnesses and with regard to their power of
memorizing the identity of the assailants. Power of perception and memorising
differs from man to man and also depends upon situation. It also depends upon
capacity to recaptulate what has been seen earlier. But that would depend upon
the strength or trustworthiness of the witnesses who have identified the
accused in the Court earlier.
in the present case, identification in the Court was out of 14 persons. That
itself would lend credence to identification by the witnesses. For this
purpose, learned Judge has rightly observed to the effect that physical
features of accused must have been embedded in the memory of Jaswant Kaur. From
the evidence and the cross-examination of these two witnesses, it is apparent
that they gained enduring impression of the identity of the accused during the
incident. Therefore, delay in trial by the Designated Judge for one reason or
the other and thereafter identification of the accused in the Court after seven
or eight years would not affect the evidence of these two witnesses. Similarly,
if the prosecution was interested in falsely involving the accused, Gagandeep
Singh PW29, Hira Singh PW40 and Somnath PW47 were having opportunity to
identify the accused at the time of trial. However, the learned counsel for the
appellant submitted that as they have not identified the accused, evidence of Jaswant
Kaur PW37 and Dr. Harnam Singh PW38 becomes suspect. In our view, this
reasoning is fallacious firstly on the ground that it is not expected that all
the witnesses should be in a position to identify the accused nor their
evidence can be compared in the way suggested by the learned counsel.
in the present case, the aforesaid witnesses got injuries when they were
outside the premises of Dr. Harnam Singh. Learned counsel for the appellant
further submitted that Tehsildar PW43 who had opportunity of recording the
statement of the appellant and Resham Singh, DIG PW45 who had recorded the
confessional statement which runs into more than 10 pages have not identified
the accused in the Court.
view, Tehsildar and DIG were discharging their official functions and were not
at all affected by the incident so as to memorise the identity of the accused.
At this stage, we would note one other submission made by learned counsel Mr.
U.R. Lalit with regard to two electric bulbs in the courtyard. In our view, the
submission on this count does not deserve much consideration. The incident took
place at evening time between 8.00 to 8.30 p.m. (in the month of April) and not
dead at night, where there may be difficulty of seeing the faces of the
accused. Further, it is to be born in mind that terrorists entered the house
which was situated in the city, that too, of an MLA and it would be difficult
to hold that two electric bulbs in the courtyard were not on at the relevant
time. Therefore, the learned Judge has rightly appreciated this aspect in his
therefore, broadly agree with the appreciation of evidence recorded by the
learned Judge for convicting the accused Daya Singh and acquitting rest of the
result, both the appeals are dismissed.