Sarwan
Singh Vs. State of Punjab [2002] Insc 431 (7 October 2002)
Umesh
C. Banerjee & Y.K. Sabharwal. Banerjee, J
On the
backdrop of escalation of terrorist activities in the country, Parliamentary
wisdom prompted it to introduce in the Statute Book the Terrorist and
Disruptive Activities (Prevention) Act, 1985 and since there was an expectation
that the activities concerned would be curbed within a period of two years,
life of the said Act of 1985 was restricted to a period of two years from the
date of its commencement. But unfortunately, the terrorist violence continued
unabated and resultantly the Government thought it prudent to extend the life
of the legislation from time to time. In one of the earliest pronouncements of
this Court after the introduction of the said Act, this Court in Usmanbhai Dawoodbhai
Memon & Ors. v. State of Gujarat
[1988(2) SCC 271] in no uncertain terms stated that the intendment of the
legislation is to provide special machinery to combat the growing menace of
terrorism in different parts of the country.
This
court also did emphasise that since the legislation is a drastic one, the same
should not ordinarily be resorted to unless the government's law enforcing
machinery fails. In paragraphs 17 and 18 of the Report this Court observed :
"17.
The legislature by enacting the law has treated terrorism as a special criminal
problem and created a special court called a Designated Court to deal with the special problem and provided for a special
procedure for the trial of such offences. A grievance was made before us that
the State Government by notification issued under Section 9(1) of the Act has
appointed District and Sessions Judges as well as Additional District and
Sessions Judges to be judges of such Designated Courts in the State. The use of
ordinary courts does not necessarily imply the use of standard procedures. Just
as the legislature can create a special court to deal with a special problem,
it can also create new procedures within the existing system.
Parliament
in its wisdom has adopted the framework of the Code but the Code is not
applicable. The Act is a special Act and creates a new class of offences called
terrorist acts and disruptive activities as defined in Sections 3(1) and 4(2)
and provides for a special procedure for the trial of such offences. Under
Section 9(1), the Central Government or a State Government may by notification
published in the Official Gazette, constitute one or more Designated Courts for
the trial of offences under the Act for such area or areas, or for such case or
class or group of cases as may be specified in the notification. The
jurisdiction and power of a Designated Court
is derived from the Act and it is the Act that one must primarily look to in
deciding the question before us. Under Section 14(1), a Designated Court has exclusive jurisdiction for the
trial of offences under the Act and by virtue of Section 12(1) it may also try
any other offence with which the accused may, under the Code, be charged at the
same trial if the offence is connected with such other offence. Where an
enactment provides for a special procedure for the trial of certain offences,
it is that procedure that must be followed and not the one prescribed by the
Code.
18. No
doubt, the legislature by the use of the words 'as if it were' in Section 14(3)
of the Act vested a Designated
Court with the status
of a Court of Session.
But,
as contended for by learned counsel for the State Government, the legal fiction
contained therein must be restricted to the procedure to be followed for the
trial of an offence under the Act i.e. such trial must be in accordance with
the procedure prescribed under the Code of the trial before a Court of Session,
insofar as applicable. We must give some meaning to the opening words of
Section 14(3) 'Subject to the other provisions of the Act' and adopt a
construction in furtherance of the object and purpose of the Act. The manifest
intention of the legislature is to take away the jurisdiction and power of the
High Court under the Code with respect to offences under the Act. No other
construction is possible. The expression 'High Court' is defined in Section 2(1)(e)
but there are no functions and duties vested in the High Court. The only
mention of the High Court is in Section 20(6) which provides that Sections
366-371 and Section 392 of the Code shall apply in relation to a case involving
an offence triable by a Designated Court, subject to the modifications that the
references to 'Court of Session' and 'High Court' shall be construed as
references to 'Designated Court' and 'Supreme Court' respectively.
Section
19(1) of the Act provides for a direct appeal, as of right, to the Supreme
Court from any judgment or order of the Designated Court, not being an interlocutory order. There is thus a total
departure from different classes of criminal courts enumerated in Section 6 of
the Code and a new hierarchy of courts is sought to be established by providing
for a direct appeal to the Supreme Court from any judgment or order of a
Designated Court not being an interlocutory order, and substituting the Supreme
Court for the High Court by Section 20(6) in the matter of confirmation of a
death sentence passed by a Designated Court." In a subsequent decision in Niranjan
Singh (Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya : 1990
(4) SCC 76), it has been stated that while extra care must be taken to ensure
that those of whom the legislature did not intend to be covered by the express
language of the statute are not to be roped in by stretching the language of
the Act in question but that however, does not mean and imply adoptation of a
negative attitude if the materials so justify. In this context, reference may
be made to the decision of this Court in Anil Sanjeev Hegde v. State of Maharasthra (1992 Supp (2) SCC 230).
One
other aspect of the special statute (Terrorist and Disruptive Activities
(Prevention) Act) ought to be noted in order to give credence to the
legislative wisdom by reason of the incorporation of Section 12 therein. For
convenience sake Section 12 is noticed hereinbelow :
"12.
Power of Designated Courts with respect to other offences. (1) When trying any
offence, a Designated
Court may also try
any other offence with which the accused may, under the Code, be charged at the
same trial if the offence is connected with such other offence.
(2)
If, in the course of any trial under this Act of any offence, it is found that
the accused person has committed any other offence under this Act or any rule
made thereunder or under any other law, the Designated Court may convict such
person of such other offence and pass any sentence authorised by this Act or
such rule or, as the case may be, such other law, for the punishment
thereof." Obviously, the effort on the part of the legislature is not to have
two sets of trial, one under general law and the other under special statute
and availability of such a power cannot but be ascribed to be in tune with the
jurisprudence of the country. Be it noted that the instant appeal is statutory
in nature in terms of the provisions of Section 19 of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 and arises against the judgment
and decision of the Designated Court of Ferozepur in Sessions Trial No.28 of
2000.
At
this juncture, it would be convenient to briefly advert to the prosecution
case, which runs as below :
Darshan
Singh, a resident of village Yareshah Wala has been the complainant in the
instant matter. They were five brothers :
Mukhtiar
Singh @ Kali was the eldest. Piara Singh @ Murli was younger to Mukhtiar Singh
and Sukha Singh was the youngest.
Mohinder
Singh and Sukha Singh were unmarried ones whereas Darshan Singh (complainant)
along with Mukhtiar Singh and Piara Singh were the married ones. Piara singh @ Murli
was residing separately. The complainant along with Mukhtiar Singh were
residing jointly. Mohinder Singh and Sukha Singh were residing with their
father Wazir Singh. Houses of all the brothers were in the same complex. On
12.10.1990, at about 3.00 AM Mukhtiar Singh and his wife Rano were sleeping on
the roof of the house of Mukhtiar Singh and somebody from the outside called Kala
and directed to open the door. Complainant and his brother Mukhtiar Singh
replied in the negative and by reason wherefor the persons present outside the
door stated that in the event of the door remain closed, their house would be
set on fire. Out of fear, the complainant and his brother Mukhtiar Singh opened
the door and upon coming outside the house, sighted Sarwan Singh son of Kashmir
Singh armed with 12 bore gun (SB) of their village and one Bagicha Singh son of
Joginder Singh resident of Karmoowala, who used to visit the house of Sarwan
Singh; Bagicha Singh was known to them earlier because he used to visit Sarwan
Singh and was armed with 12 bore double barrel gun with butt and barrel cut.
It was
a moonlit night and both the accused tied the arms of Mukhtiar Singh. In the
same manner arms of Piara Singh were also tied. The complainant along with his
brothers started imploring the accused, but Sarwan Singh accused replied that
they should be taught a lesson for quarreling with him. With the help of gun
the complainant was directed to return. Mukhtiar Singh and Piara Singh were
taken away by the accused towards the field of Shabeg Singh. After 15 minutes
there was firing from the fields of Shabeg Singh. Out of fear, the complainant
remained standing in the courtyard and after about half-an-hour, Mukhtiar Singh
arrived with profuse bleeding. There were injuries on hands and head of Mukhtiar
Singh and he disclosed that Sarwan Singh and Bagicha Singh had murdered Piara
Singh in the fields of Shabeg Singh, and fire arm injuries were also inflicted
to Mukhtiar Singh and with Butt blows on the head of Mukhtiar Singh. The
accused persons however fled away from the spot with their respective weapons
towards the side of village Sher Khan. Out of fear and darkness of the night
outside, Mukhtiar Singh and Darshan Singh remained in their house. In the
morning Mukhtiar Singh was shifted to Civil Hospital, Ferozepur on the tractor
trolley of Piara Singh. Mohan Singh son of Jaimal Singh was deputed to guard
the dead body of Piara Singh. Darshan Singh, complainant had gone to lodge the
report and while near the flour-mill of Jagir Singh in the area of village Chugte
Wala, met the police party headed by Jaspal Singh ASI when the statement of Darshan
Singh was taken upon compliance with the required formalities.
Subsequently,
however the statement was sent to the Police Station, on the basis of which
formal FIR was recorded at 11.15 AM on 12.10.1990.
On the
further factual score, it appears that the Police party had gone to the spot.
Inquest report (Ex.PC) was prepared and the place of occurrence was duly
inspected. Blood stained earth and sample earth was lifted and made into a parcel
sealed with the seal bearing impressions "JS". Both the sealed
parcels were taken into police possession vide separate recovery memo.
Cartridges Ex.P- 1 to P-4 were also lifted from the spot and were taken into
police possession vide memo attested by witnesses. Phatti of the gun too was
taken into possession from the spot. After making sealed parcels, the dead body
was sent to the hospital for post-mortem examination through HC Lakhbir Singh.
It is
on this factual backdrop the Charge was framed under Sections 302/307/34 IPC
and 3 of TADA Act on 23.4.1993 to which the accused pleaded not guilty and
claimed trial.
Undisputedly,
Piara Singh and Mukhtiar Singh were taken towards the fields of Shabeg Singh. Piara
Singh was murdered in the fields and fire arm injuries were caused to Mukhtiar
Singh whereas contention of the accused is that due to previous enmity, he was
named falsely - the evidence available on record however negates such a plea :
Human behaviour also runs counter to such a plea since it is absurd to suggest
that an injured person would take recourse to implicate someone against whom
there was enmity leaving aside the real assassin. In any event on the state of
evidence the factum of Sarwan Singh together with Bagicha Singh called out the
deceased and Mukhtiar Singh and compelled them to accompany them to the fields
of Shabeg Singh does not seem to stand contradicted at any point of time. The
evidence to that effect stands out to be credit-worthy and thus acceptable. On
the wake of the aforesaid the contention as regards false implication fails.
Incidentally,
in early nineties, terrorist activities were on peak in the border districts of
Punjab and it has practically been an
axiomatic truth in the area in question that no-one would in fact come out of
the residential houses after dusk unless perforced at 3'o clock in the morning.
There exists no other evidence nor even there being any suggestion of existence
of any other factor for such perforced outing at 3 a.m. It is a rule of essential justice that whenever the
opponent has declined to avail himself of the opportunity to put his case in
cross-examination it must follow that the evidence tendered on that issue ought
to be accepted. A decision of the Calcutta High Court lends support to the
observation as above. (See in this context AEG Carapiet v. AY Derderian : AIR
1961 Calcutta 359 (P.B. Mukherjee, J. as he then
was)].
Learned
Advocate in support of the appeal next contended that accused were in fact
already in the custody of police as such involvement in the case in hand does
not and cannot arise.
Incidentally
on 13.10.1990 another FIR was registered against the accused persons on the
allegations that accused attempted to murder the police officials but
subsequently the accused persons were acquitted regarding the occurrence dated
13.10.1990.
Acquittal
of accused in FIR dated 13.10.1990 prompted the learned Advocate to state with
emphasis that the same has falsified the prosecution story. The contention of
the defence counsel is however without any force or merit. In this case,
occurrence took place at 3.00
a.m. on 12.10.1990 and
the prosecutor stated that after committing the crime, accused fled away from
the spot. On 13.10.1990 there was possibility of firing upon police officials.
Thus
acquittal of accused in FIR dated 13.10.1990 is not sufficient to ignore the
prosecution story because evidence is to be read independently in both the FIRs.
Further
contentions in support of the appeal are as below:
(i)
Weapons were not sent to ballistic expert;
(ii)
Only interested witnesses were examined;
(iii)
No expert opinion connecting the gun with the empty cartridges;
(iv)
Accused was identified for the first time in Court and in the absence of test
identification parade statement of the interested witnesses are without any
evidentiary value.
We
shall come to deal with the interested witnesses slightly later in this
judgment but adverting to the other counts, be it noted that there is no
evidence on record that the weapon recovered in FIR dated 13.10.1990 was the
same weapon which was used by the accused while committing the crime on
12.10.1990. Much could have been argued or stated if there was availability of
such an evidence, but unfortunately there being none, question of reliance
thereon would not arise and in our view the Designated Court has dealt with the
issue in a manner proper and effective which does not call for any
interference.
As
regards the examination of independent persons or witnesses, we would do well
to note a decision of this Court in Ambika Prasad & Anr. v. State (Delhi Admn.) [2000 (2) SCC 646], wherein
this Court in paragraph 12 observed :
"12.
It is next contended that despite the fact that 20 to 25 persons collected at
the spot at the time of the incident as deposed by the prosecution witnesses,
not a single independent witness has been examined and, therefore, no reliance
should be placed on the evidence of PW5 and PW7. This submission also deserves
to be rejected. It is known fact that independent persons are reluctant to be
witnesses or to assist the investigation.
Reasons
are not far to seek. Firstly, in cases where injured witnesses or the close
relative of the deceased are under constant threat and they dare not depose the
truth before the court, independent witnesses believe that their safety is not
guaranteed. That belief cannot be said to be without any substance. Another
reason may be the delay in recording the evidence of independent witnesses and
repeated adjournments in the court. In any case, if independent persons are not
willing to cooperate with the investigation, the prosecution cannot be blamed
and it cannot be a ground for rejecting the evidence of injured witnesses.
Dealing
with a similar contention in State of U.P.
v. Anil Singh (1988 Supp SCC 686), this Court observed :
(SCC
pp. 691-92, para 15) "In some cases, the entire prosecution case is
doubted for not examining all witnesses to the occurrence. We have recently
pointed out the indifferent attitude of the public in the investigation of
crimes. The public are generally reluctant to come forward to depose before the
Court. It is, therefore, not correct to reject the prosecution version only on
the ground that all witnesses to the occurrence have not been examined. Nor it
is proper to reject the case for want of corroboration by independent witnesses
if the case made out is otherwise true and acceptable." The test of
creditworthiness and acceptability in our view, ought to be the guiding factors
and if so the requirements as above, stand answered in the affirmative, question
of raising an eyebrow on reliability of witness would be futile. The test is
the credibility and acceptability of the witnesses available if they are so,
the prosecution should be able to prove the case with their assistance.
Coming
to the contextual facts once again, while it is true that there is no
independent witness but the evidence available on record does inspire
confidence and the appellant has not been able to shake the credibility of the
eye-witnesses : There is not even any material contradiction in the case of the
prosecution.
The
other allied issue pertains to the identification of the accused in Court for
the first time: there is no manner of doubt as it stands well settled that
ordinarily identification of an accused for the first time in court by a
witness should not be relied upon for the purpose of passing the order of
conviction without a definite corroboration since identification for the first
time in court cannot possibly be termed to be non-admissible but it is a matter
of prudence and jurisprudential requirement that the same should be upon proper
corroboration otherwise the justice delivery system may stand affected. The
Designated Court herein has in fact recorded a positive finding that the
witnesses knew the appellant from before and they were acquainted with each
other by reason wherefor the names could be mentioned in the FIR itself and in
view of such a state of affairs question of decrying the evidence of all the
so-called interested witnesses on a first time identification in court would
not arise. We however, hasten to add that the requirement of the concept of
justice is acceptability and credibility of the evidence tendered by the
witnesses. Once that stand completed, it will be difficult if not an
impossibility to challenge a conviction only on the ground of the failure to
hold prior test identification parade. The law seems to be well settled and the
decisions are galore but we think it fit to refer to only one earlier judgment
of this Court in the case of Budhsen & Anr. v. State of U.P.[1970 (2) SCC
128] wherein this Court stated in paragraph 7 as below:
"7.The
evidence in order to carry conviction should ordinarily clarify as to how and
under what circumstances he came to pick out the particular accused person and
the details of the part which the accused played in the crime in question with
reasonable particularity. The purpose of a prior test identification,
therefore, seems to be to test and strengthen the trustworthiness of that
evidence. It is accordingly considered a safe rule of prudence to generally
look for corroboration of the sworn testimony of witness in court as to the
identity of the accused who are strangers to them, in the form of earlier
identification proceeding.
There
may, however, be exceptions to this general rule, when for example, the court
is impressed by a particular witness, on whose testimony it can safely rely,
without such or other corroboration. The identification parades belong to the
investigation stage. They are generally held during the course of investigation
with the primary object of enabling the witnesses to identify persons concerned
in the offence, who were not previously known to them. This serves to satisfy
the investigating officers of the bona fides of the prosecution witnesses and
also to furnish evidence to corroborate their testimony in court.
Identification proceedings in their legal effect amount simply to this: that
certain persons are brought to jail or some other place and make statements
either express or implied that certain individuals whom they point out are
persons whom they recognise as having been concerned in the crime. They do not
constitute substantive evidence. These parades are essentially governed by
Section 162, Criminal Procedure Code.." The law laid down as above has
since been accepted as a well settled principle and has stood the test of time.
We also do record our concurrence therewith. The factum of recognition and
placement of the names in the FIR practically do away with the requirement of
the test identification parade someone knows them : someone deals with them and
someone talks to them regularly does it mean and imply that without the test
identification parade at an earlier stage and an identification in the court
would have the effect of a sullied prosecution? The answer cannot possibly be
in the affirmative. It is the concept of justice which predominates and if we
reiterate this, the witness seems to be creditworthy and the acceptability
would do away with the minor lapses. As such we do not find any merit or
substance in the issue raised in support of the appeal.
As
regards (i) and (iii) above, it was contended that the weapons were not sent to
the ballistic expert and no expert opinion is available connecting the gun with
the empty cartridges. As noticed above, in the case in hand, no weapon was recovered,
as such question of having any ballistic expert opinion as regards the gun and
the empty cartridges would not arise.
The
preponderance of evidence available on record, in our view, does justify the
view taken by the Designated
Court and the same
cannot and ought not to be interfered with.
In
that view of the matter, this appeal fails and is dismissed.
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