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CASE NO.:

Appeal (crl.) 416 of 1998

Appeal (crl.) 773 of 1998

PETITIONER:

DAYA SINGH

Vs.

RESPONDENT:

STATE OF HARYANA

DATE OF JUDGMENT: 20/02/2001

BENCH:

M.B. Shah & K.G. Balakrishnan.

JUDGMENT:

L...I...T.......T.......T.......T.......T.......T.......T..J

Shah, J.

In 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.

Against 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.

The State has filed Criminal Appeal No.773 of 1998

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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.

The 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

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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.

The 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.

Similar 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

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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.

That 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).

She 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.

She 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.

To that, she replied that she can not differentiate.

Further, 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

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stated that it was dark at the scene of occurrence.

Similarly, 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.

He rushed to the police station but on the way the police

met him and his statement was recorded.

Prosecution 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.

PW45 Roshan 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.

It is 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

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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.

Further 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 narrow-compass.

The 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.

Similarly, 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 be convicted.

As 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

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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.

Similarly, 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.

At 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.

In paragraphs 10 and 11, the Court has observed as under:-

10. 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:

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The 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.

In Rameshwar Singh v. State of J & K, [AIR 1972 SC

102], this Court observed (at p.104):

It may 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.

11. It 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.

The 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 under:

We 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.

In the present case, there is no lapse on the part of

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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 falsely.

Tehsildar 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.

He was 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.

Same is the position in the present case.

Further, 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

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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 heinous crime.

There 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...

It is 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.

Theoretically 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.

Further 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

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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.

Secondly, 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.

In our 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

judgment.

We, therefore, broadly agree with the appreciation of

evidence recorded by the learned Judge for convicting the

accused Daya Singh and acquitting rest of the accused.

In the result, both the appeals are dismissed.

J. (M.B. SHAH)

J. (K.G. BALAKRISHNAN)

February 20, 2001.

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