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CASE NO.:

Appeal (crl.) 480 of 2001

PETITIONER:

Sarwan Singh

RESPONDENT:

State of Punjab

DATE OF JUDGMENT: 07/10/2002

BENCH:

Umesh C. Banerjee & Y.K. Sabharwal.

JUDGMENT:

J U D G M E N T

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

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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

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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

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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

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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)

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"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

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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.