2001 Supreme(SC) 316

2001(2) Supreme 583
SUPREME COURT OF INDIA
(From Designated Court, Karnal)
M.B. Shah & K.G. Balakrishnan, JJ.
Daya Singh -Appellant
versus
State of Haryana -Respondent
Criminal Appeal No. 416 of 1998
With
Criminal Appeal No. 773 of 1998
Decided on 20-2-2001
Counsel for the Parties :
For the Appearing Parties : U.R. Lalit, Sr. Advocate, S.R. Sharma, S. Srinivasan, (Mahabir Singh) Advocate (N.P.), G.K. Bansal, (Neeraj K. Jain) Advocate for D. Mahesh Babu, Advocates.

IMPORTANT POINT
The trial Judge was right in appreciating evidence of PW 37 Jaswant Kaur and PW 38 Dr. Harnam Singh qua the identification of the appellant - accused Daya Singh and he is rightly convicted for the offences charged.

Headnote:(i) Appeal against acquittal and also for enhancement of sentence against convicted accused-Acquittal sought to be set aside on confessional statements-Court below found them to be non-voluntary and thus unreliable-No other evidence to connect the acquitted accused with the crime-Whether State s appeal are liable to be dismissed? (Yes).

        (Paras 3 r/w 15 and 16) (See also Paras 8 to 10)

       (ii) TADA, 1987-Section 5-Indian Penal Code, 1860-Sections 302, 307, 302/34, 307/34-Conviction of appellant Daya Singh under-Appeal against-Challenge as to reliability of evidence of PW 37 Jaswant Kaur and PW 38 Dr. Harnam Singh qua the identification of appellant-Whether appreciation of evidence recorded by learned Judge for conviction of appellant suffers from any infirmity? (No)-Appeal dismissed-Conviction and sentences affirmed.

       Held : The question, therefore, is-whether 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. (Para 12)

       Held also : In the 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 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. (Para 13)

       Held further : 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 identification of the accused in the Court after seven or eight years would not affect the evidence of these two witnesses. (Para 14)

       Held finally : 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. (Paras 15 and 16)