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2004(1) Supreme 577
SUPREME COURT OF INDIA
(From Special Designated TADA Court at Mysore)
Y.K. Sabharwal & B.N. Agrawal, JJ.
Simon & Ors. -Appellants
versus
State of Karnataka -Respondent
Criminal Appeal Nos. 149-150 of 2002
Decided on 29-1-2004
Counsel for the Parties :
For the Appellants : Colin Gonsalves, John Vincent, P. Ramesh Kumar, Ms. Aparna Bhat, Advocates.
For the Respondent : Sudhir Walia, Anil K. Mishra and Sanjay R. Hegde, Advocates.
Held : Firstly, let us examine the deposition of PW 97. He was the Superintendent of Police under whom the Police personnel and others went to nab Veerappan and his gang. It has been proved from evidence that earlier for nearly one and a half years from January 1990 to May 1991, PW 97 was working as a Superintendent of Police, Jungle Patrol, Head Quarters at Mettur Dam. The Jungle Patrol was constituted to nab Veerappan and his gang. In 1993 also he was Superintendent of Police in the Task Force constituted for the specific purpose. The witness has given detailed account as to how he received information about the hideout of Veerappan and his gang, how accompanied with other Police Officers and Foresters, he proceeded to the place of occurrence. PW 97 was standing on the front footboard of the first bus. The bus, as a result of the blast of land mines, went into pieces but PW 97 on being on footboard was thrown out of the bus and, thus, survived. He fell into a small ditch and sitting from the said place, he was able to see as to what happened to inmates of the bus, some having sustained serious injuries and some having died. He has further deposed that immediately Mahendran, Selvam and Mhonadas who were also in first bus got up from there with small injuries and came to him and they saw that few people on the northern side and firing towards them. He has deposed to have seen the appellants, accused No. 1 and accused Arjunan and some other people coming towards them by firing. He also ordered his people to fire at them. PW 97 sustained injuries on the left leg, left hand and on the face. Immediately after the occurrence, when the accused went into the forest and the firing came to stop, the witness was sent to the hospital for treatment. That was before the FIR was recorded. Out of all the accused persons, he identified the four appellants. It is also in evidence that he had seen the appellants earlier to this incident as well. (Para 10)
We have no difficulty in accepting the contention that evidence of mere identification of an accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification is to test and strengthen the trustworthiness of that evidence. Courts generally look for corroboration of the sole testimony of the witnesses in court so as to fix the identity of the accused who are strangers to them in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. It has also to be borne in mind that the aspect of identification parade belongs to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. Mere failure to hold a test identification parade would not make inadmissible the evidence of identification in court. What weight is to be attached to such identification is a matter for the courts of fact to examine. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration (Para 14)
These well settled principles, however, have no applicability to facts of the instant case. This is a case where appellants were known to PW97 and he has identified them in court and other witnesses, as we would presently notice, corroborated the testimony of PW97, though, in our view, conviction could be sustained on the sole testimony of PW 97. (Para 14)
We have no hesitation in accepting the contention that if the conviction was based on the testimony of PWs 63, 65 and 66 and other such witnesses who saw the accused for the first time on date of occurrence, it would have required corroboration. But the conviction of the appellants is not based on the testimony of these witnesses. It is based on the testimony of PW97 and aforesaid witnesses have lent corroborative support. (Para 15)
The trial court has rightly convicted the appellants. For main offences, the appellants have been sentenced to undergo rigorous imprisonment for life. Considering the number of killings and brutal manner thereof, we had issued notice to the appellants to show cause why the punishment be not enhanced from life imprisonment to death penalty. We have heard learned counsel for the parties on that question. Facts in brief may be recapitulated to examine the question of sentence. There was a reign of terror in the area. Even Police had to move about with escort party. The crime has been committed in a brutal manner by use of land mines. The blast of mines has resulted in 22 persons losing their lives and many receiving grievous injuries. The trial court held that it is a rarest of the rare case for imposing capital punishment. At the same time, it has been further held that the appellants do not deserve the said punishment for the reasons that it is not the case of prosecution that the accused had started their carrier as criminals and developed such notoriety; and that it was accused No.1, Veerappan, who alone started his criminal activity which reached such notoriety that by creating terror in the mind of the people he took inhabitants from surrounding areas to his assistance and compelled them to fall in his line. The trial court has also observed that it appears that these accused are some such people joining the gang of Veerappan involved in the criminal act as directed by him. True, the grant of life imprisonment is the rule and death penalty an exception in rarest of rare cases by stating special reasons for awarding it but, at the same time, it is also true that the punishment awarded must comensurate with the crime committed by the accused. It is also true that ordinarily the sentence is not enhanced by the Appellate Court unless it is such a gross case that nothing but maximum sentence stipulated in law deserves to be awarded. We are conscious of the fact that the power to enhance death sentence from life should be very rarely exercised and only for strongest possible reasons and not only because the appellate court is of that view. The question of enhancement of sentence to award death penalty can, however, be considered where the facts are such that to award any punishment less than maximum would shock the conscious of the court. (Paras 18 to 22)
The circumstance of duress or domination of another person is required to be taken into consideration as a relevant circumstance but that has to be considered on the facts of a particular case while considering and balancing all other aggravating and mitigating circumstances. That alone is not the determining factor. (Para 32)
The facts of the present case do not show that the appellants were compelled to fall in line with the criminal activity of accused No. 1 or that they joined his group on account of any duress or compulsion. The manner in which the crime was committed clearly shows that any person can contemplate the disastrous effect of blasting of landmines. It is evident that the crime was diabolically planned. The appellants are threat and grave danger to society at large. They must have anticipated that their activity would result in elimination of large number of lives. As a result of criminal activities, the normal life of those living in the area has been totally shattered. It would be mockery of justice if extreme punishment is not imposed. Thus, having given anxious consideration to all the circumstances aggravating and mitigating, in our view, there can hardly be a more appropriate case than the present one to award maximum sentence. We have to perform this onerous duty for self-preservation, i.e., preservation of persons who are living and working in the area where appellants and their group operate. (Para 37)
JUDGMENT
Y.K. Sabharwal, J.-The challenge in these appeals is to the conviction of the appellants in relation to killings in occurrence which took place on 9th April, 1993. On Police receiving information about the place of hiding of notorious criminal Veerappan and his gang, a Police party headed by Superintendent of Police. K. Gopalakrishnan (PW 97), on 9th April, 1993, proceeded to nab them. The party comprising of police personnel, forester watchers and informants went in two buses. As a result of blasting of land mines that had been laid, the bus which was in front exploded. The explosion resulted in injuries to many and death of 22 persons. The incident took place at about 11.00 a.m. For treatment, the injured were shifted to hospital by transporting them in the second bus. After the explosion of the land mines, there were exchange of fire also. The FIR was recorded at 2.45 p.m. on the date of the occurrence. The case was filed against 121 persons, 50 persons were arrested and prosecuted. The trial resulted in conviction of the appellants who are four in number. The first appellant is Simon (accused No. 18), second appellant is Gnana Prakash (accused No. 30), the third is Madhiah (accused No. 31) and the fourth is Bilavendra (accused No. 32). The remaining accused have been acquitted.
2. The Special Judge, TADA Court, Mysore, by the impugned judgment and order, has convicted the appellants for offence under Sections 3, 4, 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (for short the TADA Act ), Section 143, 148, 307, 302, 332, 333, 324, 120(B) and 149 Indian Penal Code. Section 3 of the Explosive Substances Act and Section 25 of the Indian Arms Act. In respect of the main offences, the appellants have been sentenced to undergo rigourous imprisonment for life besides fine and further imprisonment in default of payment of fine. The lesser punishment has been inflicted for offences under the Indian Arms Act and Explosive Substances Act.
3. These appeals have been filed under Section 19 of the TADA Act. The prosecution to prove the case against the appellants has examined a large number of witnesses and has produced various documents. We have heard learned counsel for the parties and have perused the record.
4. Having regard to the evidence produced, the occurrence, its time and place and the presence of the witnesses at the place of occurrence as per case of the prosecution can neither be questioned nor has it been questioned by counsel for the appellants. These facts have been fully established. The main question that has been raised on behalf of the appellants by their learned counsel is about the identity and presence of the appellants at the place of occurrence. It has been vehemently contended that the prosecution has not been able to establish beyond reasonable doubt that the appellants were present at the place of occurrence and were involved in the crime.
5. The FIR was recorded on the information of M. Ashok Kumar (PW45) who was working in the Judge Patrol as Inspector of Police in the task force of Tamil Nadu for nabbing Veerappan and his men. He was travelling in the second bus which was at a distance of about 100 to 150 ft. from the first bus. PW 45 has deposed about the explosion of the first bus as a result of land mine blast, the attempt to chase Veerappan and his gang and opening of fire towards them. Number of persons who were travelling in the second bus are prosecution witnesses who have identified the appellants apart from those persons from the first bus who received injuries but were lucky to survive.
6. The most important witness on whose testimony the result of these appeals hinge to a large extent is PW 97 - an occupant of the first bus and one of few fortunate to survive. The prosecution heavily relies upon the testimony of PW97. The trial Judge has believed the testimony of PW 97. Learned counsel for the appellants, however, contends that it is not safe to base conviction on the te
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