{"id":247756,"date":"2001-02-20T00:00:00","date_gmt":"2001-02-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/daya-singh-vs-state-of-haryana-on-20-february-2001"},"modified":"2017-10-05T11:32:08","modified_gmt":"2017-10-05T06:02:08","slug":"daya-singh-vs-state-of-haryana-on-20-february-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/daya-singh-vs-state-of-haryana-on-20-february-2001","title":{"rendered":"Daya Singh vs State Of Haryana on 20 February, 2001"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Daya Singh vs State Of Haryana on 20 February, 2001<\/div>\n
Author: Shah<\/div>\n
Bench: M.B. Shah, K.G. Balakrishnan.<\/div>\n
           CASE NO.:\nAppeal (crl.) 416  of  1998\nAppeal (crl.)\t773\t of  1998\n\n\n\nPETITIONER:\nDAYA SINGH\n\n\tVs.\n\nRESPONDENT:\nSTATE OF HARYANA\n\nDATE OF JUDGMENT:\t20\/02\/2001\n\nBENCH:\nM.B. Shah & K.G. Balakrishnan.\n\n\n\n\nJUDGMENT:\n<\/pre>\n
L…I…T…….T…….T…….T…….T…….T…….T..J
\nShah, J.\n<\/p>\n
    In\tSessions  Case No.44 of 1989, 14-accused were  tried
\nfor  various  offences\tincluding Sections 3 and  5  of\t the
\nTerrorists  and Disruptive Activities (Prevention) Act, 1987
\n(hereinafter  referred\tto  as\tthe   TADA  Act)  by   the
\nAdditional  Judge, Designated Court, Karnal at Ambala.\t The
\nAdditional  Judge  by  his  judgment and  order\t dated\t19th
\nFebruary,  1998\t convicted  the\t appellant  Daya  Singh\t for
\ncommitting  the\t offence  of  murder of\t Gurdeep  Singh\t and
\nattempting  to\tcommit murder of PWs Dr.  Harnam  Singh\t and
\nSmt.   Jaswant Kaur.  The appellant is also convicted  under
\nSection\t 302 read with Section 34<\/a> IPC for committing  murder
\nof  Khushdev Singh, Gurpreet Kaur and his co-accused Gurjant
\nSingh  and sentenced to suffer imprisonment for life and  to
\npay  a\tfine of Rs.10000\/- in default of payment of fine  to
\nundergo\t further  RI for a period of one year.\tHe  is\talso
\nconvicted  for the offence punishable under Section 307<\/a> read
\nwith  Section  34<\/a> IPC for attempting to cause death  of\t Ram
\nSingh, Somnath and Hira Singh by fire- arms and is sentenced
\nto undergo RI for a period of ten years and to pay a fine of
\nRs.5000\/-, in default of payment of fine to undergo RI for a
\nperiod\tof six months.\tIn addition, he is convicted for the
\noffence\t  punishable  under  Section  5\t of  TADA  Act\t for
\npossessing  one AK 47 rifle with cartridges and is sentenced
\nto  undergo  RI\t for  seven  years and\tto  pay\t a  fine  of
\nRs.3000\/-,  in default of payment of fine to undergo RI\t for
\nthree  months.\t All  the  sentences  were  ordered  to\t run
\nconcurrently.\tThe  Designated Court acquitted rest of\t the
\naccused.\n<\/p>\n
    Against  the  order of conviction passed by the  learned
\nJudge,\taccused\t Daya  Singh has preferred  Criminal  Appeal
\nNo.416\tof 1998.  In this appeal, learned senior counsel Mr.
\nU.R.   Lalit  appearing for the appellant has  confined\t his
\nsubmissions mainly with regard to reliability of evidence of
\nPW37  Jaswant  Kaur  and  PW38 Dr.   Harnam  Singh  qua\t the
\nidentification of the appellant.\n<\/p>\n
    The\t State\thas  filed Criminal Appeal  No.773  of\t1998
\nagainst\t the  acquittal\t order and also for  enhancement  of
\nsentence.   With  regard to the appeal filed by\t the  State,
\nafter  going through the evidence on record, it is  apparent
\nthat  the order passed by the Additional Judge does not call
\nfor  any interference.\tConfessional statements are found to
\nbe not voluntary and are held to be unreliable.\t There is no
\nother  evidence\t to connect the acquitted accused  with\t the
\ncrime.\n<\/p>\n
    The\t incident  relates  to attack by the  terrorists  on
\n9.4.1988   in  the  house  of\tone  Dr.   Harnam  Singh  at
\nKurukshetra  which has resulted in loss of his son  Khushdev
\nSingh,\tdaughter-in-law Gurpreet Kaur, Gurdeep Singh son  of
\nhis  brother-in-law  and  one assailant\t Gurjant  Singh\t and
\ninjuries  to other persons.  At the time of hearing of\tthis
\nappeal,\t prosecution version relating to the incident of the
\nmurder of four persons at the place of incident and injuries
\nto  the\t witnesses  is not disputed.   For  considering\t the
\nsubmissions  and  appreciating the evidence relating to\t the
\ncontentions  raised by the learned counsel for the  parties,
\nwe  would  refer to the evidence of Dr.\t Harnam Singh,\tPW38
\nand his wife Smt.  Jaswant Kaur, PW37.\tIt is the say of Dr.
\nHarnam\tSingh that he is a worker of communist party and was
\nelected\t as  MLA  in the year 1987 from\t Shahabad.   On\t 9th
\nApril,\t1988 at about 8.15 to 8.30 p.m.\t when he was present
\nin  his\t house, one person came in his courtyard and  called
\nupon  him.   In the courtyard two electric bulbs were on  at
\nthat  time.   When  he came out from his room,\the  saw\t one
\nwell-built  Sikh  gentleman  aged about 26-27  years  having
\nsmall  beard holding a revolver in his hand.  He ran towards
\nhim  and caught hold of him.  On hearing the noise, his wife
\ncame  out  of the room.\t She also caught hold of  that\tSikh
\nfrom  his  hairs.  At that time, one other person came\tfrom
\noutside\t holding  stengun  type arm.  He was having  a\tlong
\nbeard  and having eyes like that of a cat.  That man started
\nfiring\tand  a pellet hit his left arm.\t The shots also\t hit
\nabdomen\t of his wife.  At that time his son, Khushdev Singh,
\ndaughter-in-law\t Gurpreet Kaur and Gurdeep Singh son of\t his
\nbrother-in-law\twho were watching TV came outside.  The\t man
\nwho  was having eyes like a cat fired shots towards them and
\nbecause\t of the injury sustained, Gurdeep Singh fell down on
\nthe  main gate.\t His son Khushdev Singh caught hold of\tthat
\nman  and tried to take away the stengun.  It is his  further
\nsay  that  when\t Khushdev Singh was holding the\t person,  he
\nfired  shots  from his fire-arm towards Khushdev  Singh\t and
\nGurpreet  Kaur.\t  When Khushdev was grappling with  him,  he
\nrushed\tto his room to make a telephone call and informed at
\npolice\tstation\t that he was attacked and shots\t were  being
\nfired.\tHe has further deposed that when he went outside the
\nroom,  the third miscreant who was standing on the main door
\nfired  shots  towards that room.  During the grappling,\t one
\nblanket,  one shoe, one turban, one Jutti had fallen down in
\nthe  courtyard.\t The magazine of the stengun had also fallen
\ndown.\tWhen he came out of the room after telephonic  call,
\nthe miscreants had fled and saw that Gurdeep Singh was lying
\ndead  at  the  entrance gate.  Khushdev Singh  and  Gurpreet
\nKaur,  who were dragged outside by Daya Singh and with\twhom
\nthey  were grappling, were lying in the street on the  right
\nside  of  the  main  gate  in  an  injured  condition.\t The
\nterrorist  who\twas caught and dragged out by his  wife\t was
\nalso  lying dead.  Khushdev and Gurpreet were removed to the
\ncivil hospital.\t They succumbed to their injuries within few
\nminutes\t in the hospital.  Thereafter, he alongwith his wife
\nand  Hira Singh were referred to PGI Hospital.\tHe has\talso
\ndeposed\t with regard to the investigation carried out by the
\npolice\tincluding the recovery of certain articles from\t the
\nscene  of  offence.  It is his further say that on  7th\t May
\n1988,  he  and\this wife were taken by the police  to  Civil
\nHospital,  Rajpura as it was stated that two terrorists\t had
\nbeen  shot dead and they were to be identified by them.\t Out
\nof  the\t two dead bodies, they identified one as the  person
\nwho had fired shots towards him while he was standing on the
\nmain gate.  With regard to the identification of the accused
\nhe  stated  that he could identify and recognize the  person
\nwho fired shots and has identified the appellant Daya Singh.
\nThe  learned Judge has noted that at that time as there\t was
\nno  electricity\t in the Court room, the accused,  witnesses,
\nadvocates  and he himself went outside the court room  where
\nthe  accused  was identified by Dr.  Harnam Singh in  second
\nround  which took 3 to 4 minutes.  In cross-examination,  he
\nhas stated that he was using spectacles since last more than
\n40  years  and he could see up to a distance of 30 to 40  or
\n100  yards with the help of spectacles and could identify  a
\nperson\tfrom  a\t distance of 20 to 25 yards.   He  has\talso
\nstated\tthat during the time of identification as there\t was
\nno  electric  light in the court room and was dark,  he\t was
\nrequired  to  go  outside the court room and  there  he\t had
\nidentified the accused.\t He has clarified what he understood
\nby  catty eyes and stated that eyes were like that of a\t cat
\nand  nothing  more.  The witness was asked whether he  could
\nsay  that the eye of other accused named Inderjeet Singh was
\nlike cat.  To that, his reply was  his eyes were normal and
\nnot like that of a cat.\t He has also stated that he has seen
\naccused\t Daya Singh on the date of incident from a  distance
\nranging\t from one yard to 3-4 yards and that Daya Singh\t had
\nfired  from  a\tdistance of 3 yards in\tthe  courtyard.\t  In
\nfurther\t cross\texamination, he has stated that he knew\t the
\nname  of accused Daya Singh prior to 6.2.1997 because he was
\ninformed  by the police at the time of interrogation of\t the
\naccused\t on the basis that he was having eyes like a cat and
\nthat  he came to know his name within two to four months  of
\nthe  occurrence.  He has also stated that he along with\t his
\nwife  visited Central Jail, Ambala for identification of the
\naccused,  but they were informed that accused Daya Singh had
\nrefused to participate in the identification parade.  It was
\nhis  say  that\the identified the accused Daya\tSingh  after
\nwearing\t and even after removing spectacles and that at\t the
\ntime  of  identification, he had removed the  spectacles  in
\norder  to  satisfy himself that accused Daya Singh  was\t the
\nsame  person.\tHe  had denied the suggestion  that  he\t had
\nwrongly\t identified  the  accused  at the  instance  of\t the
\npolice.\t  In  view of the limited contention raised  in\t the
\nappeal,\t other\tpart of the evidence is not required  to  be
\nreferred in this appeal.\n<\/p>\n
    Similar is the evidence of Jaswant Kaur PW37.  It is her
\nsay that on 9.4.1988 at about 8.15 to 8.30 p.m.\t her husband
\nDr.   Harnam  Singh  was  working in his room  and  her\t son
\nKhushdev  Singh,  daughter-in-law Gurpreet Kaur and  Gurdeep
\nSingh  were  watching  T.V.  programme.\t At that  time,\t one
\nperson\tcame  from  outside  and called\t Doctor\t Sahib\t(her
\nhusband).   In the courtyard, two bulbs of electricity\twere
\non  at\tthat time.  On hearing the call of her husband,\t she
\nwent  out  and\tsaw  one Sikh gentleman,  aged\tabout  25-26
\nyears-who  was well built, having small beard and holding  a
\npistol\tin  his hand, was caught hold by her  husband.\t She
\nalso caught hold of his hairs.\tSubsequently, one other Sikh
\nwho  was  also well built, having thick beard and eyes\tlike
\ncat  holding  firearms came towards them.  He fired and\t the
\nshots  hit  on the left arm of her husband and also  on\t her
\nabdomen.   On hearing the sound of fire shots, Gurdeep Singh
\nfollowed  by  her  son Khushdev\t Singh\tand  daughter-in-law
\nGurpreet  Kaur came out.  It is her say that again that Sikh
\nfired  shot towards Gurdeep Singh which hit his body and  he
\ndied  on the spot.  Thereafter, Khushdev Singh and  Gurpreet
\nKaur  grappled with that Sikh who was firing shots.  In\t the
\nprocess\t of grappling, that Sikh, Gurpreet Kaur and Khushdev
\nSingh  went  out in the street.\t Other Sikh who was held  by
\nher  came out in the process of grappling and his pistol had
\nfallen\tdown  in that process.\tOne blanket, one turban\t and
\none  of\t the shoes of that Sikh gentleman also fell  in\t the
\ncourtyard  of her house.  It is her say that when they\tcame
\nout,  they found another Sikh gentleman who was well  built,
\ntall,  having  whitish complexion and black and round  eyes.
\nThat  Sikh  also  fired\t shots\tfrom  his  fire-arm  towards
\nKhushdev  Singh, Gurpreet Kaur and herself.  Khushdev  Singh
\nand  Gurpreet  Kaur  received injuries on various  parts  of
\ntheir  bodies.\tDuring that firing, the Sikh who was held by
\nher  also  received  injuries and he  fell  down.   Khushdev
\nSingh,\tGurpreet  Kaur and the Sikh who received fire  shots
\ndied  at the spot in the street.  It is her further say that
\nher  brother Hira Singh, (PW40) also reached at the scene of
\noccurrence  on\thearing\t noise.\t  He  received\tinjuries  by
\nfirearm.   One\tSomnath\t PW47 also came there  and  he\talso
\nreceived  injuries.   It is her say that she could  identify
\nthe  Sikh who had entered the courtyard of her house and had
\nfired  shots from his firearm upon her and her husband.\t She
\nhas  admitted that her eye-sight was weak.  After looking at
\nthe  accused,  she  raised suspicion on one of\tthe  accused
\nwhose  name on inquiry was revealed Daya Singh\t(appellant).
\nShe  said that this accused is the same person who had fired
\nshots on her and her husband.  She again stated that she had
\nrecognized this accused, but as he was not opening his eyes,
\nshe  has  used\tthe  words   that  she\twas  identifying  on
\nsuspicion.  The learned Judge has noted that the witness had
\ntaken  nearly five minutes in identifying the accused out of
\nall the accused present in the Court.  In cross-examination,
\nit  was pointed out to her that she had identified the\tdead
\nbody of one person who was shot dead during the incident and
\nthat  body was of the miscreant who was having blackish\t and
\nround shape eyes and whose height was between 5 \u00bd to 6 feet.
\nShe  has further stated that at the time of incident her eye
\nsight  was  normal,  but subsequently one of  her  eyes\t was
\noperated  and  nothing\twas  visible from that\teye  and  at
\npresent she could see an object from a distance of about one
\nfeet  with the help of spectacle.  She has also stated\tthat
\naccused Daya Singh has similar features which she remembered
\nsince  the  date of occurrence and, therefore, she was in  a
\nposition  to identify him even though he had not opened\t his
\neyes.\tShe  has denied the suggestion that she has  wrongly
\nidentified  Daya  Singh at the instance of police.  She\t has
\npointed\t out  that during the incident, electric bulbs\twere
\nfitted\tin the courtyard.  She was asked with regard to\t the
\ncomplexion  of\tthe accused and she replied that Daya  Singh
\nwas  having whitish complexion and that it was incorrect  to
\nsuggest\t that  Daya Singh was of fair complexion.   To\ther,
\nother  accused namely Parshottam Singh and Jaspal Singh were
\nshown  and  she\t was  asked  to\t differentiate\tbetween\t the
\ncomplexion  of the accused Daya Singh and those two persons.
\nTo that, she replied that she can not differentiate.\n<\/p>\n
    Further, PW39 Ram Singh was passing by near the house of
\nDr.   Harnam Singh and near electric poll, he was injured by
\na  shot\t but had not seen as to who fired the shot.  He\t has
\nstated\tthat  it  was  dark  at\t the  scene  of\t occurrence.
\nSimilarly,  Hira Singh PW40, brother-in-law and a  neighbour
\nof Dr.\tHarnam Singh had also received injury at the time of
\nincident when he came out of the house and gave Lalkara.  He
\nwas also removed to the hospital.  He failed to identify the
\naccused.   Similarly,  one Somnath (PW47) after hearing\t the
\nnoise  and  sound of fire came to know that terrorists\thave
\ncome.\tHe was going from the house of his uncle towards his
\nhouse.\t On  the  way two persons came\trunning\t and  struck
\nagainst\t him.\tOne  was holding a small firearm  which\t was
\nperhaps\t a  revolver  and  other was  holding  firearm\tlike
\nstengun.   He tried to catch hold of one person and collided
\nwith  him.  At that time, there was firing from the opposite
\ndirection  and one shot hit him on his right arm.  It is his
\nsay  that  the\tperson\twho was collided with  him  was\t not
\npresent\t in  the Court room.  It is the prosecution  version
\nthat  FIR  was lodged by one Gagandeep Singh (PW29) who\t was
\nreturning  to  his  house in the evening and  after  hearing
\nsound of fire shots he rushed at the scene of occurrence and
\nfound  that Khushdev Singh and Gurpreet Kaur were  grappling
\nwith  3\t to 4 Sikhs.  He raised a noise addressing to  those
\npersons\t and one of them ran towards him with a stengun\t and
\nso  being frightened he came back and hid himself.  He again
\nwent  at the house of Harnam Singh after 4 to 5 minutes\t and
\nfound  that  terrorists\t had already left.   He\t found\tthat
\nGurpreet  Kaur and Khushdev Singh were seriously injured and
\nhis  elder brother Gurdeep Singh was lying dead at the spot.
\nHe  rushed  to the police station but on the way the  police
\nmet him and his statement was recorded.\n<\/p>\n
    Prosecution\t has  also relied upon Harbans\tSingh  PW43,
\nLand  Acquisition  Officer  who\t was  posted  as  Tehsildar,
\nKurukshetra  on\t 2nd June 1988.\t He had gone for  conducting
\nidentification\tparade\tin  Central   Jail,  Ambala  at\t the
\ninstance  of  S.P.   Kurukshetra.   It is his  say  that  he
\nreached\t Central  Jail\tat  5.00 p.m.  and  Daya  Singh\t was
\nproduced  before  him by the jail authorities.\tHe  informed
\nDaya  Singh  that he had come for conducting  identification
\nparade,\t but Daya Singh refused to participate on the ground
\nthat he had already been shown by the police to the expected
\nwitnesses.   His  statement was accordingly recorded by\t him
\nand  the said statement alongwith his report was sent to the
\nS.P.  Kurukshetra.  In cross-examination, he has stated that
\nhe  was\t not knowing accused Daya Singh personally, but\t was
\nidentified  by the jail authorities.  He further stated that
\nhe  could  not\tidentify the accused Daya Singh out  of\t the
\naccused\t persons  present in the court.\t He has also  stated
\nthat  he  was not knowing Jaswant Kaur PW37  personally\t and
\ncould  not  say\t whether she was present  outside  the\tjail
\npremises  on that day or not.  He denied the suggestion that
\naccused\t Daya Singh never refused for such an identification
\nparade and that he was deposing falsely.\n<\/p>\n
    PW45 Roshan Singh, DIG, CISF, New Delhi has deposed that
\non  5.5.1988,  22.5.1998,  2.6.1998 and\t 14.6.1998,  he\t had
\nrecorded  the confessional statements of number of  accused.
\nIt is his say that on 29.6.1998, he visited CIA, Kurukshetra
\nand recorded the confessional statement of Daya Singh, which
\nwas produced as Ex.  PW45\/W.  It is his say that the accused
\nmade  the  statement voluntarily which was read over to\t him
\nand  his  signatures  were  taken.   He\t also  appended\t the
\ncertificate  Ex.  PW45\/W-1 below the confessional  statement
\nand  the said confessional statement was sent to the C.J.M.,
\nKurukshetra  on\t the same day in a sealed envelope.  He\t has
\nstated that he could not identify the persons including Daya
\nSingh  whose confessional statements were recorded by him on
\nvarious dates mentioned above.\tIn cross-examination, he has
\nadmitted  that\tmany  police officers were  present  in\t the
\npolice\tstation when confessional statements were  recorded.
\nFurther\t as  discussed\tby  the learned Judge,\the  has\t not
\nfollowed  the necessary procedure of recording\tconfessional
\nstatement  and\tthat the same is not voluntary.\t  Therefore,
\nthe  said confessional statement is rightly not relied\tupon
\nby  the\t trial court.  Further almost all  the\tconfessional
\nstatements  of the accused persons except that of Parshottam
\nSingh  were  recorded by the Reader of the S.P., who is\t not
\nexamined.   Other  part of the prosecution evidence  is\t not
\nrequired  to be reiterated as the controversy in the  appeal
\nis in a narrow-compass.\n<\/p>\n
    The learned counsel Mr.  Lalit submitted that conviction
\nof  the\t appellant is based solely on the identification  of
\nthe  accused  in the Court by PW37 and PW38.   He  contended
\nthat   the   incident  took  place   in\t April,\t  1988\t and
\nidentification\tin the Court by Smt.  Jaswant Kaur (PW37) is
\nin November, 1996 i.e.\tafter lapse of seven and half years.
\nSimilarly,  identification  by Dr.  Harnam Singh  (PW38)  is
\nafter  eight years.  Therefore, on this sole ground of delay
\nin identification, their evidence can not be relied upon for
\nconvicting  the accused.  He contended that it is  difficult
\nfor  the witnesses to identify the accused after long lapse,
\nunless\tthey  are repeatedly seen.  He pointed out  that  in
\nthis  case there is possibility that accused could have been
\nseen  in  the  court   before  identification.\t He  further
\ncontended that other injured witnesses namely PW29 Gagandeep
\nSingh, who lodged FIR, PW40 Hira Singh and PW47 Somnath have
\nnot  identified\t the accused.  He pointed out that PW29\t has
\nnot specifically stated about the light in the courtyard but
\nhas  only  stated that because of the street light he  could
\nsee  the accused and that Ram Singh admits that it was night
\ntime  and dark at the scene of occurrence.  Even Hira  Singh
\nhas  admitted  that because of long lapse of time, he  could
\nnot  identify the assailants.  Independent witness Tehsildar
\n(PW43)\twho had gone for test identification parade has also
\nfailed\tto  identify the accused.  Similarly, the SP  (PW45)
\nwho  allegedly recorded the confessional statement has\talso
\nfailed\tto identify the accused.  In such circumstances,  it
\nwould not be safe to rely upon the evidence of the aforesaid
\ntwo  witnesses\tfor  convicting\t the  accused.\t Lastly,  he
\ncontended  that\t even  deposition  of\tPW37  and  PW38\t qua
\nidentification\tis halting one and, therefore, also  benefit
\nof doubt is required to be given to the accused.  In support
\nof  his\t contention he placed reliance on decision  of\tthis
\nCourt  in Hari Nath and Another v.  State of U.P<\/a>.  [AIR 1988
\nSC  345].  Learned counsel for the appellant has also relied
\nupon  the decisions of this Court in Mohd.  Abdul Hafeez  v.
\nState  of Andhra Pradesh<\/a> [AIR 1983 SC 367], Wakil Singh\t and
\nOthers\tv.   State of Bihar<\/a> [AIR 1981 SC 1392] and  Soni  v.
\nState  of  UP<\/a>  [(1982)\t3 SCC 368]  wherein  the  Court\t has
\nobserved  that\tidentification parade after some time  lapse
\nwould  be of no consequence and, therefore, on the basis  of
\nsuch identification, accused cannot be convicted.\n<\/p>\n
    As against this, learned counsel for the State submitted
\nthat  the Designated Court has rightly convicted the accused
\non  the\t basis\tof clinching evidence of PW37 and  PW38\t who
\napart  from being injured witnesses have lost their son\t and
\ndaughter-in-law during the incident which had taken place in
\ntheir  house.  It is submitted that accused were  terrorists
\nand  in\t such  cases, there is no question of  having  other
\nindependent  witnesses.\t Even if independent witnesses\twere
\navailable, they would not dare to make any statement against
\nthe  accused.\tHe pointed out that as held by\tthe  learned
\nJudge,\tinvestigation was sluggish but that is no ground for
\nnot  relying upon the evidence of PW37 and PW38.  It is\t his
\ncontention   that  it  would  be  unreasonable\t to   expect
\nSuperintendent\tof  Police,  who recorded  the\tconfessional
\nstatement of number of accused in the case in the year 1988,
\nto identify the accused after lapse of seven to eight years.
\nSimilarly, the Tehsildar who had gone to hold identification
\nparade also is not expected to identity the accused.  It his
\ncontention  that court has rightly relied upon the  evidence
\nof  injured  affected  witnesses  and for  this\t purpose  he
\nreferred to the observations made by the Designated Court to
\nthe effect that physical features of accused Daya Singh must
\nhave been embedded in the memory of Jaswant Kaur just like a
\ngali  stone  because it was he who with his  co-  assailants
\ncommitted the gruesome crime.\n<\/p>\n
    At this stage we would first refer to the decisions upon
\nwhich reliance is placed.  In the case of Soni (Supra), this
\nCourt  observed\t that  delay  of  42  days  in\tholding\t the
\nidentification\tparade throws a doubt on genuineness thereof
\napart from the fact that it is difficult that after lapse of
\nsuch  a long time the witnesses would be remembering  facial
\nexpression  of\tthe appellant.\tIn the case of Mohd.   Abdul
\nHafeez\t(Supra), the Court while dealing with a robbery case
\nobserved  that\tas  no identification parade  was  held,  no
\nreliance  can  be  placed on the identification\t of  accused
\nafter  lapse  of four months in the court.  In the  case  of
\nHari  Nath (Supra), the Court observed that evidence of test
\nidentification\tis  admissible under Section 9<\/a>\tof  Evidence
\nAct.   But the value of test identification, apart from\t the
\nother\tsafeguards   appropriate   to\ta   fair   test\t  of
\nidentification depends upon the promptitude in point of time
\nwith  which  the  suspected  persons are  put  up  for\ttest
\nidentification.\t If there is an unexplained and unreasonable
\ndelay  in  putting  up\tthe   accused  persons\tfor  a\ttest
\nidentification,\t the  delay  by\t itself\t detracts  from\t the
\ncredibility  of\t the  test.  The Court further\treferred  to
\n(Para  9) Prof.\t Borchards Convicting the Innocent on the
\nbasis  of  error  in  identification of\t the  accused.\t The
\nlearned\t author\t has observed:\t The emotional balance\tof
\nthe   victim  or  eye-witness  is   so\tdisturbed   by\t his
\nextra-ordinary\texperience  that  his powers  of  perception
\nbecome\tdistorted and his identification is frequently\tmost
\nuntrustworthy.\t Into the identification enter other motives
\nnot  necessarily  stimulated  originally   by  the   accused
\npersonally the desire to requite a crime, to exact vengeance
\nupon  the  person believed guilty, to find a  scapegoat,  to
\nsupport,  consciously  or unconsciously,  an  identification
\nalready\t made by another.  Thus, doubts are resolved against
\nthe accused.\n<\/p>\n
In paragraphs 10 and 11, the Court has observed as under:-\n<\/p>\n
    10.\t The evidence of identification merely corroborates
\nand  strengthens the oral testimony in Court which alone  is
\nthe  primary  and substantive evidence as to  identity.\t  In
\nHasib  v.   State  of  Bihar<\/a> [AIR 1972 SC  283]\t this  Court
\nobserved:\n<\/p>\n
    The\t purpose  of test identification is to\ttest  that
\nevidence,  the\tsafe rule being that the sworn testimony  of
\nthe  witness in Court as to the identity of the accused\t who
\nis   a\tstranger  to  him,  as\ta  general  rule,   requires
\ncorroboration  in  the\tform of\t an  earlier  identification
\nproceeding.\n<\/p>\n
    In\tRameshwar  Singh  v.  State of J & K<\/a>, [AIR  1972  SC
\n102], this Court observed (at p.104):\n<\/p>\n
    It\tmay be remembered that the substantive evidence of
\na  witness  is his evidence in court, but when\tthe  accused
\nperson is not previously known to the witness concerned then
\nidentification\tof the accused by the witness soon after the
\nformers\t arrest is of vital importance because it furnishes
\nto   the   investigating  agency  an  assurance\t  that\t the
\ninvestigation  is  proceeding on right lines in addition  to
\nfurnishing  corroboration of the evidence to be given by the
\nwitness later in court at the trial.\n<\/p>\n
    11.\t It is, no doubt, true that absence of corroboration
\nby  test  identification may not assume any  materiality  if
\neither\tthe  witness had known the accused earlier or  where
\nthe  reasons for gaining an enduring impress of the identity
\non  the\t mind  and  memory of the  witness  are,  otherwise,
\nbrought out.  It is also rightly said that<\/p>\n
    Courts  ought  not\tto  increase  the  difficulties\t by
\nmagnifying  theoretical possibilities.\tIt is their province
\nto  deal  with matters actual and material to promote  order
\nand  not  surrender  it\t by   excessive\t theorising  or\t  by
\nmagnifying what in practice is really unimportant.\n<\/p>\n
    The\t question,  therefore,\tiswhether the  evidence\t of
\ninjured\t eyewitnesses PW37 and PW38 is sufficient to connect
\nthe  appellant with the crime beyond reasonable doubt.\t For
\nthis purpose, it is to be borne in mind that purpose of test
\nidentification\tis to have corroboration to the evidence  of
\nthe  eyewitnesses in the form of earlier identification\t and
\nthat  substantive  evidence of a witness is the evidence  in
\nthe  Court.   If that evidence is found to be reliable\tthen
\nabsence of corroboration by test identification would not be
\nin  any way material.  Further, where reasons for gaining an
\nenduring  impress of the identity on the mind and memory  of
\nthe witnesses are brought on record, it is no use to magnify
\nthe  theoretical  possibilities and arrive at  conclusion  –
\nwhat in present day social environment infested by terrorism
\nis  really  unimportant.   In  such cases,  not\t holding  of
\nidentification\tparade is not fatal to the prosecution.\t The
\npurpose\t of  identification parade is succinctly  stated  by
\nthis  Court in State of Maharashtra v.\tSuresh<\/a> [(2000) 1 SCC
\n471] as under:\n<\/p>\n
    We remind ourselves that identification parades are not
\nprimarily  meant  for  the  court.    They  are\t meant\t for
\ninvestigation  purposes.   The object of conducting  a\ttest
\nidentification\tparade is two fold.  First is to enable\t the
\nwitnesses  to satisfy themselves that the prisoner whom they
\nsuspect is really the one who was seen by them in connection
\nwith  the commission of the crime.  Second is to satisfy the
\ninvestigating  authorities  that  the suspect  is  the\treal
\nperson\twhom  the witnesses had seen in connection with\t the
\nsaid occurrence.\n<\/p>\n
    In\tthe  present case, there is no lapse on the part  of
\nthe Investigating Officer in holding the test identification
\nparade.\t  The  appellant was arrested on 28th May, 1988\t and
\nthe identification parade was to be held on 2nd June, but on
\nthat  day  accused refused to take part in the parade.\t For
\nhis  arrest,  PW45 Resham Singh, DIG and PW46 Bishan  Singh,
\nCIA  Inspector\thave specifically stated that the  appellant
\nwas  arrested on 27th May, 1988 by the Punjab Police and was
\nbrought\t at  Kurukshetra on 28th May, 1988 and was  sent  in
\njudicial custody as he was to be identified.  Further, there
\nis no reason to disbelieve the evidence of Tehsildar who had
\ngone  there  for holding the test identification  parade  of
\naccused.   Learned  Senior  Counsel  Mr.   Lalit  repeatedly
\nsubmitted  that\t investigating officer has not\tproduced  on
\nrecord\tthe  statement of the accused recorded by  Tehsildar
\nand  the report submitted by him and, therefore, no credence
\nshould\tbe given to the evidence of Tehsildar.\tIn our view,
\nthis submission is totally misconceived.  It is true that if
\nthe  investigating  officer  had   produced  on\t record\t the
\nstatement  of accused and the report submitted by Tehsildar,
\nit  would  have corroborated his say.  But in our  view\t the
\nevidence   of  such   disinterested,  independent,  official
\nwitness\t  does\t not   require\t  any\tcorroboration.\t  In
\ncross-examination,  the\t Tehsildar has\tspecifically  stated
\nthat  he did not know the accused Daya Singh personally\t but
\naccused was identified by the jail authorities.\t He has also
\ndenied the suggestion that Daya Singh never refused for such
\nidentification\tparade\tand  that he was  deposing  falsely.
\nTehsildar was least interested in the prosecution or falsely
\ninvolving  the accused.\t Further, he is not expected to know
\nthe  accused personally nor to remember his face for  years.
\nHe  was\t discharging  his  official  functions\tand  is\t not
\nexpected  to  memorise\tthe identity of\t the  persons  whose
\nstatements he had recorded.  There is no reason to hold that
\njail  authorities  have committed any mistake  in  producing
\nDaya  Singh  before the Tehsildar for parade.  Further,\t the
\nevidence  of Tehsildar that he had gone to Central Jail\t for
\nidentification\tparade gets corroboration from the  evidence
\nof  PW38  who  also  went to the Central  Jail,\t Ambala\t for
\nidentifying  the  accused, but they were informed  that\t the
\naccused\t had refused to participate in the test parade.\t  It
\nis  to\tbe  stated that in such a situation, this  Court  in
\nSuraj  Pal v.  State of Haryana<\/a> [(1995) 2 SCC 64] held\tthat
\nsubstantive  evidence  identifying witness is  his  evidence
\nmade  in the Court and if the accused in exercise of his own
\nvolition  declined  to\tsubmit for test parade\twithout\t any
\nreasonable  cause,  he did so on his own risk for  which  he
\ncannot\tbe heard to say that in the absence of test  parade,
\ndock  identification  was  not\tproper\tand  should  not  be
\naccepted,  if  it was otherwise found to be  reliable.\t The
\nCourt  observed\t it is true that they could not\t have  been
\ncompelled  to  line  up for test parade but they did  so  on
\ntheir own risk for which the prosecution could not be blamed
\nfor  not  holding the test parade.  In that case also,\tthe
\nCourt disbelieved the justification given by the accused for
\nnot participating in the identification parade on the ground
\nthat  accused  were  shown by the police to  the  witnesses.
\nSame is the position in the present case.\n<\/p>\n
    Further,  there is no reason to disbelieve the  evidence
\nof  Dr.\t  Harnam Singh and his wife Jaswant Kaur  when\tthey
\nidentified the accused out of 14 persons who were facing the
\ntrial.\t Their evidence is cogent and consistent with regard
\nto  the\t identification\t of appellant.\tThe conduct  of\t Dr.
\nHarnam\tSingh  was natural in the court premises.  As  there
\nwas  no\t electricity  in the court room, he  identified\t the
\naccused\t after\tgoing outside the court room in\t the  second
\nround  which  took  3-4 minutes.  He had seen  accused\tDaya
\nSingh  grappling  with\this son\t and  daughter-in-law.\t The
\nidentification\t by   this  witness   was  tested   in\t the
\ncross-examination  and\tin  our view, he stood the  test  of
\ncross-examination.   He\t gave  specific physiognomy  of\t the
\naccused\t by stating that he was having catty eyes  meaning
\nthereby\t the eyes like a cat.  He has also stated that\the
\nhad  seen the accused from a distance ranging from 1 yard to
\n3-4  yards and that the appellant-accused had fired from 3-4
\nyards in the courtyard.\t This witness alongwith his wife has
\nalso  identified  the  dead body of one\t other\tco-assailant
\nDaljinder   Singh  alias  Chandibaba  on  7.5.88.   In\t the
\ncross-examination,  he further stated that he could identify
\nthe  appellant after wearing and removing the spectacles and
\nhas done so in the court room.\tSimilarly, Jaswant Kaur also
\nidentified  the appellant as the assailant.  Her evidence is
\nso  natural  that  it is impossible to believe that  she  is
\nfalsely\t involving the accused-appellant.  In the beginning,
\nshe  raised  suspicion\ton one of the accused  who  was\t not
\nopening\t his  eyes as the appellant and identified the\tsaid
\nperson\tas  the\t person who had fired shots on her  and\t her
\nhusband.   This\t identification was done after\ttaking\tfive
\nminutes.   She\tdeposed that Daya Singh was  having  similar
\nfeatures  which\t she remembers since the date of  occurrence
\nand  has  denied  the  suggestion   that  she  has   wrongly
\nidentified  the accused at the instance of police.  PW38 Dr.
\nHarnam\tSingh  who  was a Doctor and also an MLA  would\t not
\ninvolve\t the  appellant\t falsely in such  a  heinous  crime.
\nThere  was no reason suggested to the witness for  involving
\nthe  appellant\tin the crime.  Similarly, Jaswant  Kaur\t was
\nalso  not having any interest in the accused.  However,\t the
\nlearned\t counsel for the appellant, Mr.\t Lalit referred\t the
\nsay  as noted by Professor Borchardsthe emotional balance
\nof  the\t victim\t or  eye-witness  is  so  disturbed  by\t his
\nextra-ordinary\texperience  that  his powers  of  perception
\nbecome distorted and his identification is untrustworthy…
\nIt  is\ttrue  that  PWs\t 37 and\t 38  have  lost\t their\tson,
\ndaughter-in-law\t and son of brother-in- law and that it\t was
\nextraordinary  experience  for\tthem  to  be  assaulted\t  by
\nterrorists.  But, it would be difficult to hold that at that
\ntime,\tthey   had   lost   their   power   of\t perception.
\nTheoretically  in  some\t cases what has been  noted  by\t the
\nlearned\t author may be true.  For that purpose, the evidence
\nof the witness is required to be appreciated with extra care
\nand  caution.  But, where evidence is cogent, consistent and
\nwithout\t any  motive,  it is no use to imagine\tand  magnify
\ntheoretical  possibilities with regard to the state of\tmind
\nof  the\t witnesses  and\t with\tregard\tto  their  power  of
\nmemorizing  the\t identity  of\tthe  assailants.   Power  of
\nperception  and memorising differs from man to man and\talso
\ndepends\t upon  situation.  It also depends upon capacity  to
\nrecaptulate  what  has\tbeen seen earlier.  But\t that  would
\ndepend upon the strength or trustworthiness of the witnesses
\nwho  have  identified  the  accused in\tthe  Court  earlier.
\nFurther in the present case, identification in the Court was
\nout  of\t 14  persons.  That itself would  lend\tcredence  to
\nidentification\tby the witnesses.  For this purpose, learned
\nJudge  has  rightly  observed to the  effect  that  physical
\nfeatures of accused must have been embedded in the memory of
\nJaswant\t Kaur.\tFrom the evidence and the  cross-examination
\nof  these  two\twitnesses, it is apparent that\tthey  gained
\nenduring  impression  of the identity of the accused  during
\nthe  incident.\tTherefore, delay in trial by the  Designated
\nJudge\tfor  one  reason  or   the  other   and\t  thereafter
\nidentification\tof  the accused in the Court after seven  or
\neight  years  would  not affect the evidence  of  these\t two
\nwitnesses.   Similarly, if the prosecution was interested in
\nfalsely\t involving  the accused, Gagandeep Singh PW29,\tHira
\nSingh  PW40  and  Somnath PW47 were  having  opportunity  to
\nidentify  the  accused at the time of trial.   However,\t the
\nlearned\t counsel  for the appellant submitted that  as\tthey
\nhave  not  identified the accused, evidence of Jaswant\tKaur
\nPW37  and  Dr.\tHarnam Singh PW38 becomes suspect.   In\t our
\nview,  this  reasoning is fallacious firstly on\t the  ground
\nthat  it is not expected that all the witnesses should be in
\na position to identify the accused nor their evidence can be
\ncompared  in  the  way\tsuggested by  the  learned  counsel.
\nSecondly,  in the present case, the aforesaid witnesses\t got
\ninjuries  when they were outside the premises of Dr.  Harnam
\nSingh.\t Learned counsel for the appellant further submitted
\nthat  Tehsildar\t PW43 who had opportunity of  recording\t the
\nstatement  of  the appellant and Resham Singh, DIG PW45\t who
\nhad recorded the confessional statement which runs into more
\nthan  10 pages have not identified the accused in the Court.
\nIn  our\t view,\tTehsildar  and DIG  were  discharging  their
\nofficial  functions  and  were not at all  affected  by\t the
\nincident  so as to memorise the identity of the accused.  At
\nthis  stage,  we  would note one other\tsubmission  made  by
\nlearned counsel Mr.  U.R.  Lalit with regard to two electric
\nbulbs in the courtyard.\t In our view, the submission on this
\ncount  does  not deserve much consideration.   The  incident
\ntook  place  at evening time between 8.00 to 8.30 p.m.\t (in
\nthe  month of April) and not dead at night, where there\t may
\nbe  difficulty of seeing the faces of the accused.  Further,
\nit  is to be born in mind that terrorists entered the  house
\nwhich  was situated in the city, that too, of an MLA and  it
\nwould  be  difficult to hold that two electric bulbs in\t the
\ncourtyard  were not on at the relevant time.  Therefore, the
\nlearned\t Judge\thas rightly appreciated this aspect  in\t his
\njudgment.\n<\/p>\n
    We,\t therefore,  broadly agree with the appreciation  of
\nevidence  recorded  by the learned Judge for convicting\t the
\naccused Daya Singh and acquitting rest of the accused.\n<\/p>\n
    In the result, both the appeals are dismissed.\n<\/p>\n
    J.\t(M.B.  SHAH)<\/p>\n
    J.\t(K.G. BALAKRISHNAN)<\/p>\n
    February 20, 2001.\n<\/p>\n
4<\/span><\/p>\n
27<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Daya Singh vs State Of Haryana on 20 February, 2001 Author: Shah Bench: M.B. Shah, K.G. Balakrishnan. 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-247756","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDaya Singh vs State Of Haryana on 20 February, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/daya-singh-vs-state-of-haryana-on-20-february-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Daya Singh vs State Of Haryana on 20 February, 2001 - 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