Full Judgment Text
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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.