LexDAYA SINGH versus STATE OF HARYANA
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DAYA SINGH A V. STATE OF HA RY ANA FEBRUARY Z.O, 2001 [M.B. SHAH AND K.G. BALAKRISHNAN, JJ.] B Indian Penal Code, 1860-Sections 302 & 307-Terrorists and Disruptive Activities Act. 1987-Sections 3 & 5-Conviction under Sustainability of-Identification of the appel/a111 by two eye-witnesses during trial Failure of other eye-witnesses to identifo the appellant-Corroboration C of the evidence of independent witness by the evidence of eye-witness-No lapse on the part of the investigating officer in holding test identification parade-Held, conviction sustainable. Criminal Trial-Test identification-Purpose of Is to have, corroboration to the evidence of the eyewitnesses in the form of earlier identification-If D substantive evidence of a witness in the court is found to be reliable, then absence of corroboration h;' test identification would not be material. 14 accused including the appellant were tried by the Designated Court , under sections 3 & 5 of Terrorists and Disruptive Activities Act and under Sections 302/34 and 307/34 IPC. As per the prosecution, the accused caused E death of four persons and injuries to PWs 37, 38, 39, 40 and 47. FIR was lodged by PW 29. DIG (PW45) recorded the confessional statement of the appellant Tehsildar (PW 43) and PW 38 along with PW 37 went for test identification to the jail where they were informed that the appellant had refused to participate in the test identification parade. During trial, 'J' (PW 37) and 'H' (PW 38) identified the appellant in the Court out of 14 persons after about eight years of the incident, while other witnesses namely PWs 29, 40, 47, 43 and 45 failed to identify the appellant Designated Court, convicted the appellant and acquitted rest of the accused of all the charges. In appeal to this Court, the appellant contended that conviction cannot be based solely relying on the evidence of PW 37 and PW 38 on the ground F G of delay in identification by them; and because PW 29 and other injured witnesses i.e., PWs 40 and 47 and the independent witnesses i.e. Tehsildar (PW 43) and DIG (PW45) had failed to identify the appellant; and that no H 1115 1116 SUPREME COURT REPORTS [200 I J I S.CR. A credence could be given to the evidence ofTehsildar, since the investigating officer had not produced on record the statement of the accused recorded by Tehsildar and the report submitted by him. State also filed appeal against the judgment of the Designated Court. B Dismissing the appeals, the Court HELD : I. I. There is no reason to disbelieve the evidence of' H' and his wife 'J' when they identified the accused out of 14 persons, who were facing the trial. Their evidence is cogent and consistent with regard to the identification of appellant. The conduct of 'H' was natural in the court premises. The identification by this witness was tested in the cross- C examination and he stood the test of cross-examination. 'J' also identified the appellant as the assailant. Her evidence is so natural that it is impossible to believe that she is falsely involving the accused-appellant. 11128-G-H; 1129-BI 1.2. It cannot be held that at the time of the incident, PWs 37 and 38 D had lost their power of perception. 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 memorising 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 recapitulate. But that would depend upon the strength E of the trustworthiness of the witnesses who have identified the accused in the Court earlier. In the present case, identification in the Court was out of 14 persons. That itself would lend credence to identification by the witnesses. 11129-E-Hl F 1.3. Since the witnesses gained enduring impression of the identity of the accused during the incident, 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 the two witnesses. I 1130-A I G 1.4. In the present case, there is no lapse on the part of the Investigating Officer in holding the test identification parade. There is no reason to disbelieve the evidence of Tehsildar who had gone there of for holding the test
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