Holding

The conviction of Daya Singh is sustainable on the basis of reliable eyewitness identification despite the delay and without a test‑identification parade.

Summary

In 1988 a terrorist attack on Dr. Harnam Singh's house in Kurukshetra resulted in four deaths and several injuries. Fourteen accused, including Daya Singh, were tried under the Terrorist and Disruptive Activities (Prevention) Act and the IPC for murder and attempted murder. The trial court convicted Daya Singh on the basis of identification by two injured eyewitnesses – his wife Jaswant Kaur (PW‑37) and Dr. Harnam Singh (PW‑38) – despite a seven‑year delay, while other witnesses and officials failed to identify him. On appeal, the appellant argued that the delayed identification and lack of corroboration rendered the conviction unsafe, and that the investigating officer’s failure to produce the accused’s confessional statement further weakened the case. The Supreme Court held that the eyewitness testimony was cogent, consistent and reliable, that a test‑identification parade is not essential when substantive evidence is trustworthy, and that the delay did not defeat the identification. Consequently, the Court upheld the conviction and dismissed both the appellant’s and the State’s appeals.

Issues considered

The reliability of eyewitness identification after a long delay (seven to eight years).
The necessity and weight of a test‑identification parade as corroboration under TADA and the Evidence Act.
Whether the failure of other witnesses and officials to identify the accused undermines the conviction.
The admissibility and impact of confessional statements deemed involuntary.
The requirement of corroboration for eyewitness testimony in terrorism cases.

Legislation cited

Indian Evidence Act, 1872s. 9
Indian Penal Code, 1860s. 302, s. 307, s. 34
Terrorist and Disruptive Activities (Prevention) Act, 1987s. 3, s. 5

Subjects

identification paradeeyewitness testimonydelay in identificationTADAmurderconvictiontest identificationcorroborationconfessional statementsterrorism

Judgment

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.
F
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.
G
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
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 IJ 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.

Dismissing the appeals, the Court
B 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

1.3. Since the witnesses gained enduring impression of the identity of
F 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 identification parade of accused. The contention 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
H to the evidence ofTehsildar, is misconceived. It is true that if the investigating
DA YA SINGH v. STATE OF HARYANA 1117

officer had produced on record the statement of accused and the report A
submitted by Tehsildar, it would have corroborated his say. But the evidence
of such disinterested, independent, official witnesses does not require any
corroboration. The evidence of Tehsildar that he had gone to Central Jail for
identification parade gets corroborated from the evidence of PW38 who also
went to the Central Jail, for identifying the accused, but they had informed B
that the accused had refused to participate in the test parade. Tehsildar and
the DIG were discharging their official functions and were not at all affected
by the incident so as to memorise the identity of the accused.
11127-F-H; 1128-A-Cf

Sura) Pal v.. State of HGIJ'ana, I I 9951 2 sec 64, relied on.
c
1.5. The reasoning that PWs 29, 40 and 47 have not identified the
accused, evidence of PWs 37 and 38 becomes suspect, is fallacious firstly on
the ground that it is not expected that all the witnesses should be in a position
to identify the accused. Secondly because, in the present case, the aforesaid
witnesses got injuries when they were outside the premises of 'H'.JI 130-Cf D
2. 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
b~ reliable then absence of corroboration by test identification would not be
in any way material. Further, where reasons for gaining an enduring impress E
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. 11127-B-Cf

Hari Nath & Anr. v. State of UP., AIR (1988) SC 345; Mohd. Abdul F
Hafeez v. State ofAndhra Pradesh, AIR (1983) SC 367; Wakil Singh & Others
v. State of Bihar, AIR (1981) SC 1392; Soni v. State of UP., 11982) 3 SCC
368 and State of Maharashtra v. Suresh, [20001 I SCC 471, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. G
416 of 1998.

~ From the Judgment and Order dated I.9.2.98/23.2.98 of the Desinated
Court, Kamal at Ambala in S.C. No.44of1989.
WITH
Criminal Appeal No. 773of1998. H
l ll8 SUPREME COURT REPORTS (2001] 1 S.C.R.

A U.R. Lalit, S.R. Sharma, S. Srinivasan, Mahabir Singh, (N.P.), G.K. Bansal,
Neeraj K. Jain and D. Mahesh Babu for the appearing parties.
The Judgment of the Court was delivered by
SHAH, J. In Sessions Case No.44 of 1989, 14-accused were tried for
various offences including Sections 3 and 5 of the Terrorists and Disruptive
B Activities (Prevention) Act, 1987 (hereinafter referred to as "the TADA Act")
by the Additional Judge, Designated Court, Karna! at Ambala. The Additional
Judge by his judgment and order dated 19th February, 1998 convicted the
appellant Daya Singh for committing the offence of murder of Gurdeep Singh
and attempting to commit murder of PWs Dr. Harn am Singh and Smt. Jaswant
C Kaur. The appellant is also convicted under Section 302 read with Section 34
IPC for committing murder of Khushdev Singh, Gurpreet Kaur and his co-
accused Gurja11t Singh and sentenced to suffer imprisonment for life and to
pay a fine of Rs. I0000 in default of payment of fine to undergo further RI
for a period of one year. He is also convicted for the offence punishable under
Section 307 read with Section 34 IPC for attempting to cause death of Ram
D Singh, Somnath and Hira Singh by fire- arms and is sentenced to undergo RI
for a period of ten years and to pay a fine of Rs. 5000, in default of payment
of fine to undergo RI for a period of six months. In addition, he is convicted
for the offence punishable under Section 5 of TADA Act for possessing one
AK 47 rifle with cartridges and is sentenced to undergo RI for seven years
E and to pay a fine of Rs. 3000, in default of payment of fine to undergo RI for
three months. All the sentences were ordered to run concurrently. The
· Designated Court acquitted rest of the accused.

Against the order of conviction passed by the learned Judge, accused
Daya Singh has preferred Criminal Appeal No.416 of 1998. In this appeal,
F learned senior counsel Mr. U.R. Lalit appearing for the appellant has confined A
his submissions mainly with regard to reliability of evidence of PW37 Jaswant
Kaur and PW38 Dr. Harnam Singh qua the identification of the appellant.

The State has filed Criminal Appeal No.773of1998 against the acquittal
order and also for enhancement of sentence. With regard to the appeal filed
G by the State, after going through the evidence on record, it is apparent that
the order passed by the Additional Judge does not call for any interference.
Confessional statements are found to be not voluntary and are held to be -,..
unreliable. There is no other evidence to connect the acquitted accused with
the crime.

H The incident relates to attack by the terrorists on 9 .4.1988 in the house
DAYASINGHv. STATEOFHARYANA[SHAH,J.] 1119

of one Dr. Harnam Singh at Kurukshetra which has resulted in. loss of his son A
Khushdev Singh, daughter-in-law Gurpreet Kaur, Gurdeep Singh son of his
brother-in-law and one assailant Gurjant Singh and injuries to other persons.
At the time of hearing of this appeal, prosecution version relating to the
incident of the murder of four persons at the place of incident and injuries
to the witnesses is not disputed. For considering the submissions and
appreciating the evidence relating to the contentions raised by the learned B
counsel for the parties, we would refer to the evidence of Dr. Hamam Singh,
PW38 and his wife Smt. Jaswant Kaur, PW37. It is the say of Dr. Hamam Singh
that he is a worker of communist party and was elected as MLA in the year
1987 from Shahabad. On 9th April, 1988 at about 8.15 to 8.30 p.m. when he
was present in his house, one person came in his courtyard and called upon (;
him. In the courtyard two electric bulbs were on at that time. When he came
out from his room, he saw one well-built Sikh gentleman aged about 26-27
years having small beard holding a revolver in his hand. He ran towards him
and caught hold of him. On hearing the noise, his wife came out of the room.
She also caught hold of that Sikh from his hairs. At that time, one other
person came from outside holding stengun type arm. He was having a long D
beard and having eyes like that of a cat. That man started firing and a pellet
hit his left arm. The shots also hit abdomen of his wife. At that time his son,
Khushdev Singh, daughter-in-law Gurpreet Kaur and Gurdeep Singh son of
his brother-in-law who were watching TV came outside. The man who was
having eyes like a cat fired shots towards them and because of the injury E
sustained, Gurdeep Singh fell down on the main gate. His son Khushdev
Singh caught hold of that man and tried to take away the stengun. It is his
further say that when Khushdev Singh was holding the person, he fired shots
from his fire-arm towards Khushdev Singh and Gurpreet Kaur. When Khushdev
was grappling with him, he rushed to his room to make a telephone call and
informed at police station that he was attacked and shots were being fired. F
He has further deposed that when he went outside the room, the third
miscreant who was standing on the main door fired shots towards that room.
During the grappling, one blanket, one shoe, one turban, one Jutti had fallen
down in the courtyard. The magazine of the stengun had also fallen down.
When he came out of the room after telephonic call, the miscreants had fled G
and saw that Gurdeep Singh was lying dead at the entrance gate. Khushdev
Singh and Gurpreet Kau~, who were dragged outside by Daya Singh and with
whom they were grappling, were lying in the street on the right side of the
main gate in an injured condition. The terrorist who was caught and dragged
out by his wife was also lying dead. Khushdev and Gurpreet were removed
to the civil hospital. They succumbed to their injuries within few minutes in H
1120 SUPREME COURT REPORTS [2001] I S.C.R.

A the hospital. Thereafter, he alongwith his wife and Hira Singh were referred
to PGI Hospital. He has also deposed with regard to the investigation carried
out by the police including the recovery of certain articles from the scene of
offence. It is his further say that on 7th May 1988, he and his wife were taken
by the police to Civil Hospital, Rajpura as it was stated that two terrorists had
B been shot dead and they were to be identified by them. Out of the two dead
bodies, they identified one as the person who had fired shots towards him
while he was standing on the main gate. With regard to the identification of
the accused he stated that he could identify and recognize the person who
fired shots and has identified the appellant Daya Singh. The learned Judge
has noted that at that time as there was no electricity in the Court room, the
C accused, witnesses, advocates and he himself went outside the court room
where the accused was identified by Dr. Harnam Singh in second round which
took 3 to 4 minutes. In cross-examination, he has stated that he was using
spectacles since last more than 40 years and he could see up to a distance
of 30 to 40 or 100 yards with the help of spectacles and could identify a
person from a distance of 20 to 25 yards. He has also stated that during the
D time of identification as there was no electric light in the court room and was
dark, he was required to go outside the court room and there he had identified
the accused. He has clarified what he understood by catty eyes and stated
that eyes were like that of a cat and nothing more. The witness was asked
whether he could say that the eye of other accused named Inderjeet Singh
E was like cat. To that, his reply was - his eyes were normal and not like that
of a cat. He has also stated that he has seen accused Daya Singh on the date
of incident from a distance ranging from one yard to 3-4 yards and that Daya
Singh had fired from a distance of 3 yards in the courtyard. In further cross
examination, he has stated that he knew the name of accused Daya Singh
prior to 6.2.1997 because he was informed by the police at the time of
F interrogation of the accused on the basis that he was having eyes like a cat
and that he came to know his name within two to four months of the
occurrence. He has also stated that he along with his wife visited Central Jail,
Ambala for identification of the accused, but they were informed that accused
Daya Singh had refused to participate in the identification parade. It was his
G say that he identified the accused Daya Singh after wearing and even after
removing spectacles and that at the time of identification, he had removed the
spectacles in order to satisfy himself that accused Daya Singh was the same
person. He had denied the suggestion that he had wrongly identified the
accused at the instance of the police. Jn view of the limited contention raised
in the appeal, other part of the evidence is not required to be referred in this
H appeal.
DAY A SINGH v. STATE OF HARY ANA (SHAH, J.) 1121

Similar is the evidence of Jaswan·t Kaur PW3 7. It is her say that on A
9.4.1988 at about 8.15 to 8.30 p.m. her husband Dr. Hamam Singh was working
in his room and her son Khushdev Sihgh, daughter-in-law Gurpreet Kaur and
Gurdeep Singh were watching T. V. programme. At that time, one person came
from outside and called Doctor Sahib (her husband). In the courtyard, two
bulbs of electricity were on at that time. On hearing the call of her husband, B
she went out and saw one Sikh gentleman, aged about 25-26 years-who was
well built, having small beard and holding a pistol in his hand, was caught
hold by her husband. She also caught hold of his hairs. Subsequently, one
other Sikh who was also well built, having thick beard and eyes like cat
holding firearms came towards them. He fired and the shots hit on the left arm
of her husband and also on her abdomen. On hearing the sound of fire shots, C
Gurdeep Singh followed by her son Khushdev Singh and daughter-in-law
Gurpreet Kaur came out. It is her say that again that Sikh fired shot towards
Gurdeep Singh which hit his body and he died on the spot. Thereafter,
Khushdev Singh and Gurpreet Kaur grappled with that Sikh who was firing
shots. In the process of grappling, that Sikh, Gurpreet Kaur and Khushdev D
Singh went out in the street. Other Sikh who was held by her came out in
the process of grappling and his pistol had fallen down in that process: One
blanket, one turban and one of the shoes of that Sikh gentleman also fell in
the courtyard of her house. It is her say that when they came out, they found
another Sikh gentleman who was well built, tall? having whitish complexion
and black and round eyes. That Sikh also fired shots from his fire-arm towards E
Khushdev Singh, Gurpreet Kaur and herself. Khushdev Singh and Gurpreet
Kaur received injuries on various parts of their bodies. During that firing, the
Sikh who was held by her also received injuries and he fell down. Khushdev
Singh, Gurpreet Kaur and the Sikh who received fire shots died at the spot
in the street. It is her further ·say that her brother Hira Singh, (PW40) also
reached at the scene of occurrence on hearing noise. He received injuries by F
firearm. ·one Somnath PW47 also came there and he also received injuries. It
is her say that she could identify the Sikh who had entered the courtyard of
her house and had fired shots from his firearm upon her and her husband.
She has admitted that her eye-sight was weak. After looking at the accused,
she raised suspicion on one of the accused whose name on inquiry was G
revealed Daya Singh (appellant). She said that this accused is the same
T person who had fired shots on her and her husband. She again stated that
she had recognized this accused, but as he was not opening his eyes, she
has used the words that she was identifying on suspicion. The learned Judge
has noted that the witness had taken nearly five minutes in identifying the
accused out of all the accused present in the Court. In cross-examination, it H
r

1122 SUPREME COURT REPORTS [200 I] I S.C.R.

A was pointed out to her that she had identified the dead body of one person
who was shot dead during the incident pnd that body was of the miscreant
who was having blackish and round shape eyes and whose height was
between 5 I/2 to 6 feet. She has further stated that at the time of incident her
eye sight was normal, but subsequently one of her eyes was operated and
B nothing was visible from that eye and at present she could see an object from
a distance of about one feet with the help of spectacle. She has also stated
that accused Daya Singh has similar features which she remembered since the
date of occurrence and, therefore, she was in a position to identify him even
though he had not opened his eyes. She has denied the suggestion that she
has wrongly identified Daya Singh at the instance of police. She has pointed
C out that during the incident, electric bulbs were fitted in the courtyard. She
was asked with regard to the complexion of the accused and she replied that
Daya Singh was having whitish complexion and that it was incorrect to
suggest that Daya Singh was of fair complexion. To her, other accused namely
Parshottam Singh and Jaspal Singh were shown and she was asked to
differentiate between the complexion Of the accused Daya Singh and those
D two persons. To that, she replied that she can not differentiate.

Further, PW39 Ram Singh was passing by near the house of Dr. Hamam
Singh and near electric poll, he was injured by a shot but had not seen as
to who fired the shot. He has stated that it was dark at the scene of occurrence.
E Similarly, Hira Singh PW40, brother-in-law and a neighbour of Dr. Hamam
Singh had also received injury at the time of incident when he came out of
the house and gave Lalkara. He was also removed to the hospital. He failed
to identify the accused. Similarly, one Somnath (PW47) after hearing the noise
and sound of fire came to know that terrorists have come. He was going from
the house of his uncle towards his house. On the way two persons came
F running and struck against him. One was holding a small firearm which was
perhaps a revolver and other was holding firearm like stengun. He tried to
catch hold of one person and collided with him. At that time, there was firing
from the opposite direction and one shot hit him on his right arm. It is his
say that the person who was collided with him was not present in the Court
G room. It is the prosecution version that FIR was lodged by one Gagandeep
Singh (PW29) who was returning to his house in the evening and after
hearing sound of fire shots he rushed at the scene of occurrence and found
that Khushdev Singh and Gurpreet Kaur were grappling with 3 to 4 Sikhs. He
raised a noise addressing to those persons and one of them ran towards him
with a stengun and so being frightened he came back and hid himself. He
H again went at the house of Harnam Singh after 4 to 5 minutes and found that
DAY A SINGH v. STATE OF HARY ANA [SHAH, J.) 1123

terrorists had already left. He found that Gurpreet Kaur and Khushdev Singh A
were seriously fojured and his elder brother Gurdeep Singh was lying dead
at the spot. He rushed to the police station but on the way the police met
him and his statement was recorded.

Prosecution has also relied upon Harbans Singh PW43, Land
Acquisition Officer who was posted as Tehsildar, Kurukshetra on 2nd June B
1988. He had gone for conducting identification parade in Central Jail, Ambala
at the instance of S.P. Kurukshetra. It is his say that he reached Central Jail
at 5.00 p.m. and Daya Singh was produced before him by the jail authorities.
He informed Daya Singh that he had come for conducting identification
parade, but Daya Singh refused to participate on the ground that he had C
already been shown by the police to the expected witnesses. His statement
was accordingly recorded by him and the said statement alongwith his report
was sent to the S.P. Kurukshetra. In cross-examination, he has stated that he
was not knowing accused Daya Singh personally, but was identified by the
jail authorities. He further stated that he could not identify the accused Daya
Singh out of the accused persons present in the court. He has also stated D
that he was not knowing Jaswant Kaur PW37 personally and could not say
whether she was present outside the jail premises on that day or not. He
denied the suggestion that accused Daya Singh never refused for such an
identification parade and that he was deposing falsely.
E
PW45 Roshan Singh, DIG, CISF, New Delhi has deposed that on
5.5.1988, 22.5.1998, 2.6.1998 and 14.6.1998, he had recorded the confessional
statements of number of accused. It is his say that on 29.6.1998, he visited
CIA, Kurukshetra and recorded the confessional statement of Daya Singh,
• which was produced as Ex. PW45/W. It is his say that the accused made the
statement voluntarily which was read over to him and his signatures were F
taken. He also appended the certificate Ex. PW45/W-l below the confessional
statement and the said confessional statement was sent to the C.J .M.,
Kurukshetra on the same day in a sealed envelope. He has stated that he
could not identify the persons including Daya Singh whose confessional
statements were recorded by him on various dates mentioned above. In cross· G
examination, he has admitted that many police officers were present in the
police station when confessional statements were recorded. Further as
discussed by the learned Judge, he has not followed the necessary procedure
of recording confessional statement and that the same is not voluntary.
Therefore; the said confessional statement is rightly not relied upon by the.
trial court. Further almost all the confessional statements of the accused H
(

1124 SUPREME COURT REPORTS [2001] I S.C.R.

A persons except that of Parshottam Singh were recorded by the Reader ·of the
~
S.P., who is not examined. Other part of the prosecution evidence is not
required to be reiterated as the controversy in the appeal is in a narrow-
compass.
The learned counsel Mr. Lal it submitted that conviction of the appellant
is based solely on the identification of the accused in the Court by PW37 and
..
B
PW38. He contended that the incident took place in April, 1988 and
identification in the Court by Smt. Jaswant Kaur (PW37) is in November, 1996 ~

i.e. after lapse of seven and half years. Similarly, identification by Dr. Harnam
Singh (PW38) is after eight years. Therefore, on this sole ground of delay in
identification, their evidence can not be relied upon for convicting the accused.
c He contended that it is difficult for the witnesses to identify the accused after
long lapse, unless they are repeatedly seen. He pointed out that in this case
there is possibility that accused could have been seen in the court before ~
identification. He further contended that other injured witnesses namely PW29
Gagandeep Singh, who lodged FIR, PW40 Hira Singh and PW47 Somnath
D have not identified the accused. He pointed out that PW29 has not specifically
stated about the light in the courtyard but has only stated that because of
the street light he could see the accused and that Ram Singh admits that it
was night time and dark at the scene of occurrence. Even Hira Singh has
admitted that because oflong lapse of time, he could not identify the assailants. f
Independent witness Tehsildar (PW43) who had gone for test identification
E parade has also failed to identify the accused. Similarly, the SP (PW45) who ~

allegedly recorded the confessional statement has also failed to identify the
accused. In such circumstances, it would not be safe to rely upon the evidence
of the aforesaid two witnesses for convicting the accused. Lastly, he contended
that even deposition of PW37 and PW38 qua identification is halting one and, ...
F therefore, also benefit of doubt is required to be given to the accused. In
support of his contention he placed reliance on decision of this Court in Hari
""
Nath and Another v. State of U.P., AIR (1988) SC 345. Learned counsel for
the appellant has also relied upon the decisions of this Court in Mohd Abdul
Hafeez v. State of Andhra Pradesh, AIR (1983) SC 367, Wakil Singh and
Others v. State of Bihar, AIR (1981) SC 1392 and Soni v. State of UP, [1982]
G 3 SCC 368 wherein the Court has observed that identification parade after
some time lapse would be of no consequence and, therefore, on the basis of ~

such identification, accused cannot be convicted.

As against this, learned counsel for the State submitted that the
Designated Court has rightly convicted the accused on the basis of clinching
H evidence of PW37 and PW38 who apart from being injured witnesses have
DAY A SINGH v. STATE OF HARYANA [SHAH, J.] 1125
· lost their son and daughter-in-law during the incident which had taken place A
Y in their house. It is submitted that accused were terrorists and in such cases,
there is no question of having other independent witnesses. Even if
independent witnesses were availabie, they would not dare to make any
statement against the accused. He pointed out that as held by the learned
Judge, investigation was sluggish but that is no ground for not relying upon B
the evidence of PW37 and PW38. It is his contention that it would be
unreasonable to expect Superintendent of Police, who recorded the confessional
statement of number of accused in the case in the year 1988, to id~ntify the
accused after lapse of seven to eight years. Similarly, the Tehsildar who had
gone to hold identification parade also is not expected to identity the accused.
It his contention that court has rightly relied upon the evidence of injured C
affected witnesses and for this purpose he referred to the observations made
by the Designated Court to the effect that physical features of accused Daya
-.f Singh must have been embedded in the memory of Jaswant Kaur just like a
gali stone because it was he who with his co- assailants committed the
gruesome crime.
D
At this stage we would first refer to the decisions upon which reliance
is placed. In the case of Soni (Supra), this Court observed that delay of 42
days in holding the identification parade throws a doubt on genuineness
.
thereof apart from the fact that it is difficult that after lapse of such a long
.• time the witnesses would be remei11bering facial expression of the appellant. E
In the case of Mohd. Abdul Hafeez (Supra), the Court while dealing with a
robbery case observed that as no identification parade was held, no reliance
can be placed on the identification of accused after lapse of four months in
the court. In the case of Hari Na1h (Supra), the Court observed that evidence
of test identification is admissible under Section 9 of Evidence Act. But the
value of test identification, apart from the other safeguards appropriate to a F
fair test of identification depends upon the promptitude in point of time with
which the suspected persons are put up for test identification. If there is an
unexplained and unreasonable delay in putting up the accused persons for
a test identification, the delay by itself detracts from the credibility of the test.
The Court further referred to (Para 9) Prof Borchard's "Convicting the G
Innocent" on the basis of error in identification of the accused. The learned
-.r author has observed:

" ... The emotional balance of the victim or eye-witness is_ so disturbed
by his extra-ordinary experience that his powers of perception become
distorted and his identification is frequently most untrustworthy. Into H
1126 SUPREME COURT REPORTS [200 I] I S.C.R.

A the identification enter other motives riot necessarily stimulated
originally by the accused personally the desire to requite a crime, to
exact vengeance upon the person believed guilty, to find a scapegoat,
to support, consciously or unconsciously, an identification already
made by another. Thus, doubts are resolved against the accused.

B In paragraphs I 0 and 11, the Court has observed as under:-

"I 0. The evidence of identification merely corroborates and
strengthens the oral testimony in Court which alone is the primary and
substantive evidence as to identity. In Hasib v. State of Bihar, AIR
(1972) SC 283 this Court observed:
c
" ... The purpose of test identification is to test that evidence, the
safe rule being that the sworn testimony of the witness in Court
as to the identitY of the accused who is a stranger to him, as
a general rule, requires corroboration in the form of an earlier
identification proceeding............"
D
In Rameshwar Singh v. State of J & K, AIR (1972) SC 102, this Court
observed (at p.104):

" .. .It may be remembered that the substantive evidence of a witness t
is his evidence in court, but when the accused person is not previously
E known to the witness concerned then identification of the accused by
the witness soon after the former's arrest is of vital importance because
it furnishes to the investigating agency an assurance that the
investigation is proceeding on right lines in addition to furnishing
corroboration of the evidence to be given by the witness later in court
at the trial... .........."
F
11. It is, no doubt, true that absence of corroboration by test
identification may not assume any materiality if either the witness had
known the accused earlier or where the reasons for gaining an enduring
impress of the identity on the mind and memory of the witness are,
G otherwise, brought out. It is also rightly said that

"Courts ought not to increase the difficu !ties by magnifying ...,
theoretical possibilities. It is their province to deal with matters
actual and material to promote order and not surrender it by
excessive theorising or by magnifying what in practice is really
H unimportant."
DAYA SINGH v, STA TE OF HARYANA [SHAH, J.] 1127

The question, therefore, is-wheti1er the evidence of injured eyewitnesses A
PW37 and PW38 is sufficient to connect the appellant with I.he 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 evidel)Ce 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
B
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. C
The purpose of identification parade is succinctly stated by this Court in
State of Maharashtra V. Suresh, [2000) I sec 471 as under:

"We remind our.ielves that identification parades are not primarily
meant for the court. They are meant for investigation purposes. The
object of conducting a test identification parade is two fold. First is D
to enable the witnesses to satisfy themselves that the prisoner whom
they suspect is really the one who was see;i by them in connection
with the commission of the crime. Second is to satisfy the investigating
authorities that the suspect is the real person whom the witnesses had
seen in connection with the said occurrence." E
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 F
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 G
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 H
1128 SUPREME COURT REPORTS [2001) l S.C.R.

A 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
B 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
C the Tehsildar for parade. Further, the evidence ofTehsildar 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
D 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 ~-
E "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
p11rade on the ground that accused were shown by the police to the witnesses.
Same is the position in the present case.
F
Further, there is no reason to disbelieve the evidence of Dr. Hamam
Singh and his wife Jaswant Kaur 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 Dr. Hamam
G Singh was natural in the court premises. As there was no electricity in the
court room, he identified the accused after going outside the court room in
the second round which took 3-4 minutes. He had seen accused Daya Singh
grappling with his son and daughter-in-law. The identification by this witness
was tested in the cross-examination and in our view, he stood the test of
cross-examination. He gave specific physiognomy of the accused by stating
H that he was having 'catty eyes' meaning thereby 'the eyes like a caf. He has
DAY A SINGH v. STATE OF HAR YANA [SHAH, J.) 1129

also stated that he had seen the accused from a distance rangirig from 1 yard A
to 3-4 yards and that the appellant-accused had fired from 3-4 yards in the
courtyard. This witness alongwith his wife has also identified the dead body
of one other co-assailant Daljinder Singh alias Chandibaba on 7.5.88. In the
cross-examination, he further stated that he could identify the appellant after
wearing and removing the spectacles and has done so in the court room. B
Similarly, Jaswant Kaur 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. In the beginning, she raised suspicion on.
one of the accused who was not opening his eyes as the appellant and
identified the said person as the person who had fired shots on her and her
husband. This identification was done after taking five minutes. She deposed C
that Daya Singh was having similar features which she remembers since the
date of occurrence and has denied the suggestion that she has wrongly
identified the accused at the instance of police. PW38 Dr. Harnam Singh who
was a Doctor and also an MLA would not involve the appellant falsely in
such a heinous crime. There was no reason suggested to the witness for
involving the appellant in the crime. Similarly, Jaswant Kaur was also not D
having any interest in the accused. However, the learned counsel for the
appellant, Mr. Lalit referred the say as noted by Professor Borchard's "the
emotional balance of the victim or eye-witness is so disturbed by his extra-
ordinary experience that his powers of perception become distorted and his
identification is untrustworthy .. ". It is. true that PWs 37 and 38 have lost their E
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 F
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 G~
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 H
1130 SUPREME COURT REPORTS [200 I] I S.C.R.

A cross-ex·amination 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. Similarly, if the
prosecuti9!1 was interested in falsely involving the accused, Gagandeep Singh
B PW29, Hira Singh PW40 and Somnath PW47 were having opportunity to
identify the accused at the time of trial. However, the learned counsel for the
appellant
. submitted that as they have not identified the accused, evidence of
Jaswant Kaur PW37 and Dr. Harnam Singh PW38 becomes suspect. In our
.
view, this reasoning is 'fallacious firstly on the ground that it is not expected
C that all the witnesses should be in a position to identify the accused nor their
evidence can be compared in the way suggested by the learned counsel.
Secondly, in the present case, the aforesaid witnesses got injuries when they
were outside the premises of Dr. Harnam Singh. Learned counsel for the
appellant further submitted that Tehsildar PW43 who had opportunity of
recording the statement of the appellant and Resham Singh, DIG PW45 who
D had recorded the confessional statement which runs into more than I 0 pages
have not identified the accused in the Court. In our view, Tehsildar and DIG
were discharging their official functions and were not at all affected by the
incident so as to memorise the identity of the accused. At this stage, we
would note one other submission made by learned counsel Mr. U.R. Lalit with
E regard to two electric bulbs in the courtyard. In our view, the submission on
this count does not deserve much consideration. The incident took place at
evening time between 8.00 to 8.30 p.m. (in the month of April) and not dead
at night, where there may be difficulty of seeing the faces of the accused.
Further, it is to be born in mind that terrorists entered the house which was
situated in the city, that too, of an MLA and it would be difficult to hold that
F two electric bulbs in the courtyard were not on at the relevant time. Therefore,
the learned Judge has rightly appreciated this aspect in his judgment.

We, therefore, broadly agree with the appreciation of evidence recorded
by the learned Judge for convicting the accused Daya Singh and acquitting
G rest of the accused.
In the result, both the appeals are dismissed.

K.K.T. Appeals dismissed.