TMI Blog2002 (10) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 terr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd '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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of gun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunately 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corded 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
