iminal Appeal No 3 of 1971
Appeal by special leave from the judgment and order dated October 30 1970 of the Jammu and Kashmir High Court in Criminal Appeal No 12 of 1969 and Criminal Reference No 10 of 1969 628 Ram Asray Misra Risi Ram O P Rana and R Bana for the appellant
D Mukherjee and R N Sachthey for the respondent
The Judgment of the Court was delivered by Dua J
Only two points were argued at the bar in this appeal by special leave because if we agree with the appellant s learned counsel on these points then the appeal must succeed and the appellant must be acquitted without going into the other points relating to the appellant s guilt intended to be raised on his behalf by his counsel
The relevant facts of the ease necessary for appreciating the two important points relating to the legality of the appellant s conviction may briefly be stated On the morning of October 7 1967 a football match was being played at the Srinagar Stadium between the Kashmir Uni versity and the Punjab University teams
The Kashmir University team hereafter called the home team was the first to secure one goal against the Punjab University team hereinafter called the visiting team
The players of the home team were naturally cheered by the spectators when they scored the first goal
After a few minutes the visiting team equalised the score and a little later secured another goal against the home team
This in turn brought cheers and applause for the visiting team from the spectators
It appears that some of the more enthusiastic spectators rushed to the football ground and are said to have made some provocative gestures towards the players of the home team
This apparently annoyed not only the players of the home team but also their sympathisers amongst the spectators and a clash between the rival sets of sympathisers of the two teams amongst the spectators followed
As usually happens on such occasions stones were thrown at each other by the two rival groups
These rival groups are stated to be those of Kashmir is on the one side and Punjab is on the other
The headquarters of the PAC Police Armed Constabulary are also stated to be located in the Stadium and some members of that force were present at the match
The young men of the PAC came to the spot and with their dandas put the people to flight
Up to this stage there seems to be no controversy
According to the prosecution case as stated by P W Abdul Gani Sheikh on April 24 1969 when the people bad left the Stadium the appellant to use the words of the witness in his examination in chief  was seen descending the bund in the direction of the stadium cycle shed
The accused carried a gun in the hand
He had a helmet on the bead
629 Getting down the bund the accused got near the cycle shed
There he did something for a minute or a half
Forthwith he opened the door of the cycle shed and came out
The accused was facing the Militia wall
As he turned his face that side he fired a shot
The shot hit the Militia wall
I was at a distance of nearly 50 yards from the accused
After firing the shot the accused came on the main road which leads to the aerodrome
A zamindar was going on it
At the sight of the accused he stopped
The accused fired a shot at him
He fell along the drain adjoining the Militia wall
Thereafter the accused turned to the right side
There on the other side of the road in the direction of Hazuri Bagh Maidan a young man in suit and boots was going there
At the sight of the accused he too stopped
There was exchange of some talk between him and the accused
I did not hear what he spoke
However I saw that man facing the accused with
folded hands
Then the accused fired a shot at him
He fell down immediately on receiving the shot
Then the accused again turned towards that Zamindar at whom he had fired the first shot
He fired another shot at him
Thereafter the accused turned towards a boy aged 15 or 16 years who was going towards Mira Kadal
He fired a shot at him
The boy did not fall down may he took to his heels
He ran in the direction of the tonga stand on the side of Mira Kadal
Thereafter he fired again at the Young man in suit and boots at whom he had already fired a shot
Thereafter he fired another shot at the Zamindar
The accused fired more shots as well after that
In the meantime three more men appeared there
They were the accused s men
Besides
a sardar of the K A P also appeared at the spot
They got hold of the accused and took him inside
They were trying to snatch the rifle from the accused
Another person held the rifle and the accused was taken inside the stadium
I made a report of this occurrence at police station Sher Ghari which may be at a distance of 150 yards from the place of occurrence
I made an oral report
I have heard the contents of the first information report
The same are correct
The police recorded what I stated
I affixed my signatures to it
It is correct
Note  It is marked Ext
P I The learned Sessions Judge Srinagar Qazi Mirajudin in whose court the appellant was tried for offences under sections 302 and 307 IPC convicted him for both the offences imposing 630 the sentence of death under section 302 and rigorous imprisonment for five years under section 307 IPC Charges under section 302 related to the death of Ghulam Mohd Fuchey who died in the hospital on the day of the occurrence and also to the death of Aziz Teli who died two days later on October 9 1967 at 5 50 pm
The charge under section 307 IPC related to the injuries caused to P W Abdul Ghani Sheikh
On appeal the High Court which had before it also the sidered it necessary to examine the ballistic expert for elucidating certain points
That Court permitted the appellant also to examine another ballistic expert Siyaram Gupta by name and also Shri Ratan Sahgal and C L Wasan Commandant UP PAC
C L Wasan was allowed to be examined even though he had already been examined earlier as a prosecution witness
It may also be stated here that the appellant wanted to produce some more witnesses in defence but permission to do so was declined by the High Court and the appellant s Counsel before us raised a grievance on this score as well
The High Court after considering the evidence dismissed the appeal and confirmed the sentence of death
An oral prayer for certificate to appeal to this Court was declined
On behalf of the appellant it is not disputed before us that somebody did resort to firing during the disturbance in the course of the football match on October 7 1967 and two persons were actually killed as a result thereof
The first question raised before us in this connection is that there is no legal evidence that it was the appellant who fired the fatal and other shots in question on this occasion
This indeed is the principal point urged
And the second point which arises out of discussion on this point relates to the scope and effect of sections 161 and 162 Cr
PC and the admissibility at the trial of the statements made by some of the witnesses to the police during investigation under section 161 Cr
The High Court appears to have relied on such statements in their entirety for seeking corroboration of the statement made by the prosecution witnesses in court and ultimately for the purpose of sustaining the appellant s conviction
Incidentally the manner in which the investigating agency conducted the investigation of this case also came up for serious criticism at the hands of the appellant s counsel it being urged that the investigation was not objective and impartial but smacked of prejudice against the appellant and was therefore unfair
The investigation was however sought to be justified by the counsel for the State
The evidence of identification of the appellant on which the courts below placed reliance for convicting the appellant has to be with great care in order to see if such evidence is 631 legally admissible and on the facts and circumstances of this case this scrutiny must in our opinion include within its purview the manner in which the investigation of the alleged offences was conducted by the authorities concerned
Before dealing with the evidence relating to identification of the appellant it may be remembered that the substantive evidence of a witness is his evidence in court but when the accused person is not previously 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
From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit
It would in addition be fair to the witness concerned who was a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence
It is thus and thus alone that justice and fairplay can be assured both to the accused and to the prosecution
The identification during police investigation it may be recalled is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in court
The identification proceedings therefore must be so conducted that evidence with regard to them when given at the trial enables the court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in court of the identifying witnesess
We may now turn to the evidence on the record
Abdul Ghani Sheikh who claims to be the eye witness to the occurrence lodged the first information report exhibit P 1 at 11 30 am at the police station only about 200 feet away from the stadium
In order to appreciate the value of this report and the value of the testimony of this witness in court in regard to the description of the alleged culprit we consider it proper to reproduce the whole of this report
It says At the Stadium a football match was being plaved
From there the PAC men chased and turned out the people
All the people came out from the gates on 632 the East and North
They were going back through the Hazuri Bagh Road
I was standing near the cycleshop which is situated close to the Stadium chowk
A PAC jawan came out of the main gate
He carried a rifle
He fired a shot towards the road
It went in the direction of the Militia wall
Thereafter the PAC Jawan came on the road and fired shots
lie went towards the Militia gate and inflicted bullet injuries on three of the persons going on the Road
Then a PAC Sardar and a BSF Jawan with three PAC men who carried Dandas in the hands got held of the said Jawan
They took him inside the Stadium
The said Jawan fired nine or ten shots recklessly though the way farers were going on the road in a peaceful manner
There was no crowd nor was there any breach
   In the trial court in his examination in chief he deposed that he had seen the accused coming down the bund with a gun in his hand and helmet on his head and that he fired the fatal and other shots
The relevant portion has already been reproduced earlier in this judgment
In cross examination he stated that apart from the first information report he did not make any statement to the police excepting that he signed the seizure memos
He also could not remember if he had stated to the police that the accused was known to him
He was further unable to remember if the police had asked him this question
After the occurrence he saw the accused only in court and he was never required to identify putting on a helmetand had also grown a beard when seen in court though at thetime of the occurrence the accused had a helmet on his head
At this stage we may appropriately point out that according to P W Chaudhuri Ghulam Nabi Mir SRO Maharajganj who on hearing reports of gun shots while he was in the police station had come out on the road the statement of Abdul Ghani Sheikh was actually recorded by him
This according to the SHO was recorded near the Stadium gate at the chowk  which means the police beat where three roads meet
On this report witness endorsed a note to the thana for drawing up FIR Chaudhri Ghulam Nabi Mir has also stated in cross examination that he recorded the statements of the pro secution witnesses during investigation under section 161 Cr
Curiously all those statements were admitted in evidence and marked as exhibits by the trial court
According to the concluding part of Ghulam Nabi Mir s cross examination in court Abdul Ghani Sheikh had at first met him near the verandah of the 633 police station and since he was leaving in the direction of the place of occurrence Abdul Ghani Sheikh followed him
From the statements made to the police which were exhibited in evidence we find that Abdul Ghani Sheikh also made a statement on October 7 1967 marked as exhibit D 2
It is important to point out that according to Abdul Ghani Sheikh he had not made any statement to the police besides the report exhibit P 1
From the testimony of P W Abdul Ghani Sheikh it is obvious that he did not give any description of the person alleged to have fired the shots in question in exhibit P 1 which was the first information given by him to the police and on which the investigation started nor did he state in exhibit P 1 that he knew the appellant previously
He was never made to identify the accused
He has obviously told lies on a vital point when he says in the witness box that excepting exhibit P 1 he had made no other statement to the police
Though the contents of those statements cannot be used for any purpose other than that laid down in section 162 Cr
PC the fact of that statement having been made can certainly be relied upon for the purpose of showing how untruthful Abdul Ghani Sheikh is or at least taking a charitable view of this contradiction on his part how undependable his memory is
No attempt was made on behalf of the State before us to show if this witness had identified the accused in the committing magistrates court
We have referred to the statement of this witness under section 161 Cr PC
because the High Court seems to have taken into consideration not only the statement of this witness under section 161 Cr
PC for seeking corroboration of his testimony in court but the statements of a large number of other witnesses during investigation have also been used for this purpose
This is what the High Court has said in its judgment  Lastly it was contended that although some of the eye witnesses have stated that the appellant Rameshvwar Singh was called by name at the spot by his fellow constables and saying that he would get involved yet the name of the appellant was not mentioned in the FIR nor was the fact that the appellant was called by name and warned by his fellow constables stated therein
This circumstance in our opinion is not sufficient to demolish the prosecution case or cast any serious doubt thereon
To begin with the first informant Abdul Ghani Sheikh has not stated in his evidence about the fact of the accused being called by name by his fellow constables
Furthermore this was a matter of minute detail and since the FIR was lodged imme diately after the occurrence it may be that this particular detail was not mentioned in the FIR by the informant
What is more important is that all the eye 634 witnesses including the informant were examined by the police immediately after the occurrence was over and the defence has not cross examined the investigating officer on the question that the fact mentioned above was not stated by the eye witness before the Investigating Officer at that time
Thus it should be taken for granted that this fact though not mentioned in the FIR was clearly stated by the eye witnesses in their state ments before the police soon after the FIR was lodged
In fact the statements of the eye witnesses recorded by the police which have been marked by the court below as Exs
D 1 to 6 clearly show that the above mentioned fact was stated before the police when they were examined soon after the FIR was lodged
Thus the charge that said fact appears to be belated one appears to us to be groundless The High Court was clearly in error in taking into consideration the contents of the statement recorded under section 161 Cr
PC during the course of investigation for the purpose of finding corroboration of the statements made in court
Section 162 Cr
PC lays down the limited use of such statements
It says Statements to police not to be signed use of statements in evidence
in the course of an investigation under this Chapter shall if reduced into writing be signed by the person making it nor shall any such statement or any record thereof whether in a police diary or otherwise or any part of such statement or record be used for any purpose save as hereinafter provided at any inquiry or trial in respect of any offence under investigation at the time when such statement was made Provided that when any witness is called for the prosecution in such inquiry or trial whose
statement has been reduced into writing as aforesaid any part of his statement if duly proved may be used by the accused and with the permission of the Court by the prosecution to contradict such witness in the manner provided by Section 145 of the and when any part of such statement is so used any part thereof may also be used 635 in the re examination of such witness but for the purpose only of explaining any matter referred to in his cross examination
2 Nothing in this section shall be deemed to apply to any statement falling within the provisions of Section 32 Clause 1 of the  or to affect the provisions of Section 27 of that Act
 The language of this section is plain and explicit and it admits of no doubt as to its meaning
We do not consider it necessary to refer to a large catena of decisions reported in law reports and cited in text books stating the legal position with regard to the restricted use of such statements as laid down in section 162 Cr
PC prohibiting the court from using them as corroborative of the statements in court
Once this part of the reasoning of the High Court is elimi nated all that is left is the statement of Abdul Ghani Sheikh in court and his report exhibit P 1 made to the police
That report it is not disputed does not contain any description of the alleged culprit
Had the witness known the culprit earlier one would have reasonably expected him to so state in the report
if however without knowing him earlier he had formed a distinct impression of the culprit s looks and bearing so as to be able to identify him later then also one would have expected this witness to give in the report the description of the culprit as seen by him so as to provide the investigating authorities with something tengible as guideline to start with the investigation
His identification in court without any previous identification at a test parade and without any description in exhibit P 1 to corroborate it is far too slender a piece of evidence to base the appellant s conviction thereon
So Abdul Ghani Sheikh s evidence seems to us to be of no value in bringing home the offence to the appellant
In the opinion of the High Court the evidence of Abdul Ghani Sheikh and of Noor Hussain is corroborated by PWs
Abdul Hamid and Noor Mohammed Sheikh
This is what the High Court says The evidence given by Abdul Ghani Sheikh the informant and also Noor Hussain a resume of which has been given above is corroborated by Abdul Hamid and Noor Mad
Sheikh PWs in all material particulars
All these witnesses Noor Hussain Abdul Hamid and Noor Mohd have stated that they know the accused before the occurrence and they had occasion to see him before
They disclosed the name of the accused on the 636 very date of occurence when they said that they heard his three companions shouting at him Ramesh what are you doing don t be mad you will be involved Ghulam Nabi Mir SI PW has clearly stated that it was on the very day of occurrence that the name of Rameshwar Singh accused was disclosed by Abdul Hamid and by some other witnesses
 Here again the High Court has committed the same error in seeking corroboration from the statements said to have been made to the police by Abdul Hussain and others during investigation
We have also to consider further the circumstance that the High Court has not adverted to the omission on the part of the investigating authorities to take steps to arrest the appellant soon after the alleged disclosure of his name to them by the said witnesses According to Ch
Ghulam Nabi Mr SHO the appellant s name was disclosed on the very day of the occurrence
There is no plausible reason discernible on the record as to why such steps were not taken if the appellant s identity as a result of the disclosure of his name became known to the authorities the same day
The High Court appears to us not only to have erroneously disregarded the forms of legal process but has also failed to advert to important and vital aspects thereby causing serious prejudice to the appellant
In view of what has just been stated prima facie grave and substantial injustice cannot but be considered to have resulted from the infirmities in the impugned judgment
Let us now see if the evidence of Noor Hussain Abdul Hamid and Noor Mohd Sheikh in any way advances the case of the prosecution
Abdul Hamid PW 2 who has a cycle shop about 9 or 10 yards from the Stadium chowk claims to have gone to see the match in question
When the PAC young men are said to have turned the people out of the Stadium during the course of the trouble this witness also went out
He claims to have watched the entire occurrence from the roof of his shop through the window panes because he was afraid of being seen in the open lest he may also be fired at
It is from there that he claims to have heard when the PAC men addressed the appellant  Have you turned mad  Ramesh have you turned mad This seems to us to be wholly unacceptable and it appears to us that these words have been introduced in the evidence for the purpose of providing the missing link of identification of the appellant
Noor Mohd Sheikh is the brother of Abdul Ghani Sheikh
He also did not know the appellant and he never saw him after the occurrence till he came to court several months later
Though he claims to have given the description of the culprit to the police and to have also expressed his ability to identify him he was for reasons not disclosed on the record never 637 made to identify the appellant at any test identification parade He also claims to have gone to the police station with Abdul Ghani Sheikh though the latter claims to have gone there all alone
Now if he had actually heard the name of the appellant being shouted by the PAC men as claimed by him and had accompanied his brother to the police station then there is no reason why the name of the culprit was not disclosed to the police and not included in the report exhibit P 1
Noor Hussain has also stated that three young men of the appellant s unit came to the place of occurrence after the appellant had fired 8 or 9 shots and they shouted addressing the appellant  Ramesh what are you doing you will be implicated and according to him they continued shouting these words for some time before they secured the appellant and took him inside
In his cross examination he has admitted that on the day of the occurrence no police officer asked him whether he was an eye witness
When he was approached by the police later he is stated to have told them  The whole of the occurrence has taken place outside the thana and you are not aware of it Beyond this remark there was according to him no conversation between him and the police and indeed he asserts that no statement was taken from him on the day of the occurrence
In fact his position is that the statement in court was the only statement he had ever made relating to the occurrence
It is interesting to note that his statement before the police purporting to be under section 161 Cr
PC is exhibited as D 6 and is dated October 7 1967
We are wholly unable to place any reliance on the testimony of anyone of these witnesses who seem to us to be clearly untruthful
Further it appears from the evidence of C L Wasan DW 2 who was again examined in the High Court that an informal identification parade of all the constables belonging to UP PAC contingent had been held on October 7 1967 in which the appellant was also present
Some members of the public were also there who were asked to identify the culprit but none of them were able to do so
 We need not dilate on this evidence as there was no formal record of any such test identification parade
The significant fact however which casts serious doubt on the truth of the story of disclosure of the appellant s name to the police on October 7 is the admitted omission by Ch
Ghulam Nabi Mir SHO to summon the appellant for interrogation soon after the alleged discovery of his name
No convincing or even intelligible explanation is forthcoming for interrogating the other PAC men on the 8th and 9th October
Such investigation can scarcely inspire confidence
638 As a result of the foregoing discussion we do not consider it Possible to uphold the conclusion of the High Court on the legal evidence existing on this record
In the absence of any test identification parade and excluding from consideration the statements made under section 161 Cr
PC we find no reliable material on which the appellant s conviction can be sustained
The High Court was in error in affirming the appellant s conviction for the offence of murder and confirming the sentence of death
It was equally in error in upholding his conviction and sentence under The appeal accordingly succeeds
and allowing the same we acquit the appellant


Summary:
The appeallant was convicted of the offence of murder by shooting and the High Court confirmed the  conviction and the sentence of death
In appeal to this Court HELD  The conviction and the sentence should be set aside
1The substantive evidence of a witness is his evidence in the trial court
But then the accused person is not previously known to a witness when the 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 his own evidence in court
631 A C In the
present case the evidence of the witness who gave the FIRshowed that he did not give any description of the person who was alleged to have fired the shots
Nor did he state in the FIR that he knew the appellant previously
There was no evidence to show that the witness had identified the accused in the Committing Magistrate s Court
Therefore his identification in the Sessions Court of the accused without any previous identification at a test parade and without any description in the FLR to corroborate it is far too slender a piece of evidence to support the  appellant s conviction
B E 635 D F 2Some ofthe witnesses had stated in their evidence that they had heard the name of the accused being called but neither this fact nor the name of the accused was mentioned in the FIR
The High Court was in error in taking into consideration the contents of the statements recorded under section 161 Cr
P C of the various witnesses during the course of investigation km the purpose of finding corroboration of their statements
in court that the name of the accused was disclosed to the police
the accused s name was really disclosed soon after the occurrence steps would have been taken by the investigating authorities to arrest him immediately but no such action was in fact taken
634 D 636 C D