1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT (1) SAFI MOHAMMED VS. STATE OF RAJ. (S.B.Criminal Appeal No. 314 of 2004) (2) CHHOTTU KHAN VS. STATE OF RAJ. (S.B.Criminal Appeal No. 416 of 2004) (3) CHAND KHAN VS. STATE OF RAJ. (S.B.Criminal Appeal (Defect) No. 0448 of 2004) Under Section 374 Cr.P.C. against the judgment dated March 9, 2004 of Sessions Judge Jaipur City Jaipur in Sessions Case No. 196 of1992 whereby the appellants were convicted under section 3(1)(c) of the Official Secrets Act, 1923 and sentenced to seven years rigorous imprisonment. Date of Order : May 29 , 2009 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA REPORTABLE Mr. S.R. Surana for the appellant Shafi Mohammed. Mr. M.K.Kaushik for the appellant Chhottu Khan Mr. K.N. Sharma fpr the appellant Chand Khan Mr. Peeyush Kumar, Public Prosecutor for the State. BY THE COURT : These three appeals have been filed by the appellants Shafi Mohammed, Chhottu Khan and Chand Khan against the judgment dated March 9, 2004 of Sessions Judge Jaipur City Jaipur in Sessions Case No. 196 of 1992 whereby the appellants were convicted under section 3(1)(c) of the Official 2 Secrets Act, 1923 and sentenced to seven years rigorous imprisonment. Accused appellant Safi Mohammed was acquitted of the offence under section 5 of the Official Secrets Act. 2. Brief facts of the case are that on March 6, 1990 Bhoormal Jain, Superintendent of Police CID Zone Jodhpur lodged an FIR for the offence under sections 3, 3/9 of the Official Secrets Act read with section 120 B IPC with the Special Police Station Rajasthan Jaipur which is numbered as FIR No. 1/1990. On the basis of the said report after investigation complaint Ex. P/20 was filed before the Chief Judicial Magistrate Jaipur City Jaipur by Dan Chand Sharma (PW.10), wherein it was stated that on March 6,1990 Bhoormal Jain SP CID Zone Jodhpur was informed by an informant that one suspected person was seen going in Air Force Area Jodhpur. After receiving information one Veer Singh Inspector of Police CID was given instructions to keep 3 a vigil on the suspected person. Veer Singh after keeping vigil on suspected person reached Rathi Guest House, Station Road Jodhpur, where suspected person was staying. When Veer Singh asked the name of suspected person he has disclosed his name as Anil Sindhi son of Bhagwandas Sindhi resident of Jamnagar (Gujrat) and he came to Jodhpur for some work of tailoring. Veer Singh further enquired from him regarding Gujrati Language and Hindu religion, but he was not able to explain anything about Gujrati language and Hindu religion. A doubt was created by the suspected person in the mind of Veer Singh. Veer Singh further enquired about his whereabouts then the suspected person disclosed his actual name as Mohammed Isfaq son of Mukram Khan resident of Karanchi (Pakistan). Veer Singh sent the information about the suspected person to Bhoormal Jain, SP CID. On this Bhoormal Jain reached at Rathi Guest House accompanied by N.K.Atrey Deputy 4 Superintendent of Police. They further interrogated the suspected person and searched his baggage. They recovered one bound copy containing five pages. Some writing was there in Urdu language. They also found a small written piece of paper in the bound copy. On tearing the air baggage they found one restricted sheet 45 “A” Phalodi, inside map two papers of bound copy containing sketches of important places of Airforce and also certain notes in Urdu language were also found. Because the recovered documents were secret, in presence of Om Prakash Rathi and Ramdas, the said documents were seized. It was also stated in the complaint that on further enquiry from the suspected person Mohammed Isfaq disclosed that when he was sent by Pak F.I.U. Intelligence Agency to India on Feb. 5, 1990 he came through Pak Post Kekdi and Indian post B.K.D. Bakkhasar with the help of Jawahra Koli of Bakhasar and illegally crossed Boundary and reached Jodhpur and 5 Jethachanana where ASM Safi Mohammed was posted and delivered Rs. 6500 (Indian currency notes) sent by Pak Intelligence to him and asked him about the work done. On this Safi Mohammed informed him that work is yet to be completed and the same would be completed upto 7 and 8 March, 1990. On the basis of aforesaid information Mohd. Isfaq and Safi Mohammed were found to be Pak spies and they have sent the report through special messenger Navnit Kumar, CID Special Zone Jodhpur and the same was received by the Special Police Station SHO, Yadram Tewari, who lodged the FIR and started for Jodhpur for investigation and he went there and arrested Mohammed Isfaq. He further interrogated Mohammed Isfaq then he disclosed that Pak agency asked him to give money to Safi Mohammed, posted as ASM for the information to be supplied to them. Yadram Tewari along with him reached Jetha Chanana and asked Safi Mohammed to call Mohammed Isfaq at his quarter and 6 asked him about the work. He was told that if he stated for completion of work then he may keep his right hand on his head and give signal to them. On this Mohammed Isfaq reached at the Officers quarters of Railway Station Jetha Channa at quarter No. T-4/1967 from west side entrance and called Safi Mohammed. On this Safi Mohammed opened the door and Mohammed Isfaq asked him about completion of work on which he kept his right hand on head. Safi Mohammed was arrested in presence of Umed Singh and Bhoop Singh and his quarter was searched. On searching, south wall of room in the fixed almirah one diary was found. One trace map was also found. All these documents were seized in presence of witnesses. In the complaint it was further stated that on the information given by Mohammed Isfaq the investigating officer for searching Chhotu Khan reached Kuchaman city. Chhotu Khan was arrested and on searching his pant one restricted chart of organisation mountain division 7 Deu Headquarter was found. The same was sealed by the police. During investigation Chhotu Khan revealed about Chand Khan to reach on March 17, 1990 at Bakhasar, who was to be contacted by Jawahara Koli for going back to Pak. On this investigating officer along with staff reached Bakhasar and Dheemaram Vishnoi Dy. SP CID Barmer was also informed. Informant informed that from Ghadhav to Bakhasar Bus some passengers are coming in which one of them is Chand Khan and on receiving signal Chand khan was stopped and he informed that he is resident of Kuchaman City on which he was arrested and on searching his pant one black Purse of Ragjin was recovered. On Opening purse 33 U.S. U through 56 APO, one Newspaper cutting and one belt, and Sanik Samachar of Feb.14, 88 were found. Seized articles were sealed by the police. All these persons entered into a conspiracy for collection and communication of information concerning 8 defence matters which could be prejudicial to the safety or security or interests of the State, which created problem to the peace of Country, hence they were apprehending to be enemy of Indian, were arrested. After detailed investigation the police submitted challan before the Court of Chief Judicial Magistrate under section 3 read with section 9 of the Official Secrets Act and section 120 B IPC. The CJM committed the case to the court of Sessions and the Sessions Judge Jaipur City Jaipur vide order dated July 26, 1994 framed charge under section 3/9 against Mohammed Isfaq, 3/5 against Mohammed Safi, 3/9 against accused Chhotu Khan, 3/9 against accused Chand Khan, and against accused Safi Mohammed under Sections 3/9 & 5 of the Official Secrets Act. The accused appellants denied the same and claimed to be tried. The prosecution examined 33 witnesses and got exhibited some documents thereafter examined accused under sections 313 9 Cr.P.C. In defence one witness Kamruddin was examined as DW.1. After hearing both the sides the learned Sessions Judge convicted and sentenced the accused appellants as indicated above vide judgment dated March 9, 2004. Against this judgment of the Sessions Judge the appellants have filed these three appeals for quashing the judgment of conviction and sentence. 3. M. S.R. Surana, learned counsel for the appellant Shafi Mohammed, placing reliance on the cases of Khudeswar Dutta vs. State of Assam (1998) 4 SCC 492, Ram Ratan vs. State of Punjab (1979 Cr.L.J. 791) Hanuman Das vs. Union of India (2004 (3) RCC 1480, Stya Narayan vs. Union of India (2002 (2) RCC 728, State (NCT of Delhi ) vs. Navjot Sandhu (2005 ) 11 SCC 600, Sans Pal Singh vs. State of Delhi (1999 Cr.L.J. 19) Narsi vs. State of Haryana (1999 Cr.L.J. 271) Mousam Singha Roy and others vs. State of W.B. (2003) 13 10 SCC 377, Lalli vs. State of Rajasthan (2003)12 SCC 666, Aslam Parwez vs. Govt. of NCT of Delhi (2003 Cr.L.J. 2525. Ser Ali vs. State of Rajasthan 1992 RCC 389, and Pratap Singh and another vs. State of M.P. (2005) 13 SCC 624, and contended that the prosecution failed to prove case against the accused appellant beyond reasonable doubt and he has been unnecessarily involved in the case. He has drawn attention of this court on Ex. P/22, P/35. Ex. P.22 was Khana Talasi and seizure memo of restricted documents in the presence of two witnesses Umed Singh and Khoob Singh. The learned counsel contended that out of these two witnesses, one witness was declared hostile and other witness Umed Singh was not produced by the prosecution. The learned counsel argued that the defence witness produced by the defence was not taken into consideration by the trial court and no discussion about him was done in the judgment of the trial court. The trial 11 court erred in law in placing reliance on PW.2 Om Prakash Rathi, who is an independent witness. From his statement it is revealed that Ex. D.3 was recovered on March 6, 1990 at Rathi Guest House and there is no question of recovering Ex. P.22 on March 7, 1990. The learned counsel averred that appellant Safi Mohammed was ASM at Police Station Jetha Chanana and in this connection two witnesses PW.7 Narain Ram and PW.8 Mohan Singh were produced by the prosecution. The prosecution has failed to put any question in relation to quarter of accused appellant from these witnesses. In this manner the prosecution failed to prove the possession of the accused appellant on the quarter from which material was seized. The learned counsel also contended that the trial court erred in relying on documents Ex. P.33 and P.34. The learned counsel argued that in item No. C it is clear that in relation to it, it has been mentioned that this is not part of the airforce range. 12 In relation to Ex. D. 3 no opinion was given. The learned counsel also averred about the material seized was kept in sealed condition or not in the Malkhana. No witness in this respect was examined by the prosecution. The learned counsel argued that the appellant is in no way concerned with the crime and he has been falsely implicated, he should be acquitted. 4. Mr. M.K. Kaushik, learned counsel for the appellant Chhotu Khan and Mr. K.N. Sharma, learned counsel for the appellant Chand Khan reiterated the arguments of Mr. S.R. Surana and further stated that the appellants are in judicial custody for more than 4 years and 2 months and they should be released for the period already undergone by them in the facts and circumstances of the case. 5. On the other hand the learned Public Prosecutor has drawn attention of this court specially on the statements of 13 PW.15, PW.20, PW.33, PW.31, PW.32 and PW.33. The learned Public Prosecutor stated that the trial court after discussing the evidence and the documents recovered from the accused appellants, found the accused appellants guilty for the offences under Sections 3/9 of the Official Secrets Act and the prosecution has been able to prove the case against them beyond reasonable doubt. The accused appellants were Pak spying and one of them was caught in Air Force Area and others who were also related with him in furtherance of the work given by the Pak Agency to them. The trial court rightly convicted them under section 3/9 of the Official Secrets Act. 6. I have heard the learned counsel for the parties and gone through the entire record. 7. The Hon'ble Apex Court in Criminal Appeal No. 899 of 2008 Dalbir Singh vs. State of Haryana held as under : 14 9. Coming to applicability of the principle of falsus in uno falsus in omnibus, even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other co-accused persons, his conviction can be maintained. However, where large number of other persons are accused, the Court has to carefully screen the evidence. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in Indian and the witnesses cannot be branded as liar. 10. The maxim "falsus in uno falsus in omnibus" (false in one thing, false in everything) has not received general acceptance in different jurisdiction in India, nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Alli v. The State of Uttar Pradesh: AIR 1957 SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not 15 lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate the accused who had been acquitted from those who were convicted. (See Gurucharan Singh and another v. State of Punjab: AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead-stop. The witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be shifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sahrab s/s Belli Nayata and another v. The State of Madhya Pradesh: (1972) 3 SCC 751, and Umar Ahir and others v. The State of Bihar: AIR 1965 SC 277). An attempt has to be made to in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only 16 available course to be made is discard the evidence in toto. (See Zwieolae Ariel v. State of Madhya Pradesh: AIR 1954 SC 15; and Balaka Singh and others v. The State of Punjab: AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and another: AIR 1981 SC 1390, normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and these are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorised. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so.” 8. From the above it is clear that principle of “falsus in uno falsus in omnibus,” even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an accused, his conviction can be maintained. However, where large number of other persons are accused, the Court has to carefully screen the evidence. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of 17 particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in Indian and the witnesses cannot be branded as liar. 9. Before proceeding further a brief of the evidence produced by the prosecution is necessary. PW.1 Navneet Kumar son of Bansilal, Costable No.234 CID. Special Zone Jodhpur in his statement stated that on Ex. P.1 'A' to B' is his signature which is 'Karyavahi Police' which is done by him before Inspector Police CID Jaipur Shri Yadram Tewari. PW.2 Om Prakash Rathi son of Faulal. In his statement he stated that he is son of owner of Rathi Guest house where accused stayed. He proved Ex. P.2 and stated that on this he made signatures A to B. Ex.P.3 Map, Ex.P.4, Ex.P.5 and Ex.P.6 were recovered from the accused in his presence. He also stated that Ex. P.7 to Ex. P.14 were cinema tickets recovered from the accused. All these documents were seized and sealed 18 before him and Ramdas Rathi. PW.3 Navnit Kumar son of Hari Singh, Inspector of Police stated that Ex.P.3 Map was recovered from the accused in his presence. Accused was seen moving in Airforce area. PW.4 Jainarain Rathi, is a trader and he attested the document Ex. P.17 arrest memo of accused appellant Mohd. Ishaq. PW.5 Ramdas, one of the partner of Rathi Guest House attested Ex.P.2 and stated that 'E to F' is his signature. He also stated that Ex.P.7 to Ex. P.14 are the cinema tickets recovered from accused Mohd. Isfaq. PW.6 Veer Singh Gehlot in his statement stated that Ex. P.2 was in his handwriting. He also stated that G to H is the signature of N.K. Atrey, who was Dy.S.P. He also stated that Ex. P.3, Ex. P.4 and Ex. P.5 were recovered in his presence. PW.7 Narain Ram was ASM in 1986 to 1990 at Jetha Chanana. He was declared hostile. Mohan Singh was examined as PW.8 he stated that the accused Safi Mohammed was posted as ASM at 19 Jetha Chanana. He was also living in one of the quarter near to the quarter of Safi Mohammed. He was also declared hostile. PW.9 Arvind Mathur testified in his statement about the handing over of sealed envelop to FSL. PW.10 Dan Chand Sharma was posted as Dy. S.P. CID Jaipur. He proved that he filed the complaint No.1/90 (Ex.P.20) which bears his signatures A to B. PW.11 Bhoormal was SP CID Intelligence at Jodhpur he has given the complete description of the complaint and how the accused were arrested. PW.12 Koob Singh was declared hostile. PW.13 Guman Singh was also declared hostile. PW.14 Rameshwar was also declared hostile. PW.15 Daulat Ram was also declared hostile. PW.16 Nand Kishore Atre was Additional SP, at Jodhpur on 6.3.90. He has fully supported the case of the prosecution. PW.17 Ram Singh did not support the case of the prosecution and Public Prosecutor left this witness to be further examined. PW.18 Sher Singh 20 supported the case of the prosecution that in his presence house of Safi Mohammed was searched. But he was also declared hostile. PW.19 Jagdish Chand Addl. S.P. Vigilance Jaipur supported the prosecution case. PW.20 Mahendra Singh Sub Inspector CID Jodhpur supported the case of the prosecution. PW.21 Dr. T.S. Kapur, posted in FSL testified the documents examined by the FSL and the results. PW. 22 Suresh Kumar Sub Inspector Police supported the case of prosecution. PW.23 Ghanshyam was posted as Assistant Jailor at the time when the identification parade of the accused appellants was done in Jail. He fully supported the case of the prosecution. PW.24 Yadram Tewari, SHO Special Police Station Jaipur, fully supported the case of the prosecution. PW.25 Dilip Singh and PW.26 Purkharam did not support the prosecution case. PW.27 Lt. Col. S.K. Sarin, fully supported the case of the prosecution. The other independent witnesses PW.28 to PW.33 21 supported the case of the prosecution. 10. At this stage, extracts of statements of PW. 11 Bhoormal, PW.16 Nand Kishore Atrey, PW.19 Jagdish Chandra Kawat, PW.20 Mahendra Singh, PW.24 Yadram Tewari, PW.27 Lt. Col. S.K. Sarin, are necessary to be reproduced. The same read as under : PW.11 Bhoormal, S.P. CID Intelligence Jodhpur in his statement stated as under : ''बसवाल ͪवशेष लोक अͧभयोजक बयान ͩकया ͩक Ǒदनांक 6.3.90 को मɇ एस.पी. सी.आई.डी. इÛ टेलȣजेÛ स जोधपुर के पद पर तैनात था। मेरे अधीनè थ डी.एस.पी. Įी एन.के.अğे था और इंè पेÈ टर वीरͧसंह भी मेरे अधीनè थ था। मैनɅ इंè पेÈ टर वीरͧसंह को एक संदेहाè पद å यिÈ त के बारे मɅ, जो एयरफोस[ ऐǐरया मɅ होना बताया जाता था, उसके बारे मɅ मालुम करने का कहा था। उस å यिÈ त का नाम बाद मɅ मोह.इसहाक पाͩकè तान Ǔनवासी होना पाया गया था। वह å यिÈ त आज हािजर अदालत मुलिजम मोह.इसहाक है। मɇ इसको पहचानता हूं। इस å यिÈ त को मैनɅ 6.3.90 को करȣब चार बजे के आस पास राठȤ ͪवĮाम गृह जोधपुर मɅ देखा ͩफर कहा ͩक मैनɅ उसको करȣबन आठ बजे के आस पास वहां देखा था। राठȤ ͪवĮाम गृह गया उस समय मेरे साथ डी.एस.पी. एन.के.अğे व è टाफ के कुछ å यिÈ त थे। मैनɅ अͧभयुÈ त मोह.इसहाक से पूछा ͩक आप पाͩकè तान से È यɉ आये हो तो उसने बताया ͩक मैनɅ ͪपछलȣ बार शफȧ मोह., ए.एस.एम. जेठा वानदण को 6500/- ǽपये Ǒदये थे, È यɉͩक उससे एक काम करवाना था, इसͧलये उससे ͧमलने जा रहा हूं। मैनɅ उससे पूछा ͩक आप और ͩकसको भारत मɅ जानते हो तो उसने बताया ͩक मɇ छोटू खां व चांद मोहà मद Ǔनवासी कुचामन ͧसटȣ को जानता हूं।'' PW.16 Nand Kishore Atrey, Addl. S.P. Jodhpur, .in his 22 statement stated as under : ''बसवाल बयान ͩकया ͩक Ǒदनांक 6.3.90 को मɇ सी.आई.डी. जोन जोधपुर राज. मɅ पुͧलस अधी¢क के पद पर काय[रत था। उस Ǒदन पाक नागǐरक मोह.इसहाक, िजसका नाम बाद मɅ मालुम चला था, राठȤ ͪवĮाम गृह, जोधपुर मɅ पकड़ा गया था। िजसको मैनɅ त× कालȣन एस.पी. भूरमल जैन के साथ राठȤ ͪवĮाम गृह मɅ साढ़े आठ बजे सायंकाल पहुंच कर जामा तलाशी मोह.इसहाक कȧ सामान