Case: Rameshwar Singh Vs. State Of Jammu &amp; Kashmir

The relevant facts of the ease necessary for appreciating the two important points relating to the legality of the appellants conviction may briefly bethe morning of October 7, 1967 a football match was being played at the Srinagar Stadium between the Kashmir University 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 P.A.C. (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 P.A.C. 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 thedown 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 accuseds 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/learned Sessions Judge, Srinagar, Qazi Mirajudin, in whose court the appellant was tried for offences under ss. 302 and 307, I.P.C. convicted him for both the offences imposing the sentence of death under s. 302 and rigorous imprisonment for five years under S. 307, I.P.C. Charges under S. 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 p.m. The charge under S. 307, I.P.C; related to the injuries caused to P. W. Abdul Ghaniappeal, the High Court which had before it also the considered 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 (U.P. P.A.C.). , 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 appellants 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.

Reasoning:
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 appellants 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 appellants 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 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 formers 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 witnesses.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 (Ex. P-1) at 11-30 a.m. at the police station only about 200 feet away from theHigh Court was clearly in error in taking into consideration the contents of the statement recorded under s. 161, Cr. P.C. during the course of investigation for the purpose of finding corroboration of the statements made incourt.Once this part of the reasoning of the High Court is eliminated all that is left is the statement of Abdul Ghani Sheikh in court and his report Ex. 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 culprits 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 Ex. P-1 to corroborate it, is far too slender a piece of evidence to base the appellants conviction thereon. So, Abdul Ghani Sheikhs 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 P.Ws. Abdul Hamid and Noor Mohammed Sheikh. This is what the High Courtevidence 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 very date of occurence when they said that they heard his three companions shouting at him "Ramesh what are you doing, dont be mad, you will be involved." Ghulam Nabi Mir, S.I. P.W. 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 otheragain, 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. S.H.O., the appellants 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 appellants 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 (P.W. 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 P.A.C. 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 P.A.C. 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 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 P.A.C. 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, Ex. P-1. Noor Hussain has also stated that three young men of the appellants 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 s. 161, Cr. P.C. 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 (D.W. 2) who was again examined in the High Court that an informal identification parade of all the constables belonging to U.P. (P.A.C.) 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 identificationsignificant fact, however, which casts serious doubt on the truth of the story of disclosure of the appellants name to the police on October 7, is the admitted omission by Ch. Ghulam Nabi Mir, S.H.O. 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 P.A.C. men on the 8th and 9th October. Such investigation can scarcely inspire confidence.