TMI Blog1971 (9) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... niversity 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 Kashmiris on the one side and Punjabis 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 fligh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/1) 2. The learned Sessions Judge, Srinagar, Qazi Mirajudin, in whose court the appellant was tried for offences under Sections 302 and 307, I.P.C. convicted him for both the offences imposing the sentence of death under Section 302 and rigorous imprisonment for five years under Section 307, I.P.C. 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, 1 967 at 5-50 p.m. The charge under Section 307, I.P.C. related to the injuries caused to P. W. Abdul Ghani Sheikh. 3. On appeal, the High Court which had before it also the murder reference for confirmation of the death sentence, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 the accused earlier. The accused, according to him, was not putting on a helmet and had also grown a beard when seen in court though at the time 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, S.R.O., 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 S.H.O. was recorded near the Stadium gate at the 'T-chowk' which means the police-beat where three roads meet. On this report witness endorsed a note to the thana for drawing up F.I.R. Chaudhri Ghulam Nabi Mir has also stated in cross-examination that he recorded the statements of the prosecution witnes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 immediately 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 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 statements before the police soon after the FIR was lodged. In fact the statements of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. 10. 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 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 tangible 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 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. 11. In the opinion of the High Court the evidence of Abdul Ghani Sheikh and of Noor Hu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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