Rameshwar Singh Vs. State of Jammu
& Kashmir  INSC 237 (7 September 1971)
ROY, SUBIMAL CHANDRA
CITATION: 1972 AIR 102 1972 SCR (1) 627 1971
SCC (2) 715
RF 1988 SC 345 (10)
Criminal Trial-Accused not known to
witnesses-No identification parade or description of accused in F.I.R.- Weight
of Identification in Court.
Code of Criminal Procedure (Act 5 of 1898),
ss. 161 and 162 Statements to police during investigation-Use of.
The appellant 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.
(1)The 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
F.I.Rshowed that he did not give any description of the person who was alleged
:to have fired the shots. Nor did he state in the F.I.R. that he knew the
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 F.L.R. to corroborate it, is far too slender a
piece of evidence to support the' appellant's conviction. [631 F; 633 B-E; 635
D, F] (2)Some of.the 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 F.I.R. The High Court was in error in taking into-
consideration the contents of the statements recorded under s. 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. If. 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
[634 D; 636 C-D]
CRIMINAL APPELLATE JURISDICTION: Criminal 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
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 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
"....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 ss.
302 and 307, I.P.C. convicted him for both
the offences imposing 630 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 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 (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
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
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 ss. 161 and 162, Cr. P.C. and
the admissibility at the trial of the statements made by some of 'the witnesses
to the police during investigation under S.
161, Cr. P.C. 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
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
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 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 P.A.C. 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 P.A.C. 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 P.A.C. 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
P.A.C. Sardar and a B.S.F. Jawan with three P.A.C. 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, 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 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 pro- secution
witnesses during investigation under S. 161, Cr. P.C. 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 Ex. 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 Ex. 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 Ex. P-1 which was the first information
given by him to the police and on which the- investigation started; nor did he
state in Ex. 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 Ex. 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 s. 162, Cr. P.C. 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 S. 161, Cr. PC. because- the High Court seems to have
taken into consideration not only the statement of this witness under s. 161,
Cr. P.C. 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
s. 161, Cr. P.C. during the course of investigation for the purpose of finding
corroboration of the statements made in court. Section 162, Cr. P.C. 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 Indian Evidence
Act, 1872 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 Indian Evidence Act, 1872, 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 s. 162, Cr. P.C. 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 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 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 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 P.Ws. 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, 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 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. S.H.O., 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 (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 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 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
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 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
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 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,
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.
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
s. 161, Cr. P.C. 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
V.P.S. Appeal allowed..