Jammu & Kashmir High Court
State vs Abdul Salam Bhat on 20 May, 2003
Equivalent citations: 2003CRILJ4578, 2003(3)JKJ120
JUDGMENT Syed Bashir-ud-din, J.
1. Appellant was tried on committal by District & Session Judge, Anantnag on charges framed Under Sections 467, 468, 471 and 420 RPC, after the accused pleaded not guilty. During trial prosecution has examined as many as seven witnesses and has lead other documentary evidence. At the close of prosecution evidence, accused whose statement under Section 342 Cr. P.C. was recorded, again pleaded not guilty and has not tendered any evidence in defence. The Session Judge recorded an order of acquittal vide his judgment dated 31.3.1999.
2. The case has its roots to a communication addressed by Kashmir University students union to crime Branch alleging that the accused respondent with another person Gh. Hassan Dar, both serving as lecturers in school Education Department, in connivance with the university authorities are engaged in a fake certificate scandal. They have got promotions as lecturers and are benefited on the basis of fake certificate of having qualified the examination of M.Sc. in Session 1986. However, Gh. Hassan Dar was left out by the Investigating agency on the basis that during investigation no sufficient evidence and material was found against him to sustain the charge. The respondent-accused Abdul Salam Bhat lecturer in Govt. Hr. Secondary School Ashimuqam was stated to have got promotion as such lecturer on the basis of fake M.Sc. certificate bearing Roll No. 7 of Session 1986 when no such Roll No. was allotted to any candidate of the faculty. Challan was filed and/produced against him before Chief Judicial Magistrate, Anantnag who committed him to session followed by trial as stated above.
3. The counsel for the appellant submits that the judgment and order of acquittal on dismissing the prosecution case is not based on proper appreciation of the evidence. There is inculpating evidence against the accused. Having regard to the gravity and ramifications of the alleged offences, the matter ought to have been examined with care and caution and the evidence ought to have been sifted and appreciated in proper perspective.
4. Learned counsel for the respondents, while countering the submissions made in support of appeal, focuses on the question that/there is no direct circumstantial or other evidence to connect the accused with the alleged fabrication and manipulation of the certificate which is alleged to have been used to benefit the accused by getting promotion as lecturer. The accused has not been conferred any benefit under such certificate. The University has not forth-come to show that the certificate in question was fabricated. Appellant is M.Sc. and has qualified such examination. Even the FIR has not been proved. The relevant record to show that certificate as alleged is fabricated has not been at all produced in court. After all the accused cannot be convicted on assumptions and suspicion, howsoever, strong it may be.
5. We have perused the record and considered the matter. We find that the FIR has not been proved as a piece of substantive evidence in the case. The accused by an order dated 12.4.1993 of the Govt. where he figures at S. No. 8 is adjusted as In-charge lecturer in his own pay and grade initially for a period of six months or till the post is filled up by the Departmental Promotion Committee or Public Service Commission, whichever is earlier. Obviously order does not confer any extra monetary benefit on him. It cannot be construed at all a promotion. The appointment of accused as teacher is neither questioned nor disputed nor qualification of the accused for that post is under challenge. The accused reported to be post-graduate in faculty of Science (physics) is not proved to have been regular student of Session/Batch 1986. No record to that end has been produced in court. Primarily burden of proof is on prosecution to bring home guilt to be accused, notwithstanding shifting of onus of proof during trial. The suspicion, howsoever, strong it may be cannot take place of 'proof beyond reasonable doubt'. The on record evidence in this case is not having so much of "cutting edge as to penetrate the fortress of innocence built" round the accused in criminal jurisprudence."
6. In Sharad Birdhichand Sarda v. State of Maharastra, AIR 1984 SC 1622, it is observed:
"That suspicion however great, cannot take place of legal proof and that "Fouler the crime higher the proof."
7. We find justification for on record statement of the Session Judge that the University officials whose connivance is complained in the FIR, have been left out of the investigations and this aspect of the case has not been at all investigated. Notwithstanding that the genuineness of the marks certificate alleged to be produced by the accused is questioned the record of the university thereto to support the prosecution case has not been at all seized or tendered in evidence before the trial court. This is all the more so as this aspect of the matter would have clinched the issue whether petitioner-appellant alleged to be student of batch 1986, did pass the M. Sc. examination in Session June, 1988 or not. Even expert opinion with regard to handwriting on the alleged forged marks certificate and that of the accused or any other University official has not been procured/tendered in evidence. Leaving out the co-accused Gh. Hassan Dar on the specious plea that material/evidence under Section 169 Cr. P.C. has not been found to connect him and to stand the trial, when on the very evidence and material the appellant-accused has been send up for trial before court of law, casts heavy shadow of doubt on the very veracity and truthfulness of the prosecution case.
8. In Sharad Birdhichand Sarda case AIR 1984 SC 1622 the following observation of the court applies on all fours to this case.
"....that the cordinal principle of criminal jurisprudence is that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction...."
9. In result, we find no merit in this appeal, which is accordingly dismissed.