State Of Jammu & Kashmir vs Ichpal Singh S/O Shri Janak Singh on 9 October, 2023

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Jammu & Kashmir High Court

State Of Jammu & Kashmir vs Ichpal Singh S/O Shri Janak Singh on 9 October, 2023

1. The State of Jammu & Kashmir (now UT of J&K) is in appeal against the judgment of acquittal dated 10.04.2015 passed by the Principal Sessions Judge, Jammu [„the trial Court"] in file No.3/Sessions titled State v. Ichapal Singh and another, whereby the trial Court has acquitted the respondents of the charge under Section 302 RPC.

2. Before we advert to the grounds of challenge urged by Ms. Monika Kohli, Sr. AAG appearing for the respondents, we deem it appropriate to take note of the prosecution story.

3. Prosecution story in brief goes like this that in pursuance of criminal conspiracy, on the intervening night of 1 st/2nd June, 1999, the respondents arrested deceased-Mohd. Ayub Dar along with his brother-Shabir Ahmed Dar. Both were kept in police custody. Mohd. Ayub Dar was interrogated and tortured to death. The further allegation is that with a view to hide the crime, respondent- Ichapal Singh fired gunshots on the dead body of deceased-Mohd. Ayub Dar and gave it a colour of an encounter. Respondent- Ichapal Singh even fired a shot at his leg to show that he too was injured in the encounter. FIR No.34/1999 was registered at Police Station, Charar-e-Sharief under Section 307 RPC and 4/25 Arms Act. There is further allegation that Waris Shah helped the respondents to cover up the crime committed by them by filing the aforementioned false FIR.

4. It seems that on the intervention made by the Human Rights Commission and publicity of the incident in local newspapers, FIR No.77/2003 under Section 302 RPC against the respondents and said Waris Shah was registered with the Crime Branch, Srinagar. The investigation was conducted by the Crime Branch and the case was held proved against the respondents herein and Waris Shah. However, later on Waris Shah turned approver and became a prosecution witness.

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5. The trial Court charged the respondents for commission of offence under Section 302 RPC. The respondents denied the charge and claimed to be tried. The prosecution, with a view to proving its case, examined PW-1 Waris Shah, PW-2 Ghulam Nabi Sheikh, PW-3 Nazir Ahmed Dar, PW-4 Gulam Mohd. Dar, PW-5 Bashir Ahmed Dar , PW-6 Dr. Bashir Ahmed Mir, PW-7 Ghulam Geelani Bhat, PW-8 Ghulam Ahmed Dar, PW-9 Javed Iqbal Matoo, PW-10 Nissar Hussain and PW-11 Shabir Ahmed Dar. On the conclusion of the prosecution evidence, incriminating circumstances appearing in the prosecution evidence were put to the respondents and their statements under Section 342 Cr.P.C. were recorded. The respondents denied all the allegations levelled by the prosecution but opted not to lead any evidence in defence. The trial Court considered the rival contentions and evidence on record and came to the conclusion that the prosecution had failed to bring home the charge against the respondents for the offence under Section 302 RPC. As a result, the trial Court acquitted both the respondents of the charge under Section 302 RPC vide judgment of acquittal recorded on 10.04.2015.

6. It is this judgment of the trial Court which is assailed before us by the appellant on the ground that the trial Court has not appreciated the evidence on record in correct perspective and has given too much weightage to minor contradictions appearing in the statements of prosecution witnesses. The trial Court was influenced by the only fact that the real brother of the deceased, namely, 3 CrlA(AD) No.3/2022 Shabir Ahmad Dar-PW-11, who was allegedly present when the deceased was tortured to death did not support the prosecution version.

7. Ms. Monika Kohli, learned Sr. AAG argues that the trial Court ought to have considered other evidence on record, particularly, statement of the approver, namely Waris Shah corroborated by other evidence, in particular, medical evidence. She, therefore, submits that the evidence on record was sufficient to connect both the respondents with the commission of murder of the deceased Mohd. Ayub Dar.

8. Per contra, Mr. Anil Sethi, learned counsel appearing for the respondents, submits that neither approver-Waris Shah nor the only eye witness i.e. PW-Shabir Ahmed Dar has supported the prosecution case. He submits that there was no independent evidence or witness, who was believable and could have been relied upon by the trial Court to connect the respondents with the commission of the offence.

9. Having heard learned counsel for the parties and perused the material on record, we are of the considered opinion that the view taken by the trial Court is correct in the face of evidence on record and, therefore, unexceptionable.

10. PW-1 Waris Shah, one of the accused, who later on turned approver, in his deposition stated that in the year 1997 he was posted in SOG, Budgam and was made Incharge of SOG 4 CrlA(AD) No.3/2022 Pakkarpura Camp. The respondent-Ichpal Singh was also posted under him. He states that on morning of 1st June, 1999 at 10 am respondent-Ichpal Singh and four other jawan conducted an operation to apprehend one Gulshan, a terrorist. The operation was conducted along with CRPF and BSF. He deposed that the respondent-Ichpal Singh came to him at 1.30 am and informed that he got two brothers of Gulshan arrested, who were to be kept in the camp for night. He also sought permission to keep said persons in the Camp. He further states that at 2.30 am, respondent-Ichpal Singh came to him again and informed that one of the arrested pesons, namely Ayub brother of Gulshan, the terrorist, was interrogated by him but was not speaking now. The witness claims that he went to the room where both brothers were kept and saw dead body of Ayub on the floor and other brother i.e. PW-11, Shabir Ahmed Dar sitting beside him. SPO Gurmeet Singh was also present in the room. Witness states that he asked the respondent- Ichpal Singh as to why he had interrogated the deceased without asking him. He also claims to have told the respondent-Ichpal Singh to take the deceased to Camp and inform SP Operation and SSP about the happening. He states that 15/20 minute after Ichpal Singh had left, they heard sound of firing and was informed by Ichpal Singh on wireless that firing had taken place. He immediately went to the Police Station, Charar-e-Sharief where he saw that respondent-Ichpal Singh had fired gun shots on the body of Ayub Dar. The vehicle did not bear any marks of shooting and 5 CrlA(AD) No.3/2022 nobody else was injured in the firing. He informed the S.H.O., Charar-e-Sharief and handed over the dead body to him. He took the respondent-Ichpal Singh with him and informed the SP Operation-Ashiq Hussain Bukhari. The witness further deposes that while coming back from Chadoora, respondent-Ichpal Singh fired and injured his own leg. On the next date, SP Operation and SSP Budgam told him to get a FIR registered of an encounter and on this direction, he filed FIR of encounter.

11. In cross-examination, PW-1 Waris Shah deposes that he had not seen Ichpal Singh beating Ayub Dar to death or Ichpal Singh inflicting gunshot wounds on dead body of Ayub Dar. This witness, who has definitely deposed something incriminating, was not believed by the trial Court on the ground that he could not be termed as approver for the simple reason that in his entire deposition he has nowhere ascribed any role to himself in the commission of the crime. The trial Court has further not believed the statement of PW- Waris Shah, for, in cross-examination, he has clearly stated that he was not an eye witness to beating of Ayub Dar to death by the respondent-Ichapal Singh. He has also denied having seen the respondent-Ichpal Singh inflicting any gunshot wounds on the dead body of Ayub Dar. The reasoning given by the trial Court to discredit the testimony of PW-Waris Shah is cogent and supported by statement of PW-Shabir Ahmed Dar. It has come in the deposition of PW-Waris Shah that when he went to the Cell he saw dead body of Ayub Dar and his brother was sitting 6 CrlA(AD) No.3/2022 beside him, whereas brother of the deceased has denied having seen any occurrence involving the respondents in the killing of his real brother-Ayub Dar.

12. Otherwise also, an approver is an accomplice in theory and is someone who voluntarily assists and cooperates with others in committing crime. He is referred to as particeps criminis, or an active participant in crime. In Mahadeo v. King, the Privy Council confirmed that the requirement that evidence of approver ought to be corroborated with independent evidence is essentially a rule of law rather than rule of practice. The statement of approver has typically been viewed with suspicion by the Courts because he is generally regarded as a person of low morals and not entirely trustworthy who is willing to let down his former accomplices to gain his pardon. Viewed thus, before a testimony of an approver may be used as evidence to record a conviction of an accused person, it must be supported by direct or circumstantial evidence. Hon‟ble Supreme Court in recent judgment of Somasundaram @ Somu v. State represented by Deputy Commissioner of Police, (2020) 7 SCC 722 has in para 71 to 80 discussed and summarized the entire law on the issue. Paragraph Nos. 71 to 80 of the aforesaid judgment are reproduced hereunder:-

"ACCOMPLICE EVIDENCE

71. Section 133 of the Evidence Act declares that an accomplice is a competent witness and further that a conviction based on the uncorroborated testimony of an accomplice is not illegal only on account of it being so. Section 133 reads as follows:

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"133. Accomplice.- An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."

72. It is apposite to notice Section 114 of the Evidence Act, Illustration „b‟, the Court may presume:

"(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars."

73. Thus, there appears to be a contradiction between these provisions. The matter is no longer res integra. We may notice the following statement of the law contained in an early judgment of this Court reported in Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637:

"7. It is hardly necessary to deal at length with the true legal position in this matter. An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence.

It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true.

But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered.

In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This test is special to the cases of weak or 8 CrlA(AD) No.3/2022 tainted evidence like that of the approver." (Emphasis supplied)

74. We may profitably also refer to the views expressed in Haroom Haji Abdulla v. State of Maharashtra1AIR 1968 SC 832:

"8..... The law as to accomplice evidence is well settled. The Evidence Act in 19 AIR (1968) SC 832 Section 133 provides that an accomplice is a competent witness against an accused person and that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The effect of this provision is that the court trying an accused may legally convict him on the single evidence, of an accomplice. To this there is a rider in Illustration (b) to Section 114 of the Act which provides that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. This cautionary provision incorporates a rule of prudence because an accomplice, who betrays his associates, is not a fair witness and it is possible that he may, to please the prosecution, weave false details into those which are true and his whole story appearing true, there may be no means at hand to sever the false from that which is true. It is for this reason that courts, before they act on accomplice evidence, insist on corroboration in material respects as to the offence itself and also implicating in some satisfactory way, however small, each accused named by the accomplice. In this way the commission of the offence is confirmed by some competent evidence other than the single or unconfirmed testimony of the accomplice and the inclusion by the accomplice of an innocent person is defeated. This rule of caution or prudence has become so ingrained in the consideration of accomplice evidence as to have almost the standing of a rule of law." (Emphasis supplied)

75. The dichotomy between the mandate of Section 133 and illustration (b) to Section 114, of the Evidence Act has been explained as follows in Sheshanna Bhumanna Yadav v. State of Maharashtra (1970) 2 SCC 122:

"12. The law with regard to appreciation of approver's evidence is based on the effect of Sections 133 and 114, illustration (b) of the Evidence Act, namely, that an accomplice is competent to depose but as a rule of caution it will be unsafe to convict upon his testimony alone. The warning of the danger of convicting on uncorroborated evidence is therefore given when the evidence is that of an accomplice. The primary meaning of accomplice is any party to the crime charged and someone who aids and abets the commission of crime. The nature of corroboration is that it is confirmatory evidence and it may consist of the evidence of second witness or of circumstances like the conduct of the person against whom it is required.Corroboration must connect or tend to connect the accused with the crime.

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When it is said that the corroborative evidence must implicate the accused in material particulars it means that it is not enough that a piece of evidence tends to confirm the truth of a part of the testimony to be corroborated. That evidence must confirm that part of the testimony which suggests that the crime was committed by the accused. If a witness says that the accused and he stole the sheep and he put the skins in a certain place, the discovery of the skins in that place would not corroborate the evidence of the witness as against the accused. But if the skins were found in the accused's house, this would corroborate because it would tend to confirm the statement that the accused had some hand in the theft."

(Emphasis supplied)

76. We may finally advert to a recent pronouncement of this Court in K. Hashim v. State of Tamil Nadu (2005) 1 SCC 237:

"38. First, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. As Lord Reading says:

"Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case; it would be merely confirmatory of other and independent testimony."

(Baskerville case [(1916) 21 (2005) 1 SCC 237 2 KB 658 : (1916-17) All ER Rep 38 (CA)] , All ER p. 42 B- C)

39. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it.

40. Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. This does not mean that the corroboration as to identification must extend to all the circumstances necessary to identify the accused with the offence. Again, all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness's story that the accused was the one, or among those, who committed the offence. The reason for this part of the rule is that:

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"A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all.... It would not at all tend to show that the party- accused participated in it."

41. Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal. I say this because it was contended that the mother in this case was not an independent source.

42. Fourthly, the corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime. Were it otherwise, "many crimes which are usually committed between accomplices in secret, such as incest, offences with females" (or unnatural offences) "could never be brought to justice". (See M.O. Shamsudhin v. State of Kerala [(1995) 3 SCC 351 : 1995 SCC (Cri) 509].)"

(Emphasis supplied)

77. To summarize, by way of culling out the principles which emerge on a conspectus of the aforesaid decisions, we would hold as follows: the combined result of Sections 133 read with illustration (b) to Section 114 of Evidence Act is that the Courts have evolved, as a rule of prudence, the requirement that it would be unsafe to convict an accused solely based on uncorroborated testimony of an accomplice. The corroboration must be in relation to the material particulars of the testimony of an accomplice. It is clear that an accomplice would be familiar with the general outline of the crime as he would be one who has participated in the same and therefore, indeed, be familiar with the matter in general terms. The connecting link between a particular accused and the crime, is where corroboration of the testimony of an accomplice would assume crucial significance. The evidence of an accomplice must point to the involvement of a particular accused. It would, no doubt, be sufficient, if his testimony in conjunction with other relevant evidence unmistakably makes out the case for convicting an accused.

78. As laid down by this Court, every material circumstance against the accused need not be independently confirmed. Corroboration must be such that it renders the testimony of the approver believable in the facts and circumstances of each case. The testimony of one accomplice cannot be, ordinarily, be supported by the testimony of another approver. We have used 11 CrlA(AD) No.3/2022 the word „ordinarily‟ inspired by the statement of the law in paragraph-4 in K. Hashim (supra) wherein in this Court, did contemplate special and extraordinary cases where the principle embedded in Section 133 would literally apply. In other words, in the common run of cases, the rule of prudence which has evolved into a principle of law is that an accomplice, to be believed, he must be corroborated in material particulars of his testimony. The evidence which is used to corroborate an accomplice need not be a direct evidence and can be in the form of circumstantial evidence.

ACCOMPLICE AND APPROVER 79 . An accomplice is in many cases, pardoned and he becomes what is known as an approver. An elaborate procedure for making a person an approver, has been set out in Section 306 of the CrPC. Briefly, the person is proposed as an approver. The exercise is undertaken before the competent Magistrate. His evidence is recorded. He receives pardon in exchange for the undertaking that he will give an unvarnished version of the events in which he is a participant in the crime. He would expose himself to proceedings under Section 308 CrPC. Section 308 contemplates that if such person has not complied with the condition on which the tender of pardon was given either by willfully concealing anything essential or by giving false evidence, he can be put on trial for the offence in respect to which the pardon was so tendered or for anyother offence of which he appears to be a guilty in connection with the same matters. This is besides the liability to be proceeded against for the offence of perjury. Sub-section (2) of Section 308 declares that any statement which is given by the person accepting the tender of pardon and recorded under Section 164 and Section 306 can be used against him as evidence in the trial under Section 308(1) of the CrPC.

80. An accomplice or an approver are competent witnesses. An approver is an accomplice, who has received pardon within the meaning of Section 306. We would hold, that as between an accomplice and an approver, the latter would be more beholden to the version he has given having regard to the adverse consequences which await him as spelt out in Section 308 of the CrPC. as explained by us. It is also settled principle that the competency of an accomplice is not impaired, though, he could have been tried jointly with the accused and instead of so being tried, he has been made a witness for the prosecution. [See the judgment of this Court reported in Chandran and Others v. State of Kerala, (2011) 5 SCC 161].".

In view of clear legal position explained in the judgment, the trial Court rightly discarded the testimony of approver-Waris Shah.

13. The only eye witness cited by the prosecution i.e. PW-11 Shabir Ahmed Dar has virtually destroyed the testimony of Waris Shah. 12 CrlA(AD) No.3/2022 The other witnesses like PW-2 Ghulam Nabi Sheikh, PW-3 Nazir Ahmed Dar, PW-4 Ghulam Mohd. Dar, PW-5 Bashir Ahmed Dar, PW-7, Ghulam Geelani Bhat, PW-8, Ghulam Ahmed Dar have all not supported the prosecution version. There is, thus, no credible evidence on record to show that respondent No.1 with the help of respondent No.2 killed the deceased Mohd. Ayub Dar in the camp and thereafter fired gunshot upon him to give it a colour of an encounter.

14. As has come in the statement of Waris Shah, that the respondent-

Ichpal Singh had fired himself in the leg, we, however, could not find any evidence on record to show that the respondent-Ichpal Singh was ever injured nor there is any statement of any medical officer in this regard on record. As a matter of fact, this aspect of the matter has not been examined.

15. That apart, statements of most of the witnesses have been recorded after more than four years of the occurrence without there being any explanation coming forth from the prosecution. The prosecution has, thus, not even connected the gun belonging to the respondent-Ichpal Singh from which the gunshots were allegedly fired with the bullets, if any, found on the dead body of the deceased. As a matter of fact, investigation was conducted after almost four years of the occurrence, therefore, most of the evidence had washed away. It has amply come on record that none of the witness cited by the prosecution knew the respondents earlier and, therefore, in these circumstances their identification could have 13 CrlA(AD) No.3/2022 been ascertained only by resorting to test identification parade. In the instant case, no test identification parade was ever conducted.

16. Having regard to all the facts and nature of evidence that has come on record, we are of the view that the trial Court could not have taken a view other than the one taken by it. Otherwise also, interference by the Appellate Court in the judgment of acquittal is well circumscribed. Even if, on evaluation of evidence, the Appellate Court is of the opinion that two views are possible, it will prefer to take the view that favours the accused. It is cardinal principle of the criminal jurisprudence that the accused is presumed to be innocent till proved guilty and this presumption gets doubled with the acquittal by the trial Court.

17. For the foregoing reasons, we do not find any merit in this appeal, the same is, accordingly, dismissed.

                                        (Mohan Lal)         (Sanjeev Kumar)
                                          Judge                  Judge
Jammu:
09.10.2023
Vinod, PS

                    Whether the order is speaking: Yes
                    Whether the order is reportable: Yes




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