Case Type: Criminal Supreme Court Of India Criminal Appellate Jurisdiction
Case No: Appeal No. 1954 Of 2009
Decided On: 17 April, 2013
Apellant: Safi Mohd.
Respondent: State Of Rajasthan
Bench: Chandramauli Kr. Prasad, V. Gopala Gowda
Statutes Referred:
The Constitution Of India 1949
Section 3 in The Official Secrets Act, 1923
Section 45 in The Indian Evidence Act, 1872
Section 3 in The Indian Evidence Act, 1872
Section 9 in The Indian Evidence Act,
Cases Referred:
Against The Judgment & Decree In Os … vs By Adv. Sri.T.Krishnan Unni (Sr.) on 31 March, 2005
High Court Of Karnataka vs Syed Muneeruddin Mulla on 17 December, 2014
High Court Of Karnataka vs Izher Baig on 17 December, 2014
High Court Of Karnataka vs Syed Mohammed Ibrahim on 17 December, 2014
Fogia vs State Of Rajasthan And Anr. on 21 September, 20
Facts:
On March 6th , 1990, Bhoormal Jain, who was then Superintendent of Police CID Zone, Jodhpur lodged an FIR for the offences punishable under Sections 3, 3/9 of the Act read with Section 120-B IPC with the Special police headquarters Rajasthan, Jaipur numbered as FIR No.1/1990 against the accused Mohd. Ishfaq who was found roaming in suspicious circumstances within the Air Force Area and was arrested on 07.03.1990.
Upon his interrogation, he stated that the appellant Safi Mohd. Wont to supply secret information to the Pakistani Intelligence and had handed over Rs.6500/- to him for working for Pak intelligence. Dated 08.03.1990, the appellant was arrested from his Railway Quarters by the CID Police and on his house being searched, a blue colored diary of the year 1982 and a trace map Ex.D-3 were imagined to are recovered.
After that, on further disclosure by the accused No.1, accused No. 3 – Chotu Khan and accused No. 4 – Chand Khan were arrested. On 12.04.1990, the opposite accused Mohd. Safi, Accused No.5, was also arrested. The documents recovered from the accused were sent to the Air Force Officers for his or her opinion, who informed that the said documents were useful to enemy country and affect the safety of India.
After the investigation got completed of the case the charge-sheet was filed before the committal court by the Investigating Officer.
Issues Involved:
Did High Court committed serious error in not drawing adverse inference for non-examination of the seizure witnesses in the peculiar facts and circumstances of the case?
Observations/Obiter Dicta:
The learned counsel has placed reliance upon the judgment of this court in the case of State of Himachal Pradesh Vs. Jai Lal and Ors. And also another judgment of this court in Ramesh Chandra Agarwal Vs. Regency Hospital Limited [5] in support of the legal contention that the above said witnesses viz. PW-27 and PW-32 are not expert witnesses to render their expert opinion on Ex.-D3. The relevant paragraphs of the judgment of State of Himachal Pradesh Vs. Jai Lal and Ors.’ case (supra) are extracted hereunder:
. An expert witness is one who has made the subject upon which he speaks a matter of particular study, practice, or observation; and he must have a special knowledge of the subject. Shri P.C. Panwar in his evidence has stated that he passed B.Sc. (Agriculture) Honours from the University of Delhi in 1959; thereafter he did his M.Sc. (Horticulture) in 1967 from Punjab University.
He joined the Agricultural Department in the year 1969 as a Research Assistant; he was promoted as Horticulture Development Officer in the year 1973 and at the time of the assessment he was working as District Horticulture Officer, Shimla. He has also stated that in the year 1986 he attended a 3 months’ training course on apple technology in the University of Tasmania, Australia.
The assessment in the orchards in question were made on different dates in November 1984. He has fairly accepted the suggestion that he had not received any training with respect to assessment of apple crop but that has been a part of his job. The witness could not state the number of scab cases in which he had been called upon to make assessment.
He has specifically stated in the case against Jai Lal and others that that was his first and last assignment till date as a commission for assessing productivity of an apple orchard.
Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts.
Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.
An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criterion to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case.
The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.” Further, on the subject, this Court, in Ramesh Chandra Agrawal’s case (supra) held as under:
It is not the province of the expert to act as Judge or Jury. It is stated in Titli v. Alfred Robert Jones that the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials.”
In view of the decision in State of Himachal Pradesh Vs. Jai Lal and Ors. (supra) both the witnesses PW-27 and PW-32 do not fulfil three criteria held to be necessary for considering a person expert.
Rationale:
The learned prosecutor has rightly placed reliance on the choice of this Court in Sama Alana Abdulla Vs. State of Gujarat. Within the said decision this court lays down the judicial principle that merely because the police witnesses have spoken about the search and therefore the seizure of documents from the custody of the appellant, their version can’t be disbelieved because the independent witnesses haven’t supported the search and therefore the seizure of the documents.
The observations made by this Court within the above referred case are applied to the facts of the case in hand to simply accept the proof of search and seizure of the documents from the house of the appellant which are vital and sensitive for the integrity and security of the state.
The said conclusions received by the learned sessions judge and concurrence of an equivalent by the supreme court can’t be termed as erroneous in law as contended by learned counsel on behalf of the appellant. Therefore, the finding recorded by both the courts below regarding search and seizure of the documents which affect the integrity and security of the country is that the concurrent finding of fact rightly recorded by the supreme court after proper appreciation and appraisal of the evidence on record.
An equivalent can’t be interfered with by this Court in exercise of its jurisdiction. Albeit the search is formed by the Investigating Officer in illegal manner, an equivalent doesn’t affect the legality of the search and investigation made by the Investigating Officer with reference to the seizure of the documents from the house of the appellant in sight of the law laid down by this Court within the above case.
From the evidence produced by the prosecution within the case in hand, it’s clear that the documents of strategic importance to the state are recovered from the possession of the appellant and other accused and that they have did not give satisfactory explanation about the documents being in their possession.
Judgement:
The contentions urged by the learned counsel on behalf of the appellant that PW-27 and PW-32 are not expert witnesses in terms of Section 45 of the Evidence Act by placing reliance upon the decisions of this Court referred to supra are mis-placed and they do not support the case of defence for the reason that the learned sessions judge after careful scrutiny of the ocular evidence and the written submission has rightly come to the correct conclusion about the said document seized from the appellant.
The said finding and reasons recorded by the learned sessions judge in his judgment on the charge framed against the appellant has been re-examined by the High Court by applying its mind consciously and concurred with the said finding of fact by assigning valid reasons.
Therefore, the same cannot be termed erroneous in law on the grounds urged by the learned counsel for the appellant and interfered with by this Court in exercise of its jurisdiction by placing reliance upon the decision of this Court referred to supra as they are mis-placed and do not support the case of the appellant.
In our considered view both the learned sessions judge and the High Court, on proper appreciation and re-appreciation of evidence on record, after considering the arguments advanced on behalf of the defence have arrived at the correct conclusion. The High Court has carefully considered the arguments advanced on behalf of the appellant and recorded its findings on the charge with reasons.
Conclusion:
For the foregoing reasons, the court is of the view that this is often not a fit case for our interference with the impugned judgment having reference to the character of charges made against the appellant under Sections 3, 9 and 5 of the Act as he’s found to be guilty alongside other accused persons and rightly convicted and sentenced them for seven years rigorous imprisonment.
The appeal is barren of merit and is susceptible to be dismissed and is accordingly dismissed.
Prepared by Anushka Choudhary