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Page 1 CrlA (AS) no.11/2020
HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR …… CrlA (AS) no.11/2020
Reserved on: 06.02.2025 Pronounced on: 18.04.2025 State of J&K through SSP VOK, Srinagar …….Appellant(s)
Through: Mr Jahingeer Ahmad Dar, GA
Versus
Mohammad Ismail Gojri ……Respondent(s)
Through: Mr Wajid Haseeb, Advocate
CORAM: HON’BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
This Appeal is directed against judgement of acquittal dated 15th June 2017, passed by Special Judge, Anticorruption, Srinagar in case bearing File no.13/Challan titled as State v. Mohammad Ismail Gojri in respect of FIR no.30/2006 under Section 5(2) of Prevention of Corruption Act, 2006, read with Section 161 RPC, on the grounds mentioned therein. 2. Grounds of challenge taken in instant appeal are: (i) Judgement impugned is against facts and circumstances of the case; (ii) Trial court has not appreciated positive evidence produced and relied by prosecution during course of trial in its proper perspective. The Trial Court instead has laid much emphasis on minor discrepancies which led to overlooking of incriminating evidence against accused bot in the nature of incriminating evidence against accused both in the nature of oral as well as
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documentary evidence which is sufficient to hold accused guilty of criminal misconduct. (iii) There is sufficient evidence on record to prove that accused voluntarily accepted illegal gratification of Rs.2000/- from complainant which were subsequently seized from floor of the room. Prosecution witnesses have in unambiguous terms stated in one voice that at the time of challenge thrown to the accused by team of officials, accused took out tainted amount from his shirt pocket and threw it on floor of the room, which fact also was substantiated by positive handwash and pocket wash, thereby establishing the guilt of accused beyond any shadow of doubt, but this clinching and positive evidence has altogether been ignored and overlooked by Trial Court, which has resulted in gross miscarriage of justice. (iv) Impugned judgement is factually erroneous and liable to be set- aside on the ground that though independent witness who was positioned just outside room of complainant has seen passing of tainted amount from complainant to accused, who later had kept tainted amount in his shirt pocket. This aspect of positive evidence has again been brushed-aside by Trial Court which has also resulted in miscarriage of justice. (v) Trial Court has not appreciated testimony of independent witness in its right perspective so much so independent witness has stated that at the time of challenge thrown to accused by trap officials, accused threw same on ground which were later
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seized. Positive fact has also been brushed-aside by Trial Court which has also resulted in miscarriage of justice. (vi) Trial Court has not appreciated testimony of prosecution witnesses including members of trap team who have proved basic fundamental of criminal misconduct sufficient to hold accused guilty. Trial Court has not given due weightage and credence to positive depositions of complainant, independent witness and other prosecution witnesses including investigating officer who all have in unambiguous terms proved passing of tainted amount from complainant to accused, subsequent throwing of same by accused on floor coupled with positive handwash and pocket wash. Therefore, prosecution has succeeded in bringing home guilt of accused under section 5(2) P.C. act read with Section 161 RPC by cogent, clinching and trustworthy positive evidence both in nature of oral and documentary, sufficient in ordinary course to prove guilt of accused. (vii) There is ample evidence on record which makes it abundantly clear that accused person accepted illegal gratification by tacit consent at the time of occurrence, besides having definite occasion to demand illegal gratification which has not been rebutted by accused, as such, remained unshaken. (viii) Trial Court while appreciating and analysing prosecution evidence has out of context magnified minor discrepancies which otherwise may not have any adverse impact on the case and, thus, acquitted accused.
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(ix) Trial court has not drawn presumption as warranted under Section 4 of P.C. Act, 2006, regarding acceptance of bribe amount by accused while abusing his official position. Once it is proved beyond doubt that passing of bribe amount from complainant to accused has happened, it was obligatory upon the Trial Court to draw presumption against accused person regarding acceptance of bribe amount. By not invoking presumption clause, besides failure of accused to rebut the same has grossly affected the outcome of the case which has resulted in acquittal of accused. (x) Trial Court has misappreciated evidence and misconstrued provisions of law attracted to the facts and circumstances of the case. (xi) Trial Court has overlooked cogent, trustworthy, clinching and positive evidence both documentary as well as oral including positive handwash and pocket wash relied upon by prosecution resulting in miscarriage of justice.
I have heard learned ocusnel for parties and considered the matter. I have gone through record as also judgement impugned. 4. For proper appreciation of the case, it would be apt to have concise discussion qua facts of the case. 5. A written complaint was filed by one, Dr. Shazia Shafi D/o Mohammad Shafi R/o Shah Anwar Colony, Hyderpora, Srinagar. She alleged that her salary dues for the month of February 2004 had not been released even after passage of two years and the bill although complete in all respects had been retained arbitrarily by dealing assistant, namely, Habibullah, for extraneous consideration and commission of Rs.2000/-
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was demanded as bribe by accused/respondent herein on the behest of abovenamed dealing assistant, who had been transferred to Government Medical College, Srinagar. on receipt of complaint, FIR no.30/2006under Section 5(2) P.C. Act read with Section 161 RPC, was registered in police station Vigilance Organisation Kashmir (VOK) on 9th September 2006. Investigation was set into motion. During investigation, a trap team headed by an officer of rank of Deputy Superintendent of Police was framed and services of an independent witness was sought from Sales Tax Department and one, Mr. Ghulam Mohi ud din Malik was deputed for the said job. During pre-trap proceedings, complainant, Dr. Shazia Shafi, produced Rs.2,000/- consisting of four currency notes of Rs.500/- denomination, which were to be paid as illegal gratification to accused on his demand. These currency notes were treated with phenolphthalein power and returned to complainant with advice to pay those notes to accused as illegal gratification on his demand. Before proceeding to the spot, pre-trap demonstration was conducted to show effect of phenolphthalein power dusted on the currency notes. A solution of sodium carbonate was prepared and independent witness, Mr. Ghulam Mohi ud din Malik, was requested to dip his fingers in the said solution. On his doing so, colour of solution did not change. Thereafter, complainant who had touched currency notes treated with phenolphthalein power was requested to dip her fingers in the same solution and on her doing so, colour of solution changed to pink. The solution so obtained was sealed in a bottle and seized on spot. The demonstration memo was prepared on spot in presence of complainant, independent and other witnesses.
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After completing pre-trap proceedings, the trap team accompanied by complainant and independent witness proceeded to the spot, i.e., Lal Ded Hospital, Srinagar. Complainant entered into her office room and waited there for accused to come. Independent witness, namely, Mr. Ghulam Mohi ud din Malik, sat on a bench near the door of the said office room of complainant. After some time, accused entered into said office room of complainant and demanded and accepted bribe money of Rs.2000/- from complainant. After handing over bribe money to accused, complainant flashed a pre-arranged signal to independent witness who passed signal to trap team. The trap team immediately rushed to the spot, i.e., office room of complainant, where they tried to catch hold the arms of accused, who resisted it and managed to take tainted money out of his pocket and threw it on the floor of the room. The tainted money thrown on the floor by accused was seized from floor of room and, accordingly, a seizure memo was prepared on spot. The handwash of accused and pocket wash of shirt worn by him were taken in two separately prepared solutions of sodium carbonate which turned pink. The solution, thus, obtained was seized and sealed in two separate glass bottles and post trap demonstration memos were also prepared during course of investigation, supplementary pay bill for the month of February 2004 prepared in favour of complainant, Dr. Shazia Shafi, was also seized from the office table of Medical Superintendent in LD Hospital, Srinagar. During investigation, site plan of scene of occurrence was prepared and statements of witnesses conversant with facts of the case were recorded under Section 161 Cr.P.C. Sanction to launch prosecution against accused was granted by the Government on
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17th April 2007. As a consequence of which, Charge-Sheet was presented on 29th May 2007. Charge was framed against accused, who pleaded guilty and claimed to be tried. 6. Before the Trial Court, prosecution produced and examined ten witnesses out of eleven listed prosecution witnesses. Their account of statements is worthwhile to be noticed hereunder: (1) Prosecution witness no.1, namely, Ghulam Mohi ud din Malik, in examination-in-chief has stated that on 9th September 2006, he went to office of VOK as per directions of Additional Commissioner, Sales Tax, Srinagar. SSP VOK introduced him to a lady doctor, Shazia Shafi, who had complained regarding demand of bribe. A trap team was constituted. He was nominated as independent witness. Complainant produced four currency notes of Rs.500/- and presented those to Dy.S.P., who seized the same. Those currency notes were dusted with some powder and then returned to complainant and memo of handing over on the file Ext. P-1 was prepared. He initiated those currency notes which he had identified in the court. He also stated that trap team proceeded towards L.D. Hospital and accused, posted as Senior Assistant-cum-Cashier came to the office room of complainant after a while. He could not hear conversation but saw complainant passing on tainted money to accused who kept the same in left-side pocket of his shirt. Upon his signal, trap-team members rushed in who disclosed their identities, however, accused took out bribe money from his pocket and threw on floor which were later lifted by Mr. Bhat, Dy.S.P. and then seized vide seizure memo on the file Ext.4. Demonstration Proceedings
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were repeated and handwash of accused was taken which turned pink and it was preserved in a bottle Ext. P-5. Witness admitted the contents of memo of demonstration which is exhibited as P-6. Afterwards pocket wash of shirt which accused was wearing at that time was taken and it also turned pink which was also preserved in a bottle, Ex. P-7. He also stated that shirt of accused was also seized, which he identified. Personal search of accused was carried out and in this regard memo of personal search, Ext. P-10, was prepared. Pay bill pertaining to complainant for the month of February 2004 was also seized on spot. During cross-examination, witness stated that he was sure that seized notes were lifted from floor by Dy.S.P. but upon being read over contents of seizure memo Ext. P-4, witness stated that he did not remember whether seized currency notes were lifted from floor by him or by Dy.S.P. It was wrong that accused came along with salary bill of complainant for obtaining latter’s signatures as was suggested. That when accused accepted bribe, one VOK sleuth of constable rank rushed in and caught hold of accused by both of his wrists. (2) Prosecution witness 2, Dr. Shazia Shafi, deposed that she lodged a written complaint with SSP, VOK, on 9th September 2006. After reiteration of prosecution story in examination-in-chief, she during cross-examination stated that she went to VOK office at about 1:30 PM during tea break. She stayed in VOK office for less than one hour but she did not take any permission from Medical Superintendent. However, she had informed her immediate officer,
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Dr. Durani that she was going outside in connection with some private affair. That she did not remember how much time earlier Habib-ullah, Head Clerk, was harassing her from 2004 to 2006 for extraneous reasons. That bribe money was accepted by accused, so his name was recorded in the memo of recovery. That she did not remember her statement was recorded on the same day or on some other day. It was wrong that her bill was pending as she had not cleared income tax. That she has complained to Dy. Superintendent, Dr. Khalil, many a times and he also directed accused to do needful. It was true that Dr. Khalil asked her to produce insurance policy and other documents for tax clearance. (3) Prosecution witness no.3, namely, Inspector Altaf Hussain, also reiterated prosecution story in examination-in-chief. During cross- examination, witness stated that three bottles were sealed with adhesive tape and no stamp was affixed thereon. No paper seal was affixed thereon as was mentioned in memo of demonstration. He had no personal knowledge about keeping of bribe money into his pocket by accused as was mentioned in memo of demonstrations, Ext. P-6 and P-8. It was wrong that Mr. Asif Khan, husband of complainant was also present during trap proceedings and hence there was no question of PSO of said Asif Khan thrashing accused and thrusting bribe money into his pocket (4) Prosecution witness no.4, namely, Shakeel Ahmad Wani, also delineated prosecution pre-trap proceedings and admitted contents of memos. He also reiterated prosecution story. He, in cross- examination, stated that he sprinkled phenolphthalein powder on
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currency notes and also prepared solutions of sodium carbonate at the vigilance office as well as on spot. He did not see personally accused demanding or accepting or counting bribe money. Accused did not keep bribe money into his pocket in his presence, however, he saw accused throwing out bribe money. That as soon as complainant passed signal to independent witness and later to other team members, they entered into room and accused was caught hold from his wrist but accused resisted and being healthy fellow, took out bribe money and threw on floor which was collected only on arrival of Medical Superintendent and thereafter handwash of accused was taken in same room. (5) Prosecution witness no.5, namely, Mehraj ud din Bhat, Head Clerk in L.D. Hospital, stated that he was called by Dr. Khalil, Deputy Superintendent and was directed to prepare pay bill of complainant, but he was busy so he sought two days’ time. After two days, he asked clerk concerned to bring that bill. However, DDO was yet to sign the said bill. He initiated the bill and submitted it to AAO who also initiated and submitted further to DDO (Medical Superintendent). He was question by DDO as to why the bill was pending since 2004, to which he replied that income tax was to be paid which stood deducted by them. Simultaneously DDO received a phone call that the cashier, who happened to be accused, had been trapped, so he along with DDO proceeded to Radiology room. Accused was caught by Vigilance people and his short was removed. Vigilance sleuths seized bill which was on the table of
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DDO and obtained his signatures on the seizure. Witness admitted contents of seizure memo of bill. Witness also identified bill on file. (6) Prosecution witness no.6, Shamima Bhat, Junior Assistant, L.D. Hospital, deposed that accused was Cashier at L.D. Hospital and she was dealing assistant and, therefore, used to prepare pay bills. She submitted bills to Head Assistant who further submitted it to AAO for approval. Pay of complainant for the month of February 2004 was withheld since her income tax papers were not complete. Qazi Basharat Saleem was AAO during those days and accused used to collect cash from Treasury being cashier. After some time, Habib Ullah Wani, Head Assistant got transferred. On cross examination, she stated that accused had no role in preparation of bill nor it was in his competence to raise objections about income tax deductions. (7) Prosecution witness, namely, Qazi Basharat Saleem, AAO, L. D. Hospital during the relevant time, has stated that bill pertaining to salary of complainant for the month of February 2004, bore his signatures at three places. Bill was pending for want of income tax clearance, so they called establishment clerk directing him to collect income tax papers from complainant. Bill was also required to be verified about double drawal so it was returned to establishment clerk, Habib ullah Wani, but he got transferred simultaneously and the post remained vacant for about two months. Complainant was pressing hard for drawal of bill but they requested her to wait for sometime till new incumbent joined. Mehraj Uddin joined on the post whereafter they directed him to check the bill. During cross examination, witness stated that in every government institution,
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bills were prepared by accounts clerks and were drawn by cashier, and that cashier had no role in preparation and passing of bills. (8) Prosecution witness, namely, Bashir Ahmad Shah, Medical Superintendent, as he then was, stated that bill on record was signed by him at one place on page-1 and at four places on last page. Bill pertained to salary of complainant for February 2004. He called clerk concerned, Mehraj Uddin to check it for double drawal, who informed that bill was pending for income tax clearance and that that very moment he was informed telephonically that accused was trapped by vigilance team in Ultrasound room. Accused was cashier in their office at that relevant point of time. During cross examination, he stated that it was true that he saw cash lying on floor of ultrasound room. (9) Prosecution witness, Abdul Rashid Lone, Dy.S.P. stated that he was handed over investigation of FIR no.36/2006 on 9th September 2006. He also reiterated prosecution story. During cross examination, he stated that he was not aware whether Asif Khan, husband of complainant, belonged to an influential family of Kashmir. It was specifically mentioned in initial report that bill was withheld arbitrarily for two years by dealing assistant, Habib ullah. He did not enquire from Medical Superintendent as to why bill was kept pending for two years. He did not enquire from complainant as to why she did not approach Medical Superintendent during those two years. It was not explained in initial report that bill was pending due to non-clearance of income tax. Complainant’s grievance was that bill was not being drawn, although she had completed all
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formalities. Accused was Senior Assistant-cum-Cashier, but he did not collect any order about posting of accused. Complainant had not mentioned about demand of Rs.2000/- at the behest of Treasury people but the same being demanded at the behest of Habibullah and in his opinion Habibullah was required to be arrayed as accused. Bribe money was lying on the floor when he entered into room. He did not know who was competent to withhold bill. It was wrong that accused raised hue and cry on spot and claimed that he was implicated falsely. Investigation was handed over to another investigating officer on 11th September 2006. Statements of complainant and other witnesses were wrongly shown to have been recorded on 9th September 2006. No seal was put on bottles but signatures of witnesses were taken on spot. Bottles were flood affected and so his signatures were not visible. (10) Prosecution witness no.10, Bashir Ahmad Dar, stated that he was handed over investigation of the case on 11th September 2006. He recorded statements of four witnesses under Section 161 Cr.P.C. On cross-examination, he stated that he had mentioned in daily diaries that he concurred with initial investigation but no such noting was found to have been recorded in daily diary. Bill was to be initiated by accused though it was to be passed by DDO. Bill was pending due to non-clearance of income tax. 7. After recording statement of prosecution witnesses, accused/ respondent was explained evidence on record against him in terms of Section 342 Cr.P.C. He maintained that he neither demanded nor accepted any bribe from complainant nor any bill pertaining to
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complainant was given to him for clearance. His only job was to deposit bills complete in all respects with Treasury, but bill of complainant was incomplete for want of income tax clearance. Complainant wanted to avoid payment of income tax which was objected to by authority and so she felt annoyed and got him framed in the case. There was no question of handwash or pocket-wash turning pink and that bottles were manipulated afterwards. 8. Accused/respondent in support of his defence, produced and examined one witness, namely, Abdul Rashid Khan, who stated that he was P.A. to Medical Superintendent during relevant time and accused was Senior Assistant-cum-Cashier while as complainant was Assistant Surgeon. Accused was scrupulously honest and enjoyed good reputation. Complainant called him on intercom and asked for sending accused. He passed message to accused through peon. However, complainant called him 3-4 times again and informed that accused had not reached. So, he himself went and pulled up accused to attend complainant immediately. After 2/3 minutes, he got another call from Dy.S.P. who informed that they had trapped accused and he informed Medical Superintendent. Complainant never complained to Medical Superintendent about any demand of bribe by accused as far as he remembered. Complainant’s husband was posted as RTO Srinagar and she belonged to a highly influential family of Kashmir. On cross-examination, he stated that as P.A. to Medical Superintendent, he used to prepare and maintain correspondence and had no concern with other work of establishment. It was true that accused did not respond to call of complainant and called on her only when he was intervened. He had no knowledge of
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exchange of money between complainant and accused since he was not with complainant at that point of time. 9. Learned counsel for appellant has stated that the Trial Court has not appreciated the evidence produced by prosecution in its right perspective; even the Trial Court laid much emphasis on mere discrepancies while overlooking the incriminating evidence both oral as well as documentary, which was sufficient to hold respondent- accused guilty of offence of criminal misconduct by abuse of his official position in the capacity of public servant. According to counsel for appellant, there is sufficient evidence on record to prove that respondent-accused accepted illegal gratification of Rs.2000/-, which was subsequently recovered from his possession at the time of occurrence and that prosecution witnesses confirmed and proved in one voice the recovery of bribe money from accused/respondent, which established guilt of respondent-accused beyond any shadow of doubt, but these important aspects have been ignored by Trial Court. It is also contended that independent witness has corroborated meeting of complainant with accused, who was waiting for him, flashing of prefixed signal by complainant and recovery of money from accused, besides turning of handwash and pocket wash of shirt of accused and thus has confirmed the handling of phenolphthalein simmered currency notices by accused, but this trustworthy and cogent evidence has not been appreciated by Trial Court. He also asserts that even Trial Court did not appreciate testimony of prosecution witnesses including members of trap team, who proved basic essentials of offence of criminal misconduct sufficient to hold respondent-accused guilty, and
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Trial Court has not given any weightage and credence to the depositions of the complainant and independent witness as well as other witnesses including investigating officer. 10. Learned counsel for respondent has vehemently argued that Trial Court has rightly passed impugned judgement because it surfaced before Trial Court that there had been no demand made by respondent but apparently by Head Assistant, Habibullah, who has neither been made accused nor witness by prosecution. He also states that it is also an admitted fact on the part of prosecution that pay bill of complainant was pending as complainant has not cleared income tax, therefore, there was no occasion for accused to make such a demand; besides accused being a class-IV employee could not have courage to make such a demand from his immediate superior gazette officer, more particularly when complainant belongs to a highly influential family of the Valley. He also states that there are contradictions in prosecution evidence regarding witness who actually collected bribe money on spot. It is also submission of learned counsel for respondent that there is no evidence of voluntary demand and acceptance of bribe and that even independent witness has not supported prosecution story. 11. The case set up by appellant and contentions raised by counsel for appellant requires perusal of the Trial Court record and the impugned judgement. 12. The core issue that arises for consideration in this case, is whether while recording judgment of acquittal, prosecution evidence has been properly appreciated in its right and proper perspective. Trial Court has recorded entire evidence in its breadth and length in impugned
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judgment as examined herein above as well. Trial court, as is apparent from impugned judgment, has, after taking into consideration entire evidence adduced by prosecution, come to conclusion that accused has not committed the crime imputed to him. 13. The well settled law is that the function of the Court in a criminal trial is to find out whether a person arraigned before it as accused is guilty of offence with which he is charged. For this purpose, the Court scans the material on record to find out whether there is any credible, reliable and trustworthy evidence on the basis of which it is possible to convict accused and to hold that he is guilty of offence with which he is charged. The burden to prove ingredients of the offence is always on the prosecution and it never shifts to the accused. There are four factors for proving a trap, which are: demand of money that can be categorized in two aspects, i.e., initial demand and demand at the time of trap; acceptance of money in pursuance of aforesaid demand; recovery of bribe money; and consideration for demanding such money. 14. The Prevention of Corruption Act provides that in order to constitute an offence in terms of the Act, proof of demand is a sine qua non, which is wanting in the present case and as a consequence of which respondent-accused has been acquitted. This has been affirmed in catena of judgements by the Supreme Court and the High Courts. The judgements, viz. P.N.Dogra v. CBI, 2009 (II) SLJ 624; and Mukut Bihari and another v. State of Rajasthan (2012) 11 SCC 642, have been rightly relied upon by the Trial Court while passing judgement impugned.
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Testing prosecution case on the touchstone of evidence of witnesses, as reproduced/discussed herein above, impugned judgment is based on the law, reason and the logic. It does not call for any interference. The witnesses, as discussed above, have not been emphatic in stating that the accused was the architect and the author of the crime. The judicial precedence reported in the case of Prithipal Singh Vs. State of Punjab, 2012 (1) SCC 10, assumes significance on that count. There it has been held as follows: - “This court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in acquitting a person on the sole testimony of a single witness. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphases on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record acquittal. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence...”
The law settled in the aforesaid judgement is that as a general rule the court can and may act on the testimony of a single witness, provided he is wholly reliable and there is no legal impediment in acquitting a person on the sole testimony of a single witness, but if there are doubts about the testimony, the court will insist on corroboration. It is not number or quantity, but the quality that is material and time-honoured principle is that the evidence has to be weighed and not counted. So, the test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphases on value, weight and quality of evidence, rather than on quantity,
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multiplicity or plurality of witnesses. Thus, it is open to a competent court to fully and completely rely on a solitary witness and record the acquittal and conversely it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of the evidence. 17. Applying the ratio of the law laid down, as aforesaid, to the facts of the instant case, the statements of witnesses discussed above are not sufficient to convict the accused. There is infirmity in their statements that render them weak, fragile, incoherent or improbable. 18. The argument of learned counsel for accused that there are discrepancies in the statements of witnesses is an argument when tested on the touchstone of the instant case, shows that prosecution has failed in discharging its burden to prove that accused has committed the crime imputed to him. There is, thus, no merit in this appeal. It entails dismissal and as a consequence of which the same is dismissed and the judgment of acquittal recorded by the trial court is maintained and upheld. 19. Copy of this judgement be sent down along with the record, if any, received. (Vinod Chatterji Koul) Judge Srinagar 18.04.2025 Ajaz Ahmad, Secy Whether approved for reporting? Yes/No.