Safi Mohd Vs State of Rajasthan

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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1954 OF 2009

SAFI MOHD. … APPELLANT Vs.

STATE OF RAJASTHAN … RESPONDENT

J U D G M E N T

V. Gopala Gowda, J.

This appeal is filed by the appellant

questioning the correctness of the judgment dated

29th May, 2009 passed by the High Court of

Rajasthan at Jaipur in S.B. Criminal Appeal No.

314 of 2004 in confirming the judgment dated 9th

March, 2004 of the sessions judge, Jaipur City,

Jaipur in Sessions Case No. 196 of 1992 wherein

this appellant along with the others were

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convicted under Section 3(1)(c)of the Official

Secrets Act, 1923 (hereinafter referred to as

‘the Act’) and was sentenced to undergo seven

years rigorous imprisonment.

2. For the purpose of considering the rival

legal contentions urged in this appeal and with a

view to find out whether this Court is required

to interfere with the impugned judgment of the

High Court, the necessary facts are briefly

stated hereunder:

On 6th March, 1990, Bhoormal Jain,

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 Station Rajasthan, Jaipur

numbered as FIR No.1/1990 against the accused

Mohd. Ishfaq who was found roaming in suspicious

circumstances in the Air Force Area and was

arrested on 07.03.1990. On interrogation, he

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stated that the appellant Safi Mohd. used to

supply secret information to the Pakistani

Intelligence and had handed over Rs.6500/- to him

for working for Pak Intelligence Agency. On

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 alleged to

have been recovered. Later on, 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 other accused Mohd.

Safi, Accused No.5, was also arrested. The

documents recovered from the accused were sent to

the Air Force Officers for their opinion, who

informed that the said documents were useful to

enemy country and affect the security of India.

After completion of investigation of the case the

charge-sheet was filed before the committal court

by the Investigating Officer.

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3. On 26.07.1994, charges were framed against

the 5 accused persons but all of them pleaded not

guilty. The appellant was charged under Section 3

read with Section 9 and 5 of the Act. The learned

Sessions Judge after trial convicted the

appellant u/s 3 (1) (c) of the Act by order dated

09.03.2004.

4. Learned counsel for the appellant Mr. Sushil

Kumar Jain submits that the conviction of the

appellant based on the recovery of Ex.D-3 from

the house of appellant is doubtful. Further, he

submits that the conviction based on the experts

opinion of Col S.K. Sareen (PW-27) and Wing

Commander Alok Kumar (PW-32) on documents Ex. P-

33 and P-34 respectively is not in favour of the

prosecution. Therefore, the conviction of the

appellant based on their evidence rendered the

concurrent finding erroneous in law. Hence, the

same is liable to be set aside. Further, he

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contends that the conviction of the appellant

based on the recovery or possession of a trace

Map Ex.D-3, which is a rough sketch map under

Section 3 (1) (c) of the Act is not tenable in

law. In so far as the recovery of the document

Ex.D-3 from the quarters of appellant is

concerned, it is contended by the learned counsel

for the appellant that the said document as per

recovery memo. Ex.P-22 said to have been

recovered by Suresh Kumar (PW-22) is attested by

two witnesses Bhoop Singh and Umed Singh. Bhoop

Singh has been declared hostile and Umed Singh,

the other attesting witness has not been examined

in the case. Ex.P-22 was not put to the witness

Bhoop Singh in his cross-examination by the

prosecution. The prosecution has relied upon the

said document solely on the statement of evidence

of the investigating officer Yad Ram Tiwari PW-24

and Suresh Kumar PW-22. He submits that on

account of non-examination of Umed Singh in the

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case, the attesting witness to the memo for

recovery of the documents from the house of the

appellant, both the learned sessions judge as

well as the High Court should have drawn adverse

inference against the prosecution stating that

search and seizure of Ex.D-3 as per recovery memo

was not from the house of the appellant. The

learned counsel in support of the above said

submission has placed reliance upon the decision

of this Court in Pratap Singh Vs. State of M.P.1. In the said case it is observed by this Court

that non examination of witnesses by the

Investigating Officer who are material for the

purpose of proving the prosecution case, who are

independent witnesses and whose statements have

not been recorded though it is the duty of

the investigating officer to produce such

statements along with the charge sheet in the

Court, if, the same has not been done by the

1 2005 (13) SCC 624

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prosecution, the benefit of doubt must be given

to the defence and not to the prosecution.

5. Further, he submits that in the above

referred case this Court held that the 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.

6. Further learned counsel for the appellant

submitted that the prosecution case with regard

to the recovery of Ex.D-3 from the house of the

appellant is falsified by the evidence of Om

Prakash Rathi (PW-2) the only attesting witness

examined with regard to the search of Rathi Guest

House wherefrom Mohd. Safi was arrested with

documents. This fact is established from the

cross-examination of PW-2 who is the owner of the

Rathi Guest House, who has admitted in his

statement that “Map Ex.D-3 was recovered from the

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said accused along with other papers.” The

learned counsel for the appellant has further

placed reliance upon the judgment of this Court

in Mukhtiar Ahmed Vs. State (NCT of Delhi)2 that if the prosecution has examined its witness and

declared him hostile as he did not support the

prosecution case but on the other hand he had

supported the defence then it can rely on such

evidence. Further, the learned counsel placed

reliance on another judgment of this Court in the

case of Raja Ram Vs. State of Rajasthan3 in support of the case of the appellant that the

sole testimony of the prosecution witness making

the deceased believe that unless she puts the

blame on the appellant and his parents she would

have to face the consequences like prosecution

proceedings. It did not occur to the public

prosecutor in the trial court to seek permission

from the court to declare PW-8 as a hostile 2 2005 (5) SCC 258 at paras 29-30 3 (2005) 5 SCC 272 at para 9

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witness, for the reasons known to him. Now, as

it is, the evidence of PW-8 is binding on the

prosecution.

7. The learned counsel also submits that the

observations made by this Court in the above

cases are also applicable to the fact situation

of the case in hand wherein evidence of PW-2 who

is attesting witness to Ex. P-22 recovery Memo,

it is mentioned that Ex. D-3 was recovered from

the Rathi Guest House. Therefore, he contends

that the same is not recovered from the house of

the appellant as alleged. Further, learned

counsel submits that it is a well settled

principle of law that the defence is not required

to establish its case but is only required to

establish preponderance of probabilities of the

case for consideration of the Court. The defence

of the appellant in this case was that Ex.D-3 was

recovered from Rathi Guest House is probable.

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Further the statements of PW-22 and PW-24, the

police witnesses are interested witnesses who are

interested in showing success of the raid and to

support the prosecution case and therefore the

courts below should not have placed reliance upon

their testimony to convict the appellant.

8. PW-22 is not the witness of recovery of Ex.D-

3 the trace Map as per recovery memo Ex.P-22.

This fact is admitted by him in his cross

examination and also, he is not the signatory to

Ex.P-22. The conscious possession or knowledge of

the document Ex. D-3 by this appellant is found

in the diary of the appellant, this fact as

alleged by the prosecution is not established and

the prosecution has also not established that the

diary belonged to the appellant. The document

could have come to the house of the appellant by

any unknown reason and unless specific knowledge

of the appellant regarding possession of the

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document Ex. D-3 is proved, its recovery from the

house of the appellant should not have been

treated sufficient by the courts below for

holding that the appellant consciously possessed

the same.

9. Another ground of submission made by the

learned counsel for the appellant is the experts’

opinion of the witnesses PW-27 and PW-32, who

have rendered their opinion as per Ex.P-34 and

Ex.P-35, stating that document Ex. D-3 is just a

sketch which could not be of any help to the

enemy country as it does not denote anything.

The learned counsel for the appellant has further

submitted that the prosecution has failed to

establish that any site or road denoted in the

sketch Map is in existence.

10. The learned counsel for the appellant has

placed strong reliance on the experts’ opinion

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Ex.P-34 and Ex.P-35, relevant portion of which

reads thus:

Ex.P-34:

“Rough sketch of area showing the location of Blind: This area is not part of the Air Force range. It is part of the Army range and falls under the jurisdiction of Stn. HQ Pokharan.”

Ex.P-35:

“It has no significance from counter intelligence point of view.”

The opinion expressed by PW-27 in Ex.P-35

establishes the fact that Ex.D-3 has no

importance from the point of view of Army.

11. Further, his opinion on Ex. P-4 and Ex.P-5

reads thus:

“For example Ex.P-4 and Ex.P-5 parking place for airplanes, Hangar, Air Traffic control, inform the Radars etc. on this basis if Pakistan wishes to finish them by Air attack, then it will be easier for it, it will get straight win in ground attack. In this way, the Chart of mountain division referred in Ex.P-32, from this the enemy will get clear

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information of numbers of Brigade, numbers of vehicle and Arms and quality of Arms and their numbers. On this basis they will get help of defence in case India attacks and if they want to attack, then they will get great help in preparation.”

12. It is further contended by the learned

counsel that since neither of the witnesses PW-27

and PW-32 are expert witnesses within the meaning

of Section 45 of the Evidence Act to give their

expert opinion on Ex.D-3 sketch Map, reliance

cannot be placed upon their opinion or evidence

to convict the appellant. Therefore, the learned

counsel for the appellant submits that their

opinion being outside the sphere of the alleged

expertise, the same is of no significance. Hence,

the same could not have been relied upon by the

court to convict the appellant. PW-27 cannot be

held to be a competent person to give expert

opinion on the seized document Ex-D3.

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Further, it is urged that both the

witnesses were never posted and worked in that

area. Therefore, they neither had the knowledge

of the area nor did they visit the area as is

evident from their statement of evidence on

record.

In this regard, he has placed reliance

upon the evidence elicited in the cross-

examination of PW-27 who has categorically

admitted the same. So also PW-32 with reference

to Ex.P-4 and Ex.P-5 has stated as above.

Therefore the statement of evidence given by said

witnesses in the case could not have been placed

reliance upon by both the trial court and the

High Court to record a finding that the appellant

is guilty of the offence punishable under Section

3 (1) (c) of the Act and to convict and sentence

him.

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13. 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.4 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:

“13. 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

4 (1999) 7 SCC 280 5 (2009) 9 SCC 709

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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. ………………….

17. 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

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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.

18. 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:

“19. 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

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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.

14. Learned counsel further contends that the

conviction of the appellant and the concurrent

finding of fact recorded by the High Court is ex-

facie bad in law as none of the above legal

aspects have been carefully examined by it and

answered while concurring with the finding of the

trial court on the charge against the appellant.

Further he submits that after careful examination

and analyzing the evidence of prosecution

witnesses namely, PW-2, PW-27, PW-32 and also

placing reliance upon the evidence of witnesses

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namely PW-22 and PW-24 who are the police

witnesses and the conviction of the appellant for

the offence under Section 3(1) (c) of the Act and

sentencing him to undergo seven years

imprisonment is an erroneous finding and

therefore the same cannot be allowed to sustain.

The same is contrary to the judgment of this

Court in the case of Padam Vs. State of U.P.6

The learned counsel also placed reliance upon

another judgment of this court in the case of

Prasad @ Hari Prasad Acharya Vs. State of Karnataka7. The learned counsel with reference to the legal position laid down by this Court in the

above cases submits that the concurrent finding

of fact recorded by the High Court on the charge

without proper appreciation of evidence on record

has rendered the findings erroneous in law.

Further, the High Court has erred in law in 6 2000 (1) SCC 621 7 2009 (3) SCC 174

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affirming the conviction and sentence of the

appellant. The same is wholly unsustainable in

law and is therefore, liable to be set aside by

allowing this appeal and acquit the appellant

from the charge levelled against him under

Section 3(1)(c) of the Act.

15. On the other hand, learned counsel for the

respondent State has sought to justify that the

concurrent findings of fact has been recorded by

the High Court by consciously applying its mind

to the prosecution case and the legal evidence on

record by the court particularly the evidence of

PW-1, PW-11, PW-16, PW-19, PW-20, PW-22, PW-24,

PW-27 and PW-32. He contends that after examining

the correctness of the findings recorded by the

learned sessions judge on the charge levelled

against the appellant, the High Court has rightly

concurred with the findings of fact which are

recorded in the impugned judgment and it was of

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the opinion that the conviction of the appellant

under Section 3 read with Section 9 of the Act is

14 years maximum sentence. The learned sessions

judge after considering the fact that the alleged

offence is of the year 1990 sentenced the

appellant for seven years rigorous imprisonment

along with other accused persons. Correctness of

the same is examined by the High Court and it has

opined that in such type of heinous offences,

imposition of sentence for seven years rigorous

imprisonment upon the accused is held to be

legal, valid, just and proper and therefore, it

did not interfere with the same. The High Court

has rightly concurred with the findings of fact

of the trial court by assigning its reasons and

therefore no remission should be given to them,

particularly when they were caught spying and

putting the country as a whole in danger.

Therefore, the dismissal of the appeal of the

appellant along with other appellants by the High

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Court is perfectly justified in law. The same

does not call for interference by this Court in

exercise of this Court‘s jurisdiction. Hence, he

has prayed for dismissal of the same.

16. With reference to the above referred rival

legal contentions urged on behalf of the parties

we have carefully examined the correctness of the

findings recorded in the impugned judgment passed

by the learned sessions judge in Case No. 196 of

1992 and the concurrent findings recorded by the

High Court in confirming the conviction and

sentence of the appellant. With a view to find

out as to whether the said concurrent findings

are erroneous or error in law, we have carefully

perused the evidence of PW-12, PW-13, PW-14, PW-

15 and PW-17 who have deposed against the

appellant to answer the above point which arose

for our consideration.

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17. The learned sessions judge has rightly placed

reliance upon the evidence of Sher Singh, PW-18

who is a search witness who has witnessed the

search of the house of the appellant and who has

also turned hostile. PW-21, Dr. T.S. Kapur has

stated that he has received the documents

relating to this case from the CID Security and

the original copy is Ex. P-36. The disputed

documents along with letter are marked as Exbts.

Q-1 to Q-9. Sample writings have been marked as

A-1 to A-52 which have been exhibited as Ex.P-44

to P-82 which have been scientifically examined

and thereafter a report Ex. P-83 was prepared

stating that the disputed writings marked as Q-1

to Q-4 and Q-9 show very significant similarities

with the specimen writings marked as A-1 to A-52.

Along with this, a written slip, article 2 - a

map traced by hand was recovered from the house

of Safi Mohd. in which railway tracks and roads

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are depicted, the signs of directions shown on a

paper having lines, an advertisement of Air

Force, Hindi Sainik Newspaper and Army Weekly,

Prohibited Chart of Mountain organization

division were recovered from Chotu Khan and were

sent for opinion as to whether the said documents

and the information contained therein are threat

to the security of the country or not. He has

further stated that a letter in English Ex P-33

relating to the above stated documents were sent

to the headquarters of IAF Commandant Jodhpur.

Ex.P-33 bears the signature, the reply of which

is Ex.P-34.

18. PW-24 Yad Ram Tiwari, who was posted as SHO,

Special Police Station, Rajasthan, Jaipur, has

spoken about the receipt of the report from SP

CID Zone Jodhpur through Constable Navneet Kumar

and on the basis of which he has recorded FIR

No.1/90 under Sections 3,5 and 9 of the Act and

Section 120-B of IPC. Along with the report,

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Ex.P-1 some other secret documents were recovered

vide recovery memo. He has stated in his

evidence that he took the search of the house of

Safi Mohd. at Jetha Chanana Railway Quarter where

one blue coloured diary was recovered from the

almirah of the appellant marked as article 3.

One traced map was also recovered from the diary

in which Pokhran, Jaisalmer, Devra Village, roads

and railway track details were given. The map is

marked as Ex. D-3. He has identified the

appellant Safi Mohd. The search recovery memo is

marked as Ex.P-28. He has also spoken about the

addresses of Pakistani officials mentioned in the

diary at pages 11, 13, and 21. The said witness

has also spoken about the search of the house of

the appellant, which was made in the presence of

Khurshid and Sher Singh and the articles were

seized such as (a) passport of Safi Mohd. as

article 4, (b) Passport of Nazima Bano as article

5, (c) marriage card of Safi Mohd. as article 6,

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(d) passbook of Safi Mohd. as article 7, and (e)

Card Shadi Mubarak article 8, vide search memo

marked as Ex. P-28.

19. In the deposition Colonel S.K. Saren PW-27

has stated that along with Ex.P-3 original map,

the letter referred in Ex.P-35 and the

photocopies of Ex.P-4, Ex.P-5, Ex.D-3, Ex. P-32,

P-31, P-27 were obtained and his opinion with

reference to the above said documents was sought

as to whether the information mentioned in the

said documents if reaches the Pakistani

officials, would be useful to them and would

adversely affect the security of India. He has

stated in his deposition in the affirmative that

if the above mentioned documents reach the

Pakistani officials the same may be useful to

them as they can work out the strategy to attack

India. He further opined that on the basis of

information available in the said documents if

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Pakistan wants to destroy the country by air

attack it would become easier. The witness PW-32

Wing commander Alok Kumar has also stated in his

evidence before the trial court that he was

posted as Intelligence Officer Headquarters South

Western Air Command, Indian Air Force, Jodhpur.

He gave his opinion that Ex.D-3 six digits sketch

shows the accuracy to pinpoint a target which is

very important and accurate on the basis of which

the country’s security can be destroyed. He has

spoken about the red arrow in Ex D-3 which is a

grid reference to the special point. According to

him the said document is a very important

document from the point of view of Army.

20. After referring to the evidence of the PW-22

and PW-24 the search of the house of the

appellant and seizure of certain documents along

with diary particularly Ex D-3, handwritten map

prepared with certain markings, it has proved

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the prosecution case. No doubt the independent

witnesses have turned hostile, but the learned

sessions judge has rightly accepted the testimony

of the police witnesses after proper appreciation

of their evidence and he has rightly placed

reliance upon the police witnesses to prove the

seizure of the documents from the house of the

appellant and therefore the same cannot be held

to be bad in law as contended by the learned

counsel for the appellant.

21. Further, the learned sessions judge has

rightly accepted the testimony of the witnesses

to prove the recovery of documents by assigning

reasons and therefore the same cannot be rejected

merely on the ground that they are police

officials who are members of raiding party and

that the matters under the Official Secrets Act

are very sensitive which required immediate

action. In these circumstances, the investigation

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does not become defective as contended by the

learned counsel for the defence for the reason

that the search warrant was not obtained and the

recovery of documents and articles from the

appellant’s house could not be rejected. The

search and seizure of Army documents from the

house of the appellant for the offences alleged

against the appellant under the provisions of the

Act are very sensitive and pertains to the

integrity and security of the country. In view

of the above fact, neither the search conducted

in the presence of the independent witnesses nor

the investigation made by the investigating

officer becomes defective for want of search

warrant to conduct the search in the house of the

appellant as urged by the appellant’s counsel.

22. The learned public prosecutor has rightly

placed reliance on the decision of this Court in

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Sama Alana Abdulla Vs. State of Gujarat8. In the said decision this court lays down the legal

principle that merely because the police

witnesses have spoken about the search and the

seizure of documents from the custody of the

appellant, their version cannot be disbelieved as

the independent witnesses have not supported the

search and the seizure of the documents. The

observations made by this Court in the above

referred case are applied to the facts of the

case in hand to accept the proof of search and

seizure of the documents from the house of the

appellant which are very important and sensitive

for the integrity and security of the Nation. The

said conclusions arrived at by the learned

sessions judge and concurrence of the same by the

High Court cannot be termed as erroneous in law

as contended by learned counsel on behalf of the

appellant. Therefore, the finding recorded by

8 AIR 1996 SC 569

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both the courts below regarding search and

seizure of the documents which affect the

integrity and security of the country is the

concurrent finding of fact rightly recorded by

the High Court after proper appreciation and

appraisal of the evidence on record. The same

cannot be interfered with by this Court in

exercise of its jurisdiction. Even if the

search is made by the Investigating Officer in

illegal manner, the same does not affect the

legality of the search and investigation made by

the Investigating Officer with regard to the

seizure of the documents from the house of the

appellant in view of the law laid down by this

Court in the above case. From the evidence

produced by the prosecution in the case in hand,

it is clear that the documents of strategic

importance to the Nation have been recovered from

the possession of the appellant and other accused

and they have failed to give satisfactory

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explanation about the documents being in their

possession.

23. The learned sessions judge has rightly

disbelieved the contentions urged on behalf of

the appellant that Ex. D-3 was recovered from the

possession of the accused Mohd. Ishfaq as stated

by the prosecution witness Om Prakash PW-2 the

owner of the Guest House. Recovery of the said

document from the house of Safi Mohd. is proved

by the prosecution is the finding of fact which

is accepted by the High Court based on recovery

memo Ex.P-28. The independent witness to prove

the memo is one Om Prakash Rathi PW-2, besides,

the evidence of the said witness, Ram Dass Rathi

PW-5 who has stated in his evidence that Ex. D-3

was recovered from the Railway quarter of Safi

Mohd. the appellant herein.

24. Om Prakash Rathi PW-2 has clearly stated in

his statement that he had read the memo Ex.P-22

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before putting his signature from A to B. Non-

mentioning of Ex. D-3 belies his evidence that D-

3 was recovered from Mohd Ishfaq from the guest

house. PW-5 and PW-6 the other recovery witnesses

have not stated in their evidence with certainty

that Ex D-3 was recovered from the possession of

the Mohd. Ishfaq from his bag. Further, he has

spoken about recovery of the document mentioning

Ex.D-3 recovery memo which was prepared in his

presence and the police sealed the recovery

documents. In view of the aforesaid statement of

evidence of the above witnesses the evidence of

PW-2, the contention that Ex.D-3 map was

recovered from the possession of Mohd. Ishfaq was

rightly rejected by the learned sessions judge

and the High Court. Apart from the said findings,

the prosecution witness PW-7 ASM of Parihari

Railway Station has stated that the house of ASM

Safi Mohd. is not at Jetha Chanana. He was

allotted a railway quarter and ASM Safi Mohd. had

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moved to this house with his family in 1989. In

the said quarter the search was conducted by the

Investigating Officer and certain documents were

seized including Ex.D-3 from possession of the

appellant is the finding of fact recorded by the

trial judge which is rightly concurred with by

the High Court after re-appreciation of evidence

on record in the Appeal filed by the appellant.

25. In the impugned judgment learned sessions

judge has referred to the evidence of PW-27 and

PW-32 and opined that the documents particularly

Ex. D-3 seized from the possession of the

appellant be sent for their opinion as to whether

the said document if reaches the Pakistani

officials would be dangerous to the security and

integrity of the Nation. After careful

consideration of the document they have opined

that on basis of information available in the

said document that, if Pakistan officials want to

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Crl.A.No.1954 of 2009

destroy the country by air attack it would become

easier.

26. The learned sessions judge being the trial

judge is competent to appreciate the evidence and

had the opportunity to observe demeanour of the

witnesses who have deposed before him to prove

the prosecution case. Merely because the

independent witnesses have turned hostile, the

other police witnesses’ evidence cannot be

disbelieved by the courts below to record a

finding on the charge as has been done by the

trial court by rightly placing reliance upon the

judgment of this court referred to supra, he has

come to the right conclusion by accepting the

evidence of police witnesses PW-21, PW-22 with

regard to the conduct of the search and seizure

of documents from the house of the appellant and

recorded the finding to this effect by assigning

valid and cogent reasons in his judgment. He had

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Crl.A.No.1954 of 2009

rightly come to the conclusion on the fact while

recording the finding on the charge on the basis

of evidence of PW-27 and PW-32 who have opined

that if the said document and information

contained therein is made available to the

Pakistani officials it will be dangerous to the

integrity and security of the Nation.

27. 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

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Crl.A.No.1954 of 2009

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.

28. 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.

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Crl.A.No.1954 of 2009

29. For the foregoing reasons, we are of the view

that this is not a fit case for our interference

with the impugned judgment having regard to the

nature of charges made against the appellant

under Sections 3, 9 and 5 of the Act as he is

found to be guilty along with other accused

persons and rightly convicted and sentenced them

for seven years rigorous imprisonment. The appeal

is devoid of merit and is liable to be dismissed

and is accordingly dismissed.

…………………………………………………………J. [CHANDRAMAULI KR. PRASAD]

…………………………………………………………J. [V. GOPALA GOWDA]

New Delhi, April 17, 2013.

38

SAFI MOHD Vs STATE OF RAJASTHAN

SAFI MOHD Vs STATE OF RAJASTHAN