Mohan Lal & ANR Vs. Ajit Singh
& ANR [1978] INSC 100 (2 May 1978)
SHINGAL, P.N.
SHINGAL, P.N.
DESAI, D.A.
CITATION: 1978 AIR 1183 1978 SCR (3) 823 1978
SCC (3) 249
CITATOR INFO :
R 1979 SC1284 (5) F 1989 SC1205 (18)
ACT:
Evidence Act, 1872-S.114 (a)-Presumption to
be drawn against the accused is a matter which depends on the circumstances of
each case.
Criminal Procedure Code, 1973, s. 313-It is
permissible to accept that part of the statement which accords with the
evidence on the record and to act upon it--Evidence--Finger print evidence at
crime, scenes, reliability of.
HEADNOTE:
Nishan Chand (deceased), son of appellant
Mohan Lal, resident of Roranwali, was the Secretary of Roranwali, and
Phulukhere Co-operative Societies. Respondent Ajit Singh, Nishan Chand's
friend, was the Secretary of Roranwall Patti Sikhan Co-operative Society. He
also lived in village Roranwali, with his maternal uncle Gurdial Singh who was
the village Chairman. On June 17, 1974 both Nishan Chand and the respondent
left for villages Lambi and Malaut on the former's bicycle for depositing the
moneys realised on account of the dues of the Co-operative societies. They did
not, however, return to Roranwali that night. On the next day, Satpal, the
younger brother of Nishan Chand, found the bicycle of his brother lying at some
distance from the boundary of the village near a culvert and his brother's body
in a field at a short distance from there and informed his father Mohan Lal.
Mohan Lal and his brother Dharam Chand went to the place where the dead body
lay. The dead body had many injuries, and a blood stained blade of a knife (Ex.
P3) was lying near it. A black piece of cloth "fifty" was lying at
some distance on the road, and as it was worn by Ajit Singh the-previous day, a
report was lodged with the police. Ajit Singh was arrested on 21st June, 1974
and on his information that he had buried a sum of 41.00/- and a gold ring in
his purse, tied in a handkerchief, near the water lift, and had concealed the
blood stained clothes and a shoe inside the heap of cotton 'sticks' in a kiln
on a road, the Police recovered those articles at his instance.
The bundle of currency notes which was
recovered at the instance of the respondent contained one currency note of Rs.
100/- which was suspected to have fingerprints. Ajit Singh was tried and was
convicted by the Additional Sessions Judge of offences under ss. 302, 392 and
397 I.P.C. The Additional Sessions Judge sentenced him to death for the offence
under secton 302 I.P.C. and to rigorous imprisonment for five years and seven
years respectively for the offences under sections 392 and 397 I.P.C. On
appeal, the High Court gave him the benefit of doubt and acquitted him. Mohan
Lal (father of the deceased) and one Surinder Kumar filed the present appeal,
by special leave.
Allowing the appeal, the Court,
HELD : (1) While considering the statement of
the accused under section 313 Crl. P.C., 1973 it is permissible to reject the
exculpatory part of the statement if it is disproved by the evidence on record,
and to acts upon it.
[832 BC] Nishikant Jha V. State of Bihar
[1969] 2 SCR 1033; Applied.
(2)The evidence on record was sufficient to
show that the statement of the respondent which led to the recovery of certain
articles was not only voluntary but fell within the purview of section 27 of
the Evidence Act in as much as the "fact discovered" was the place
from which the various articles were produced by the respondent and his
knowledge of it. Moreover the actual recovery of the currency notes, the ring
(bearing the initials of the deceased) and the purse (containing a library card
having the address of the respondent) in pursuance of the information given by
the respondent, and at his instance, was sufficient guarantee of the truth of
that information and it could safely have been relied upon by the High Court.
[834 C-D] (3)There is no gainsaying the fact that a majority of fingerprints
found at crime scenes or crime articles are partially smudged, and it is for
the experienced and skilled fingerprint expert to say whether a mark is usable
as fingerprint 824 evidence. Similarly it is for a competent technician to
examine and give his opinion whether the identity can be established, and if so
whether that can be done on eight or even less identical characteristics in an
appropriate case.
In this case there was the categorical
statement of the Director, Finger Print Bureau, Phillaur, that one particular
impression on the currency note was photographically enlarged alongwith the
right middle finger impression of the respondent, that it was comparable, and
there existed not less than eight points-of similarity i.e. matching
characteristic details in their identical sequence, without any discordance,
between its comparable portion and the corresponding portion of the
photographically enlarged right middle finger impression. The Director
graphically showed the eight points of similarity, in their same form and
position and indicated the nature, direction and sequence of each point. He
clearly stated that so many points of similarity could not be found to occur in
impressions of different thumbs and fingers and that they were identical and
were of one and the same person. [840 F-G, 841 D-E] (4)The recovery of
incriminating articles in pursuance of the respondent's information is an
important piece of evidence against him. The question whether a presumption
should be drawn against him under illustration (a) of section 114 of the
Evidence Act is a matter with depends on the evidence and the circumstances of
each case. The nature of the recovered articles, the manner of their
acquisition by the owner, the nature of the evidence about their
identification, the manner in which the articles were dealt with by the
accused, the place and the circumstances of their recovery, the length of the
intervening period and the ability or otherwise of the accused to explain the
recovery, are some of those circumstances. All these factors were against the
respondent.[841 G-H, 842 A] Baiju Bharosa v. State of Madhya Pradesh [1978] 2
SCR 594 reiterated.
(5)The ring (Ex. PI) was made of gold and
bore the initials of the deceased, and the goldsmith was able to establish that
it belonged to the deceased. It was found tied in a handkerchief alongwith
other two highly incriminating articles, namely, the finger marked currency
note and the respondent's own purse about whose identity there could possibly
be no reason for any doubt. The respondent knew that he would be suspected of
the crime because the deceased was last seen in his company, and the fact that
he buried the articles near the water lift in the middle of the way leading
from Khankanwali to his village shows that he wanted the articles to lie there
until he could feel reassured enough to dig them out. It so happened however that
he was suspected from the very beginning, was arrested within four days and
gave the information within the next two days which led to the discovery of an
important fact within the meaning of section 27 of the Evidence Act.
It must therefore be held that the
incriminating articles were acquired by the respondent at one and the same time
and that it was he and no one else who had robbed the deceased of the money and
the ring and had hidden them at a place and in a manner which was known to him.
Then there is the further fact that the respondent was unable to explain his
possession. All these facts were not only proof of robbery but were presumptive
evidence of the charge of murder as well.[842 B-F] Wasim Khan v. The State of
U.P. [1956] SCR 191; Tulsiram Nanu v. The State, AIR 1954 SC 1; Sunderlal v.
The State of M.P., AIR 1954 SC 28 Alisher V. State of U.P. [1974] 4 SCR 254;
and Baiju @ Bharosa v. State of M.P., [1978] 2 SCR 594 reiterated.
(6)The High Court committed serious errors in
reading the evidence on the record and very often based its findings on mere
conjectures. Its finding that the prosecution had failed to "connect the
accused with the commission of the crime" was quite incorrect and must be
set aside. Reasoning of High Court examined with reference to the direct and
circumstantial evidence on record. [838-C-D]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 377 of 1975.
From the Judgment and Order dt. 9th July,
1975 of the Punjab and Haryana High Court in Criminal Appeal No. 1423 of 1974.
825 S. C. Manchanda and N. K. Agarwal for the
Appellants.
D. Mookerjee, S. K. Mehta, K. R. Nagaraja and
P. N. Puri for Respondent No. 1 Hardev Singh for Respondent No. 2.
The Judgment of the Court was delivered by
SHINGHAL, J.-This appeal by special leave is directed against the judgment of
the Punjab and Haryana High Court dated July 9, 1975, giving benefit of doubt
to respondent Ajit Singh (hereinafter referred to as the respondent) and
acquitting him of offences under sections 302, 392 and 397 I.P.C. for which he
was convicted by the Additional Sessions Judge of Faridkot on October 31, 1974.
The Additional Sessions Judge had sentenced the respondent to death for the
offence under section 302 I.P.C. and to rigorous imprison- ment for five years
and seven years respectively for the offences under, sections 392 and 397
I.P.C.
Nishan Chand (deceased); son: of appellant
Mohan Lal (P. W. 5), was a resident of Roranwali. He was Secretary of Roranwali
and Phulu Khera Co-operative Societies. The respondent was Nishan Chand's
friendand was Secretary of Roranwali Patti Sikhan Co-operative Society. He also
used to live in village Roranwali with his maternal-uncle Gurdial Singh who was
the village Chairman.
It is alleged that Nishan Chand and the
respondent left together on June 17, 1974, for villages Lambi and Malout on
Nishan Chand's bicycle, as they had to deposit the money realised by them. They
did not however return to Roranwali that night. Mohan Lal's other son Satpal,
who was, studying in Class VIII in a school at Sikhanwala, saw Nishan Chand's
bicycle lying at some distance from the boundary of village Roranwali, near a
culvert, on the "Pakka" road leading to Sikhanwala, and he also saw a
man lying dead in a field at a short distance from there. As the dead body
appeared to be of Nishan Chand, Satpal went back to his house and informied his
father Mohan Lal (P. W. 5) at about 7 a. m. Mohan Lal, (P. W. 5) and his
brother Dharam Chand (P. W. 8) went to the place where the dead body was lying.
It bad many injuries and a blood stained blade of Knife (Ex'. P. 3) was lying
near it. A black piece of cloth ("fifty") was lying at some distance
towards the road. As Nishan Chand used to bring home the money of the societies
some times, Mohan Lal suspected that the respondent might have murdered him for
the money.It seemed to him that the black piece of cloth ("fifty")
belongedto the respondent which he was wearing on the previous morning. Mohan
Lal therefore left for police station Lambi, which was at a distance of about 9
miles from the place of occurance. As he found Sub- inspector Harnek Singh (P.
W. 19). it Sikhanwala bus stand, he reported the matter to him at about 9.30
a.m. The Sub- Inspector recorded Mohan Lal's statement and sent it along with
constable Mal Singh to police station Lambi for registering a case.
2 320 SCI/78 826 S.I. Harnek Singh went to
the place of occurrence with Mohan Lal and found Dharam Chand (P. W. 8) and
Nishan Chand's mother Smt. Agyawanti near the dead body. He found foot- prints
two of bare foot and one with the shoe near the dead body. The blade of knife
(Ex. P. 3) was also found lying near the dead body and a shoe was found lying
in the water channel at a distance of 7 or 8 'karams' The small piece of black
cloth ("fifty") (Ex. P. 4) was found lying at a distance of 25 or 30
'karams' from the dead body. The Sub- Inspector recorded the statement of Smt.
Agyawanti. He lifted moulds of the foot-prints and took them in his possession.
The blood stained blade of knife (Ex. P. 3) was also taken in possession vide
memorandum (Ex. P. K.) and was sealed. The Sub-Inspector took the shoe also in
his possession. He prepared, an inquest report and sent Nishan Chand's dead
body for postmortem examination. Dr. P. K. Narang (P. W. 1) of Civil Hospital
Gidderbaha examined the dead body and found 12 injuries, all of which were
ante- mortem. The doctor found that Nishan Chand's death was due to the
injuries to vital organs of the brain as a result of injuries Nos. 1 and 2
which were as follows,- (i)A stab wound with clean cut edges 2. 5 X
0. 5 cm. on the front of left side of
forehead just above the eye brow. Blood stained brain matter was coming out of
the wound. Bone underneath was cut, and the wound was directed backwards and
downwards.
(ii)A stab wound 3.5 X 1 cm. with clean cut
edges on the left temporal region of head 7.5 cm. above the ear, directed
downwards and inwards. Bone underneath was cut." The medical officer
expressed the opinion that these two injuries were individually sufficient to
cause death in the ordinary course of nature.
it was found during the course of the
investigation that Nishan Chand had collected the dues of the co-operative
societies from Atma Singh., Avtar Singh and Balli Singh and others on June 17,
1974, and had gone with the respondent to deposit the same in the Central
Cooperative Bank, Malout.
Inspector Gurdial Singh (P. W. 14) of the
Co-operative department had also gone there to attend a meeting of his
department. Nishan Chand and the respondent met him after 3 P.M. and asked him
to get the sum of about Rs. 2000/- deposited in the Bank. He could not however
succeed in depositing the money as the cash had been closed by that time. It is
alleged that Nishan Chand collected Rs. 4156/- and that be and the respondent met
Darshan Lai (P. W. 6) at Lambi at 6.30 p.m. The prosecution has relied on the
statement of Darshan Lal (P. W. 6) for the subsequent conduct of the respondent
and has led its evidence to show that he was searched but could not be found.
He was arrested on June 21, 1974, at about 8 p.m, near village Fatuekhera. He
was interrogated by the Investigating Officer and is alleged to have made
statement Ex.P.O. on June 23, 1974, to the effect that he had buried a sum of
about Rs. 4100/- and 827 a gold ring in his purse tied in a handkerchief near
the water lift in the middle of the way leading from village Khankhanwali to
Roranwali which he could recover, and that he had kept concealed his clothes
and one shoe under the heap of cotton "sticks" in a kiln on the road
outside Khankhanwali village which also he could recover. The respondent's
statement to that effect was recorded in the presence of witnesses Balbir Singh
(P. W. 7) and Avtar Singh. The respondent then went to the place near the heap
of cotton "sticks" and recovered the blood stained clothes Ex. P. 5
to P. 7, which were in jhola' Ex. P. 8, along with a shoe. The recovered
articles were taken in police custody vide memorandum Ex. P. 0. It is further
alleged that the respondent went to the, place near the water lift and dug out
a handkerchief which contained currency notes of Rs. 4142/gold ring Ex. P. 1
and purse Ex. P. 9. One currency note No. AD 53007632 of Rs. 100/- (Ex. P. 10),
which was at the bundle of currency notes, had some blood stained fingerprints.
The purse (Ex. P. 9) was of plastic on which Government College, Mukhtsar, was
written in Punjabi and English and it contained a library card of R.S.D.
College, Ferozepur, which contained the address of the respondent written in
English. The ring was of gold and weighed about 3 grams. The initials 'N. C.,
were inscribed on it. All the articles were sealed and were taken in possession
vide memorandum Ex. PR. Mohan Lal (P. W. 5) has identified the ring to be that
of his son Nishan Chand which he was wearing when he left the house. Kartar
Singh (P. W. 17) of village Lambi has stated that lie prepared the ring for
Nishan Chand 8 or 9 months before his statement and had made the inscription as
desired by him.
The Sub-Inspector made an application before
Magistrate Mukhtiar Singh (P. W. 3) on June 28, 1974, for taking the moulds of
the foot-prints of the respondent. The moulds prepared by him were not found
fit for comparison and wire again taken on July 4, 1974 in the presence of
Magistrate Dina Nath (P. W. 2). They were sent for comparison to the Director
of Forensic Laboratory who has made his report Ex. P. FF stating that the
impressions on the crime mould were found to tally with the test moulds.
Finger impressions (Ex. PF/2) of the
respondent were also taken by Magistrate, Mukhtsar, and were sent for
comparison along with the finger impression on the currency note of Rs.
100/- (Ex. P. 10) to the Director Fingerprint
Bureau, Phillaur. The Director's report Ex. P. BB is on the record.
He photographically enlarged the impressions
and expressed the opinion that there were eight points of Similarity in respect
of the form and the position, which were graphically shown by him in his
report, and that the nature, direction and sequence of each point had been
indicated in its relevant circle. According to the expert, so many points of
similarity could not be found to occur in the impressions of different fingers
and that they were "identical or are of one and the same person". The
expert ignored the other impressions which were sufficiently smudged or were
partly interfered with by the design and the printed writing of the currency
note or were faint.
828 The respondent was medically examined an
the very next day of his arrest and the medical officer's report Ex. P.F has
been placed on the record, according to which he had three simple lacerated
wounds of a duration of more-than 48 hours on the left ring finger.
As has been stated, the Additional Sessions
Judge of Faridkot found the respondent guilty of the offences under sections
302, 392 and 397 I.P.C. As the High Court has set aside the conviction by its
impugned judgment dated July 9, 1975, by giving the benefit of doubt to the
respondent, Mohan Lal (P. W. 5), father of Nishan Chand (deceased), and one
Surinder Kumar have filed the present appeal by special leave.
The High Court has examined the question of
motive first of all and has referred to the good relations between the
respondent and the deceased. It has also made a mention of the statement of the
respondent that he and the deceased left village Roranwali on the bicycle of
the deceased, for Malout, on June 17, 1974, at about 7.30 a.m. The High Court
has then examined the evidence of the prosecution regarding the alleged
collection of Rs. 4256/- by Nishan Chand from four persons on June 17, 1974,
and his failure to deposit the same in the Central Co-operative Bank at Malout
and has taken the view that the collection of the money by Nishan Chand had not
been proved and that the motive for the crime had not been established.
The first item of collection relates to the
recovery of Rs. 2000/from Avtar Singh (P. W. 10) at Malout on June 17, 1974.
Avtar Singh has stated that he had taken a loan from the Co-opcrative Society
of his village and had been asked by the deceased to repay it. He promised to
make the repayment at Malout Mandi. He took his wheat there on June 17, 1974,
and asked his commission agent to pay Rs. 2000/- to the deceased. Rs. 2000/-
were accordingly paid by his commission agent to the deceased. He has further
stated that one Atma Singh (P. W. 12) paid Rs. 623/- in his presence to Nishan
Chand. Avtar Singh however did not obtain a receipt for the payment from Nishan
Chand. The High Court has disbelieved the payment because the name of the
commission agent was not disclosed by Avtar Singh and he" did not take.
any receipt or the signature of Nishan Chand
in his bahi in token of the payment. The prosecution examined Behari Lal (P. W.
26) as the commission agent who had made the payment of Rs. 2000/- on behalf of
Avtar Singh to the deceased. The witness produced his bahi entry Ex. P. W. 26/A
in respect of the payment, but the High Court rejected the evidence because the
signature of Nishan Chand Was not obtained by Behari Lal. As it was possible
for the High Court to take that view. we would leave it at that Atma Singh (P.
W. 12) has stated that he paid Rs. 623/- to the deceased on June 17, 1974, at 2
p.m. after obtaining the money from the firm of Shadi Ram Amar Nath of Malout.
Avtar Singh (P. W. 10) has also stated about the making of that payment by Atma
Singh in his presence, but the High Court has rejected the evidence for want of
Nishan Chand's receipt for the payment, and the failure 829 to examine someone
on behalf of the firm which had made the payment. Here again, it cannot be said
that the view taken by the High Court was not possible, and we would therefore
not disturb its finding in this respect also.
The prosecution, however, examined Balli
Singh (P. W. 1 1) who stated that he paid Rs. 856/- to the deceased on June 17,
1974, vide receipt Ex. PS at Malout at 2 p.m. after obtaining the money from
his commission agent. It was stated in the receipt that the payment had been
made by way of recovery of the loan from Balli Singh. It was not disputed that
the receipt was signed by Nishan Chand, and it is not disputed before us that
the name has wrongly been printed as Nishan Singh in the paper book. The High
Court however rejected the evidence on the ground that Balli Singh did not state
who wrote the receipt Ex. PS and that it bore the signature of Nishan Chand. We
have gone through the statement of Balli Singh and we have no doubt that it
shows that the payment of Rs. 856/- was made to the deceased vide receipt Ex.
PS. There was as such no justification for insisting on the disclosure of the
name of, the scribe of the receipt, or the production of other evidence to
prove the signature of Nishan Chand thereon. There was also no justification
for the High Court to reject the evidence merely because of the failure to
examine a witness from the shop of the commission agent who had made the
payment. It has to be appreciated that there was in fact no cross- examination
worth the name regarding Balli Singh's statement about his liability to pay Rs.
856/- to the, Co-operative Society, and the payment of that money by him to the
deceased against receipt Ex. PS.
The prosecution has, all the same, relied on
the statement of Inspector Gurdev Singh (P.W. 14) who was Inspector of Co-
operative Societies at Lambi, to prove the signature of the deceased on receipt
Ex. PS. The High Court has rejected his evidence to this effect on the ground
that the witness did not state that he had seen Nishan Chand signing and
writing, and could identify his signature, and also because he did not state
that "in the ordinary course of business documents purported to be written
by Nishan Chand had been habitually submitted to him." We have gone
through the statement of Gurdev Singh (P.W. 14). He was the Inspector of Co-operative
'Societies, Lambi, and Nishan Chand was the Secretary of two Cooperative
Societies within his area. The witness was therefore in a position to state
that receipt Ex. PS was in the hand writing of Nishan Chand and he in fact made
a clear statement to that effect in the trial court. If the defence had any
reason to think that he was not a competent witness for the purpose of
expressing an opinion under section 47 of the Evidence Act, it was open to it
to cross-examine him on the point. The fact however remains that this was not
done.
It would thus appear that the High Court
could not have rejected the evidence which was furnished by the prosecution in
regard to the payment of Rs. 856/- by examining Balli Singh (P.W. 11) and
Gurdev Singh (P.W. 14) and by producing the original receipt 830 Ex. PS, and we
have no hesitation in holding that the, finding of the trial court in regard to
that payment was correct and must be restored.
Evidence has also been led to prove the
payment of Rs. 667/- to the deceased by one Budh Singh on June 17, 1974, vide
pass book entry Ex. P. II. It was stated by Gurdev Singh (P.W. 14) that the
entry in the pass book had been made in the hand writing of Nishan Chand, but
the High Court rejected that evidence for the reason already stated. As there
was no justification for doing so, we would restore the finding of the trial
court regarding that item of payment as, well.
The High Court has gone to the extent of
basing its finding to the contrary for the further reason that Mohan Lal (P.W. 5),
who was the father of the deceased, did not state that receipt Ex. PS and the
pass book Entry Ex. P. 1 1 were written and signed by his son Nishan Chand. The
High Court however forgot that Mohan Lal was an illiterate man who had
thumb-marked even. The first information report Ex. P.G./1 and was not in a
position to make a statement regarding the hand-writing or the signature of his
son on the two documents.
So even if the items of Rs. 2,000/- and Rs.
623/- are left out, the fact would still remain that the deceased had a sum of
about Rs. 1533/- with him at the time of his murder. The High Court has brushed
aside the prosecution evidence in this respect by observing that none of the
witnesses has deposed that the respondent was with the deceased at the time
when the payments were made to him. Here again, the High Court lost sight of
the statement of Inspector Gurdev Singh (P. W. 14) who as the Inspector of
Co-operative Societies must have known the Secretaries or the societies within
his jurisdiction. He has stated that a meeting was called by the Joint
Registrar of Co-operative Societies at Malout on June 17, 1974, and that the
deceased and the respondent met him in the Central Cooperative Bank at Malout
after 3 p.m. The deceased asked him to get the sum of more than Rs. 2,000/-
deposited in the bank and the witness told him that as the cash had been closed
by that time, the money could not be deposited.. He has further stated that the
deceased then told him that he would deposit the amount of Rs. 5,000/- the next
day as he had some more recoveries to make. No effective cross-examination was
directed against the statement of the Inspector to this effect, and no
effective argument has been made before us why he should not have been
believed. The High Court thus failed to read the statement of Gurdev Singh
correctly even though it had a direct bearing on the question of the
respondent's knowledge of the money in the possession of the deceased. Its
finding to the contrary must be set aside and it must be held that the
prosecution has succeeded in proving its case about the respondent's knowledge
that the deceased had collected at least Rs. 2,000/- by the time he met
Inspector Gurdev Singh some time after 3 p.m.
831 The High Court has examined the question
whether there was evidence to prove that the respondent had absconded after the
incident, and has found that it could not be said that he did so to conceal his
guilt. He was arrested on June 21, 1974, and it appears that the intervening
delay would not by itself be evidence of his guilt.
While dealing with the evidence that the
deceased was last seen in the company of the respondent, the High Court has
made a reference to the statement of Mohan Lal (P.W. 5) and to the respondent's
admission that he had gone with the deceased, on his bicycle, to Malout, on
June 17, 1974. The prosecution has examined Darshan Lal (P.W. 6) in regard to
their movements at about 6 p.m. in Lambi and has placed reliance on the
statement of Prita Singh (P.W. 9) about their movements within a short distance
of village Roranwali. We think that the view taken by the High Court in regard
to the evidence of these two witnesses is justified and does not call for
interference.
But the High Court went wrong in finding that
there was no evidence to prove that the accused was seen with the deceased
"before or after the occurrence." There could possibly be no evidence
to prove that the respondent was seen with the deceased "after" the
occurrence i.e. after his death and the prosecution cannot be blamed for its
inability to produce any such evidence. The prosecution has however led its
evidence to prove that the deceased was last seen in the company of the
respondent, and it will be enough to refer to two basic facts in this respect.
Firstly, the respondent has admitted in his statement in the trial court that
he and Nishan Chand first went to Lambi on June 17, 1974; and he did not deny
that they went there on Nishan Chand's bicycle at about 7.30 a.m. He has also
admitted that he was with Nishan Chand at Malout upto 10 a.m. He claimed that
he went to village Ferozepur thereafter to meet his elder brother, but that was
a matter for him to prove, and thereby establish a good defence. The fact
however remains that he did not do so and his leaned counsel has not thought it
possible to explain why he could not examine his own brother to establish that
plea, or to invite our attention to any other evidence that may have been led
in that behalf. Secondly, the High. Court lost sight of the fact that Inspector
Gurdev Singh (P. W. 14) of the Co- operative Societies. Department had clearly
stated that he went to Malout on June 17, 1974 to attend the meeting which had
been called by the Joint Registrar of Co-operative Societies and that the
respondent and the deceased met him there after 3 p.m. in the Central
Co-operative Bank. He has further stated that the deceased asked him to get the
sum of Rs. 2,000/- deposited in the bank, but that could not be done as the
cash had been closed. The witness has stated that a meeting was actually held
in the Rest House that day and that he had gone to the Bank to- collect the
figures of recovery for purposes of that meeting. The presence of the deceased
and the respondent was therefore quite natural as it explains their anxiety to
make as much recovery as possible before the meeting. As has been shown, there
was no reason for disbelieving the statement of Gurdev Singh, and 832 the High
Court clearly misread the record in respect of a material particular in holding
that there was no evidence to prove that the respondent was last seen in the
company of the deceased.
An attempt was made to argue that if the
statement of the respondent is to be considered at all, it must be taken as a
whole and that it is not permissible to act upon one portion of the statement
which shows the presence of the respondent in the company of the deceased, and
leave out those portions which are exculpatory. It will be enough to say that
the matter has been examined by this Court in Nishi Kant Jha v. State of
Bihar(1), and as the evidence on the record disproves the exculpatory part of
the respondent's statement in the trial court, it is clearly permissible to
accept that part of the statement which accords with the evidence on the
record, and to act upon it.
Another important piece of evidence against
the respondent was his statement Ex. P.O. dated June 21, 1974, under section 27
of the Evidence Act and the recoveries which were made in pursuance thereof.
The statement was recorded by Sub-Inspector Harnek Singh (P.W. 19) in the
presence of Avtar Singh and Balbir Singh (P.W. 7). The prosecution gave up
Avtar Singh on the ground that lie had been won over, but Balbir Singh and
Harnek Singh were examined in the trial court. The. High Court however rejected
the entire evi- dence in that respect on the ground that the statements of
these two witnesses were contradictory and inconsistent with each other and
held that the making of disclosure statement and the alleged recovery were
"concocted by the police." The only contradiction which has been
pointed out by the High Court is that while according to Harnek Singh the
interrogation of the respondent started on June 23, 1974 at about 12 noon and
continued for two, hours, Balbir Singh has stated that he and Avtar Singh
reached the police station at about 12.30 p.m. and the respondent was
interrogated for about 5 or 7 minutes in their presence and that he did not
make the disclosure statement. The High Court has stated further that Balbir
Singh has claimed that he advised the respondent to give the articles which he
had in his possession, and then he made the disclosure statement. A reference
to the statements of Hamek Singh (P.W. 19) and Balbir Singh (P.W. 7) shows
however that there is no contradiction or inconsistency between them. Balbir
Singh (P.W. 7) has clearly stated that when be reached the police Station at
about 12.30 p.m. the respondent was being interrogated there. His further
statement that the respondent was interrogated for five or seven minutes in his
presence, cannot therefore belie the statement of Harnek Singh that the
interrogation lasted for about two hours.
The High Court therefore misread the evidence
in this respect. The High Court also misread the statement of Balbir Singh when
it observed that he had admitted that he did not "know" whether the
disclosure statement (Ex. P.O.) was recorded at the police station before the
articles were recovered or thereafter. Here again a reference to Balbir Singh's
statement shows that what be stated was that he did not "remember"
(1) [1969] 2 S.C.R. 1033.
833 if the disclosure statement was recorded
before or after the recovery. He however proved statement Ex. P.O. and admitted
that he attested it. He also stated that his own statement was recorded after the
recovery. It was not found possible to point out any inconsistency in his
version in that statement and his statement in the trial court. The, High
Court, therefore, clearly fell into an error of record in reaching the
conclusion that the statement of the Sub- Inspector was belied by the statement
of the witness.
The High Court has observed in this
connection that Balbir Singh (P.W. 7) has stated that there were certain
footprints near the place where the money was recovered, but no moulds were
prepared by the police even though it was incumbent for it to do so. We have
gone through the statement of Balbir Singh, but he has not made any such
statement. If however anything turned on the failure to take the moulds of the
footprints at the place where the money was recovered, the proper course for
the defence was to cross-examine the Investigating Officer concerned in that
respect, but that was not done. The High Court has disbelieved the statement of
'Balbir Singh (P.W. 7) for the further reason that he had been convicted on
some occasions and his explanation that he had gone to the police station to
inquire from the Sub- Inspector whether they should continue to depute men to
keep watch on electricity installations and the Sub-Inspector's reply in the
negative, had not been entered in the record of the police station. The High
Court has obviously relied in this respect on Balbir Singh's statement that no
entry was made in the daily diary about his visit and inquiry from the
Sub-Inspector, but it was not noticed by the High Court that Balbir Singh was
not in a position to depose anything about the making or not making of an entry
in the police diary.
That was a matter which could be established
by cross- examining the Sub-Inspector or by producing any other evidence which
could show that the entry had not been made in the daily diary. So here again
the High Court cannot be said to have read the evidence on the record
correctly.
The High Court has gone to the extent of
recording a finding that the disclosure statement Ex. P.O. was involuntary as
the respondent was "interrogated for several hours after his arrest",
and was hit by section 24 of the Evidence Act. The fact however remains that
even the respondent has not stated that he was compelled to make the disclosure
statement, and there is no other evidence to show that this was so. The High
Court has arrived at its conclusion to the contrary on the basis of the
statement of Harnek Singh (P.W. 19). The relevant portion of that statement
reads as follows,- "On 21st June, 1974, 1 interrogated him where he was
arrested. He was then taken to Roranwali and was interrogated there in the
presence of many persons. From there we returned to police station at 10-30
P.M. On 22nd June, 1974 he was again interrogated at the police station. But no
other person was present at the time of the interrogation. He did not give any
disclosure statement that day.
834 He was interrogated regarding the handle
of the knife. On 23rd June, 1974 I started interrogating the, accused at about
12 noon.
The witnesses came to the police station of
their own accord. I interrogated him for about two hours." Three facts
therefore emerge from the statement : (i) that the total period of
interrogation was about two hours, (ii) the interrogation was made in the
presence of many persons, and (iii) the interrogation was regarding the
discovery of the handle of the knife of which the blade was found lying near
the dead body. There was thus no evidence on the record to justify the finding
of the High' Court that the respondent was interrogated for several hours and
that his disclosure statement was involuntary so as to attract section 24 of
the Evidence Act. As it is, the evidence on the record was sufficient to show
that the statement was not only voluntary but it fell within the purview of
section 27 of the Evidence Act in as much as the "fact discovered"
was the place from which the various articles were produced by the respondent
and his knowledge of it. As the information given by the respondent related to
that important fact, it was clearly admissible under section 27 of the Evidence
Act.
Moreover the actual recovery of the currency
notes, the ring and the purse in pursuance of the information given by the
respondent, and at his instance, was sufficient guarantee of the truth of that
information and it could safely have been relied upon by the High Court. The
High Court misread the evidence on the record in taking a contrary view.
The disclosure statement led to the recovery
of clothes in bag Ex. P. 8 and a shoe underneath the cotton 'sticks' in the
kiln near the 'phirni' of village Khankhanwali vide memorandum Ex. P.O. Then
there was the recovery of a bundle of currency notes of the value of Rs. 4142/-
on top of which was the currency note Ex. P. 10 of Rs. 100/- which was
suspected to have some fingerprints, the ring Ex. P. 1 bearing the initials of
Nishan Chand, and the purse Ex. P. 9 containing the library card of R.S.D.
College, Ferozepur, with the address of the respondent. All these were found tied
in a handkerchief which was dug out by the respondent at a place near the water
lift in the middle of the way leading from village Khankhanwali vide memorandum
Ex. P.R.
The High Court brushed aside all this highly
incriminating evidence simply on the ground that the respondent had stated (in
his statement under section 313 Cr.P.C.) that the purse was taken by the
Sub-Inspector at the time of his arrest and he had obtained Rs. 4000/- from his
relations on the pretext that he would get him discharged but later on fastened
a false case on him. The High Court went on to say that it was highly doubtful
if the respondent would have buried such a big amount of money and the ring in
a field situated in another village when he could have concealed them in the land
or building of his maternal-uncle in village Roranwali.
The High Court lost sight of the fact that
while on one side there was the testimony on oath which was subjected to
cross-examination on the other there was the bare statement of the accused. The
High Court could not reasonably have doubted the recoveries simply because the
property was found buried in a field in 835 another village and not in the land
or building of his maternal uncle. As is obvious, the reasoning of the High
Court was nothing more than a conjecture, for which there was no evidence or
justification. The respondent was anxious to hide the ill gotten property as
soon as possible, and the fact that it was recovered in pursuance of his in-
formation under section 27 of the Evidence Act, and at his instance, by his
digging out the place where it lay buried, was quite sufficient to prove the
genuineness of the recovery. It appears that as the High Court had reached the
conclusion that the information under section 27 was involuntary and was not
admissible in evidence, it did not find it possible to attach any importance to
the recovery of the articles in pursuance of that information.
The High Court has disbelieved the statements
of Mohan Lal (P.W. 5) father of the deceased, and Kartar Singh (P.W. 17)
goldsmith of Lambi, that ring Ex. P. 1 belonged to the deceased. The statement
of Mohan Lal has been disbelieved on the ground that he did not know the name
of the person who prepared it, he could not tell the date of its preparation,
he did not identify the ring at attest identification and he did not state in
the first information report that his son Nishan Chand was wearing the ring. We
have gone through the evidence and it appears that the High Court did not read
it correctly. Mohan Lal has stated that the ring was got prepared by his son
Nishan Chand in village Lambi two or four months before the incident. He was
not therefore in a position to name the goldsmith or to give the date of its
preparation. The ring was not put up for test identification and there was
therefore no evidence to show that Mohan Lal did not identify it "from the
other rings of the same kind". As regards the omission from the first
information report of the fact regarding the wearing of the ring by Nishan Chand,
the High Court did not take into consideration that part of Mohan Lal's
statement where he had stated that as his wife did not tell him that Nishan
Chand was wearing the ring, he could not mention that fact in the report.
Moreover his wife did not accompany him to the police station.
The High Court disbelieved the statement of
Kartar Singh (P.W. 17) for the reason that he did not pay income-tax or
sales-tax and had admitted that there was no special mark on the ring to show
that it had been prepared by him. In taking that view the High Court lost sight
of the fact that Kartar Singh was a goldsmith of a village like Lambi and, in
the absence of the evidence to the contrary, he could not have been disbelieved
merely because he did not pay income- tax or sales-tax. The statement of Kartar
Singh that he prepared ring Ex. P. 1, eight or nine months before the recording
of his statements at the instance of Nishan Chand, and that the inscription
thereon was made under Nishan Chand's instructions, was quite clear and categorical,
and could not have been rejected in the absence of evidence to the contrary. It
is true that the ring did not bear any special mark to show its preparation by
the witness, but the High Court did not read that part of Kartar Singh's
statement where he had stated that he had started working as a goldsmith from
the age of 12 years 836 and that although he had prepared many rings, he could
tell which ring was prepared by him on seeing it. there was therefore no,
justification for rejecting Kartar Singh's evidence and for dubbing him as a
"highly unreliable" witness.
As has been stated, the purse Ex. P.9 was
also recovered at the instance of the respondent along with ring Ex. P. 1 and
the currency notes and the fact of its recovery could not have been rejected
merely on the basis of the respondent's statement under section 313 of the Code
of Criminal Procedure that it had been taken by the Sub-Inspector from his
pocket at the time of his arrest. Apart from the fact that the explanation of
the respondent was quite improbable, we find that he has not found it possible
to establish it by any evidence on the record. The purse was of black coloured
plastic on which Government College, Mukhtsar, was written in Punjabi and
English and it contained a library card of R.S.D. College, Ferozepur. on which
the address of the respondent was written in English. The fact that the purse
was found tied in the same handkerchief along with the ring Ex. P. 1 and the
currency notes, could leave no room for doubt that it belonged to the
respondent and all the recovered articles were in his possession soon after the
incident.
As has been stated, the bundle of currency
notes, which was recovered at the instance of the respondent contained the
hundred rupee currency note (Ex. P. 10) No. AD 53007632 with fingerprints
thereon. The High Court rejected that important piece of evidence on the ground
that Balbir Singh (P. W. 7) did not state that the currency note had
fingerprints, it was not explained why the currency note was not sent to the
Finger Print Bureau immediately why it was sent there after the arrest of the
respondent alongwith his specimen impressions, and also because there was no
proof that the specimen fingerprint impressions were of the respondent and
there was no evidence to show on what date they were taken. The High Court has
once again made a reference to the statement of the respondent under section
313 of the Code of Criminal Procedure that the Police took his fingerprint
impressions on the currency note while be was in police custody, and rejected
the report (Ex. P. BB) of the Director Finger Print Bureau, Phillaur.
We have gone through the statement of Balbir
Singh (P.W. 7) and we find that he has clearly stated that "one currency
note contains fingerprint marks". The High Court therefore misread the
evidence in this respect also.
The other reason about not sending the
currency note to the Finger Print Bureau until after the arrest of the
respondent, is equally untenable because the High Court lost sight of the fact
that the currency note was recovered on June 23, 1974, only after the arrest of
the respondent, and there was nothing wrong if it was sent alongwith his
specimen fingerprints which had necessarily to be obtained by making an
application to a magistrate.
837 The specimen impressions Ex. PF/2 of the
fingers of the respondent were taken by the Muktsar Magistrate on June 28,
1974. Question No. 28 was asked of the respondent whether that was so, and lie
gave a categorical reply that the evidence in that respect was
"correct". The High Court therefore again did not read a material
part of the record in taking the contrary view. The High Court seems to have
accepted the statement of the respondent that the Police took his finger
impressions on the currency note while he was in Police custody, but it not
only lost sight of the fact that there was no evidence to that effect, but also
of the fact that the prosecution had succeeded in proving the recovery by the
reliable evidence, on the record. Moreover if the Police had forcibly taken the
fingerprints, none of them would have been faint or smudged or on the printed
or written portion of the note.
It will be recalled that Dr. P. K. Narang
(P.W. 1) performed the post-mortem- examination on the body of Nishan Chand, and
the High Court has taken the view that his evidence showed that the injuries
could not have been inflicted with the knife of which Ex.P. 3 was the blade and
that "possibly three types of weapons were used to cause injuries".
We have gone through the statement of Dr' Narang (P.W. 1).
What he has stated is that some of the
injuries were caused by a sharp pointed weapon, one injury by a sharp-edged
weapon and injuries Nos. 10, 11 and 12 by a blunt weapon.
The witness clarified that injuries Nos. 11
and 12 could be caused by a fall, and injury No. 10 being a linear abrasion
could be caused by the point of any substance. As regards the incised injuries,
the witness has stated that it was not necessary that the stab wounds could
have been caused by a weapon of which both the edges were sharp. The presence
of those injuries could not therefore justify the inference of the High Court
that they required three types of weapons.
Blade (Ex.P. 3) was sent to the Chemical
Examiner to the Government of Punjab and his report Ex.P. AA contains a diagram
of its shape, which clearly shows that it was a peculiar blade with a pointed
end as well as a sharp blade.
The High Court therefore erred in holding
that the injuries which were found on the person of the deceased could not have
been inflicted with a knife having Ex.P.1 as its blade.
The High Court rejected the prosecution
evidence for the further reason that the bicycle of the deceased, which was
lying on the road, was not in a damaged condition and did not have blood
stains, and also because the respondent could not have dragged the deceased
alone to a distance of 50 or 60 'karams' and inflicted all the injuries with
his knife.
Here again, the High Court went beyond the
record because it was not the case of the prosecution that the bicycle was
damaged at the time of the incident, or that it was stained with blood, or that
the incident took place near the place where the bicycle was found by the
witnesses so as to have blood stains near it. It was also not the case of the
prosecution that the respondent dragged the deceased to a distance of 50 or 60
'karams' from the road. As regards the infliction of the injuries by the
respondent singly, there was no reason for the High Court to think that was not
possible. Blade of the knife was recovered near the dead body of Nishan 838
Chand, without the handle, and it is not disputed before us that it was stained
with human blood. We have made a reference of the diagram of the knife and the
fact that it had a pointed end and a sharp edge. Dr. Narang (P.W. 1) has stated
that the first two injuries were stab wounds on the left side of the fore-head
and the left temporal region, and were individually sufficient to cause death.
They could be caused by a sharp pointed weapon and there was nothing to prevent
a single person from inflicting one of those injuries initially and disabling
the victim of his capacity to resist thereafter. It is the case of the
prosecution that the deceased and the respondent were friends and were moving
about on the bicycle of the deceased. 'The deceased must therefore have been
caught unawares when the respondent dealt him the first fatal blow on a vital
part of the body and would not have been in a position to resist him
thereafter. The handle of the knife gave way, and that also showed that it was
used with force.
It would thus appear that the High Court
committed the aforesaid serious errors in reading the evidence on the record
and very often based its findings on mere conjectures. Its finding that the
prosecution had failed to "connect the accused with the commission of the
crime" is quite incorrect and must be set aside".
The evidence against the respondent in this
case is circumstantial. We have discussed a part of it while examining the
findings of the High Court, and it will be enough to mention those facts and
circumstances which have been established against the respondent beyond any
doubt.
It has been stated by Mohan Lal (P.W. 5) that
his son Nishan Chand and the respondent had good relations with each other and
that they left for Malout on June 17, 1974, together, on Nishan Chand's
bicycle. This has in fact not been disputed before us. We have examined the
evidence regarding the collection of at least Rs. 1523/- by Nishan Chand from
Balli Singh (P.W. 11) and Budh Singh and have given our reasons for the finding
that the deceased had at least that much money with him when he and the
respondent met Inspector Gurdev Singh (P.W. 14) at Malout. The prosecution has
in fact led its evidence to prove that the deceased bad collected Rs. 4156/- on
that day, but as a matter of abundant caution we have leftout two of those
collections in holding that at least Rs. 1523/- bad been collected by him. We
have also made a mention of Gurdev Singh's statement that the deceased asked
him to get a sum of more than Rs. 2000/- deposited in the Central Co-operative
Bank at Malout in the presence of the respondent and his inability to do so. as
the cash had been closed. The allegation of the prosecution that the respondent
committed the murder of Nishan Chand for the purpose of robbing him of the
money has been established by the fact that Rs. 4142/- were actually recovered
at the instance of the respondent.
in pursuance of the information furnished by
him in Ex. P. O. on June 23, 1974, and at his instance within two days of his
arrest.
839 The respondent has himself admitted that
he and the deceased went to village Lambi on June 17, 1974, at 7.30 a.m. and
then went to Malout. Inspector Gurdev Singh (P.W. 14) has, stated that his
aforesaid talk with Nishan Chand in the presence of the respondent took place
when they met him at Malout after 3 p.m. on June 17, 1974. The respondent
stated in the trial court that he left Nishan Chand at Malout at 10 a.m. He did
not however lead any evidence to prove his contention, which has in fact been
disproved by the statement of Inspector Gurdev Singh that they were together
with him until sometime after 3 p.m. that day. The deceased was not seen alive
after he had met Inspector Gurdev Singh in the company of the respondent and
the categorical statement of the Inspector Gurdev Singh that they both went
away leaves no room for doubt that was the last occasion when they were, seen
together. Mohan Lal (P.W. 5) has stated that neither his son Nishan Chand nor
the respondent returned to the village in the evening, and the next day his
son's bicycle was found lying on the "pakka" road going from
Roranwali to Sikhanwala and Nishan Chand's dead body was also found nearby.
The respondent tried to take the plea, in his
statement in the trial court that he was at Ferozepur on the night of the
alleged incident 'as he had gone there to meet his elder brother who was a
conductor in the Punjab Roadways. He did not however lead any evidence in
support of that statement.
On the other hand, Sub-Inspector Harnek Singh
(P.W. 19) has stated that after recording the first information report he made
a search for the respondent in villages Roranwali and Khankbanwali and even
stayed in village Khankhanwali for the night, He has stated further that the
respondent could be arrested only on June 21, 1974, at about 8 p.m. near
village Fatuekhera. The respondent has not succeeded in explaining his absence
or his movements during the intervening period and has failed in his attempt to
establish his presence at Ferozepur on the fateful night. A halting attempt was
made by the respondent to set up the explanation that he was produced before
the police on June 18, 1974, by his relation Hazra Singh, but he did not find
it possible to establish it also.
We have referred to our finding that the
respondent voluntarily made the disclosure statement Ex.P.O. on June 23, 1974,
and Rs. 4142/- in currency notes (including currency note Ex.P. 10 having
fingerprints), ring Ex.P.1 and purse Ex.P. 9 were recovered in pursuance of
that information, tied in a handkerchief, when the respondent dug them out from
a place near the water lift in the middle of the way going from Khankhanwali to
Roranwall. The ring Ex.P.1 bore the initials of the name of the deceased and
the purse Ex. P. 9 contained enough particulars to show that it belonged to the
respondent and to no one else. In fact the identity of the purse, as his own
property, has been admitted by the respondent in his statement in the trial court
where be merely contended that the purse containing his address was taken by
the Sub-Inspector from his pocket at the time of his arrest. As has been
stated, he could not establish that contention, and we have no doubt that it is
quite false.
840 As regards the recovery of Rs. 4142/-,
all that the respondent could contend was that after his arrest the Sub-
Inspector asked his relations to give him Rs. 4000/- on the pretext that he
would get him discharged from the case, and that his relations contributed the
amount and handed it over to the Sub-Inspector who later on "foisted the
amount on me to implicate me falsely in this case." Apart from the fact
that the respondent has not led any evidence to prove his contention, we find
that the prosecution has succeeded in proving beyond doubt that the hundred
rupee currency note No. AD 53007632, which was on the top of all the currency
notes which were recovered at the instance of the respondent, bore fingerprints
at least one of which has been found to be of the respondent and of no one
else.
We have given our reasons for rejecting the
statement of the respondent that the police got his finger impression on the
currency not,.- while he was in custody at the police station. The respondent
was an educated man who was employed as the Secretary of the local Co-operative
Society and who had an influential maternal uncle. The, police could not
therefore have obtained his fingerprints in the manner alleged by him and the
respondent would have resisted, any such attempt to create irrebuttable
evidence against him of a serious charge, like murder and he or his uncle would
have exposed it immediately.
We have examined the evidence of the
prosecution regarding the taking of specimen fingerprints of the respondent,
their comparison and examination with the fingerprint on the currency note by
the Director, Finger Print, Bureau, Phillaur, and his report Ex. P. BB. As the
impression mark A on the currency note was partly smudged and partly on the
design and the printed writing, it was photographically enlarged along with the
right middle finger impression of the respondent, and the two photographic
enlargements were marked A/A and 1/1 respectively. The Director has given the
opinion that the photographically enlarged impression marked A/A was
"partly smudged but, otherwise, it is comparable and there exist
sufficient (not less than 8) points of similarity i.e. matching ridge
characteristic details in their identical sequence, without any discordances,
between its comparable portion and the corresponding portion of the
photographically enlarged right middle finger impression of Ajit Singh marked
1/1." The Director has further stated that he had graphically shown the 8
points of similarity "in their same form and position" and had indicated
the "nature, direction and sequence of each point" in it's relevant
circle. He has expressed the categorical opinion that so many points of
similarity could not be found to occur in impressions of different thumbs and
fingers and that they were therefore "identical" or were "of one
and the same person." There were other impressions also on the currency
notes, but they were either sufficiently smudged and partly interfered with by
the design and the printed matter or were sufficiently faint and were rejected
as unfit for comparison.
Nothing- substantial has been urged to
challenge the opinion of the, Director of the Finger Print Bureau, and all that
has been argued is 841 that as there were only,, 8; points, of similarity,
there was not enough basic for the expert's opinion about the identity of the
fingerprints. Reference in, this connection has, been made to B. L. Saxena's.
fixation of Handwriting, Disputed Documents, Finger Prints, Foot Print.$ and
Detection, of Foregeries", 1968 edition, page 247, Walter R. Scott's
"Fingerprint Mechanics" page 62, and, M. K Mehta's "The
Identification of Thumb Impressions and, the Cross- Examination of Finger Print
Experts" 2nd edition page 28.We have gone through these books but they do
not really support the argument of- the learned counsel for the respondent.
While referring to the old practice of
looking for a minimum of 12 identical characteristic details, Saxena has
admitted that the modern view is that six points of similarity of pattern are
sufficient to establish the identity of the, fingerprints. Walter Scott has
stated that "as a matter of practice, most experts who work with
fingerprints constantly satisfy themselves as to identity with eight or even
six points of identity. Mehta has also stated that in the case of blurred
impressions the view of some of the Indian experts is that if there were three
identical points, they would be sufficient to prove the identity.
There is no gainsaying the fact that a
majority of fingerprints found at crime scene or crime articles are partially
smudged, and it is for the experienced and skilled fingerprint expert to say
whether a mark is usable as fingerprint evidence. Similarly it is for a
competent technician to examine and give his opinion whether the identity can be
established, and if so whether that can be done on eight or even less identical
characteristics in an appropriate case. As has been pointed out, the opinion of
the Director of the Finger Print Bureau in this case is clear and categorical
and has been supported by adequate reasons. We have therefore no hesitation in
accepting it as correct.
It will be recalled that the explanation of
the respondent about the recovery of Rs. 4142/- from his purse Ex. P. 9 is
quite unsatisfactory. He has not found it possible to give any explanation why
the deceased's ring Ex. P. 1 was found tied with those articles in his
handkerchief. We have no doubt that the recovery of these articles is a strong
piece, of circumstantial evidence against him.
The prosecution recovered some blood stained
clothes and shoes also and led its evidence regarding the taking of the mounds,
and their comparison. We do not however think it necessary to examine it as it
cannot be said to be quite clear.
The recovery of the incriminating articles in
pursuance of the, respondent's information is an important piece of evidence
against him. As has been held by this Court in Baiju alias Bharosa v. State of
Madhya Pradesh(1), the question whether a presumption should be drawn against
the respondent under illustration (a) of section 114 of the Evidence Act is a
matter which depends on the evidence and the circumstances of each case. The
nature of the recovered articles, the, manner of their acquisition by the
owner, the nature of the evidence (1) [1978] 2 SCR. 594.
3-329 SCI/78 842 about their identification,
the manner in which the articles were, dealt with by the accused the place and
the, circumstances of their recovery, the length of the intervening period and
the ability or otherwise of the accused to explain the recovery, are some of
those circumstances. As the ring Ex. P. 1 was made of gold and bore the
initials of the deceased, and the goldsmith Kartar Singh (P.W. 17) bad
established its identity, there could be no doubt whatsoever that it belonged to
the deceased. It is also a matter of great significance that it was found tied
in a handkerchief along with the other two highly incriminating articles,
namely, the finger marked currency note Ex. P. 10 and the respondent's purse
Ex. P. 9 about whose identity there can possibly be no reason for any doubt.
The respondent knew that he would be suspected of the crime because the
deceased was last seen in his company, and the fact that he buried the articles
near the water lift in the middle of the way leading from Khankhanwali to his
village Roranwali shows that he wanted the articles to lie there until he could
feel reassured enough to dig them out.
It however so happened that he was suspected
from the very beginning, was arrested within four days and gave the information
within the next two days which led to the dis- covery of an important fact
within the meaning of section 27 of the Evidence Act. It must therefore be held
that the incriminating articles were acquired by the respondent at one and the
same time and that it was he and no one else who had robbed the deceased of the
money and the ring and had hidden them at a place and in a manner which war,
known to him. Then there is the further fact that the respondent was unable to
explain his possession of the ring and the money and did not even attempt to do
so. The currency note Ex. P. 10 was found on the top of the bundle of currency
'notes of the value of Rs. 4142/-, and we have given our reasons for holding
that it bore the respondent's fingerprint. It will be recalled that the
deceased was undoubtedly in possession of currency notes because of the
realisation he had made from the debtors of the Co-operative Society only a
little while earlier, and the fact that the respondent hid the notes after
tying them in a handkerchief, shows that he knew that their possessions with
him would be incriminating and unexplainable. The intervening period between
the loss of the money and the ring by the deceased and their recovery was not
more than six days, which was quite a short period.
All these facts were not only proof of
robbery but were presumptive evidence of the charge of murder as well.
Reference in this connection may be made to
the decisions in Wasim Khan v. The State of Uttar Pradesh(1), Tulsiram Kanu v.
The State,(2) Sunderlal v. The State of Madhya Pradesh(3), Alisher v. State of
Uttar Pradesh (4) and Baiju alias Bharosa v. State of Madhya Pradesh, (supra).
In fact it has, not been disputed before us
that if the respondents possession of the incriminating articles was held
proved, the circus stantial evidence against him would be sufficient to justify
the trial (1) [1956] S.C.R. 191.
(2) AIR 1954 S.C. 1 (3) A.I.R. 1954 S.C. 28.
(4) [1974] 4 S.C.C. 254.
843 court's finding that he was guilty of the
offence under section 302 for committing the murder of Nishan Chand and the
offence of robbery under section 392 read with section 397 I.P.C.
For the reasons mentioned above, the appeal
is allowed, the impugned judgment of the High Court is set aside and respondent
Ajit Singh is convicted of the offences under sections 302 and 392/397 I.P.C.
In the circumstances of the case, we think it sufficient to sentence him to
imprisonment for life for the offence under section 302 and to imprisonment for
seven years for the offence under section 392/397 I.P.C, Both the sentences
will run concurrently.
Appeal allowed.
S.R.
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