PETITIONER: MOHAN LAL & ANR. Vs. RESPONDENT: AJIT SINGH AND ANR. DATE OF JUDGMENT02/05/1978 BENCH: SHINGAL, P.N. BENCH: 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] JUDGMENT:
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 ton of 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 bad 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 some time 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 alongwith 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.
844