Ashish Jain vs Makrand Singh and Ors.

ss.4 and 5 – Fingerprint samples - Obtained without magisterial order – Whether illegal – Held: If suspicious circumstances arise, in order to ward off such suspicion, it is in the interest of justice to get orders from the Magistrate – But that does not mean that u/s. 4, police officers are not entitled to take fingerprints until order is taken from Magistrate. Dismissing the appeals, the Court

HELD: 1. In a case wherein the High Court has acquitted the accused of all the charges, there is a double presumption in favour of the accused, as the initial presumption of innocence is further reinforced by an acquittal by the High Court. In such a case, this Court will keep in mind that the presumption of innocence in favour of the accused has been fortified by the order of acquittal and thus if the view of the High Court is reasonable and based on the material on record, this Court should not interfere with the same. Interference is to be made only when there are compelling and substantial reasons to do so, and if the ultimate conclusion reached by the High Court is palpably erroneous, constituting a substantial miscarriage of justice. Moreover, interference can be made if there is a misconception of law or erroneous appreciation of evidence or the High Court has completely misdirected itself in reversing the order of conviction by the Trial Court. [Para 17][358-F-G] State of Rajasthan v. Islam and Ors. (2011) 6 SCC 343 : [2011] 6 SCR 988; State of U.P. v. Awdhesh (2008)

16 SCC 238 : [2008] 13 SCR 269; State (Delhi Admin.) v. Laxman Kumar and Ors. (1985) 4 SCC 476 : [1985]

2 Suppl. SCR 898 – relied on.

2.1 PW12 and PW20 are the last seen witnesses who saw the entry and the exit of the accused persons from the crime scene, respectively. These two witnesses have categorically stated that they had conveyed this piece of valuable information to the complainant PW26 right before he filed the first information. However, there is no whisper of such an important fact anywhere in the first information, Ex. P5 nor the FIR arising from it, Ex. P6. Moreover, PW12 and PW20 have deposed that they were present at the spot when the bodies were found. However, their statements were not taken by the police on the same day, rather they were taken subsequently on the next day. Considering the fact that the details of the last seen circumstance as deposed by PW12 and PW20 are not found in the first information (though PW26, the informant was informed about the same by PW12 and PW20 before filing the First Information Report), PW12 and PW20 did not see the accused entering or exiting the house of the deceased, as is sought to be made out by the prosecution. There was deliberate delay in recording the statements of these important witnesses with regard to the last seen circumstance. Hence, the statements of PW12 and PW20 were clearly an afterthought. [Para 18][359-B, C-D, F-H]

2.2 PW20 is a chance witness. Moreover, there are discrepancies and contradictions in the statement of PW20, inasmuch as it is only in his testimony that he asserts for the first time that he saw the accused coming out of the house of the deceased, as opposed to walking hurriedly away from the area. Also, he admitted that he could not remember how many people came out holding bags, and how many came out empty-handed, along with the fact that he did not usually take the route in front of the house/shop of the deceased to reach his house from his shop, which shows that he is a chance witness. Keeping in mind that this witness was related to the deceased, and appears to be a chance witness with material discrepancies in his account, his evidence as to the last seen circumstance is discarded. [Para 19][360-A-C]

2.3 The first information clearly mentions the name of the accused as well as their addresses. It is also stated by the witnesses that they are acquainted with the accused persons. The police could have easily arrested the accused. The material on record shows that the arrests were made only the next morning between 11:00 a.m. and 11:30 a.m., that too at the houses of the accused persons, which also, incidentally, shows that the accused persons were not absconding, which is unnatural conduct on the part of an offender who knows that he has been observed entering the house of the deceased on the day of the offence. Thus, the delay in the arrest, despite clear knowledge of the whereabouts of the accused persons, casts a serious shadow of doubt over the case of the prosecution. [Para 20][360-D-F]

2.4 The confessions that led to the recovery of the incriminating material were not voluntary, but caused by inducement, pressure or coercion. Once a confessional statement of the accused on facts is found to be involuntary, it is hit by Article 20(3) of the Constitution, rendering such a confession inadmissible. There is an embargo on accepting self-incriminatory evidence, but if it leads to the recovery of material objects in relation to a crime, it is most often taken to hold evidentiary value as per the circumstances of each case. However, if such a statement is made under undue pressure and compulsion from the investigating officer, as in the present matter, the evidentiary value of such a statement leading to the recovery is nullified. The recovery of the stolen ornaments, etc. in the instant matter was made on the basis of involuntary statements, which effectively negates the incriminating circumstance based on such recovery, and severely undermines the prosecution case. [Paras 21 and 22][361-A-C; 363-G]

Selvi v. State of Karnataka (2010) 7 SCC 263 : [2010]

5 SCR 381 – relied on.

2.5 It is evident from the testimony of several of the examined pledgors, such as PWs 15, 16 and 28, that the identification procedure was conducted without mixing the recovered jewellery with similar or identical ornaments. Additionally, there is nothing on record to show the identity of the pledgors and to prove that the identified ornaments were pledged by them to the deceased, except for the account books maintained by the deceased for his business, but these cannot be relied upon. This is because these account books were seized by the police from the possession of PW11, who is the son-in-law of the deceased. Incidentally, he also runs a similar money-lending business as a pawn broker in another town. No valid reason is accredited to the recovery of deceased’s alleged account books from the possession of his son-in-law. Moreover, these account books were returned to him without any prayer for the same and without following any procedure. Later, it was found that there were additional entries made in the account book after the date of the incident. Moreover, none of the witnesses have spoken about the particular entry relating to them in the account books. No signature of any witness is identified and marked in the account books. None of the witnesses have deposed about any relevant entry found in the account books with reference to their respective gold/silver articles. All these issues, coupled with the fact that the investigation officer has put forth an artificial and got-up story in the matter of identification of the ornaments, creates grave suspicion with regard to the recovery of the ornaments, as well as their identification by the different pledgors. [Para 23][364-B-F]

2.6 The non-examination of two important witnesses to recoeries, in the light of the recoveries adversely affects the prosecution case. [Para 24][365-A-B]

2.7 A pointed suja and a chisel were recovered from the houses of Accused Nos. 2 and 1, respectively, at their instance. However, the prosecution has not established that these are the weapons which were used for the commission of the crime. The medical evidence indicates that the injuries that were found on the bodies of the deceased persons could not have been caused with the weapons seized, and the likelihood of the seized weapons causing the present injuries are very slim, as all the injuries, except one, were lacerations caused by a hard and blunt object. [Para 25][365-C]

2.8 The blood-stained clothes of the accused persons were also recovered from the houses of the accused at their instance. However, the veracity of the said recovery is doubtful in light of the fact that the said recovery was made two days after the arrest of the accused and the recovery of the stolen articles from the houses of the accused, which the investigating officer had thoroughly searched previously. From Accused No. 3, clothes were recovered hanging from a hook inside his one-room house, which had also been searched previously and from where ornaments had also been seized before. All these apparent infirmities create nothing but doubts regarding the guilt of the accused. [Para 25][365-D-F]

2.9 All the blood-stained items (including the weapons, clothes of the deceased and the flooring and tiles of the spot where the bodies were found) were sent to the FSL for examination, however the reports do not, in any way, help the case of the prosecution. Although it is argued that the blood group of the deceased persons is ‘O’, there is nothing conclusive to prove the same. Therefore, no reliance can be placed on the recovery of the blood-stained weapons or clothes of the accused. [Para 26][365-F-H]

2.10 Another incriminating factor is that the fingerprints of Accused No. 1 were found upon the tea tumblers found at the scene of the crime. The High Court was not correct in concluding that the fingerprint samples of the accused (used for comparison with the fingerprints on the tumblers) were illegally obtained, being in contravention of the Identification of Prisoners Act, 1920, inasmuch as they were obtained without a magisterial order. There cannot be any hard and fast rule that in every case, there should be a magisterial order for lifting the fingerprints of the accused. A bare reading of these rules makes it amply clear that a police officer is permitted to take the photographs and measurements of the accused. Fingerprints can be taken under the directions of the police officer. If certain suspicious circumstances do arise from a particular case relating to lifting of fingerprints, in order to dispel or ward off such suspicious circumstances, it would be in the interest of justice to get orders from the Magistrate. But that does not mean that under Section 4, police officers are not entitled to take fingerprints until the order is taken from a Magistrate. It cannot be held that the fingerprint evidence was illegally obtained merely due to the absence of a magisterial order authorizing the same. [Para 27][366-A-B; 368-F-H; 369-A, B-C]

Sonvir v. State (NCT) of Delhi (2018) 8 SCC 24; Shankaria v. State of Rajasthan (1978) 3 SCC 435; Mohd. Aman v. State of Rajasthan (1997) 10 SCC 44 – referred to.

2.10 At the same time, in the current facts and circumstances, the absence of a magisterial order casts doubts on the credibility of the fingerprint evidence, especially with respect to the packing and sealing of the tumblers on which the fingerprints were allegedly found, given that the attesting witnesses were not independent witnesses, being the family members of the deceased. Thus, the possibility of tampering and post-facto addition of fingerprints cannot be ruled out. [Para 27] [369-C-D]

2.11 The DIG of Police who had visited the scene of the crime shortly after finding the bodies, upon seeing three tea tumblers and some electrical equipment at the scene of the crime, inferred that the crime may have been committed by three persons who were electricians. This inference drawn by a highranking officer in the police is likely to have impeded the course of investigation and created prejudice against the accused persons. The whole investigation and the prosecution case seem to be concocted around this inference made by the DIG, and such a circumstance does not help the case of the prosecution. [Para 28][369-E-F]

2.12 There is no glaring infirmity in the acquittal granted by the High Court. On the other hand, it is well-reasoned. The appellants have failed to establish that the High Court has erred in its conclusion. Unless any blatant illegality or substantial error in the order of acquittal is proved by the appellants, and as long as the conclusion of acquittal is a possible view based on the circumstances and material on record, this Court is not bound to interfere with the same. As a reasonable suspicion or doubt persists regarding the guilt of the accused based on the case of the prosecution, the scales of criminal justice tilt in favour of acquittal of the accused. In such a scenario, the acquittal of the accused persons is confirmed. [Para 29][369-G-H; 370-A]