Penal Code, 1860:
ss. 302 and 392 u/s. 34 – Prosecution of three accused, including appellant (accused No. 2) – For double murder – u/ss. 120-B, 302, 392 and 397-IPC – Trial court relying on the circumstantial evidence viz. recoveries at the behest of the accused and the report of the fingerprint expert, convicted all the accused – High Court, upheld conviction of appellant-accused No. 2 and accused No. 1 – Accused No. 3 was acquitted granting benefit of doubt – Appeal by accused No. 2 – Held: In the facts and circumstances of the case, recoveries cannot be taken as incriminating evidence – Prosecution has failed to make out the complete chain of circumstances to establish the guilt of the appellant-accused beyond reasonable doubt.
Evidence:
Circumstantial evidence – Held: In cases of circumstantial evidence, every circumstance has to be proved beyond reasonable doubt – Chain of circumstances should be so complete and perfect that only inference of the guilt of the accused should emanate therefrom.
Identification of Prisoners Act, 1920:
ss. 3, 4, 5 and 8 – Power of Police officer u/s. 4 – Whether can be exercised in absence of Rules framed u/s. 8 – Held: Nonframing of any rules u/s. 8 does not prohibit the exercise of powers given u/ss. 3 and 4.
Allowing the appeal, the Court
HELD:
Per Indu Malhotra, J.
1. As per the prosecution case, 15 items of golden jewellery,
2 items of silver, 6 silver coins and Rs. 50,000/- in cash were allegedly recovered from Appellant-Accused No. 2 at the time of his arrest, which was 16-17 days after the date of the occurrence of the offence. The said jewellery and cash belonged to the deceased. Appellant-Accused No. 2 in his statement recorded under Section 313 Cr.P.C. stated that the recovery was planted, and that he had been falsely implicated. It is improbable and unnatural that 16-17 days after the date of occurrence of the offence, when each of the accused was apprehended, each of them was found holding bags of jewellery. The brother of deceasedPW-4 had denied the suggestion of the prosecution that he was shown the jewellery recovered from the possession of the accused persons, or that he identified the jewellery articles to be belonging to the deceased. The jewellery articles were not identified to be of the deceased. In these circumstances, the alleged recovery of jewellery and cash from appellant-accused No. 2 could not be taken as a piece of incriminating evidence. [Para 6.1][841-E-H; 842-A-C]
2. As regards recovery of a blood-stained knife, the knife was found to be stained with human blood, no blood grouping could be given. The High Court found that in the absence of any witness identifying the weapon of offence used in the commission of crime, or the opinion of the post-mortem doctors that the injury was possible by the said knife, or the FSL report regarding the blood of the deceased being found on the said knife, the knife cannot be said to be connected with the offence. Therefore, the weapon of offence allegedly recovered from appellant-accused No. 2 and used in the commission of the crime, cannot be taken as a piece of incriminating evidence against him. [Para 6.2][842C-F]
3. The blood-stained shirt recovered at the instance of appellant-accused No. 2 was sent for analysis to the FSL. As per the FSL report (Ex. PW-33/A), the shirt was found to be stained with human blood of “B” group, which was the same “blood group” as that of the deceased. The High Court held the recovery of the blood-stained shirt from appellant-accused No. 2 to be incriminating against him, since the blood samples taken from the bed-sheet at the scene of crime, were also found to be of the same blood group. The mere matching of the blood-group of the blood samples taken from the bed-sheet at the scene of crime, and the blood-stained shirt recovered from appellant-accused No.
2 cannot lead to the conclusion that the appellant had been involved in the commission of the crime. The prosecution has not proved that the room from where the blood-stained knife and blood-stained shirt were allegedly recovered, was in the exclusive possession of the appellant. Therefore, the recovery of the bloodstained shirt from appellant-accused No. 2 cannot be used as an incriminating piece of evidence. [Para 6.3][842-G-H; 843-A-B, C-D, F-G]
Prakash v. State of Karnataka (2014) 12 SCC 133; Debapriya Pal v. State of West Bengal (2017) 11 SCC
31 : [2017] 1 SCR 566 – relied on.
4. The recovery of the Maruti Van and the broken number plate was held to be a piece of incriminating evidence against accused No.1 and appellant-accused No. 2 by the trial court. PW30 had stated in his cross-examination that no public person/independent witness was present at the time of the alleged recovery. While PW-23 stated that the broken number plate was allegedly recovered from the garbage dump, PW-30 and PW-32A stated that it was allegedly recovered from the bushes. The absence of any independent witness of the alleged recoveries, and the discrepancy in the statements of the police officers, makes the prosecution case doubtful. [Para 6.4][844-A-B, E-F]
5. The prosecution relied upon the report tendered by the Finger Print Expert PW-35, to state that the finger impressions obtained from appellant-accused No.2 matched with the chance prints obtained from the scene of crime. The specimen chance prints of both these accused viz. Accused No. 1 and appellantaccused No. 2 were taken by the I.O. PW-32A, without obtaining any order of a Magistrate whilst the accused were in police custody. [Para 6.5][844-G; 845-C]
6. Thus, in the aforesaid facts and circumstances of the case, the prosecution has failed to make out the complete chain of circumstances to establish the guilt of the appellant beyond reasonable doubt. [Para 7][848-E]
Per Ashok Bhushan, J. (concurring)
1.1 The scheme of the Identification of Prisoners Act, 1920 indicates that Section 3, Section 4 and Section 5 are separate and independent provisions pertaining to taking of measurements. Measurement has been defined under Section 2(a) to include finger impression and footprint impression. In the present case, it is the Police Officer, who have taken fingerprints of the appellant after he was arrested which is referable to Section 4 of the Act. [Para 8][848-D-E]
1.2 The purpose and object of empowering Police Officer to take fingerprints in an offence punishable with rigorous imprisonment for a term of one year or upwards is for offences of trivial nature. Where rigorous imprisonment is less than one year Police officer is not empowered to take fingerprints. The use of words “rigorous imprisonment for a term of one year or upwards” does not negate the punishment of life imprisonment or death. The object of the Section was not to empower the Police Officer to take fingerprints in trivial offences where imprisonment is less than one year but the provision cannot be read to mean that Police Officer does not have such power if imprisonment is for life or capital punishment. The reading of Section 4 in the manner suggested in Sapan Haldar case will negate the very purpose of empowerment of Police Officer to take the fingerprints. [Paras
26 and 27][855-D-F]
1.3 Non-framing of any rules under Section 8 by the State Government does not prohibit the exercise of powers given under Sections 3 and 4 of the Act. Exercise of power under Sections 3 and 4 is hedged by conditions as prescribed but in a case where no rules have been framed, the authorities as empowered under Sections 3 and 4 are not denuded of their powers to act under Sections 3 and 4. If the interpretation that in absence of rules framed under Section 8, no power can be exercised under Sections
3 and 4 is accepted, the provisions of Sections 3 and 4 shall become dead letter, which has never been the intention of the legislature in enacting the 1920 Act. [Para 48][864-B-C]
1.4 The High Court in the impugned judgment has discarded the chance evidence of palm impression by observing “no rules having been framed in Delhi and procedure as prescribed in Section 5 of Identification of Prisoners and having not been followed, we would thus discard the evidences of palm impressions”. Whether there were any executive instructions regarding taking of fingerprints in State of Delhi or not is an issue on which there is no clear materials. It is not the case of the appellant before any Court that fingerprints were taken in disregard of any executive instructions applicable in the State of Delhi. Therefore, the view of the High Court that evidence of fingerprints of the accused has to be discarded cannot be supported. [Paras 49, 51][864-D-E; 865-A]
V.T. Khanzode and Others v. Reserve Bank of India and Another (1982) 2 SCC 7 : [1982] 3 SCR 411 – followed.
Surinder Singh v. Central Government & Ors. (1986) 4 SCC 667 : [1986] 3 SCR 946 – relied on.
*Sapan Haldar & Another v. State 191 (2012) DLT
225 – disapproved.
Shankaria vs. State of Rajasthan (1978) 3 SCC 435; Mohd. Aman and Another v. State of Rajasthan (1997)
10 SCC 44; State of Madhya Pradesh v. Devendra (2009) 14 SCC 80 : [2009] 8 SCR 98; State of Uttar Pradesh v. Ram Babu Misra (1980) 2 SCC 343:[1980]
2 SCR 1067; Mahmood vs. State of U.P. AIR 1976 SC
69 : (1976) 1 SCC 542; Thavaraj Pandian & Ors v. State 2003 Cri. L.J.2642; Prakash v. State of Karnataka (2014) 12 SCC 133 – referred to.
2. Even if, it is accepted that fingerprints of appellant’s, chance print Mark Q5 was identical to the specimen of left palm impression of appellant-accused No.2, it does not complete the chain of circumstances unerringly pointing out fingers to the appellant, that it was the appellant who committed the murder. Every circumstance would have to be proved beyond reasonable doubt and further the chain of circumstances should be so complete and perfect that the only inference of the guilt of the accused should emanate therefrom. Thus, even if, above evidence is not discardable the entire chain of circumstances is not complete to unmistakeably point out the guilt to the appellant. The appellant stands acquitted of the charges under Sections 302,
392 read with Section 34 of the IPC. [Paras 52, 53 and 54][865B-F]
Ramesh and Others v. State of Rajasthan (2011) 3 SCC
685 : [2011] 4 SCR 585 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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