HIMACHAL PRADESH ADMINISTRATION v. SHRI OM PRAKASH
Citation: [1972] 2 S.C.R. 765; 1971 INSC 340
Court: Supreme Court of India
Bench: P. JAGANMOHAN REDDY , D.G. PALEKAR
Judgment date:
Case summary
1971 INSC 340. Supreme Court of India judgment dated 1971-12-07. HIMACHAL PRADESH ADMINISTRATION v. SHRI OM PRAKASH. Read the judgment and case details on...
Judgment text
I , A B c D HIMACHAL PRADESH ADMINISTRATION v. SURI OM PRAKASH December 7, 1971 765 [P. JAGANMOHAN REDDY AND D. G. PALEKA! l, JJ. ] Constitution of India, 1950, Art. 136-Criminal appeal against ac- quittal-Scope of interference by Supreme Court. Criminal trial-Circumstantial evidence-Approach by Court. Evidence &ct (! of 1872), s. 21-Weight of evidence re : recovery- Panch witnesses-If should b~ different for each recovery. Criminal Procedure Code (Act 5 of 1898). s. 510-Admissibillty and weight of reporl of finger print expert. The accused was charged with murder by stabbing, ll;nd tha ev! den~e against him was circumstantial. It consisted of : (a) evidence of 1ll-w1ll against the deceased furnishing a motive (b) evidence that he was last seen in the company of the deceased, ( c) evidence furnished by finger prints, that he was present in the room of the deceased at or about t~e time of the murder, ( d) evidence that he was subsequently found '!
' possession of articles which had incriminating blood strains. and (e) evi- dence that he had hidden a dagger with bloodstains thereon, and certain other articles, which were discovered on information furnished by him. The trial court convicted him but the High Court set aside the convic- tion on the ground that the \\ritnesses \vere not independent or impartial. Allowin~ the appeal to this Court, E HELD : (I) In an appeal against acquittal by special leave under Art. ! 36, this Court has pawer to interfere with the findings of fact, no distinction being made between iudgments of acquittal and conviction though in tho> case of acquittals, it will not ordinarily interfere with the appreciation of evidence or findings . of fact unless ~he High Court actec 1 perverselv or otherwise improperly, [772 B-D] Slate of Madras v. Vaidyanatha Iyer, [1958] S. C. R. 580. 587. referred F to.
G H (2) In the case of circumstantial evidence if the links in the chain are complete leading to the undoubted conclusion that the accused alone could have committed the offence then it can be accepted. In aopreciating suc1' evidence the prime duty of a court is to •msure that the evidence is legally admissible, that the witnesses are credible and that they have no interest or motive in implicating the accused. Since it js difficult to expect a scienti- fic or mathematical exactitude while dealing \vith such evidence corrobora~ tion is sou~ht w)lerever possible. If there is any reasonable doubt the accused is gi~-en the benefit of such doubt The doubt should be reason- able and not a remote po~ibilitv in favour of the accused.
"That is, the greatest possible care should be taken by the court in convicting an accuse m where a canvas bag which contained five registers said to be missing from the residence of the deceased were recovered and then the accused went into the Ganda Nala brought out a tea-poy cloth which con- tained vouchers and also recovered a blood stained pant which was lying under the water. The button and the coat were sent to the forensic laboratory at Chandigarh for examination. The llash and the glass panes were sent to the Finger Print Examiner at Phillor and the button to the Forensic Laboratory which gave a report that it was similar to the button on the coat from which it was missing. The Chelllical Examiner and Serologist found hunian blood on the key, ihe dager, blanket, coat, sweafur and pant, the shoes G . and socks.
The blood grouping could only be found on the pajama and shirt of the deceased which is of 'O' group while no blood grouping was possible in respect of the other articles referred to. Vide Ex. P. 60 and Ex. P. 48. The finger print expert found on the flask and the glass pane reported as per Ex. P. 59 that they are~~ s~ne ~s those o~ the ~ccused and ~v~more than 12 points of s1m11anty 1. e. malchmg ndge charactenst1c details. H The High Court grquped the circumstances relied against the accused under 4 broad heads namely : 770 SUPREME COURT REPORTS [1972 J 2 S. C. R. (i) that there was a motive for committing the murder; (ii) that the deceased Chaturvedi was seen last in the Company of the accused; (iii) that in pursuance of the statement said to have been made by the accused as per Ex. P. 6 a recovery of blood stained sweater. coat, blanl.. 1:t. shoes and socks and blood stained dagger were made as per Ex. P.
6/A on 1-2-67 (the date given in t~e Judgment as 2-2-67 is not correct), and that on 2-2-67 five regi>ters contamed in a bag and 12 bundles of vouchers were recovered; and (iv) that the finger marks of the accused were found on the flask as well as on the glass panes at the place where the murder took Rlace. If the circumstantial evidence as relied upon by the prosecution is credible and acceptable the offence with which the accused is charged can be held to be estabiished beyond reasonable doubt. The High Court however did not accept these circumstances as having been established by any independeu~ and reliable evidence. In so far as motive suggested by the prosecution is concerned it was of the view that while no doubt the accused was suspended by an orc. kr of the deceased on 21-6-63 that suspension must have been as a consequence of the ·action taken by the autl:J.
orities of the Bank with the approval of the Board of Directors and this does not indicate that he ~ould have any grievance ·against him; that the accused had no grievance against the deceased is also shown by the fact that the deceased had given him employment in the Finance Company. The second circumstance against the accused, that he was last seen in the Company of the deceased on 30-1-67 at 9. 30 p. m. was also held not to incriminate him for the reason that even if Lal Chand P. W. 9's statement was true, it only goes to show that the accused was seen . going with the deceased towards the Nagina Singh Building but that does not mean that they had gone into that Building together, but on the other hand there was a possi- bility of the accused taking leave of the deceased and going away to his house without entering into. the Nagina Singh Building. With respect to the third circumstance relating to the seizure and re- covery of articles and their admissibility under Sec.
27 of the Evidence Act, it was observed that the evidence adduced by the prosecution for establishing these circumstances reveals a number of irregularities ood is suspicious firstly because the prosecuting officer took with him all the witnesses who were neither independent nor impartial and even the witness P. W. 5 Kala Ram cannot be considered to be independent or impartial as he was not a stranger but was known to the Enquiry Officer. A reading of Kala Ram's evidence gives tl! e impression that he is a person willing to be an agent 0f the police. It also appeared to the High Court that the A B c D E F .. G H A B c D E F G H HIMACHAL PRADESH v. OM PRAKASH (Jaganmohan Reddy. /. ) 7 7 I action of P. W. 28 in bringing the accused out of the room when he and the other witnesses went to his house gives rise to the suspi- cion that it might have been done deliberately to clear the way for planting the articles in the cot which was in the room and fourthly the statement Ex.
6 said to have been made by the accused amount- ed to a confession by the accused and if as the enquiry officer P. W. 28 claimed that the statement was voluntary instead of recording it himself he could have produced the accused before a Magistrate for recording the same. In view of this the Higi} Co\lrt wa~ not satisfied that the statements were freely and voluntarily made by the accused and accordingly neither the portions of those state- ments which related to the discovery of incriminating facts nor the admissibility under Sec. 27 of these Memos Ex. P6 & P. 6A and P. 7 which were signed by P. W. 2, P. W. 5, P. W. 8 and P. W. 28 both on 1-2-67 as well as on 2-2-67 could be relied upon.
Even the handing over of the shoes and socks it was observed cannot be treated as having been discovered because the accused was wearing them at the time when he handed them over to the police, and also that it was difficult to believe ~hat the accused will have the coaf, sweater and blanket which are said to have blood stains on them recovered because he could have discarded them in the same way as he is said to have done with his pants. Moreover the coat and the sweater were not shown to belong to the accused by inde- pendent and reliable evidence. For these reasons the alleged dis- coveries or the recoveries of the coat, the sweater, the blanket, shoes and socks were rejected. Even with respect to the disco;cry of the dagger the High Court thought that Amar Chand P. W. 8 was not an independent witness, that Bhag Singh P. W.
12 who was just a worker at the bakery claimed to be present casually did not inspire confidence, nor in the absence of independent witnesses who could have been easily procured could the other evidence be relied upon. The identification of the dagger by Ganga Singh P. W. 11 before the Magistrate was also not accepted because there was nothing to show that the dagger was the one which was purchased by the accused nor is it possible ~ distinguish the dagger in ques- tion from the other 3 daggers with which it was mixed up. Simi- larly the evidence relating to the recovery of the account books and vouchers was disbelieved. The thumb impressions on the flask and the glass panes was rejected on the ground that no particulars were set out by the Director of the Finger Prints Bureau except the stereotyped statement that there was a similarity of more than 12 points.
On this aspect the High Court observed as follows : "If the accused also had handled the flask, as suggest- ed by the prosecution, his finger impressions also would be on the flask, and there would be quite a good number of finger impressions on the flask. But curiously only three finger impressions, and that too of the accused, are 772 SUPREME COURT REPORTS [1972] 2 s. c. R. said to be present on the flask. This in our opinion, is a very suspicious feature. Further, the existence of the finger-marks is said to have been noticed even at the earliest stage of the inquest, and that too not by any expert but by the Investigating Officer, J. C. Gupta, Amar Chand and Baldev Krishan, as though they anticipated the pn;sence of the finger-marks. There . is thus no clear proof that the finger-marks alleged to have bleen found on the 1! ask and the glass pane were those of the accused, and we hold accordingly".
in possession of articles which bear incriminating blood stains and Court has undoubted power to interfere with the findings of fact, no distinction being made between judgmepcs of acquittal and con- viction, though in the case of acquittals it will not ordinarily inter- fere with the appreciation of evidence or op findings of fact unless the High Court "acts perversely or otherwise improperly" (see State of. Madras v. Vaidyanatha Iyer)('). The case against the accused as already stated depends entirely on circumstantial evi- dence the credibility of which is very much in issue. It is well established that circumstantial evidence consists in various links in a chain, which if conplete, leads to the undoubted conclusion that the accused and accused ~lone could have committed the offence with which he is charged. It is said that this evidence is much more dependable than direct evidence provided that no link in the chain is missing.
While it is possible that each of these links may not by itself incriminate the accused or be conclusive against him the linking of all of them may forge the chain in arriving at that con- clusion. The evidence that accused had ill will against the deceased furnishing a motive, that he was last seen in the company of the deceased, that he was present in the room of the deceased at or about the time he was murdered, that he was subsequently found in possession of articles which bear incriminating b'. ood stains and that he had hidden the dagger with blood stains thereon and cer- tain other articles which were discovered on the information fur- nished by him, all cl which if believed leads to the conclusion that he was the murderer. In appreciating the evidence against the ac- cused the prime duty of a court is firstly to ensure that the evidence is legally admissible, that the witnesses who speak to it are credible and have no interest in implicating him or have ulterior motive.
At the very outset an attempt was made on behalf of the de- fence to suggest that it was P. W. 2 who was the murderer and not the accused. This suggestion was made to him in the committal court as also in Sessions Court but it was denied. It was submitted that P. W. 2 had a motive to do away with the deceased because he (l) [1958] S. C. R. 580. 587. A B c D E F G H A B c D E G H • HIMACHAL PRADESH v. OM PRAKASH (Jaganmohan Reddy, J. ) 773 wanted to appropriate to himself the mone. y and property ? f the deceased. To this end he was cross-exammed with the ob1ect oi. establishing that he and th! ) deceased had purchased jointly a land near Chhail and that the deceased was in possession of large sums of money and that P. W. 2 used to receive all the amounts from the loans adva,nced by the Finance Company and to avoid any liability for these amounts the murder was committed with the object of taking away the accounts and destroyjng the evidence relating there- to.
It was further suggested that ~cause of this motive he and P. W. 8 who admitted that he considered P. W. 2 as his superior and P. W. 13 Bhag Singh who is the brother-inclaw of P. W. 2 being the wife's brother, were interested in shifting the offence to the a1 lain- . ~. have been recovere4 and in addition one blood stained warm ~nt, one duster, one bag containing 5 registers are still t@ be ~vered on the· . pointing out of the accused but the remand of ·•tl! O . accused is due to expire at I p. m. and accordingly it was ,~ted that a further remand for 7 days be given and. the ac- ~used made over to the police and orders be passed. Th~ ac- C:llied is alleged to have given the information that he had hid intro under the stone slab near Krishna Nagar Ganda Nala which 11¢ had thrown away in the sewage and which he said will point out and get them recovered. The recovery itself is under Ex. ·P. 7, to which P. W. 2, P. W. 13 and Manohar Lal P. W. 14 who wag picked up on the 'ras.
ta' when he was summoned by the cons- tables are witn_esses. According to P. W. 14 the Thanedar was going ahead and went down to the Nala, when the constable summoned. him and lie went there. He further says that the Thane je"c! Mty in a person's relationship with others who are unobli~ glng o. - considered to be hostile to him. There are manylwith 78i SUPREME COURT REPOR'fS [1972] 2 s. c. a. greater cause who may not venture to do away with those that give occasion for it but experience has shown that even with les~r motive persons have committed more dastardly crimes; that 'is why in view of these imponderables, motive by itself is not sufficient to detem1ine culpability. It has to be judged with positive evidence relating to incriminating facts and circums- tances proved in a case against an accused. It is contended strenuousfy that there is no evidence to esta- bl. iSh that the accused was with the deceased at the time when he w11-s μmrdered.
This contention seems to have found favour with the High Court which has held that though the deceased was last Sc:Qtl alive in the Company of the accused it is not sufficient to indicate that he had gone with the deceased into the Nagina Singh Building and was with him at the time when the murder was committed. The evidence of P. W. 7 is positive that he had seen the accused in the company of the deceased after the deceas- ed bad his meals at about 9. 30 or so. This witness was lhe first to giive information to P. W. 28 which was at about 8. 30 p. m. on 31st January. The High Court does not disbelieve this evidence. In so far as P. W. 9 is concerned it is said that he is a mere casual or chance witness. Even if the reasons given by the High Court for disbelieving his evidence is accepted it cannot negative the fact of the ·accused being seen in the company of the deceased at about 9. 30 or 9. 45 p. m. on 30th January when he was the last one to have seen him alive.
That the accused was in the room with the deceased is established by the fact that his finger prints were on the flask and the window panes and that a coat button of his was found in the room. It was however contended on be· half ,of the accused that these finger prints were not blood stained nor do they indicate that the . accused was present at the time· when the offence was committed because the evidence shows that he was seeking to get reemployment and the possibility of his· having visited the deceased earlier in the day or a few days before the offence when the finger prints could have been found on the flask and the window panes cannot be ruled out. Second- ly it was urged that the report of the finger print expert as the High Court has held does not furnish the reasons for the opinion that they belonged to the accused.
On the first of these co~tentions it mav be observed that there is no evidence that he had been to see the deceased earlier that day or had seen him befor~ that day as would probabalise these finger prints being still present on the 31st January. The evidence merely points out to the fact . that the accused was seeking reemployment in the Company and the deceased was unwilling to give him employment. It is a long viay from this circumstance to infer that he had been in the r-0001 earlier. The second contention is in our view equally. llll- ·1enable. The report regarding the Finger Print is that of ttte 8 c D E G H A B c D E F G II HWACHAL PRADESH v. OM PRAKASH (Jaganmohan Reddy, J. ) 783 Director of the Finger Print Bureau which under Seo. 510 Crimi- nal Procedure Code can be used as evidence in any enquiry or trial without examining the· person who gave the report just in the same way as the report of the Chemical Examiners or of the Chief Inspector of Explosives is evidence.
Under sub. sec. (2), hdwever the Court m_ay, ifit thinks fit, and shall, on the applica- tion cf the prosecution or the accused, summon and examine any such person as to the subject matter of his report. The addi- tien of the report of the Director of Finger Prints Bureau and of the Chief Inspector of Explosives in Sec. 510 was made by Sec. 99 of Act 26 of 1955 and unless the Court or the Public Prose- cuto1 or the accused require the summoning and examining of any person as to the subject matter of his report that report· can be acted upon. It is however submitted that while the report. may be admissible the opinion will have to be justified. Neither tlw decision of a Single Judge oi Andhra Pradesh High Court in re. Godarerthy Bheslzyakaracharvulu(i'), nor that of the Madras High Court case in re. Marudai, support this contention. The reascn why the reports of the Director of the Finger Print Bureau.
is treated as evidence ·without examining the persons giving the report is that the comparison and identification of Finger Prints has now developed into a science and the results derived there- from have reached a stage of exactitude. As long as the report shows that the opinion was based on observations which lead to a conclusion that opinion can be accepted, but should there be any doubt it can always be decided by the calling of the person making the report; when once the report is proved; neither . the pro~ccution nor the accused nor yet the Court thought it necessary to require the person making the report to be examined. In this case, however, the pb9tograp_hs of the finger prints were taken on the very day when the flask and the glass pane were seized. After these material objects were sent to the Finger Print Bureau they were again photographed and compared with the finger prints taken of P. W. 2, P. W. ! 3 and P. W. 8 and the accused·.
In so far as the Finger Prints of the accused are concerned though some- what smudged they were said to be readably clear and in each of the finger impressions found on the flask and the window pane there were more than 12 points of similarity i. e. matching ridge characteristic details in their identical sequence. without any d~cordances in their comparable portion and the corresponding ponion of the left thumb impression, middle finger impression. left inclex finger, right middle finger of Om Prakash the accused. It wJs also stated that so many points of similarity cannot ~ found to occur in the impressions of different thumbs and fingers and they are therefore of one and the same person. In respect (l) AIR 1%0 A. P. 164. (2) AIR 1960 Madras 370. 784 SUPREME COURT REPORTS [1972] 2 S. C. R.
of a thumb impression compared with the right thumb impressil}n of Om Prakash the expert had found not less than 1 O points of similarity and even with respect to this his opinion was that so many points of similarity cannot be found to occur in the im- pressions of different thumbs and fingers and are therefore identic cal or are of one and the same person. There appears to be no difficulty in coming to the conclusion from the report that the points of similarity are those which can be accepted as a positive finding. The absence of these Finger Prints being blood stained is not indicative of the accused not being th'ere before the niurder. We have it in evidence that the curtain near the door showed that blood stained hanCls were wiped thereon. That apart the button which was recovered gives a direct clue to the presei1ce of the accused at the time when the offence was committed. It is seen from Ex. P.
61 A that the upper button of the 3 small bnttons on the cuff of the coat recovered from the accused was missing and the button recovered from the room where the de- ce:ised was· murdered matches the button and supplies the miss- ing one. The report of the Forensic expert is that on a compari- ·son of that button with the button of the accused's coat e>fa- blishes that it is the similar one. For this reason the accused bad denied that the coat and the sweater belonged to him and the fearned Advocate on his behalf has urged in support of that plea that these were not recovered from the accused and the recovery memos were all fake and were written subsequently. Accused fo the statement under Sec. 342 in answer to question 19, that he had signed the recoyery Memos dealing with the sweater, coat and blanket said that it was incorrect.
He further said that he was made to sign three blank papers in the Thana and that he was filing a copy of the application in this connection made by him while he was in the judicial lock up. Again in answer to ques- tion 35 whether he has anything else to say he stated categorically that on the 1st February '07 he was take11 to the Thana at. 5 p. m. , on the 2nd Febmary he was produced before the Court from ~here a remand was taken and that on 7-2-67 the S. H. 0. ob- tained his signatures on three blank papers in respect of which he had sent -an application after he was taken to the judicial lock up. This statement goes counter to the facts stated in th. e application of remand made to the Magistrate on 2-2-67 which was earlier edracted. A perusal of that remand application wo.
uld show that these recoveries had already been made on the 1st and so there could be no question of his signatures beirig iaken on the blank papers on the 7th for purposes of cooking up the recovery Memos which according to the accnsed were ··not recovered on the 1st. The coat. and the sweater were recMeretl from his room while the shoes and socks from his person as be was wearing them. There can be no doubt of the ownership being that of the accused. A B c D E F G H A B c D E F G H ij! MACHAL PRADESH v. OM PRAKASH (Jag'a11moha11 Reddy,/. ) 785' Then there is the recovery of ! lie blood stained knife with tespect to whi. ch similar contentions were raised. Where a per· snn who is not a hardened criminal is burdened with the guilt of• a gruesome crime, is confronted with a tell tale finding tho pO! :sibility of his making a clean breast of what is weighing hea· ViJy on him cannot be ruled out.
It is difficult to generalise as to what a man may or may rtot do after committing a ghastly murder nor ·can there be an infallible test to detennine the course oi. human reaction, conduct or behaviour in a given situation wfilch might manifest itself irt various. ways. In this case when the accused was confronted with 'the button of his coat he gavo infonnation leading to the incriminating discoveries. Whether the knife could have been properly identified by P. W. 11 in the identification held before the Magistrate there can be little doubt, if we believe his evidence, the accused had purchased a knife that day, which is similar irt nature to the one lie was selling. There is no reason why P. W. 11 should not be belie\'ed on this aspect. . He says that it was purchased b~ the! accused at the noon time on the day when Mahatma Gandhi had dieJ on the 30th for Re. 1 I· and that the police had brought the accused to his shop on the 3rd day after the dagger was pur· chased.
He further says that the accused used to go to him pre· viously for the mending of his knife and scissors though the wit~ ness admits that he had not purchased any dagger from him pre· viously. In cross-examination he admitted frankly that he was having his thari without permission of the municipality and that he was challaned and fined almost every month though from the last 8 months the police have not challaned but the Municipal Committee have challaned him. He also admitted that once about 23/24 years ago he was convicted in a theft case and was senteμced to rigorous imprisonment and his hisfory sheet was closed 21 or 22 years ago. At the- time of giving evidence he ~ about 35 years and even making an approximation of the age he must have been 13 or 14 years when the offence for which he was convicted was committed .. n1is adniis. sion seemed to have weighed with the High Court that his antecedents were such as to justify their not relying upon his evidence.
They also found it difficult to believe that when hfl had not put any special mark on the dagger he could identify it from amongst three similar ones. In this connection it may be remembered that P. W. 11 was making the knives which he was selling and it is not unknown that persons who make knives or other implements can recognise them with some amount of certainty even though special identi· fication marks may not be present. Be that as it may, even If the identification is discarded there is nothing . 19 doubt his st,ij• ment that he knew the aecused before the 30tf'i January 1 ! lll1 786 SUPREME COURT REPORTS (l 972] 2 S. C. R. and that about noon on that day he had purchased a dagger fcoo1 him. It is not unreasonable to infer that the dagger which he purchased is the dagger which was recovered on the informati r himself also fits in with the other evidence adduced by the prosecution.
There is in our view no justification for the High Court in jettisoning this cogent evidence of a conclusive nature on mere conjectures and on the omnibus ground that the witnesses were not independent or impartial which as we have show:n is without justification. In our view the evidence in this case is sufficient to justify the conviction of the accused for an offence of murder. We accordingly set aside the judgment ol acquittal of the High Court, convict the accused under Sec. 302 and sentence him to life imprisonment, V. P. S. Appeal allowed. A B c D
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