Full Judgment Text
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PETITIONER:
HIMACHAL PRADESH ADMINISTRATION
Vs.
RESPONDENT:
SHRI OM PRAKASH
DATE OF JUDGMENT07/12/1971
BENCH:
REDDY, P. JAGANMOHAN
BENCH:
REDDY, P. JAGANMOHAN
PALEKAR, D.G.
CITATION:
1972 AIR 975 1972 SCR (2) 765
1972 SCC (1) 247
CITATOR INFO :
R 1973 SC 863 (15,27)
R 1979 SC 400 (8)
F 1979 SC1284 (4)
R 1986 SC1769 (5)
RF 1989 SC1205 (17)
RF 1991 SC1108 (10)
RF 1991 SC1853 (9)
RF 1992 SC 49 (9)
ACT:
Constitution of India, 1950, Art. 136--Criminal appeal
against acquittal--Scope of interference by Supreme Court.
Criminal trial--Circumstantial evidence--Approach by Court.
Evidence Act (1 of 1872), s. 27--Weight of evidence re :
recovery--Panch witnesses--If should be different for each
recovery.
Criminal Procedure Code (Act 5 of 1898), s.
510--Admissibility and weight of report of finger print
expert.
HEADNOTE:
The accused was charged with murder by stabbing, and the
evidence against him was circumstantial. It consisted of :
(a) evidence of ill-will 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 the
time of the murder, (d) evidence that he was subsequently
found in Possession of articles which had incriminating
blood strains, and (e) evidence that he had bidden 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 conviction on the ground that the witnesses were not
independent or impartial.
Allowing the appeal to this Court,
HELD : (1) In an appeal against acquittal by special leave
under Art. 136, this Court has power to interfere with the
findings of fact, no distinction being made between
judgments of acquittal and conviction though in the case of
acquittals, it will not ordinarily interfere with the
appreciation of evidence or findings of fact unless the High
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Court acted perversely or otherwise improperly. [772 B-D]
State of Madras v. Vaidyanatha Iyer, [1958] S.C.R. 580,
587, referred to.
(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 appreciating -such evidence the
prime duty of a court is to ensure 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 is difficult to expect a scientific or mathematical
exactitude while dealing with such evidence corroboration is
sought wherever possible. If there is any reasonable doubt
the accused is given the benefit of such doubt. The doubt
should be reasonable and not a remote possibility in favour
of the accused. That is, the greatest possible care should
be taken by the court in convicting an accused,, who is
presumed to be innocent till the contrary is clearly
established, and the burden of so establishing is always on
the prosecution. [772 C-E, G; 773 E-H; 774 C]
(3)(a) While considering the evidence relating to the
recovery under S. 27 of the Evidence Act the court will have
to exercise that caution and care which is necessary to lend
assurance that the information furnished by the accused
lead in to the discovery of a fact is credible. [776 D]
766
In the present case, the various panchnamas of seizure
prepared by the Investigating Officer could not be assailed
on the ground that the witnesses who witnessed the
recoveries were connected with the deceased or with his
business, and that therefore, they were not independent or
impartial witnesses. [775 H; 776 G]
(b) The evidence relating to recoveries is not similar to
that contemplated under s. 103, Cr. P.C. It cannot be laid
down as a matter of law or practice that where recoveries
had to be effected from different places on the information
furnished by an accused different sets of persons should be
called to witness them. [777 B-C]
On the contrary, in the present case, the witnesses who
worked with the deceased were proper persons to witness the
recoveries as they could identify the things which were
missing. [777 C-D]
(4) The report of the Director of the Finger Print Bureau
regarding the finger prints can be used as evidence under s.
510 Cr. P.C., without examining the person making the
report, because identification of finger prints has
developed into an exact science. As long as the report
shows that the opinion was based on relevant observations
that opinion can be accepted. [783 A-E]
In the present case, the report set out many points of
similarity between the finger prints found in the room of
the deceased and those of the accused. [783 H]
(5) The information given by the accused that he purchased
a dagger from one of the prosecution witnesses followed his
leading the police to that witness and pointing him out is
inadmissible under s. 27 of the Evidence Act. The
concealment of a fact which is not known to the police is
what is discovered by the information given by an accused
and lends assurance that the information was true. What
makes the information leading to the discovery of a witness
admissible is the discovery from him of the thing sold to
him or hidden or kept with him which the police did not know
until information was furnished by the accused. But a
witness cannot be said to have been discovered if nothing
was found with or recovered from him. as a consequence of
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the information furnished by the accused. [778 F- 779 H; 780
A-C]
Emperor v. Ramanuya Ayangar, A.I.R. 1935 Mad. 528, over-
ruled.
Pulukiuri Kotayya & Ors. v. King Emperor, 74 I.A. 65,
Ramkrishan Mithaplal Sharma v. State of Bombay, [1955] I
S.C.R. 9’03, Sukhan v. Crown, I.L.R. X Lah. 283, Public
Protector v. India China Lingiah & Ors., A.I.R. 1954 Mad.
435 and Re : Vellingiri, A.I.R. 1950 Mad. 613. referred
to.
(6) But that the accused had taken some of the prosecution
witnesses to the witness from whom he bought the dagger and
pointed him out, would be admissible under s. 8 of the
Evidence Act as conduct of the accused. [780 C-D]
(7) Even after excluding some recoveries on the ground that
the evidence regarding them was not satisfactory, the
evidence against the accused consisted of evidence of
motive, recovery of a button in the room of the deceased
which matched with the button on the cuff of the coat
recovered from the accused, the finger prints in the room,
recovery of a blood stained coat and other articles of
dress, a blanket, and the dagger, and the
767
fact that the accused and deceased were last seen together.
The evidences cogent and conclusive and should not have been
rejected by the High Court. [781 C-E; 786 C-D]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 67 of
1969.
Appeal by special leave from the judgment and order dated
August 12, 1969 of the Delhi High Court in Criminal Appeal
No. 68 of 1967 and Murder Reference No. 1 of 1967.
H. R. Khanna and R. N. Sachthey, for the appellant.
Har Pershad and O. N. Mohindroo, for the respondent.
The Judgment of the Court was delivered by
P. Jaganmohan Reddy, J. This Appeal is by Special leave
against the Judgment of the Himachal Bench of The High Court
of Delhi acquitting the accused who had been sentenced to
death for an offence of murder under Section 302 of the
Indian Penal Code. The accused Respondent was a Manager at
the Kotkhai Branch of the Himachal Pradesh State Cooperative
Bank of which Sunder Lal Chaturvedi the deceased was the
General Manager. It appears that during the period the
accused was working in that Bank there was a fire in the
Kotkhai Branch in which the records of the Bank were burnt
and a sum of Rs. 10,000/,A was found missing. The deceased
had suspended the accused from the service and subsequently
he was dismissed. In or about 1964, the deceased retired
from the Bank and in 1965 started a Private Limited Company
under the name of Himprasth Financiers with the Head Office
at Nagina Singh Building which was situated in the Mall at
Shimla of which he was the Managing Director. He used to
also live in the same building in one of the rooms of the
office and have his meals in the Mansarovar Hotel. The
other Directors of this Company were Gurucharan Singh, Puran
Chand Sood and Kailasli Devi wife of I. C. Gupta, P.W. 2,
who was at one time also Manager in the Himachal Pradesh
State Cooperative Bank. After the accused was dismissed
from the Bank he had applied to the deceased for a job and
was appointed as an Accountant in the Finance Company but
later when his request for increase in his pay was not
sanctioned, he sent in his resignation by a letter dated 31-
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12-66 Exh. P. 8 and it was accepted on 3-1-67 by a
resolution of the Board of Directors Exh. P. 43. On the
night of 30th January 1967 the deceased had his dinner at
the Hotel and when lie came out after taking his food it was
alleged that he was met by the accused. This was witnessed
by Romesh Chand P.W. 7 the Proprietor of the Hotel who saw
them both going towards the Mall. Thereafter at the betel
shop which is near Nagina Singh Building, Lal Chand P.W. 9
who was purchasing cigarettes at that shop saw them together
and going towards the Nagina Singh Building. It
768
was the last time he was seen alive. On the 31st January
67 at about 9.30 a.m. I. C. Gupta P.W. 2, came to visit the
deceased and .found that the main door was bolted from
inside. He then peeped through the glass of the window
panes through the adjoining room and saw that the deceased
was lying in a pool of blood. He immediately telephoned to
the Police. In response to this call the Station House
Officer of the Saddar Police Station, Inder Raj Malik, P.W.
28 came to the building, broke open the room through the
kitchen door and saw that the back door of the bath room was
open. At that time there were present P.W. 2. Amar chand
P.W. 8, Raidev Krishan P.W. 13 and others. The deceased had
on him four incised wounds one on the neck and 3 on the
hands. On inspection of the room he found on the nearby
table a key Ex. 4 stained with blood and under the table
there was a biscuit colour Coat button Ex. 1. Inside the
shelf of an Almirah there was a water flask which appeared
to have on its neck 3 finger impressions. On the glass pane
of the door leading to the kitchen were also found two
finger marks. The curtain near the kitchen door showed that
someone had wiped his blood stained hands on it. The key
and the button were seized and a panchnama was made. There
were also found two bunches of the keys underneath the
pillow of the deceased. Des Raj, P.W. 6, the Police
Photograph took photographs not only of the various objects
in the room but also of the finer marks on the flask and the
window panes after the same were dusted with some prey
powder. Thereafter the Investigating, Officer P.W. 28
requested P.W. 2, P.W. 8 and P.W. 13 to ascertain if any of
the things belonging to the deceased were missing. These
three persons informed him after inspection list two loan
registers, one general ledger, one cash book and vouchers
from April ’66 to December ’66 were missing. They further
informed him that one blanket of the deceased, one tea-poy
cove,’ and one canvas bag was missing. An inquest on the
dead body was held and the blood found was also seized.
Thereafter- p.W. 28 went to Mansarover Hotel and recorded
the statement of P.W. 7. On 1-2-6-/ at about 11.30 a.m. P.W.
28 accompanied by the Assistant Sub-Inspector and Constables
met P.W. 2, P.W. 8 and boarded the jeep of P.W. 2 driven by
Roshan Lal and went towards the house of Om Prakash. On the
way PW. 2 saw Kala Ram, P.W. 5, who was waiting for a bus
and asked him to get into the jeep. Thereafter they went to
the house of the accused situated at Anandale and there P.W.
28 went inside the house and saw the accused in one of his
rooms and brought him outside. After interrogating him he
arrested him and pursuant to a statement made by him seized
from him one sweater, one coat, one blanket which was hidden
inside the nivar of his cot lying inside his room. The
sweater and the coat were stated by the accused to be his.
The accused also gave them the pair of boots and socks which
he was wearing and informed them that he had concealed one
blood
769
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stained dagger under a stone slab below the Maidan of Burnt
Market and over the bakeries which was by the side of a pipe
and offered to have it recovered. He further stated that he
had kept the five registers in a canvas bag which lie had
hidden below a stone at Krishna Nagar on the bank of Ganda
Nala and that he had thrown 8 or 9 bundles of the vouchers
tied in a tea-poy cloth and his blood stained pants in the
Ganda Nala and would get them recovered. The, Investigating
Officer reduced the statements to writing in the presence of
the Panchas and took their signatures. This Panchnama is
Ex. P. 6. The coat and sweater and the blanket inside he
nivar of his cot were handed over by the accused to the
police. These were found to contain blood and were seized
through a Panchnama. The accused then took them to the
market and on the way were met by Bhag Singh P.W. 12 and in
the presence of all these persons he. removed a piece of
stone which was near a pipe and brought out a blood stained
dagger from under it and gave it to P.W. 28. He then took
them to the Tekri of one Ganga Singh P. W. II, in the Lower
Bazar who sells daggers and there P.W. 28 recorded his
statement that on the day of the incident the accused had
purchased the dagger recovered from under the stone which
was identified by P.W. 11, as the one sold to him. On the
next day namely 2-2-67 P.W. 28, got a plan of the rooms and
the office where the deceased was working and living
prepared and from there accompanied by P.W. 2, P.W. 13 went
to Krishna Nagar taking with them on the way Manohar Lal
P.W. 14, from Krishna Nagar to Ganda Nala which was flowing
in the khud. From near there the accused pointed out a
stone slab from 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 contained
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
flash and, the glass panes were sent to the Finger Print
Examiner at Phillor and the button to the Forensic
Laboratory which gavel a report that it was similar to the
button on the coat from which it was missing. The Chemical
Examiner and Serologist found human blood on the key. the
dagger, blanket, coat, sweater and pant, the shoes 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 the same as those of the
accused and have more than 12 points of similarity i.e.
matching ridge characteristic details.
The High Court grouped the circumstances relied against the
accused Under 4 broad heads namely
770
(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, blanket. shoes and socks and
blood stained dagger were made ,as per Ex. P. 6/A on 1-2-67
(the date given in the Judgment as 2-2-67 is not correct),
and that on 2-2-67 five registers contained 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
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murder took place.
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 established
beyond reasonable doubt. The High Court however did not
accept these circumstances as having been established by any
independent and reliable evidence. In so far as motive
suggested byu the prosecution is concerned it was of the
view that while no doubt the accused was suspended by an
order of the deceased on 21-6-63 that suspension must have
been as a consequence of the action taken by the authorities
of the Bank with the approval of the Board of Directors and
this does not indicater that he could have any grievance
against him; that the accused had no grievance against the
deceased is also shown by the fact that the deceas ed had
given him employment in the Finance Company. The second
circumstance against the accused, that lie 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 possibility 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 recovery 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 and 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
the impression that he is a person willing to be an ;agent
of the police. It also appeared to the High Court that the
771
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 suspicion 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 amounted to a confession by
the accused and it 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 High
Court was not satisfied that the statements were freely and
voluntarily made by the accused and accordingly neither the
portions of those statements 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 that the accused will have
the coat, 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 independent and reliable evidence.
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For these reasons the alleged discoveries or the recoveries
of the coat, the sweater, the blanket, shoes and socks were
rejected. Even with respect to the discovery 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 to distinguish the dagger in question from the
other 3 daggers with which it was mixed up. Similarly 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
suggested 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
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 any vestigating
Officer, I.C. Gupta, Amar Chand and Baldev
Krishan as though they anticipated the
presence of the finger-marks. There is thus
no clear proof that the finger-marks alleged
to have been found on the flask 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
judgments of acquittal and conviction, though in the case of
acquittals it will not ordinarily interfere with the
appreciation cf evidence or on findings of fact unless the
High Court "acts perversely or otherwise improperly" (See
State of Madras v. Vaidyanatha lyer) (1). The case against
the accused as already stated depends entirely on
circumstantial evidence 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
complete, leads to the undoubted conclusion that the accused
and accused alone 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 conclusion
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
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deceased at or about the time he was murdered, that he was
subsequently found in possession of articles which bear
incriminating ’blood stains and that he had hidden the
dagger with blood stains thereon and certain other articles
which were discovered on the information furnished by him,
all of 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
(1) [1958] S.C.R. 580, 587.
773
wanted to appropriate to himself the money and property of
the deceased. To this end he was cross-examined with the
object of establishing that he and the 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. advanced 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 destroying the evidence relating there
to. It was further suggested that because 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-in-law
of P.W. 2 being the wife’s brother, were interested in
shifting the offence to the accused by taking a prominent
part during the investigation and became the main witnesses
for proving the several incriminating circumstances against
him.
While it is not the function cf this Court to determine who
other than the person who has been charged with the murder
had committed it, the line which the defence adopted was to
establish that the witnesses referred to above had an
interest in implicating the accused or at any rote to create
uncertainty and doubt sufficient to give the benefit to the
accused. It is not beyond the ken of experienced able and
astute lawyers to raise doubts and uncertainties in respect
of the prosecution evidence either during trial by cross-
examination or by the marshalling of that evidence in the
manner in which the emphasis is placed thereon. ’But what
has to be borne in mind is that the penumbra of uncertainty
in the evidence before a Court is generally due to the
nature and quality of that evidence. It may be the
witnesses are lying or where they are honest And truthful,
they are not certain. It is therefore difficult to expect
a scientific or mathematical exactitude while dealing with
such evidence or arriving at a true conclusion. Because of
these difficulties corroboration is sought wherever possible
and the maxim that the accused should be given the benefit
of doubt becomes pivoital in the prosecution of offendsers
which in other words means that the prosecution must prove
its case against an accused beyond reasonable doubt by a
sufficiency of credible evidence. The benefit of doubt to
which the accused is entitled is reasonable doubt-the doubt
which rational thinking men will reasonably, honesty and
conscientiously entertain and not the doubt of a timid mind
which fightshy-though unwittingly it may be-or is afraid of
the logical consequence if that benefit was not given. Or
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as one great Judge said it is "not the doubt of a
vacillating mind that has not the moral courage to decide
but shelters itself in a vain and idle scepticism". It does
not mean that the evidence must be so strong as to exclude
even a remote possibility that the accused could not have
committed the offence. If that were so the law
774
would fail to protect society as in no case can such a
possibility be excluded. It- will give room for fanciful
conjectures or untenable doubts and will result in
deflecting the course of justice if pot thwarting it
altogether. It is for this reason the phrase has been
criticised. Lord Goddard C.J. in Rex v. Kritz(1) said that
when in explaining to the juries what the prosecution has to
,establish "a Judge begins to use the words "’reasonable
doubt" and to try to explain what is a reasonable doubt and
what is not, be is much more likely to confuse the jury than
if he tells them in plain language "It is the duty of the
prosecution to satisfy- you ,of the prisoner’s guilt" ".
What in effect this approach amounts to is that the
greatest possible care should be taken by the Court in
convicting an accused who is presumed to be innocent til the
contrary is clearly established which burden is always in
the accusatory system, on the prosecution. The mere fact
that there is only a remote possibility in favour of the
accused is itself sufficient to establish the case beyond
’reasonable doubt. This then is approach.
The High Court thought, there was force in the suggestion of
the learned Advocate for, the accused that P.W. 2 had a
clear motive to take away the registers and vouchers of the
Company to make such use of them as would suit him and also
to murder the deceased. On the contrary the I evidence of
P.W.; 2 shows that he was a friend of the deceased., He had
been a Manager in the Himachal: Pradesh State Cooperative
Bank when the de-, was the General Manager. There is
nothing to show that during that period the deceased and, he
were.,on inimical terms or there was any disagreement
between them of Such a nature as .would imply that he bore
ill will towards the deceased. On the ,other hand both of
them had jointly purchased a land, and when the deceased
started the Himprasth Finance Company P.W. 2’s wife was
made a Director in that Company blecause P.W. 2 being an
employee in a State Cooperative Bank could not take interest
therein. At the time of the incidept it’ appear.-, that
P.W. 2 was living in Simla and according to him he had
,regard for the deceased and as he was his General Manager
he ,used to go to him almost daily in the morning and in the
evening. He further says he must have visited him hundred
times inside the house, and on the evening of the 30th
January, 67, the deceased and he went for an evening stroll
as usual and at 9.30 p.m. that day he left him near the
Nagina Singh Building, after which the deceased went away to
take his food towards the Lower Bazar side and he went away
to his house. P.W. 2 knew of the financial position of the
deceased which was according to the loan ledger entries of
the Himprasth Finance Company
775
Rs. 1157.71 np. as on 31-12-66, that there was a credit
amount of Rs. 14,000 as on 29-11-66 Which was not withdrawn
till then; that certain amounts were also borrowed for the
marriage of his daughter from Rawal Chand of Sanjouli whom
he knew welt and that from the accounts it appeared that
there was only Rs. 6.10 np. as cash in hand of the Company
which may be in the hands of P.W. 13. He further states
that he used to. be present in every meeting of the
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Himprasth Financiers and he used to write: the Minutes Book.
There is no suggestion that these Account Books were
manipulated or that the entries therein were, not made con-
temporaneously with the transactions which they evidenced.
There is therefore no justification for holding that either
P.W. 2, or P.W. 8 or P.W. 13 notwithstanding their close
connection with the deceased and the Himprasth ;Finance
Company were inimically disposed towards the deceased or
towards the accused. No adverse inference can be drawn as
contended by the learned Advocate for the accused, against
P.W. 2 that the circumstance point out to him- as being
concerned with the murder or against the other two witnesses
that they were supporting P.W. 2 with the object of
exculpating him from any charge that may be levelled again
st him. The’ suggestion that P.W. 2 Wanted to
appropriate the property of the deceased or do away with the
cash from the loans which were, being paid to him directly
had no rationale. to support it, because firstly the
deceased had one married daughter another unmarried, and
secondly that he had nephews who,in the absence, of the
daughters would have inherited his property. A suspicion
was sought to be aroused because P.W. 2 did.not scene for
the daughters jut sent for the nephews which was with the
object of dividing the properties of the deceased in league
with them. P.W. 2 said that he did not know the address of
the daughters of deceased and therefore he sent for the
nephews, as such no sinister motive can be attributed to
him. P;W. 28 the Investigating Officer had known that P.W.
2, P.W. 8 and P.W. 13 were the only persons closely
connected he found some finger prints on the flask and the
window panes, he out of abundant caution took their finger
prints also on that very day long before the accused was
suspected as being involved in the murder. It was only
after the investigating Officer examined-P.W. 7 the
Proprietor of Mansarover Hotel at about 8.30 p.m. on the
day the murder was discovered that he came to know that the
accused had met the deceased outside the Hotel after he had
taken his meals that night. The various Panchnamas of
seizures that the Investigating Officer prepared in the-
presence of P.W. 2, P.W. 8 and P.W. 13 cannot be assailed
merely on the ground that they were connected with the
deceased or with Himprasth Finance Company. The fact that a
key and a button
776
was recovered or that the flask or the window panes had
finger prints were found in the room where the deceased was
murdered are, unassailable nor has any doubt been raised to
discredit these recoveries. All that is said by the learned
Advocate is that P.W.. 28, being an experienced Investigator
had created evidence and the Account Books, vouchers, tea-
poy cloth, a canvas bag, blanket of the deceased were shown
as missing in order to plant them subs equently on the
accused. But at the time when these seizures were made the
part played by the accused if any was not known, and if at
all P.W. 2, P.W. 8 and P.W. 13 who were Witness to the
panchnama had not been cleared from suspicion. We are not
unaware that Section 27 of the Evidence Act which makes the
information given by the accused while in custody leading,
to the discovery of a fact and the fact admissible, is
liable to be abused and for that reason great caution has to
be exercised in resisting any attempt to circumvent, by
manipulation or ingenuity of the Investigating Officer, the
protection afforded by Sec. 25 and Sec. 26 of the Evidence
Act. While considering the evidence relating to the
recovery we shall have to exercise that caution and care
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which is necessary to lend assurance that the information
furnished and, the fact discovered is credible.
As already stated, on 1st February 1967 the coat, sweater,
shoes and socks of the accused and a blanket of the deceased
ware recovered in the presence of P.W. 2, P.W. 5, P,W. 8 and
P.W. 28. After this they proceeded to: the place indicated
by the accused and recovered the blood stained dagger from
under a stone, which was witnessed by them.. P.W. 2 did not
accompany the party as according to him he had to Jo to make
arrangements for the funeral of: the deceased On ’the way to
the place from where the dagger was to be recovered, the
party met one Bhag Singh P.W. 12 who also accompanied then
to the place of recovery and in the presence of Roshan Lal
who I was ’not examined) Amar Chand, P.W. 8, Bhag Singh,
P.W. 12, and P.W. 28, the dagger was recovered and a Memo
Ex. P. 28 was prepared and. attested by the ’aforesaid
witnesses,. The High Court rejected the evidence of ’these
recoveries under Ex. P. 6/A and P. 28 because P.W. 2, P.W.
8, P.W. 13 and Roshan Lal the driver of P.W. 2, were all
connected-with the deceased and are not therefore
independent or impartial witnesses, It thought that the
Investigating Officer should have called independent and
impartial witnesses preferably, and if possible, from the
locality, as it could not be said that they were not
available or if,,: available would not be willing to be
witnessed and that in any base calling of, the same persons
to witness several searches or recoveries, is objectionable,
and would render the search or the recovery doubtful and
suspect, if not invalid.
777
Further having held this it nonetheless said that there was
no injunction against the same get of witnesses being
present at the successive enquiries if nothing could be
urged against them. In our view the evidence relating to
recoveries is not similar to that contemplated under Sec.
103 of the Criminal Procedure Code where searches are
required to be made in the presence of two or more
inhabitants of the locality in which the place to be
searched is situate. In an investigation under Sec. 157 the
recoveries could be proved even by the solitary evidence of
the Investigating Officer if his evidence could otherwise be
believed. We cannot as a matter of law or practice lay down
that where recoveries have to be effected from different
places on the information furnished by the accused different
sets of persons should be called in to witness them. In
this case P.W. 2 and P.W. 8 who worked With the deceased
were the proper persons to witness the recoveries as they
could identify some of the things that were missing and also
they could both speak to the information and the recovery
made in consequence thereof as a continuous process. At any
rate P.W. 2 who is alleged to be the most interested was not
present at the time of the recovery of the dagger.
P.W. 5,s evidence was not considered to be independent, be-
cause the High Court thought that he was known- to P.W. 28
from before. This by itself in our view will not justify
the rejection of his evidence. That apart there is nothing
in his evidence to show that P.W. 28 knew him before he came
to Simla while he was living in Kaithal. The witness stated
that the S.H.O. was never posted at Kaithal but knew the
Daroga (SHO) from 2/3 months before that date. He had not
met P.W. 28 before be arrived at Simla. It was suggested to
him that Daroga had come and sat in his shop at the Mandi
but that was denied. He however stated that the Daroga
used to ask his ’hal chal’ sometime and used to wish him and
that was all. Witness also denied having seen P.W. 2 and
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P.W. 8 before that day and came to know their names only
when he went to Anandale. The brothers of P.W. 5 were at
Kaithal doing business’ but here again there was nothing to
connect the brothers with P.W. 28 and though P.W. 28 admits
that his own brothers Roshan Lal and Malik Harbans Lal
reside in Kaithal and one of them has some lands there, he
was not. on good terms with them and denies that they bad
any connection with P.W. 5. From this evidence it is clear
that apart from the fact that P.W. 28 had known P.W. 5 after
he had come to. Simla which is not unusual for a Police
Officer, there is nothing to indicated that P.W. 5 could be
subservient to P.W. 2,8. It is not unknown that in some
instances where persons are made to witness Panchnamas they
have resiled from them while giving evidence in Court,
probably either due to
778
the pressure exerted by the police at that time or they have
been won over by the defence. Nothing of that nature is appar
ent in this case and the comment of the High Court
that a reading of the evidence of P.W. 5 gives the
impression that he is a person willing to be pliable agent
of the police and cannot be regarded as an independent or
impartial witness has in our view no justification.
It is said that P.W. 12 Bhag Singh was just a worker at the
bakery and while he pretends to be present there casually at
the spot from where the dagger was taken out, the
Investigating Officer said he had summoned him on the
suggestion of the Head Constable; as such his evidence ’does
not inspire confidence-.’We do not think that this is a
sufficient reason for discarding the evidence of P.W. 5
because when P.W. 28 says he summoned Bhag Singh through
the constable it does not negative the statement of Bhag
Singh that he was casually present and could have been called
’by him through the Head Constable. In our view there is no
reason to hold that the evidence of these persons P.W. 2,
P.W. 5, P.W. 8 and P.W. 12 can be said to suffer from any
infirmity or that they had not witnessed the information
given by the accused as per Exhibits P. 6, P. 6/A or P. 28
or the recoveries made by him as a consequence of that
information.
Thereafter on the information furnished by the accused that
he had purchased the weapon from Ganga Singh P.W. 11 and
that be would take them to him, they went to the, thari of
P.W. 11 where the accused pointed him out to them. It is
contended that the information given by the accused that he
purchased the dagger from P.W. 11 followed by his leading
the police to his thari and pointing him out is inadmissible
under Sec. 27 of the Evidence Act. In our view there is
force in this contention. A fact discovered within the
meaning of Sec. 27 must refer to a material fact to which
the information directly relates. In order to render the
information admissible the fact discovered must be relevant
and must have been such that it constitutes the information
through which the discovery was made. What is the fact
discovered in this case? Not the dagger but the dagger hid
under the stone which is not known to the police. (See
Pulukuri Kotayya & Ors. v. King-Emperor) (1). But
thereafter can it be said that the information furnished by
the accused that he purchased the dagger from P.W. 11 led to
a fact discovered when the accused took the police to the
thari of P.W. 11 and pointed him out ? A single Bench of the
Madras High Court in Public
(1) 74 India Appeals p. 65.
779
Prosecutor v. India China Lingiah & Ors. (1), and in re
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Vellingiri (2), seems to have taken the view that the
information by an accused leading to the disco-very of a
witness to whom he had given stolen articles is a discovery
of a fact within the meaning of Sec. 27. In Emperor v.
Ramanuja Ayyangar(3), a Full Bench of three Judges by a
majority held that the statement of the accused "I purchased
the mattress from this shop and it was this woman (another
witness) that carried the mattress" as proved by the witness
who visited him with the police was admissible because the
word ’fact’ is not restricted to something which can be
exhibited as a material object. This judgment was before
Pulukuri Kotayya’s case (4) when as far as the Presidency of
Madras was concerned the law laid down by the Full Bench of
that Court, in Re Athappa Goundan prevailed. It held that
where the accused’s statement connects the fact discovered
with the offence and makes it relevant, even though the
statement amounts to a confession of the offence, it must be
admitted because it is that has led directly to the
discovery. This view was over-ruled by the Privy Council in
Pulukuri Kotayya’s case(5) and this Court had approved the
Privy Council case in Ramkishan Mithanlal Sharma v. The
State of Bombay(6).
In the Full Bench judgment of seven Judges in Sukhan v. The
Crown (7 ) , which was approved by the Privy Council in
Pulukuri Kotayya’s case(8), Shadi Lal, C.J., as he then was
speaking for the majority pointed out that the expression
’fact’ as defined by Sec. 3 of the Evidence Act includes
not only the physical fact which can be perceived by the
senses but also the psychological fact or mental condition
of which any person is conscious and that it is in the
former sense that the word used by the Legislature refers to
a material and not to a mental fact. It is clear therefore
that what should be discovered is the material fact and the
information that is admissible is that which has caused that
discovery so as to connect the information and the fact with
each other as the ’cause and effect’. That information
which does not distinctly connect with the fact discovered
or that portion of the information which merely explains the
material thing discovered is not admissible under Sec. 27
and cannot be proved. As explained by this Court as well as
by the Privy Council, normally Sec. 27 is brought into
operation where a person in police custody produces from
some place of concealment some object said to be connected
with the, crime of which the informant is the accused. The
concealment of the fact which is not known to the police is
what is discovered by the information and lends assurance
that
(1) AIR 1954 Mad. 333. (2) AIR 1950 Mad 613.
(3)AIR 1935 Mad. 528. (4) 74 1. A. 64.
(5) ILR 1937 Mad 695. (6) [1955] (1) SCR 903.,
(7) ILR Vol. X Lahore 283.
780
the information was true. No witness with whom some
material fact, such as the weapon of murder, stolen’
’property or other in eliminating article is not hidden sold
or kept and which is unknown to the Police can be said to be
discovered as a consequence of the information furnished by
the accused. These examples however are only by way of
illustration and are not exhaustive. What ’Makes the
information leading to the discovery of the witness
admissible is the discovery from him of the thing sold to
him or hidden or kept with him which the police did not know
until the. information was furnished to them by the accused.
A wittiness cannot be said to be discovered if nothing is to
be found or recovered from him as a consequence of the
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information furnished by the accused and the- information
which disclosed the identity of the witness will not be
admissible. But even apart from- the admissibility of the
information under Sec. 27, the evidence of the
Investigating Officer and the panchas that the accused had
taken them to P.W. 11 and pointed him out and as
corroborated by P.W. 11 himself would be admissible under
Sec. 8 ’.of the Evidence Act as conduct of the accused.
We then come to the recovery on the second February, of
Pant, the Account Books and the vouchers. These however,
cannot in our view be relied upon because P.W. 28 had
information relating to them which had been furnished by the
accused more than 24 hours before and the description given
by him was that they could have been discovered. At any
rate the long delay does not lend assurance to the
discovery. It appears from the application made on the 2nd
February to the Magistrate that the accused was arrested on
1-2-67 and at his instance and from his possession one
sweater. one coat and one blanket blood stained, have been
recovered and in addition one blood stained warm pant, one
duster, one bag containing 5 registers are still t0 be
’recovered on the pointing out of the accused but the remand
of the, accused is due to expire at 1 p.m. and accordingly
it was requested that a further remand for 7 days be given
and the a caused made over to the police and orders be
passed. The accused is alleged to have given the
information that he had hid them under the stone slab near
Krishna Nagar Ganda Nala Which he had thrown away in the
sewage and which he said will point out and get them
recovered. The recovery itself is under E P.7, to which
P.W. 2, P.W. 13 and Manohar Lal P.W. 14 who was picked up on
the ’rasta when he was summoned by the constables are
witnesses. According to P.W. 14 the Thandar was going ahead
and went down to the Nala, when the constable summoned him
and he went there. He further says that the Thanedar sent a
constable down. The accused bad a talk with Thanedar. The
constable took out from below a stone slab five registers in
a bag, the accused was standing on a stone. At ibis
781
stage the prosecutor sought permission to cross-examine the
witness and it ’Was given. In the cross-examination he
denied in signed the Memo at the spot and said that he had
signed’ it at the Thana. He also said it was incorrect to
suggest that the Memo was read over to him and he signed it.
Whether the articles recovered were planted at the place
from where, they were alleged to be recovered or not as
suggested by the learned Advocate for the accused, the
evidence referred to certainly goes against the prosecution
version that the Account Books, vouchers and the pant were
recovered at the instance of the accused. The Police
appears to have known the place from where these articles
were alleged to have been recovered and therefore it cannot
be said ’that they were discovered as a consequence of the
information furnished by the accused.
After excluding the recoveries made tinder Ex. 7 namely the
Account Books etc. the evidence against the accused which
remains to be considered is, the motive, the recovery of the
button, the finger prints on the flask and the window panes,
blood stained coat, sweater, shoes and socks alleged to be
of the accused, blanket, the dagger and the deceased being
last seen alive in his Company. As we have already noticed
the High Court had rejected the evidence of motive but in
our view it failed to consider one aspect which is important
namely that the accused wanted to be reemployed with the
Himprasth Finance Company and though the other Directors
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were willing, the deceased was not. It is true that the
initial illwill which he may have had against the deceased
when he suspended him in 1964 may have been forgotten
because the deceased subsequently extended his sympathy and
employed him in his Finance Company. The accused was not
satisfied with the conditions of his service and wanted an
increase in the pay which the Company was not prepared to
give causing him to resign. This itself may have given him
cause to nurse a grievance against the deceased because he
was the person who was as incharge of the affairs of that
Company in which he had a dominant voice but when he wanted
to be reappointed the deceased definitely put his foot down
and refused to entertain him which would certainly create
ill will in him against the be occasion but if he does not
continue to do so or positively obstructs or is against his
being given any benefit even on one such occasion it may
give rise to a sense of grievance against him. The springs
of human action and conduct are unfathomable because what
motivates them is difficult to postulate. At any rate where
personal interest is involved, it is too much to expect
objectivity in a person s relationship with others who are
unobliging or considered to be hostile to him. There ’are
many with
782
greater cause who may not venture to do away with those that
give occasion for it but experience has shown that even with
lesser motive persons have committed more dastardly crimes;
that is why in view of these imponderable, motive by itself
is not sufficient to determine culpability. It has to be
judged with positive evidence relating to incriminating
facts and circumstances proved in a case against an accused.
It is contended strenuously that there is no evidence to
establish that the accused was with the deceased at the time
when he was murdered. This contention seems to have found
favour with the High Court which has held that though the
deceased was last seen 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 deceased had his meals at
about 9.30 or so. This witness was the first to give
information to P.W. 28 which was at about 8.300 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 en the
flask and the window panes and that a coat button of his Was
found in the room. It was however contended on behalf 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 be 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. Secondly 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 contentions
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it may be observed that there is no evidence that he bad
been to see the deceased earlier that day or had seen him
before that day as would probably 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 way from this
circumstance to infer that he had been in the room earlier.
The second contention is in our view equally untenable. The
report regarding the Finger Print is that of the
783
Director of the Finger Print Bureau which under Sec. 510
Criminal 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), however the Court may, if it t
hinks fit, and shall, on the application of the
prosecution or the accused, summon and examine any such
person as to the subject matter of his report. The addition
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
Prosecutor 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 the decision of
a Single Judge of Andhra Pradesh High Court in re.
Godaverthy Bheshyakaravcharvulu(1)., nor that of the Madras
High Court case in re. Marudai, support this contention.
The reason 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 therefrom 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
prosecution 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 photographs 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. 13 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 discordances in their comparable
portion and the corresponding portion of the left thumb
impression, middle finger impression, left index finger,
right middle finger of Om Prakash the accused. It was also
stated that so many points of similarity cannot be found to
occur in the impressions of different thumbs and fingers and
they are therefore of one and the same person. In respect
(1) AIR 1960 A.P. 164.
(2) AIR 1960 Madras 370.
784
of a thumb impression compared with the right thumb
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impression of Om Prakash the expert had found not less than
10 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 impressions of different thumbs and
fingers and are therefore identical 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 there
before the murder We have it in evidence that the curtain
near the door showed that blood stained hands severe wiped
thereon. That apart the button which was recovered gives a
direct clue to the presence of the accused at the time when
the offence was committed. ’it. is seen from Ex. P. 6/A
that the upper button of the 3 small buttons on the cuff of
the coat recovered from the accused was missing and the
button recovered from the room where the deceased was
murdered matches the button and supplies the missing one.
The report of the Forensic expert is that on a comparison of
that button with the button of the accused’s coat esta-
blishes that it is the similar one. For this reason the
accused had denied that the coat and the sweater belonged to
him and the learned 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 in the statement under Sec.
342 in answer to question 19, that he had signed the
recovery 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 while he was in the judicial lock up. Again in answer to
question 35 whether he has anything else to say he stated
categorically that on the 1st February ’67 he was taken to
the Thana at 5 p.M. on the 2nd February he was produced
before the Court where a remand was taken and that on 7-2-67
the S.H.O. ’obtained 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 ill the application of remand made to
the Magistrate on 2-2-67-which was earlier extracted. A
perusal of that remand application would show that these
recoveries had already been made on the 1st and so there
could be no question of his signatures been taken on the
blank papers on the 7th for purposes of cooking up the
recovery Memos which according to the accused Were-not
recovered on the 1st. The coat. and the sweater were
recovered from his room while the shoes and socks from his
person as the was wearing- them, There can be no doubt of
the ownership being that of the accused.
785
respect to which similar contentions were raised. Where a
person who is not a hardened criminal is burdened with the
guilt of a gruesome crime, is confronted with as-’ tell tale
finding the possibility of his making a clean breast of what
is weighing heavily on him cannot be ruled out. It is
difficult to generalise as to what a man may or may not do
after committing a ghastly murder nor can there be an
infallible test to determine the course of human reaction,
conduct or behaviour in a given situation which might
manifest itself in various ways. In case when the accused
was confronted with the button of his coat he gave
information leading to the incriminating discoveries.
Whether the knife could have been properly identified by P.
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W. 11 in the identification held before the Magistrate there
can be little doubt, if we believe his evidence, the accused
hid purchased a knife that day, which is similar in nature
to the one he was selling. There is no reason why P.W. II
should not be, believed on this aspect. He says that it was
purchased by the accused at the noon time on the day when
Mahatma Gandhi had died on the 30th for Re. 1/- and that
the police had; brought the accused to his shop on the 3rd
day after the dagger was purchased. He further says that
the accused used to go to him previously for the mending of
his knife and scissors though the witness admits that he had
not purchased any dagger from him previously. In cross-
examination he admitted frankly that he was having his thari
without permission of the municipality and that he was
challenged 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 sentenced to rigorous imprisonment and his history sheet
was closed 21 or 22 years ago. At the time of giving
evidence he is 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.
This admission 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 he 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. It was
making the knives which be 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 identification marks may not be present. Be that as
it may, even if the identification is discarded there is
nothing to doubt his statement that he knew the accused
before the 30th January 1967
786
and that about noon on that day he had purchased a dagger
from him.- It is not unreasonable to infer that the dagger
which he purchased is the dagger which was recovered on the
information furnished by the accused himself on the second
day after his purchase and that dagger ’Contained human
blood. One other important circumstance against the accused
is the blanket that was found in his house which had. human
blood stains thereon. The murder of the deceased was in
January in the coldest months in Simla and the possibility
of the accused having taken a blanket to cover 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
shown 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 of acquittal of the High Court, convict the
accused under Sec. 302 and sentence him to life
imprisonment.
V.P.S.
Appeal allowed.
787