What emerges from the above discussion is that section 73 of the Indian Evidence Act 1872 enables the Court to direct the taking of specimen handwritings, in matters pending before it. The direction is therefore, given by the Court for the purpose of enabling the Court to compare and not for the purpose of enabling the investigating or a prosecuting agency to obtain and produce as evidence in the case, the finger prints for their ultimate comparison with the chance prints. Thus it certainly does not bar the police officials to take finger prints for the purposes of investigation. As noted by the Constitution Bench of Supreme Court in Kathi Kalu Oghad (supra) such evidence does not stand barred by Article 20(3) of the Indian Constitution, as it is not deemed as being "a witness against oneself", and it does not amount to testimonial compulsion. Rambabu Mishra (supra) also clearly lays down that specimen handwritings and signatures, do not come within the purview of the Identification of Prisoners Act.1920. Thus under the said Act, obtaining sample handwriting or signatures is not barred under any provisions of the said act and any sample handwriting or signatures taken by the police or investigating agency, unless specifically barred under any other legislation, cannot be excluded being not contrary to any provision of the said Act. It was held categorically that police officials are undoubtedly empowered to take measurements, etc under S. 4 of the Identification of Prisoners Act, and S.4 of the Act is independent of Sec. 5, in its application.
Print Page
Delhi High Court
Bhupender Singh vs The State (Govt. Of Nct Of Delhi) on 6 April, 2011
1. The appellants have challenged the judgment dated 21st March, 2007 in the Sessions Case No.38 of 2006, titled as „State v. Bhupender Crl.A. Nos.1005/2008 & 408/2007 Page 1 of 46 Singh and Others‟ arising from FIR No.164 of 1999, under Sections 302/399/34 of the Indian Penal Code, PS Mukherjee Nagar, sentencing Bhupender Singh and Drojan Singh for offences punishable under Sections 302/34 of the Indian Penal Code and Sections 399/34 of the Indian Penal Code and sentencing them to life imprisonment with fine of Rs.5,000/- each for the offences u/s 302/34 of IPC, and in default of payment of fine to further undergo rigorous imprisonment for 1 year and for rigorous imprisonment of 10 years along with fine of Rs.5,000/- for offences under Sections 392/34 of the Indian Penal Code and in default to further undergo rigorous imprisonment for 1 year.
2. The case of the prosecution is that on 16th June, 1999, one Jaswant Singh, S/o Sh.Mansa Ram, R/o 339, Bhai Parmanand Colony, Delhi complained that when he came back home on 16th June, 1999 at about 9:30 p.m., he found his wife lying in the bathroom and the households articles were lying scattered. The door of the house was open and cash, jewellery, silver utensils and coins were found missing from two bedrooms. The complainant had stated that he would furnish the list of articles missing from his house. On the complaint of Sh.Jaswant Singh, a rukka was prepared and a case was registered under Section 459/380 of the Indian Penal Code. The wife of the complainant was removed to the hospital, however, she was declared brought dead and thus, Section 460 of the Indian Penal Code was also Crl.A. Nos.1005/2008 & 408/2007 Page 2 of 46 added. The post mortem was conducted on 17th June, 1999 and on 18th June, 1999 after consulting with the higher officials, the case was converted under Section 302/392/34 of the Indian Penal Code. On 22nd June, 1999, the complainant handed over a list of missing articles to the police, Ex. PW-4/C. He had found that the cash amount of Rs 2,25,000/-, gold jewellery, silver coins including one which the words "Happy Birthday, Gursift Kaur, 08.03.1999, with best compliments from Jaswant Singh Juneja" were engraved, and two silver rings on which the initials of HBK were engraved were found to be missing from his house.
3. During the investigation, the help of the crime team, dog squad and photographers were taken. The complainant on 5th September, 1999 had expressed his suspicion on his earlier servant Bhupender Singh @ Babu S/o Yadu Nath Singh as he had seen his house and was aware of the movements of the family members of the house as well as the fact that his wife used to remain alone in the house. Sh.Bhupender Singh had left the services of the complainant due to some annoyance about one and half months before the date of incident. Therefore, the notice under Section 160 of the Criminal Procedure Code was given to Sh.Bhoopender Singh to join the investigation and during the investigation, he allegedly confessed that on 16th June, 1999 at about 2:00 pm, he along with his accomplices, namely Sh.Drojan Singh @ Crl.A. Nos.1005/2008 & 408/2007 Page 3 of 46 Verma S/o Sh.Bare Lal and Sh.Dinesh S/o Sh. Jawahar after planning the robbery went to the house of complainant where they met his wife Smt.Harbhajan Kaur. They asked her for water and as she turned to go to fetch water for them, Sh.Dinesh put his hands on her mouth and caught hold of her hands and Sh.Drojan Singh caught hold of her feet. The deceased, Smt.Harbhajan Kaur resisted for sometime, however, thereafter she became calm and they dragged her and put her in the bathroom. They removed Rs.2,25,000/- in cash and silver coins and rings from the bed room and distributed the loot amount equally amongst themselves.
4. Pursuant to the disclosure statement by Sh.Bhupender Singh, accused Sh.Drojan Singh was also apprehended and recoveries were also made. On the basis of the disclosure statement of the Sh.Drojan Singh, Rs.10,000/- and one ring on which the letters „HBK‟ were inscribed were recovered from the room which was rented by Sh.Drojan Singh. On 27th September, 1999 on the basis of the disclosure statement of Sh.Bhupender Singh, cash of Rs.15,000/- and one silver coin on which the words „HAPPY BIRTHDAY GURSIFT KAUR 08.03.1999 WITH BEST COMPLIMENTS FROM JASWANT SINGH JUNEJA were inscribed, were also recovered.
Crl.A. Nos.1005/2008 & 408/2007 Page 4 of 46
5. The crime team also lifted chance prints marked as Q1 and Q2 from a tape recorder RX-FS 400 lying in the lobby of the complainant‟s house. Chance print Q3 was lifted from the double bed and chance print Q4 was lifted from the Polythene guarantee card. The chance prints were photographed and samples finger prints were also taken, which were sent by letter dated 23rd August, 1999 to the Finger Prints Bureau, Delhi police along with the sample finger prints of the accused and 11 other suspects. The police had further seized a foot-mat lying under the head of the deceased in the bathroom, an iron safe with brass handle, 10 keys of different types lying near the safe and some torn papers were seized by the police vide seizure memo Ex PW3/B. The police had also seized the tape recorder, one steel chain (the two ends of which were closed with a safety pin) and paper guarantee card vide seizure memo Ex 3/A.
6. The third accused, Sh.Dinesh remained untraceable. After the investigation, the charge sheet was filed against the appellants under Sections 302/392/34 of the Indian Penal Code and the appellants pleaded not guilty and claimed trial. During the trial, the prosecution examined 18 witnesses including complainant Sh.Jaswant Singh and the appellant Sh.Bhupender Singh also examined. DW-1, Smt.Beena, landlady of the house in which the appellant, Sh.Bhupender Singh, had Crl.A. Nos.1005/2008 & 408/2007 Page 5 of 46 taken a room on rent, and from where the recoveries were made at his instance.
7. After considering the evidence on record and the statement of the appellants under Section 313 of the Criminal Procedure Code and the defence evidence. The trial Court on noticing the facts that the appellant Sh.Bhupender Singh was refused an advance of Rs.50,000/- by the complainant and that he was in need of money in connection with the marriage of his sister, therefore, he had a motive to kill Smt.Harbhajan Kaur and to rob the money from the house of Sh.Jaswant Singh, his employer; also that for robbing, the appellant, Sh.Bhupender Singh colluded with Sh.Dinesh Singh and Sh.Drojan Singh and on being apprehended, the appellants, Sh.Bhupender Singh and Sh.Drojan Singh made disclosure statements, and in furtherance of their disclosure statements, some of the articles robbed were recovered and one chance print on the tape recorder which was found lying at the spot, also matched with the middle finger print of the appellant, Sh.Bhupender Singh; that the chance print which was lifted from the tape recorder was found to be fresh, though he had left the service of Sh.Jaswant Singh one and half months before the incident and in the circumstances, the prosecution had established the chain of links pointing without any doubt, the complicity of both the appellants, convicted them under Sections 302/392/34 of the Indian Penal Code. Crl.A. Nos.1005/2008 & 408/2007 Page 6 of 46
8. The learned counsel for the appellant, Sh.Bhupender Singh, Mr.Ajay Verma, has contended that there are materials contradictions in the depositions made by the prosecution witnesses, which rendered the credibility and reliability on them doubtful and suspicious. According to him, the complainant, Sh.Jaswant Singh PW-4 had expressed his suspicion on 5th September, 1999, however, the notice under Section 160 of the Criminal Procedure Code was issued on 22nd September, 1999 and this delay regarding issuing of notice to the appellant Sh.Bhupender Singh has not been explained which has caused a doubt about the credibility of the complainant and thus his deposition cannot be relied on.
9. According to the learned counsel, there is no independent/eye witness regarding murder of the deceased and no weapon of offence had been recovered which had caused the death of the deceased. He further asserts that, the recoveries are also doubtful and not in consonance with the procedure contemplated under Section 100 of the Criminal Procedure Code and consequently, such recoveries could not be relied on for convicting the appellants.
10. The learned counsel also submitted forcefully that since Sh.Bhupender Singh was an employee of the complainant and this has not been disputed that he had also been visiting the house of the Crl.A. Nos.1005/2008 & 408/2007 Page 7 of 46 complainant, there could be chance prints of the appellant on the household articles. From the evidence, according to him, it has not been established that chance prints were not old and this creates a doubt regarding their genuineness and consequently, the appellant Sh.Bhupender Singh is entitled for the benefit of the doubt and therefore, his conviction cannot be sustained.
11. Referring to the disclosure statement of Sh.Bhupender Singh, which was exhibited as Ex.PW-11/A, he asserted that perusal of the same reflects that it is not in the language of the appellant Sh.Bhupender Singh. The alleged recovery of Rs.15,000/- comprising of 10 notes of Rs.5,00/-, 80 notes of Rs.100/- and 40 notes of Rs.50/- and one silver coin inscribed with the word "HAPPY BIRTHDAY GURSIFT KAUR 08.03.1999 WITH BEST COMPLIMENTS FROM JASWANT SINGH JUNEJA could not be relied on as the alleged recoveries were not made in the presence of any independent witness, though this has not been denied that the alleged recoveries were made from a house which is in a populated area. According to him, the investigating officer, SI Anil Kumar PW-18 had deposed that no efforts were made to get independent witness, and therefore, the recoveries made pursuant to the alleged disclosure statement of the appellant Sh.Bhupender Singh exhibited as Ex.PW-4/A are in contravention of Crl.A. Nos.1005/2008 & 408/2007 Page 8 of 46 the procedure laid down under Section 100 of the Criminal Procedure Code and hence cannot be relied on.
12. The learned counsel also emphasized that the report of the Finger Print Bureau matching the finger print lifted from the tape recorder with the sample finger print of the left middle finger of the appellant, cannot be relied on as the sample finger prints were taken without the permission of the Magistrate in contravention of the provision of the Identification of the Prisoners Act, 1920 and therefore such sample prints are not admissible.
13. The learned counsel relied on „Thavarj Pandian v. State‟ Crl.A.No.810, decided on 16th December, 2002 (Division Bench of Madras High Court) holding in Para 41 that if no rules are framed for taking finger print under Section 4 of the said Act, then the procedure prescribed under Section 5 ought to have been followed. Learned counsel also relied on Manu/RH/0520/2006, „Ganpat Singh and Narpat Singh v. State of Rajasthan‟ to contend that the sample finger prints taken are inadmissible and consequently, the report based on the sample finger prints would also be inadmissible. It is contended that in the absence of finger prints of the accused which are inadmissible there isn‟t sufficient evidence to inculpate the appellant, Bhupender Singh. Crl.A. Nos.1005/2008 & 408/2007 Page 9 of 46
14. The learned counsel has also contended that no cogent explanation has been given by the prosecution as to why the recoveries from the appellants, namely Sh.Bhupender Singh and Sh.Drojan Singh pursuant to their disclosure statement made on 22nd September, 1999 could not be made from the same house on the same day and were instead made on 24th September, 1999 from Drojan Singh and on 27th September, 1999 from Bhupender Singh. According to him, it is admitted that pursuant to the disclosure statement of Sh.Drojan Singh, the recoveries were made on 24th September, 1999 whereas from the same house, the alleged recoveries on the basis of the alleged disclosure statement of Sh.Bhupender Singh were made on 27th September, 1999. The recoveries are also not in presence of the independent witnesses and during this gap the alleged articles which were allegedly recovered could have easily been planted, and therefore, according to him, the recoveries cannot be relied on and the conviction of the appellant, Sh.Bhupender Singh could not be based on such recoveries and hence is liable to be set aside.
15. The learned counsel has also doubted the lifting of finger prints from the tape recorder, bed and polythene guarantee card on the ground that even according to prosecution, the iron safe with the brass hand was found open and 10 keys were found lying on the floor, however, finger prints were not found on any one of them. The learned Crl.A. Nos.1005/2008 & 408/2007 Page 10 of 46 counsel further contended that the articles seized on 16th September, 1999 and thereafter, were also not sealed by the prosecution and thus a doubt is created about the authenticity of lifting the alleged chance print from these articles. He submitted that it is highly improbable that the iron safe with the brass handle which found to be opened would not have any chance prints.
16. The learned counsel for the appellant, Drojan Singh has challenged the conviction of the appellant on the ground that though the said appellant was arrested on 22nd September, 1999 and had also given a disclosure statement at the time of his arrest, however, no recoveries were made pursuant to his disclosure statement on the same day. Rather the alleged recoveries were made on 24th September, 1999 and no cogent explanation has been furnished by the prosecution for this delay. The learned counsel contended that the recoveries were not made pursuant to the alleged disclosure statement in the presence of independent witnesses though the area is thickly populated and even according to the allegations of the prosecution the landlady of the house was available. This is also urged that according to the disclosure statement from the amount allegedly robbed by the said appellant, an amount of Rs.25,000/- was given to the landlady Smt.Beena, however, the prosecution had not examined her.
Crl.A. Nos.1005/2008 & 408/2007 Page 11 of 46
17. Alleged recoveries pursuant to the disclosure statement are further challenged on the ground that various witnesses associated and connected with the recoveries have not given the correct particulars of the property and the description of the area, casting a doubt about their deposition. Referring to the testimony of PW-11 it was contended that the said witness Ct. Lal Chand, PW-11 did not know as to how many rooms were in the house from where Drojan Singh was arrested and later on recoveries were made. He also could not give the number of the houses situated near the house of the appellant Drojan Singh. PW-11, Ct. Lal Chand had deposed that though the people were residing in the houses near the house of appellant Drojan Singh and the investigating officer had asked the public persons to join but no one had agreed and he did not know about the initiation of any legal action against the persons who had refused to join. The said version about asking persons living nearby to become independent witnesses for the recovery of articles is not supported by the IO PW-18 in his deposition. The learned counsel emphasized that the recoveries were in violation of the procedure laid down under Section 100 of the Criminal Procedure Code and on the basis of the said recoveries the appellant Drojan Singh could not be convicted. The learned counsel also referred to the testimony of PW-18 recorded on 8th April, 2004 where in the cross examination by the counsel for the other accused he admitted that he did not call any persons from the neighborhood to become the independent witnesses in the case. The deposition of the said witness is as under:- Crl.A. Nos.1005/2008 & 408/2007 Page 12 of 46 "It is correct that the house of accused Bhupinder is located in the crowded place and is also surrounded by many houses. I did not call any person from the neighborhood to become the witness in this case."
18. In the circumstances according to the appellant in the case set up by prosecution there is nothing to inculpate the appellant except the alleged recoveries made which in itself are also doubtful. The recoveries of the currency notes could not be linked to the appellant. Even the silver ring is a common article which could have been easily planted by the police officials and in the circumstances the appellant cannot be convicted for the offence with which he has been charged.
19. The learned Additional Public Prosecutor, Mr.Sawhney has vehemently opposed the contention of the learned counsel for the accused/appellant that the sample finger prints taken by the investigating officials in exercise of the power under Section 4 of the Identification of Prisoners Act, 1920 could not be considered. According to him even if the rules and the prescribed procedure has not been framed under Section 4 of the said Act, the power to take the sample finger prints voluntarily given by an accused could not be denied. According to him the forensic science laboratory has rules, as to how the finger prints are to be taken and in taking the sample finger prints of the accused/appellants the procedure prescribed in the manual was employed and professionally trained person had taken the sample Crl.A. Nos.1005/2008 & 408/2007 Page 13 of 46 prints in accordance with the rules. Relying on the testimony of PW-9 ASI Narender Singh it is contended that he was posted as a finger print expert in the crime branch on the date of the incident on 16th June, 1999. He also deposed that he had passed the examination of finger print expert course conducted by the Central Finger Print Bureau, Ministry of Home Affairs. The learned counsel contended that the appellants had not disputed about giving their sample prints to the investigating officers. The only objection which had been taken is that the sample finger prints and palm prints were taken on 22nd September, 1999 and not on 23rd August, 1999 or before that. He submitted that while taking the sample prints from the appellants reasonable guidelines were adopted and in any case no objection was ever raised by any of the appellants about taking the finger prints forcibly or under compulsion either at the time of framing of the charge or during trial in the statements made by the appellants under Section 313 of the Criminal Procedure Code nor was any such suggestion given to the witnesses of the prosecution.
20. The learned counsel contended that even if the evidence is collected illegally by the investigating agency, the evidence cannot be discarded unless the statute provides that in case of non compliance of any of the Statute, the evidence so collected shall not be considered. He submitted that the consequence of not following the prescribed Crl.A. Nos.1005/2008 & 408/2007 Page 14 of 46 procedure as contemplated under Section 4 of the Identification of Prisoners Act, 1922 is not provided under the said Act and, therefore, the sample finger prints taken from the appellants could not be discarded nor can the same be held to be inadmissible.
21. The learned prosecutor contended that the charge sheet filed by the prosecution duly reflects that chance prints were lifted and the specimen finger prints which were taken from the appellant which were forwarded on 23rd August, 1999 along with the finger prints of other suspects to the FSL, Malviya Nagar for comparison. Sample prints taken from the accused are also established from the statement of Sh.Jaswant Singh PW-4, complainant who deposed that the sample finger prints were taken twice. Sh.Jaswant Singh, PW-4 had also categorically deposed that even the chance prints were lifted in his presence which fact has not been disputed by the appellants, as in the cross examination it was not even been suggested to him that sample prints were not taken in his presence or that the chance prints were not lifted in his presence.
22. Relying on the opinion of the finger print expert, it is contended that same is admissible under Section 293 of the Criminal Procedure Code. The learned counsel has also relied on (1978) 3 SCC 435, Shankaria v. State of Rajasthan, where a plea was raised that in view of Crl.A. Nos.1005/2008 & 408/2007 Page 15 of 46 Section 5 of the Identification of Prisoners Act it was incumbent upon the police to obtain the specimen thumb impression pursuant to an order from a Magistrate and since that was not done, the opinion rendered by the finger print expert could not be considered in evidence and was inadmissible. This contention was repelled by the Supreme Court holding that it was not necessary for the police to obtain an order from Magistrate for obtaining such specimen finger prints under Section 4 of the Identification of Prisoners Act, 1920. Para 84 of the judgment is as under:-
84:- The contention appears to be misconceived because in the State of Rajasthan, the Police were competent under Section 4 of the Identification of Prisoners Act, to take the specimen finger-prints of the accused, and this they did, in the instant case, before the Superintendent of Police, Shri K.P.Srivastava. It was not necessary for them to obtain an order from the Magistrate for obtaining such
specimen finger-prints."
23. The learned counsel has contended that the sample prints which were taken cannot be held to be inadmissible in the facts and circumstances and that the judgment relied on by the appellant cannot be followed as they have not considered some of the precedents of the Supreme Court where it has been held that if the finger prints are given voluntarily and taken under section 4 of the Identification of Prisoners Act, 1920 then they are not be excluded and cannot be held to be inadmissible in evidence.
Crl.A. Nos.1005/2008 & 408/2007 Page 16 of 46
24. This Court has heard the learned counsel for the parties in detail and has also perused the record of the trial Court including the testimonies of the witnesses and the documents established on record. This is a settled law that in reversing the finding of conviction, the High Court has to keep in view the fact that the presumption of innocence is still available in favor of the accused. If on fresh scrutiny and reappraisal of the evidence and perusal of the material on record, the Court is of the opinion that another view is possible or which can be reasonably taken, then the view which favors the accused should be adopted. However the view taken by the Trial Court which had an advantage of looking at the demeanor of the witnesses and observing their conduct in the Court is not to be substituted ordinarily by another view, unless another view if substantially and reasonably is possible in the opinion of the High Court. Reliance for this can be placed on AIR 2009 SC 1242, Prem Kanwar v. State of Rajasthan; 2008 (3) JCC 1806, Syed Peda Aowlia v. the Public Prosecutor, High Court of A.P, Hyderabad; Bhagwan Singh and Ors v. State of Madhya Pradesh, 2002 (2) Supreme 567; AIR 1973 SC 2622 Shivaji Sababrao Babade & Anr v. State of Maharashtra;Ramesh Babu Lal Doshi v. State of Gujarat, (1996) 4 Supreme 167; Jaswant Singh v. State of Haryana, 2000 (1) JCC (SC) 140. The Courts have held that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the Crl.A. Nos.1005/2008 & 408/2007 Page 17 of 46 view which is favorable to the accused should be adopted because the paramount consideration of the Court is to ensure that miscarriage of justice is not done. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent person. The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial Court, if the findings are against the evidence on record or unsustainable or perverse. However, before reversing the finding of acquittal the High Court must consider each ground on which the order of conviction is based and should also record its own reasons for accepting those grounds.
25. In the instant case the evidence produced by the prosecution is purely circumstantial. The principles on which the circumstantial evidence is to be evaluated have been stated and reiterated by the Supreme Court in numerous judgments. We may notice here the observations made by the Apex Court, in the case of Hanumant Govind Nargundkar v. State of M.P.: 1952 SCR 1091 on the manner in which circumstantial evidence needs to be evaluated. In the aforesaid judgment, Mahajan, J. speaking for the Court stated the principle which reads thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so Crl.A. Nos.1005/2008 & 408/2007 Page 18 of 46 established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
The aforesaid proposition of law was restated in the case of Naseem Ahmed v. Delhi Admn : (1974) 3 SCC 668, by Chandrachud J. as follows:
This is a case of circumstantial evidence and it is therefore necessary to find whether the circumstances on which prosecution relies are capable of supporting the sole inference that the Appellant is guilty of the crime of which he is charged. The circumstances, in the first place, have to be established by the prosecution by clear and cogent evidence and those circumstances must not be consistent with the innocence of the accused. For determining whether the circumstances established on the evidence raise but one inference consistent with the guilt of the accused, regard must be had to the totality of the circumstances. Individual circumstances considered in isolation and divorced from the context of the over-all picture emerging from a consideration of the diverse circumstances and their conjoint effect may by themselves appear innocuous. It is only when the various circumstances are considered conjointly that it becomes possible to understand and appreciate their true effect.
26. In a case in which the evidence is of a circumstantial nature, the facts and circumstances from which conclusion of guilt is sought to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and circumstances so established should not only be consistent with the guilt of the accused, but they must be entirely incompatible with the innocence of the accused and Crl.A. Nos.1005/2008 & 408/2007 Page 19 of 46 must exclude every reasonable hypothesis consistent with his innocence. It has been observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete, pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favor of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however farfetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise. It has also been held that onus is on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defense or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they Crl.A. Nos.1005/2008 & 408/2007 Page 20 of 46 should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
27. One of the strong links in proving the guilt of the appellant Bhupender Singh is the chance print on the tape recorder which was found lying at the spot, matched with the middle finger print of the appellant. According to the learned counsel for the appellant sample finger print which was taken from the appellant is not admissible on account of non compliance of the provisions of Identification of Prisoners Act, 1920, whereas according to the Learned Public Prosecutor the sample finger prints taken are admissible and cannot be ignored. Both the counsels have relied on various judgments which are as under:
28. The judgments relied on by the learned counsel for the appellants in the tabular form are as under which include the judgments of co- ordinate benches of this Court:
Crl.A. Nos.1005/2008 & 408/2007 Page 21 of 46 S.No. Title Matter in Judgments Relied On Issue
1. Harpal Singh v. Specimen 1. Crl. Appeal No. 682/2008 State : Crl. Handwriting 'Santosh @ Bhure v. State' Appeal No.
362/2008 2. Crl. Appeal No. 316.2008 'Neeraj v. State'
Wherein the following
Supreme Court Judgments
were relied upon:
(a) State of Bombay v. Kathi
Kalu Oghad and Ors:
1961CriLJ856
(b) State of U.P. v. Rambabu
Mishra: [1980]2SCR1067
(c) Sukhwinder Singh and
Ors. v. State of Punjab:
[1994]3SCR1061
2. Raj Kumar @ Sample Supreme Court Judgments Raju Vs. The Fingerprints relied on: State (G.N.C.T. of (1) State of U.P. v. Ram Babu Delhi): Crl. A. No. Mishra, AIR 1980 SC 791 979/2005 (2) Sukhvinder Singh v. State of Punjab, 1994 (5) SCC 152
3. Mehmood Ali Vs. Sample Supreme Court's State: Crl. Appeal Fingerprints Judgments relied on: No. 326/2007 (1) State of U.P. v. Ram Babu Mishra, AIR 80 SC 791
(2) Sukhvinder Singh and
Ors. v. State of Punjab, 1994
(5) SCC 152 and
(3) State of Haryana v. Jagbir
Singh, AIR 2003 SC 4377
4. Ashok Kumar @ Sample Judgment relied on: Govind Vs. State Fingerprint (1) Crl. Appeal No. 682/2008 [Alongwith Crl.A. 'Santosh @Bhure v. State' Nos. 275, 397, Wherein the following 398, 410 and Supreme Court Judgments 601/2007]: were relied upon: 2010CriLJ2329, (a) State of Bombay v. Kathi 159(2009)DLT383 Kalu Oghad and Ors: 1961Cri. L.J. 856
Crl.A. Nos.1005/2008 & 408/2007 Page 22 of 46 (b) State of U.P. v. Rambabu
Mishra: [1980] 2 SCR 1067
(c) Sukhwinder Singh and
Ors. v. State of Punjab;
[1994] 3 SCR 1061
5. Ganpat Singh Sample Supreme Court's and Narpat Singh Finger Judgement relied on: v. State of prints (1) Mohd. Aman v. State of Rajasthan : RLW Rajasthan: 1997 Cri.L.J. 2007 (1) Raj 523 3567
(Rajasthan High
Court)
6. M.S. Syed Anwar Sample No Supreme Court and Etc. v. Finger Print, Judgment relied on: Just a Commissioner of Foot prints reference made to the Police, Bangalore and provisions of Identification of City and Another: Photographs Prisoners Act 1992 CriLJ 1606
29. In Harpal Singh Vs State; Crl. Appeal No. 362/2008 one of the matters in issue was about specimen handwriting and that since no permission was taken from the Court of Competent Jurisdiction and Section 5 of the Identification of Prisoners Act 1920 was not complied with, whether the FSL report comparing the specimen handwriting of the accused taken by the Inspector during custody and the suicide note recovered from the spot of occurrence, allegedly authored by the appellant could be relied upon by the learned Trial Judge. The Trial Judge in this case was of the opinion that even though no permission was taken by the Inspector from the Court before obtaining the specimen handwriting of the appellant the same in no way dented the opinion contained in the FSL report, which stated that the suicide note Crl.A. Nos.1005/2008 & 408/2007 Page 23 of 46 Ex.P1 to Ex.P4 is in the handwriting of the appellant in view of the dictum of law laid down by Supreme Court in the decision reported as State of Haryana vs. Jagbir Singh AIR 2003 SC 4377 that pendency of some proceedings in the court is a sine qua non before a court can give direction to an accused to give his specimen handwriting under Section 73 of the Evidence Act and that such a direction can be given by the court only for enabling the court to compare the handwriting of the accused and not for the purpose of the investigating or any other agency to compare the same and the fact that the appellant did not raise any dispute in the trial that the suicide note was not in his handwriting or that the police did not obtain his specimen handwriting and the fact that the suicide note Ex.P1 to Ex.P4 was written by the appellant established beyond any doubt that the appellant had murdered his wife and son. Another Bench of this Court, however, took a different view relying on the decision dated 5.3.2009 disposing of Crl. Appeal No. 682/2008 'Santosh @ Bhure v. State' and Crl. Appeal No. 316.2008 'Neeraj v. State', noting the decision of the Constitution Bench of Supreme Court reported as 1961 Cri.L.J. 856, State of Bombay v. Kathi Kalu Oghad and Ors. as also the decisions of Supreme Court reported as [1980] 2 SCR 1067, State of U.P. v. Rambabu Mishra and [1994] 3 SCR 1061, Sukhwinder Singh and Ors. v. State of Punjab; holding that the FSL report Ex.PW-24/A has to be excluded from the arena of admissible evidence in the present case, for the reason that no orders were obtained by the competent court to obtain the specimen Crl.A. Nos.1005/2008 & 408/2007 Page 24 of 46 writings of the appellants nor were the provisions of the Identification of Prisoner's Act 1920 complied with.
30. In Raj Kumar @ Raju Vs The State (G.N.C.T. of Delhi): Crl. A. No. 979/2005, another bench of this Court, also relying on Ram Babu Misra (supra) and Sukhvinder Singh (supra) had held that where the provisions of the Identification of Prisoners Act, 1920 are violated, specimen samples pertaining to the fingerprints, handwriting etc. of an accused and the incriminating evidence stipulated in the reports relatable thereto will be inadmissible in evidence and hence has to be excluded while considering the circumstantial evidence against the appellant. Similarly in Mehmood Ali Vs State; Crl. Appeal No. 326/2007 relying on Ram Babu Misra (supra), Sukhvinder Singh (supra) and Jagbir Singh (supra) it was held by a Division Bench of this Court that the chance finger prints have to be compared with the sample finger prints after obtaining permission from the Court of competent jurisdiction and after the proper identification of the prisoner as per the requirement of Section 5 of the Identification of Prisoners Act 1920. If this has not been done, then the incriminating evidence of the chance finger print lifted from the scene of crime cannot be admissible. Yet another bench of this Court in Ashok Kumar @ Govind Vs State; 2010 Cri L. J. 2329 relying on Kathi Kalu Oghad (supra) Ram Babu Misra (supra) and Sukhvinder Singh (supra) had held that since no permission was obtained from the Court as required by the Crl.A. Nos.1005/2008 & 408/2007 Page 25 of 46 Identification of Prisoners Act, 1920, it has to be excluded while considering the incriminating evidence.
31. A bench of Rajasthan High Court in Ganpat Singh Vs State of Rajasthan; RLW 2007 (1) Raj 523 relying on Mohd Aman Vs State of Rajasthan 1997 Crl.L.J 3567 had also held that since finger prints were not taken before or under the order of the Magistrate, it was unsafe to accept the evidence led on this regard.
32. The judgments relied on by the Learned Additional Public Prosecutor in the tabular form holding that the finger prints taken under section 4 of the Identification of Prisoners Act, 1920 would be admissible are as under:
S.No. Title Matter in Judgments Relied On Issue
1. State of Madhya Photographs No Judgments relied on Pradesh v.
Devender: (2009) 14
SCC 80
2. Manikam v. State: Sample Supreme Court (2009) 5 CTC 316 Finger Judgments relied on: Prints (1) Ravanan v. State,
(1994) 1 LW (Crl.) 58
(2) State of T.N. v. T.
Thulasingam, 1994 Supp
(2) SCC 405
3. Mohd. Aman, Babu Sample No judgments relied on Khan and Another Finger print
v. State of and Foot
Rajasthan: AIR print
1997 SC 2960
Crl.A. Nos.1005/2008 & 408/2007 Page 26 of 46
33. In State of Madhya Pradesh Vs Devender, (2009) 14 SCC 80 a bench of three judges of Supreme Court had held that on perusing the Sections 3, 4, and 5 of the Identification of Prisoners Act, the Court is of view that Section 4 deals with taking of measurements, etc. of non- convicted persons and that it is taken if the police officer so requires it and it has to be do
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