Thus perusal of above evidence does not conclusively establish that it is appellant/accused whose thumb impression is appearing in the purchase register at sr. No. 162, which has been proved as Exh. 53 by the prosecution. For reasons already recorded above seizure of register itself becomes doubtful. It is attempt of prosecution to bring on record through finger print expert P.W16, that the said thumb impression in purchase register is of the present appellant/accused who disclosed his name to P.W. 13 and 14 as Kaluram son of Hiraman Baraskar, resident of Kundi. Even if it is presumed that finding reached by this expert is correct, still it only may prove that impression in purchase register matches with specimen impression. But there is absolutely no evidence to connect said specimen impression with present appellant. PW15 police inspector Ajabrao Gawande has nowhere spoken about the mode and manner in which he proceeded to procure specimen or undisputed finger print impressions of appellant. These documents of purchase and pledge with evidence of P.W. 13 and 14 read with evidence of P.W. 15 police inspector and P.W. 16 finger print expert, therefore does not substantiate the story of the prosecution that the accused initially pledged the silver necklace Article 12 with P.W. 13 and then sold it to him on 11.1.2001. In his Section 313 statement appellant has denied that any thumb impression was made by him in purchase register. He has denied all memorandum of admissions allegedly made by him under Section 27 and even alleged recoveries in pursuance thereof. He denied that he pledged or sold any necklace to PW-13. This evidence in relation to finger print needs to be appreciated in this background. The evidence of expert also does not mention any reasons for the conclusions reached and hence, defence could not effectively cross-examine him. This Court also can not judicially evaluate relevance or otherwise of those reasons and find out points or number of similarities noticed by him or his office. Apart from this, his evidence is inherently week because he has tried to borrow by pointing out the alleged similar opinion of others working under him. There is one more reason which prompts us to discard the evidence of this witness. This expert PW-16 has stated that he tallied left hand thumb impression of Kishorilal shown by letter "S.L." in Ex. B-2 with the disputed thumb impression of Ex. A-1in the purchase register. These exhibit numbers are given by PW-15 while forwarding these impressions and disputed impression to Superintendent of police for obtaining opinion of department of PW-16 vide Ex. 67. Perusal of records reveal that there are Page 2381 3 separate papers marked as Ex. B-1, Ex. B-2 & Ex. B-3 by PW-15 & placed on record by prosecution as containing specimen impressions of appellant. It shows that PW-15 Shri Gawande has on 18/1/2001 obtained the same and all 3 sheets appear to be signed by him & by Milind Tulaskar (PW-11) and one Bhansali as pancha. On each sheet, the impressions appear in 3 rows. However as already found above neither PW-15 nor PW-11 have uttered a word about the mode, manner and process in which this was accomplished though in forwarding letter it is mentioned that impressions were obtained in presence of panchas. PW-11 has turned hostile while other pancha Bhansali has not been examined by prosecution at all. On each sheet the name of police constable Ajaykumar, B.C. No. 1420 is mentioned in front while on reverse his sign appears as finger print operator. From each sheet it appears that Ajaykumar was at the relevant time attached to Achalpur Police Station. Seal or stamp on reverse of sheet mentions that it is "finger search slip". In 12 heads below it, information like name of finger print bureau, name of police station, name of accused, name of his father, age of accused, caste of accused, his residential address and concerned police station, name of state of his residence, crime number and sections in which he was arrested, date & time of arrest and lastly the date of obtaining the finger impression have been filled in. Below it appear the words " signature of finger print operator" and illegible signature above it may be of Ajaykumar. Below this signature appear official seal with name & designation of "A.C. Gawande" i.e. PW-15. Prosecution has neither examined this Ajaykumar nor proved these details or contents. If Ajaykumar acted as finger print operator, it is perhaps he who obtained all specimen impressions and it was obligatory for prosecution to tender him in evidence to explain all relevant facts. It needs to be stated that in last or third row on each sheet of paper there appear impressions of upper portion of both palms, particularly all 10 fingers i.e. entire or complete portion of every finger. Impression on left of each sheet appears to be of fingers of left hand palm and that on right side appears to be of right palm fingers from placement of thumbs therein though any sheet does not expressly state it to be so. Above this row there are two rows of impressions, each consisting of 5 impressions. There is no mention on any of the sheets whether said impressions are only of thumb or thumbs &/or of tips of finger/fingers. Similarly it is not mentioned whether these impressions are of only one hand or of both hands. The expert witness PW-16 Pralhad has stated that he has put remarks as "S.R." & "S.L." by putting a border around it on first print in first & second row respectively in Ex. B-2. First impression at top has been put in a square by him with words "S.R." in it. Again first impression in second row has been put in a square by him with words "S.L." in it. Perusal of Ex. B-2 does not reveal any basis for putting such labels. Thus specimen impressions obtained by PW 15 ought to have been independently proved by prosecution by pointing out which impression is of which hand or finger. Prosecution has only proved fact of forwarding alleged specimen impression sheets but has failed to establish that said specimen are of appellant before us. In absence of this evidence connecting the specimen with accused/appellant, we find that the report of finger print expert does not assist the respondent prosecution in any way.
Bombay High Court
Mr. Kishorilal S/O Fulchand ... vs State Of Maharashtra Through ... on 22 October, 2007
Equivalent citations: 2007 (109) Bom L R 2363
Bench: D Sinha, B Dharmadhikari
1. The appellant has challenged the judgment dated 19.01.2002 delivered by the Additional Sessions Judge, Achalpur in Sessions Trial No. 25/2001, holding him guilty of offence punishable under Section 302 of Indian Penal Code and sentencing him to suffer life imprisonment. He has also been ordered to pay fine of Rs. 1000/- and in default to undergo further rigorous imprisonment for six months. The deceased - Munni @ Smt. Jasmai, was the maternal sister of the appellant.
2. Prosecution case in brief is as under:
Deceased Munni was married to Sukha Belsare i.e. P.W. No. 4 about four years prior to the date of incident and she was living at village Pandhari with her husband. Her dead body was recovered by police from a field at Achalpur on 10.1.2001. About 4-5 days before 10.1.2001, accused - appellant went to the house of the deceased and represented that her mother was serious and admitted in hospital at Paratwada and on that pretext he took her to Paratwada. Her husband was not available in the village at that time. The deceased did not return back to her home at Pandhari thereafter. Two days after the deceased had left the house with the accused, her husband Sukha came back to village and his neighbour Smt. Shamlibai (P.W. No. 7), informed him that his wife had gone to visit her ailing mother. Sukha waited for two days for his wife, but as she did not come, he went to the house of his fatherin-law at village Kundi. He found his mother-in-law very much present in the house & in good health. He made inquiries about his wife and both of them expressed ignorance and stated that she did not come to their house. Hence P.W. No. 4 Sukha started searching for his wife, and after some days he got information that she was murdered and he went to Achalpur Police Station. The police showed him photograph of one woman which he identified to be of his wife. He also identified Silver Necklace (Hasli), shown by the police to him as that of his wife.
3. P.W. 2 - Zamir Shah, lodged report with the police station Achalpur after noticing a dead body of woman lying in his field survey no.147 at Kheltapmadi or Tapmadi Shiwar, at about 12 O'clock in the noon on 10.1.2001. Police registered A.D. No. 2/2001, and enquiry was entrusted to P.S.I. Mr. Mahure (P.W. 17), who went to the spot and then in presence of panch witness prepared spot panchanama and inquest panchanama. He seized the quilt with which the face of the dead body was covered, ordinary soil, soil smeared with blood and then forwarded the dead body for postmortem to Medical Officer of Cottage Hospital at Achalpur. He found that the deceased Page 2366 was murdered and accordingly he submitted his enquiry report to P.S.O. On the basis of which Police Inspector Mr. Gawande (P.W. No. 15), registered Crime No. 4/2001 for offence punishable under Section 302 of Indian Penal Code and he took the investigation with him.
4. On 17.1.2001, P.W. 15 Mr. Gawande, P.I. at Achalpur police station recorded statement of Patiram Jawarkar i.e. father of the deceased - P.W. 1, her mother and also one Sitaram and an Auto rickshaw driver by name Ishwar Jada (P.W. 3). On the same date at about 11.30 p.m. accused was arrested in the crime. While in custody on 18.1.2001, the accused disclosed that he sold silver necklace (hasli) of deceased Munni, and accordingly after preparing memorandum, police seized the said necklace from one Vijay Kumar Bhansali of Bhansali Jwellers (P.W. 13). The police also seized from Vijay Kumar pledge register and purchase register maintained by said Bhansali Jwellers containing entries of pledge and purchase of said necklace. Accused also made statement that sickle used in the crime, his shirt, full pant were left by him at the house of his uncle Kisan (P.W. 16) at village Gourkheda. Accordingly after completing the procedural formalities and documentation, the accused discovered/produced a cotton bag containing sickle, full pant and shirt and one dupatta which was seized by P.S.I. Mahure. Later on he also made disclosure statement about stick used for commission of offence and hence after completing formalities police proceeded to the spot with the accused and accused took out the stick of bamboo from bushes which also came to be seized. After completing entire investigation the investigating officer submitted charge sheet in the court of Judicial Magistrate First Class, Achalpur who committed the matter for Sessions Trial. The charge was then framed vide Exh. 4 on 7.7.2001 by the Additional Sessions Judge, and it was explained to the appellant/accused, who pleaded not guilty and claimed to be tried. Accordingly, after trial by judgment dated 19.9.2002, mentioned above, the appellant/accused has been convicted for the offence punishable under Section 302 of Indian Penal Code.
5. We have heard Shri D.N. Kukdey, learned Counsel for the appellant/accused and Shri T.A. Mirza, learned Additional Public Prosecutor for the respondent State.
6. Shri Kukdey, learned Counsel for appellant has in nutshell contended that this is a case in which the conviction is based only on circumstantial evidence and as there is no motive established, the circumstantial evidence needs to be appreciated with great care and caution. He contends that there is no evidence to establish that the accused was the person with whom the deceased left Pandhari and he has challenged the evidence of P.W. 3 - Ishwar and P.W. 7 - Smt. Shamli in this respect by contending that said evidence is not cogent and convincing, and is also insufficient for this purpose. He contends that the bed sheet allegedly given by the P.W. 7 to the deceased has not been shown to her by the prosecution and there was no identification parade held so as to enable the P.W. 3 - Auto rickshaw driver to identify the accused. He contends that the evidence of Auto rickshaw driver ought not to have been accepted. He further contends that, the story of disclosure allegedly made to the police and consequent seizure of clothes, sickle and stick as also silver necklace is not substantiated, because the Page 2367 witnesses have not supported the prosecution in this respect and the documents show position inconsistent with oral evidence. Neither the memorandum of disclosure drawn under Section 27 nor recovery allegedly effected in pursuance thereof has been established as all these witnesses have turned hostile. He contends that in cross examination it has been demonstrated that the entire story of prosecution is based on presumptions, and the alleged silver necklace has not been proved as belonging to the deceased. He contends that the said silver necklace had no distinguishing mark upon it, so as to enable the prosecution to conclusively establish that it was the silver necklace of the deceased. He further contends deposition of finger print expert by itself does not prove anything against appellant and that there is no evidence to hold that it was appellant who sold the silver necklace to Bhansali Jwellers. He relies upon the report of Senior Chemical Analyzer to contend that no blood stains are found on the clothes allegedly seized from the cotton bag by the police. He therefore, argues that there is no connecting evidence on record so as to show that the articles allegedly seized by the police belonged to the present appellant, and as such those articles could not have been used against the present appellant. Lastly he argued that Doctor who had conducted the post mortem did not state and prosecution could not establish that the injuries allegedly caused to the deceased were sufficient in ordinary course of nature to cause her death. He therefore contends that, in any case the offence punishable under Section 302 of Indian Penal Code, has not been established against the appellant, and at the most the provisions of Section 304-II may be attracted.
7. As against this, the learned Additional Public Prosecutor has contended that the evidence brought on record in this case completes the chain in such a way that, it does not leave any doubt or suspicion about the guilt of the accused. He contends that the evidence brought on record is sufficient to rebut conclusively the presumption of appellant's innocence and he has invited attention of the court to various facts & aspects of the matter as are brought on record through evidence. He has also contended that, the accused was the last person in whose company the deceased was last seen. He contended that accused gave false excuse while carrying the deceased with him to Paratwada and further he also gave wrong identity while pledging and selling the silver necklace. He further states that in relevant records maintained by the Bhansali Jwellers, the fingerprint i.e. the left hand thumb impression obtained by Jweller has been proved to be that of appellant and invited attention to the deposition of P.W. No. 16 - Pralhad Wankhede, Finger Print Expert in this respect. He has also pointed out the medical report and the report of Chemical Analyzer to substantiate his contentions. Lastly, he has stated that though the Panch witness on seizure has turned hostile that by itself is not sufficient to disbelieve the seizure. He points out the judgment of Hon'ble Apex Court reported at AIR 1978, SC 1511 State of, & argued that the disclosure memorandum and seizure panchnama were proved through evidence of investigating officer. He therefore, stated that the prosecution evidence is cogent, convincing and completes the chain of circumstances which establishes the guilt of the present appellant conclusively and hence, the appeal needs to be dismissed.
Page 2368
8. Before embarking upon exercise of appreciation of evidence, it is to be noted that the case is one of circumstantial evidence as there is no direct evidence. In Shivu and Anr. v. Registrar General, High Court of Karnataka and Anr., the Hon'ble Apex Court has stated that where a case rests squarely on circumstantial evidence, the circumstance or incriminating facts must be found incompatible with the innocence of the accused or guilt of any other person. It has been also observed that such circumstances must be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In the facts of the present case, as per learned APP Shri Mirza, it has been established beyond reasonable doubt that:
a. The deceased Munni, left with the accused Kishorilal on 09.01.2001 in the evening by auto rickshaw from her native place Pandhari for Paratwada.
b. It has also been established that the accused/appellant took her to Paratwada under a false pretext of head injury to her mother and her subsequent hospitalization at Paratwada.
c. It has also been established that both of them got down at Paratwada behind police station.
d. It has also been established that on next day i.e. 10.01.2001 in the morning between 10 to 10.30 a.m. accused pledged silver necklace of deceased Munni with P.W. 13 Vijaykumar and obtained loan of Rs. 2100/- by giving false excuse of illness of his son.
e. It has also been established that on 11.1.2001 itself he sold the said silver necklace and accepted balance amount after adjusting the loan received by him, and also put his thumb mark in the register maintained by P.W. 13.
f. At the time of sale he did not give his correct identity. Appellant's identity has been established by examining purchaser of said necklace as also his employee. Finger print expert has proved his thumb impression in sale register of jeweler who purchased the necklace from him.
g. It has also come on record that he was visiting his relatives like P.W. 5, P.W. 8 and P.W. 6 thereafter till his arrest by police. He was carrying a cotton bag with clothes and one murder weapon in it.
h. The prosecution has proved the fact of pledge and sale of silver necklace by him, its recovery under Section 27 and identity of silver necklace Article 12 has also been established and it has been proved that it belonged to deceased Munni.
i. The prosecution has also recovered weapon of crime i.e. bamboo stick used by the accused at his instance only. The said bamboo stick and sickle are found to contain stains of human blood.
j. The conduct of appellant/accused in not reporting either the death of Munni to her husband or to her parents or to the police also assumes significance. Even if it is presumed that Munni was alive when he left Page 2369 her on 10.1.2001, he ought to have reported about her going missing to police or to the relatives. The fact that he had in his possession her silver necklace by 10 O'clock in the morning of 10.1.2001 itself, according to prosecution, proves that Munni was not alive at that time.
k. The appellant/accused had not taken any specific defence about his not being available at Pandhari on evening of 9.1.2001 or at Paratwada on 10th or 11th January 2001. He has not taken any specific defence about the ownership or possession of silver necklace of Munni.
APP argues that all these facts together conclusively connect appellant with crime and indicate only to his guilt and not to anything else. The facts brought on record are inconsistent with the presumption of innocence of the appellant/accused and also do not even remotely suggest any other person as being involved in the murder of deceased Munnibai. The appellant/accused has also not assigned any reason as to why all these witnesses are deposing against him. Learned APP points out that though some of the witnesses are related to the deceased, there are independent witness on record like P.W. 7 - Shamlibai, P.W. 3 - Ishwar, P.W. 13 - Vijaykumar, P.W. 14 - Satyanarayan and P.W. 16 - Pralhad Wankhede.
Shri Kukde, learned Counsel for appellant in reply contends that none of the above facts or events are established beyond doubt & there are several lacunae in the evidence. He stresses that facts above therefore can not be considered to construct a chain of circumstances and in any case there are several loose ends in said story.
It will be appropriate to look into the evidence on record in this background.
9. Prosecution has examined Dr. Vinayak Nathe (P.W. 10) to prove the post mortem report. He has stated that there were external injuries on dead body. Those injuries are:
i. Stab wound over the face near the right lateral aspect of right eye. 1" x 1/2" x 1/2" bleeding in nature.
ii. Stab wound over the forehead centrally placed between two eye-brow, size 1" x 1/2" x 1/2" blood stained.
iii. Stab wound over the nose slightly right lateral aspect, size 1/2" x 1/4" x 1/2" deep blood stained.
He further deposed that those injuries were antemortem. He stated that according to him and other medical officers who conducted the post mortem, the probable cause of death was Severe Haemorrahge, due to stab wounds and hemorrhagic shock. He proved the post mortem report at Exh. 41. He also stated that on 24.01.2001, police sent to him Article 14 Sickle and Article 18Stick to opine whether injuries found on the dead body could be caused by it. He stated that accordingly he gave opinion vide certificate at Exh. 42. He deposed that abrasion on left side shown in the post mortem report was possible by hard and blunt object like stick and other injuries were possible by sickle. In cross examination he stated that all three injuries described in column No. 17 of the post mortem report were superficial. However, he denied the suggestion that in ordinary course of nature those Page 2370 injuries were not sufficient to cause death. Lastly, he accepted that during the post mortem he did not find any abrasion as mentioned by him in Certificate - Exh. 42. This evidence of Doctor coupled with inquest panchnama (Exh. 31), and the circumstances in which body has been found, clearly show that death of Munni was homicidal. Infact the spot panchnama (Exh. 32) and inquest panchnama (Exh. 31) have been admitted by the appellant/accused before the lower Court.
10. P.W. 2 - Zamir Shah is the owner of field survey No. 147 in Kheltampalli or Tapmali Shivar, wherein the body of the deceased was found. He has lodged report on 10.1.2001 with the Police Station, Achalpur and stated that on that date at about 12 0'clock in the noon, he went to his field. At about 2 0'clock, two women passing by road informed him that a woman was lying in his field and hence he went to that portion of his field and found dead body with face downwards and covered by quilt. Accordingly, the spot was visited by P.W. 17 - Pandurang Mahure, PSI. P.W. 1 - Patiram is father of the deceased and he has deposed about the circumstances, in which he learnt that his daughter had gone with Kishorilal and how he and his wife thereafter searched for Kishori and Munni. During his search, he learnt that Kishorilal was in police station and hence, he also went there. He has stated that at Police Station, Achalpur he found Kishori and police have shown him photographs which were of dead body of his daughter Munni. He identified the Saree, Petticoat and Blouse of the deceased. He stated that he had given photograph of Munni to police and he also identified the said photograph and proved its seizure vide Exh. 16. He further stated that Kishorilal disclosed to police that he sold silver necklace (hasli) of Munni and he also identified the said silver necklace at Article 12. Article 4 a Saree, Article 5 a Blouse and Article 6a Petticoat of the deceased were also identified by him. In cross examination this witness has stated that when police recorded his statement he had disclosed to police that Sukha (P.W. 5) had informed him that his neighbourer told Sukha that Munni had gone with Kishorilal, he could not explain why this fact was not appearing in his police statement. He also could not explain why the fact of identification of Saree, Petticoat and Blouse in police station was not mentioned in his police statement. He admitted that almost all women of his caste use Hasli and there was no special identification mark on Article 12.
There is nothing on record to show that identity of deceased was already established before visit of this witness to police station. It is not understood in what connection and circumstances appellant Kishorilal had gone or was brought to police station and there is nothing to show that identity of deceased Munni was already known to police.
11. It is now necessary to consider other evidence lead by the prosecution to prove the circumstances against appellant/accused, as the conviction is only on the basis of the circumstantial evidence. It is to be noted that such evidence may not by itself prove the guilt of the accused, but its cumulative effect has to indicate nothing else but his complicity in the matter. Such evidence has to be incompatible with the presumption of his innocence.
Page 2371
12. P.W. No. 4 - Sukha, husband of the deceased has stated that on Tuesday about 10 - 15 months before the date on which he deposed, accused Kishorilal came to his house at about 7 A.M., while he and his wife were present in their house at Pandhari. It is to be noted that this witness was deposing before the trial court on 5.2.2002. He inquired from Kishorilal as to how he came so early in the morning and upon it Kishorilal informed him that there was Pooja at Dhar and for that Sukha had to come. Sukha explained to him that he was going out of station for some work, and hence it was not possible for him to come. He asked his wife (deceased Munni) to serve meal to the accused and to give him Rs. 20/- for fare charges and he (Sukha) went to Purna Nagar for work. Sukha has further deposed that on 3rd day i.e. on Thursday, in the night he returned back to his house at Pandhari and his neighbour Shamlibai (P.W. 7), told him that in the evening Munnibai had collected bed sheet from her and told her that her maternal brother Kishorilal brought a message that her mother had received head injuries and was admitted in hospital at Paratwada, and therefore she was going to Paratwada. Sukha says that he waited for two days for return of his wife at Pandhari and then on Monday, he went to house of his father -in-law at village Kundi. There he saw his mother-in-law in good condition and hence he informed his mother-in-law that Kishorilal had taken Munnibai on the pretext of head injuries suffered by her. He made enquiry whether Munnibai had come to Kundi and got reply in negative. Thereafter, he has mentioned about various places visited by him in search of his wife, and he states that on Tuesday night he halted at Paratwada and on Wednesday he went to the house of his father-in-law at Kundi and on the same day he went to Nimbhora from Kundi. On Thursday, in the morning he went to Pandhari, where his brother Vithal informed him that Munnibai was murdered and he (Sukha) was called in Achalpur Police Station. He went to police station at about 10.00 A.M. and again on Saturday along with his father-inlaw. He has stated that he identified the silver necklace (Hasli) of his wife. Before court he again identified the said hasli. In the cross examination he could not explain why it is not mentioned in his statement that Kishorilal visited his house early in the morning with a view to take him to Pooja arranged at Dhar. He accepted that he did not state before police that he had instructed his wife to serve meal to Kishorilal and to pay him Rs. 20/-. He has further stated that excuse of injury, hospitalization of mother in law used by Kishorilal to take Munni with him & its disclosure by him to his mother in law, was communicated by him to police; but again he could not explain as to why it did not figure in his police statement. He accepted that he did not state before the police that his brother Vithal informed him about murder of his wife. He further accepted that most of the ladies of Korku community wear silver necklace and there was no special identification mark on Article 12. He denied that Kishorilal had never been to his house. He also denied that he was giving false evidence on the say of his father-in-law.
Effort of prosecution is to prove through this witness the fact of Kishorilal taking away his wife on false ground. After learning about sudden departure of his wife to see her injured and hospitalized mother, this witness did not make any attempt to know his mother-in-law's condition for 3 days. Page 2372 After 3 days he proceeded not to hospital but to the house of his father in law to inquire. There also when he found his mother in law hail & hearty, he did not disclose to them the false excuse used by appellant to take Munni with him. After all this he continued to wander from place to place in search of deceased and did not lodge any police complaint against Kishorilal or about missing wife. This conduct is not natural & does not inspire confidence in his narration.
13. P.W. 7 - Smt. Shamlibai, is the neighbourer of P.W. 4 - Sukha. She has stated that the deceased collected bed sheet from her and told her that she was proceeding to Paratwada with her brother to see her mother who was stated to be hospitalized. She has further stated that when Sukha came to Pandhari, she disclosed this to him. She has thereafter stated that lateron Sarpanch had asked her to come to Achalpur Police Station to identify Munni, and accordingly she went to Achalpur Police Station along with the Sarpanch, and in the police station she identified the photograph of Munnibai. She has stated that at that time accused - Kishorilal was also present in the police station. She further stated that if bed sheet was shown to her, she was in a position to identify the same. She further stated in her cross examination that prior to that date she had not seen accused Kishorilal. She further stated that she did not inform the police that Sarpanch had asked to come to Achalpur Police Station to identify Munnibai. She also could not explain as to why fact of identification of photograph of deceased Munni was not appearing in her police statement. She has further stated that she saw the accused for the first time in Pandhari village, thereafter in Achalpur police station and thereafter in the court.
It is not clear why and how police called Shamlibai to identify the deceased. By that time PW-4 Sukha had not reached police station and he was not even aware of death of Munnibai. Neither PW-1 Patiram nor wife of Patiram had taken name of Shamlibai or pointed out alleged role played by her to police. Shamlibai also states that Kishorilal was already in police station when she reached there. PW 1 - father of deceased or PW 4 - husband of deceased would have been the best persons to be called to establish identity of deceased if identity was already disclosed to police by anybody else. If identity was till then not known, how could police learn about this witness Shamlibai is an important question which needed to be answered by prosecution. If identity of Munni was already established then police could have called Shamlibai only to verify story of visit of deceased to her house to borrow a bed-sheet. In that event police ought to have shown her the bed-sheet seized from spot so as to ascertain truth of her version. Surprisingly this has not been done in police station or even in lower court. Identification of said bed-sheet or quilt by Shamlibai could have lend support to prosecution story and would have proved visit of Kishorilal in evening to Munni as also use of false excuse by him to take her to Paratwada. This state of affairs with our observations about evidence of earlier witnesses leaves gaping holes in the story of prosecution.
14. P.W. 3 - Ishwar Jada is Auto rickshaw Driver, who deposed before the Court that when his auto rickshaw was parked at Pandhari on one Tuesday, one girl aged about 20-22 years and one boy aged 25-26 years came to him Page 2373 and the girl told him that her mother was serious and admitted in the hospital at Paratwada, and therefore, they had to go to Paratwada immediately. He carried the said girl and boy and one more passenger to Paratwada from Pandhari. He stated that the said girl and boy alighted from auto rickshaw on the road behind the police station. He deposed that after 8 to 10 days when he went to Pandhari village, discussion was going on about murder of a girl carried by him in his auto rickshaw from Pandhari to Paratwada. He has deposed that one police constable of Achalpur Police Station came to Pandhari village and informed that relatives of the girls were called in Achalpur police station to identify the clothes and photographs. By his autorickshaw he brought Sarpanch, brother-in-law of the said girl, his wife and two neighbours of the said girl to Achalpur Police Station. He stated that when police inspector placed the photograph of the deceased before her relatives, he also saw it and identified the girl as the same to whom he brought from Pandhari to Paratwada. He stated that thereafter police produced before him the boy, and he identified that boy as one who had accompanied the girl. He stated that the accused before the court was that boy. In the cross examination, he stated that he had not seen the boy before he brought him to Paratwada in his auto rickshaw. He accepted that he did not inform the police that at Pandhari discussion was going on about the girl being murdered or that one police constable came to Pandhari village and informed that relatives of the girl were called to Achalpur Police Station. He also stated that he did not tell the police that thereafter, he brought those relatives from Pandhari to Police Station. However, when his police statement is perused, it is apparent that he has stated that he brought the relatives of the deceased in his auto rickshaw to the police station, Achalpur.
Again it is difficult to believe this witness because unless and until identity of deceased was established there was no question of any discussion about said murder at Pandhari or police sending any message to that place calling relatives of deceased to establish her identity. Even if every thing is presumed to be true, looking to the situation the police ought to have arranged test identification parade as per law to gather proper evidence. Failure to do so casts serious doubts on authenticity of prosecution story in this respect.
The above evidence does not conclusively show that the accused had gone to Pandhari either in the morning or in the evening of Tuesday and deceased came to Paratwada in the evening of Tuesday i.e. on 9.1.2001 with him. In any case it does not establish that the deceased was last seen with the accused/appellant.
15. Next important circumstance which has been relied upon by the prosecution can be said to be the recovery of hasli i.e. silver necklace at the instance of the accused from one Vijaykumar Bhansali - P.W. 13. Here we should point out that learned Advocate Shri D.N. Kukdey, for appellant has pointed out that there was no distinguishing mark on the said hasli, so as to identify it as belonging to the deceased. It is no doubt true that the defence has not expressly suggested to the concerned witness like P.W. 1 and P.W. 4 that the said hasli did not belong to deceased or it belonged to appellant or his wife or any of his relatives. But then fact of absence of any Page 2374 distinguishing mark on the said hasli brought out in cross-examination by defence is with intention to deny the prosecution story. Atleast in present facts we find that it was not necessary for appellant to take any specific plea in relation to said hasli or its alleged sale by him to P.W. 13. The Hasli - Article 12 has been identified by husband of the deceased - P.W. 4, as gifted to his deceased wife by her father P.W. 1. P.W. 1 - Patiram has also identified the said hasli. This evidence also needs to be scrutinized minutely as there are material contradictions in it about the place, time and entire process of seizure itself.
16. The disclosure about the sale of Hasli i.e. silver necklace has been allegedly made by the accused to police and discovery panchnama/memorandum under Section 27 of Evidence Act has been shown as recorded in Police Station Achalpur on 18.1.2001. In the said memorandum which has been attested by witnesses Milind Tulankar (P.W. 11) and one S.M. Bhansali before the PSI Shri Gawande (P.W. 15), accused stated that though he was not remembering the exact date, about 8 days back on Wednesday he pledged hasli with gold smith namely Bhansali for Rs. 2100/- at his shop at Paratwada. On the next day he sold it by giving false name and took balance amount of Rs. 860/-. He agreed to show that shop of gold smith. The prosecution has placed on record panchnama of recovery of property at the instance of the accused, wherein it has been recorded that accused took them to the shop named and styled as "Bhansali Jwellers", at Sadar Bazar, Paratwada and he told that it was the shop where he sold silver necklace. Vijaykumar Bhansali (P.W. 13), was present in the shop and on seeing the accused he stated that the accused sold necklace to him, took it out and produced the same. Gold smith - Arun Hajarilal Surana (P.W. 12) weighed and tested it and gave certificate and thereafter, the said necklace was wrapped in paper and was sealed on spot itself under the signature of P.W. 15, P.W. 11 and Shri S.M. Bhansali. Prosecution has examined P.W. 11 - Milind Tulaskar, P.W. 15 - Police Inspector Gawande, P.W. 12 Arun Kumar Surana, P.W. 13 - Vijay Kumar and one Satyanarayan Jaiswal - P.W. 14, employee in the shop of P.W. 13, to prove these facts. Prosecution has also examined P.W. 11, 13, 14, and 15 to prove two registers and one printed receipt book maintained by Bhansali Jwellers and seized by police.
17. P.W. 11- Milind, has stated that he went to police station after being called by police and at that time Subhash Bhansali was present in the police station with PSI Mahure and PI Gawande. Accused was also present in the police station. In his presence accused stated that he sold silver necklace in the shop of Bhansali at Paratwada and accordingly the police prepared a document to that effect and obtained his signature and signature of Subhash Bhansali on it. The memorandum thus proved by him was given Exh. No. 44. He has thereafter stated that Vijaykumar Bhansali-P.W. 13, who was already present in the police station, produced silver necklace which was seized by the police after preparing seizure panchnama and police obtained his signature upon it. The said recovery panchnama has been exhibited as Exh. 45. He also identified the silver necklace Article 12. He has further stated that on the same day, at about 1 p.m. in Achalpur Page 2375 Police Station, police seized one register from P.W. 13 - Vijaykumar and prepared seizure panchnama and obtained his signature on it. He has also stated that police also seized receipt book from Vijaykumar as per seizure panchnama is Exh. 46. He also stated that police also seized from Vijaykumar money lending licence and other two-three documents in his presence. He also deposed that on the same day, police seized photograph of one lady from her father vide seizure memo at Exh. 16, and obtained his signature on the said seizure memo. At this stage he was declared hostile and A.P.P. cross examined him. It appears that the suggestions were given to him that accused took them to shop of Bhansali Jwellers at Paratwada and Vijaykumar Bhansali produced silver necklace in the shop. He has accepted this suggestion to be true. He further accepted that Arun Surana - P.W. 12 weighed and examined the silver necklace and issued certificate. He also accepted that seizure was effected in the shop of Bhansali Jweller on the basis of the information given by the accused. He further accepted that panchnama was prepared in the shop of Bhansali Jwellers and he made signature on it. In the cross examination by Advocate for accused, he stated that he was also running jewelery and money lending shop at Deoli, Achalpur where Subhash Bhansali also has similar shop, and Arun Surana also did the same business in that area. He has stated that he was having some work with Arun Surana and when he got information that Arun Surana had gone to police station, he also came to police station. He stated that at 12.00 p.m. when he reached police station, Arun Surana, Subhash Bhansali, Vijay Bhansali were already present there and Vijaykumar handed over silver necklace in his possession in police station. Thereafter police obtained his signature and signature of Subhash Bhansali on 3-4 papers. He denied that in his presence accused had not given any information to the police. He has further stated that after making signatures on the documents in police station, he, Subhash Bhansali, Arun Surana and Vijaykumar Bhansali left the police station. Prosecution has not examined other pancha on these seizures and evidence of this witness does not in any way assist the case of prosecution. On the contrary he creates doubt about the entire process and also place from which seizure as alleged was effected and does more harm than benefit to it.
18. Perusal of Exh. 44- memorandum, reveals that it has been prepared on 18.1.2001 at 17.15 hours in police station Achalpur. Its later part i.e. panchnama of recovery of property mentions the fact of police and witness proceeding to shop of P.W. 13 at the instance of the accused, and other details mentioned above. It is mentioned that recording of panchnama commenced at 17.15 hours and it concluded at 18.30 hours. Exh. 46 is seizure memo, which reflects seizure of purchase register, another register containing receipt to be issued in respect of pledged articles. In the said register containing receipts from Sr. No. 5001 to 5200, receipt No. 5050 is in the name of one Kaluram Hiraman Baraskar, resident of Kundi and amount lend has been mentioned as Rs. 2100/- on 10.01.2001 with interest at 18%. The article pledged has been mentioned as silver sari (a sort of necklace), weighing 406 grams, with value of Rs. 2800/-. One printed receipt book containing receipts from numbers 4201 to 4800 having receipts of redemption of pledged articles was also seized. Receipt No. 4755 Page 2376 in the said receipt book is copy of the receipt in respect of deposit of Rs. 2100/- by one Kaluram Hiraman Baraskar of Kundi on 11.01.2001. The said entry bears thumb impression of said Kaluram. The said seizure mentions the place of seizure as Police station Achalpur.
19. The evidence of P.W. 11- Milind shows that seizure was effected in police station only and he has also mentioned that registers were seized at 1 p.m. on 18.1.2001. In cross conducted by A.P.P. he has accepted the contents of Exh. 44, 45 and 46 to be correct. Suggestion given by the A.P.P. that seizure was effected in shop of P.W. 13 is also accepted by him. In cross examination conducted by the learned Counsel for the accused, he has stated that he reached police station Achalpur at 12 P.M. and has again stated that seizure and documentation was completed in the police station itself. His evidence therefore creates serious doubt about time at which the seizure was effected and the place of seizure. But, when the documents at Exh. 44 and 45 are looked into the document of memorandum records that the disclosure was made in police station and panchnama of recovery of property mentions that it was prepared in the shop of P.W. 13 - Vijaykumar. It also mentions that gold smith - Arun Surana certified the weight & quality of necklace/hasli. Evidence of Arun Surana shows that he went to police station where he was shown silver necklace and he was asked to give certificate about its weight, price and nature. He tested the ornament and found it to be of silver weighing 406 grams and as per price then prevailing its value was Rs. 2960/-. He has stated that he issued certificate at Exh. 48. In the cross examination, he has stated that he was press reporter of newspaper "Deshonatti" and always visited police station for news. He stated that he was told by the police that the said necklace was seized in crime of murder and there were 28 gold smith shops at Deoli, Achalpur. Certificate Exh. 48 appears to be on letter head of Surana Jwellers and issued on 18.1.2001. He therefore does not support story of prosecution that necklace was examined by him in shop of PW-13. If fact of seizure & sealing of necklace in shop of PW-13 as documented by prosecution is held to be true, it is clear that said necklace could not have been shown to Arun in police station.
20. In this respect when evidence of P.W. 13 - Vijaykumar is looked into, he has deposed that on 10.1.2001 between 10 to 10.30 A.M. one person came to his shop and showed silver necklace mentioning that as his son was ailing he wanted to pledge the said silver necklace. He weighed the silver necklace and found it to be 406 grams. He took silver necklace in custody and paid Rs. 2100/- to that person and issued pledge receipt to him. He stated that the accused present before the court was the same person. He mentioned that Receipt No. 50 from receipt bookArticle 22, was in hand writing of his nephew Dilip and was under his signature and original of the said carbon copy was given to the accused. The silver necklace (Article 12), was also identified by him. Copy of receipt book came to be marked as Article 23. He thereafter mentions at about 12.30 P.M. on next day the accused came to his shop again and stated that he was in need of more money and therefore wanted to sell his necklace. That as the price of the said silver necklace was Rs. 2960/-, P.W. 13 paid him the balance amount of Page 2377 Rs. 860/- and asked his employee Satyanarayan Jaiswal to write down name of that person in sale and purchase register. The said person disclosed his name as Kaluram Hiraman Baraskar, resident of Kundi. Accordingly entry was taken in the register by Satyanarayan, who then obtained the thumb impression of that person/accused. The said entry at Sr. No. 162 of Article 20, was identified by Vijaykumar He has thereafter stated that on 18.1.2001 in the evening police brought the accused to his shop and asked him whether the said person sold silver necklace to him and he admitted the fact of sale. He stated that he produced the silver necklace before police and police seized it from him. He has further stated that the police also seized purchase register, pledge book and prepared seizure memo at Exh. 46. In the cross examination, he has stated that many tribals used to come to his shop to purchase and pledge their articles, and they used to have silver necklace like Article 12. He admitted that the silver necklace, registers and receipt book were seized from his shop. He admitted that money lending licence was in name of his brother Trilokchand and person who came to pledge silver necklace had visited his shop for the first time. It is to be noted that this witness has not deposed about scrutiny & evaluation of hasli & certificate at. Ex. 48 issued by by PW 12 Arunkumar.
21. P.W. 14 Satyanarayan Jaiswal is an employee of P.W. 13 Vijaykumar. His deposition is on the lines as that of the deposition of Vijaykumar. Entry No. 162 of Article 20 is admitted by him to be in his handwriting and he has stated that it bears thumb impression of the accused. The said entry has been marked as Exh. 53. He has further stated that police after about 8 days, visited the shop and seized registers, receipt books and silver necklace. He stated that he learnt about the name of the accused being Kishorilal, when he was brought to the shop by police. In the cross examination, he accepted that he had not stated to the police that he took entry in pledge, receipt book register and statement to that effect appearing in his police statement was not correct. He further stated that, it did not happen that person shown to him by police on 20.1.2001 in Achalpur Police Station was the same person who came to their shop to pledge and to sell the silver necklace and he had not stated so to the police. Portion marked "B" in his statement was read over to him and he stated that the same was not correctly recorded. The said portion marked "B" reveals that he stated to the police that person shown to him by them in police station was the person who came to his shop for pledging and selling silver necklace. Again in view of his earlier evidence and other evidence which has come on record, it is apparent that this portion of his deposition is not correct.
22. The above evidence therefore does not prove beyond reasonable doubt visit by police to the shop of Bhansali Jwellers, that too at the instance of appellant or seizure of any hasli or documents/registers in such visit. On the contrary, it appears that police completed all formalities in police station only and mentioned wrong time and place to suit them. Even if it be presumed that silver necklace was in fact seized in shop of PW-13, the panchnama shows that it was sealed then & there under signatures of PW-15 Gawande, PW-11 Milind & one S.M. Bhansali. If this recording is correct Page 2378 it also could not have been shown to PW-1 Patiram or PW-4 Sukha in police station on Saturday as deposed by PW-4. Apart from this both PW-1 & PW-4 have stated that said ornament(necklace) had no distinguishing mark & all ladies of their community i.e. Korku community wear it. In such situation it can not be held that prosecution has proved beyond doubt that said necklace belonged to deceased or present appellant either pledged or sold it in shop of PW-13. Prosecution has failed to prove its seizure from shop of PW-13.
23. Prosecution has strongly relied upon the left hand thumb impression of appellant found in purchase register of Bhansali Jwellers. Witness in this respect is Finger Print Expert PW.16 - Pralhad Wankhede. The said witness is Director of Finger Print Bureau and CID Maharashtra State, Pune. On 26.11.2001 the State Commissioner of Documents, C.I.D. Nagpur sent specimen prints and purchase register of Bhansali Bandhu Saraf and he scrutinized those case papers and forwarded those documents to photographic branch and after receipt of enlarged photographs he forwarded all papers to finger print experts for preliminary examination and report. Mr. Pachghare, Finger Print Expert at Nagpur, after necessary examination opined that the disputed print marked "D" made in entry No. 162 of the purchase register is identical to the specimen of left thumb print of Kishorilal Fulchand Baraskar. He has stated that other expert also examined it and were of the same opinion. The case was then referred for final examination and opinion to him, and after through examination, he formed opinion that the disputed print was identical to the specimen of left thumb of Kaluram Hiraman Baraskar. Accordingly he submitted his final report on 31.12.2001. The said opinion report has been marked at Exh. 75. His cross examination has been very short and he stated that he has not disclosed the details of his examination & reasons on the basis of which he recorded his conclusion reached in his report Exh. 75. He admitted that the disputed print was of the loop type pattern and 60 percent persons are found with such loop type. The cross-examination was obviously to dispute the finding reached by him.
24. We consider this opinion in the light of following observations of Hon'ble Apex Court in Mohan Lal and Anr. v. Ajit Singh and Anr.:
44. We have examined the evidence of the prosecution regarding the taking of specimen fingerprints of the respondent, their comparison and examination with the fingerprint on the currency note by the Director, Finger Print Bureau, Phillaur, and his report Ex. P-BB, As the impression mark A on the currency note was partly smudged and partly on the design and the printed writing, it was photographically enlarged along with the right middle finger impression of the respondent, and the two photographic enlargements were marked A/A and I/I respectively. The Director has given the opinion that the photographically enlarged impression marked A/A was "partly smudged but, otherwise, it and comparable and there exist sufficient (not less than 8) points Page 2379 of similarity i.e., 2matching ridge characteristic details in their identical sequence, without any discordances, between its comparable portion and the corresponding portion of the photographically enlarged right middle finger impression of Ajit Singh marked I/I. The Director has further stated that he had graphically shown the 8 points of similarity "in their same form and position" and had indicated the "nature, direction and sequence of each point" in its relevant circle. He has expressed the categorical opinion that so many points of similarity could not be found to occur in impressions of different thumbs and fingers and that they were therefore "identical" or were "of one and the same person." There were other impressions also on the currency notes, but they were either sufficiently smudged and partly interfered with by the design and the printed matter or were sufficiently faint and were rejected as unfit for comparison.
45. Nothing substantial has been urged to challenge the opinion of the Director of the Finger Print Bureau, and all that has been argued is that as there were only 8 points of similarity, there was not enough basis for the expert's opinion about the identity of the fingerprints. Reference in this connection has been made to B. L. Saxena's "Identification of Handwriting, Disputed Documents, Finger Prints, Foot Prints and Detection of Forgeries", 1968 Edition, page 247, Walter R. Scott's "Fingerprint Mechanics" page 62, and M. K. Mehta's "The Identification of Thumb Impressions and the cross-examination of Finger Print Experts" 2nd Edition, page 28. We have gone through these books but they do not really support the argument of the learned Counsel for the respondent. While referring to the old practice of looking for a minimum of 12 identical characteristic details, Saxena has admitted that the modern view is that six points of similarity of pattern are sufficient to establish the identity of the finger-prints. Walter Scott has stated that "as a matter of practice, most experts who work with fingerprints constantly satisfy themselves as to identity with eight or even six points of Identity." Mehta has also stated that in the case of blurred Impressions the view of some of the Indian experts is that if there were three identical points, they would be sufficient to prove the identity.
46. There is no gainsaying the fact that a majority of fingerprints found at crime scenes or crime articles are partially smudged, and it is for the experienced and skilled fingerprint expert to say whether a mark is usable as fingerprint evidence. Similarly it is for a competent technician to examine and give his opinion whether the identity can be established, and if so whether that can be done on eight or even less identical characteristics in an appropriate case. As has been pointed out, the opinion of the Director of the Finger Print Bureau in this case is clear and categorical and has been supported by adequate reasons. We have therefore no hesitation in accepting it as correct.
Thus before the Hon'ble Apex Court there was material on record to enable it to gather that the opinion of expert was given after due scrutiny & was based on relevant legal norms. Unfortunately in case before us the material to demonstrate the same is absent and we are not in position to hold that Page 2380 the opinion of the Finger Print Bureau in this case is clear and categorical and has been supported by adequate reasons. We have therefore hesitation in accepting it as correct.
25. P.W. 15 - P.I. Ajabrao Gawande, has stated that the accused was arrested on 17.1.2001 and then he gave the memorandum under Section 27, seizure panchnama Exh. 45, seizure of silver necklace Article 12, seizure of register and receipt books vide Exh. 46 was recorded and specimen thumb impression and thumb impression in purchase register at sr. No. 162 were forwarded to finger print bureau. He has not deposed as to how and when the specimen impressions were obtained from appellant by him.
26. Thus perusal of above evidence does not conclusively establish that it is appellant/accused whose thumb impression is appearing in the purchase register at sr. No. 162, which has been proved as Exh. 53 by the prosecution. For reasons already recorded above seizure of register itself becomes doubtful. It is attempt of prosecution to bring on record through finger print expert P.W16, that the said thumb impression in purchase register is of the present appellant/accused who disclosed his name to P.W. 13 and 14 as Kaluram son of Hiraman Baraskar, resident of Kundi. Even if it is presumed that finding reached by this expert is correct, still it only may prove that impression in purchase register matches with specimen impression. But there is absolutely no evidence to connect said specimen impression with present appellant. PW15 police inspector Ajabrao Gawande has nowhere spoken about the mode and manner in which he proceeded to procure specimen or undisputed finger print impressions of appellant. These documents of purchase and pledge with evidence of P.W. 13 and 14 read with evidence of P.W. 15 police inspector and P.W. 16 finger print expert, therefore does not substantiate the story of the prosecution that the accused initially pledged the silver necklace Article 12 with P.W. 13 and then sold it to him on 11.1.2001. In his Section 313 statement appellant has denied that any thumb impression was made by him in purchase register. He has denied all memorandum of admissions allegedly made by him under Section 27 and even alleged recoveries in pursuance thereof. He denied that he pledged or sold any necklace to PW-13. This evidence in relation to finger print needs to be appreciated in this background. The evidence of expert also does not mention any reasons for the conclusions reached and hence, defence could not effectively cross-examine him. This Court also can not judicially evaluate relevance or otherwise of those reasons and find out points or number of similarities noticed by him or his office. Apart from this, his evidence is inherently week because he has tried to borrow by pointing out the alleged similar opinion of others working under him. There is one more reason which prompts us to discard the evidence of this witness. This expert PW-16 has stated that he tallied left hand thumb impression of Kishorilal shown by letter "S.L." in Ex. B-2 with the disputed thumb impression of Ex. A-1in the purchase register. These exhibit numbers are given by PW-15 while forwarding these impressions and disputed impression to Superintendent of police for obtaining opinion of department of PW-16 vide Ex. 67. Perusal of records reveal that there are Page 2381 3 separate papers marked as Ex. B-1, Ex. B-2 & Ex. B-3 by PW-15 & placed on record by prosecution as containing specimen impressions of appellant. It shows that PW-15 Shri Gawande has on 18/1/2001 obtained the same and all 3 sheets appear to be signed by him & by Milind Tulaskar (PW-11) and one Bhansali as pancha. On each sheet, the impressions appear in 3 rows. However as already found above neither PW-15 nor PW-11 have uttered a word about the mode, manner and process in which this was accomplished though in forwarding letter it is mentioned that impressions were obtained in presence of panchas. PW-11 has turned hostile while other pancha Bhansali has not been examined by prosecution at all. On each sheet the name of police constable Ajaykumar, B.C. No. 1420 is mentioned in front while on reverse his sign appears as finger print operator. From each sheet it appears that Ajaykumar was at the relevant time attached to Achalpur Police Station. Seal or stamp on reverse of sheet mentions that it is "finger search slip". In 12 heads below it, information like name of finger print bureau, name of police station, name of accused, name of his father, age of accused, caste of accused, his residential address and concerned police station, name of state of his residence, crime number and sections in which he was arrested, date & time of arrest and lastly the date of obtaining the finger impression have been filled in. Below it appear the words " signature of finger print operator" and illegible signature above it may be of Ajaykumar. Below this signature appear official seal with name & designation of "A.C. Gawande" i.e. PW-15. Prosecution has neither examined this Ajaykumar nor proved these details or contents. If Ajaykumar acted as finger print operator, it is perhaps he who obtained all specimen impressions and it was obligatory for prosecution to tender him in evidence to explain all relevant facts. It needs to be stated that in last or third row on each sheet of paper there appear impressions of upper portion of both palms, particularly all 10 fingers i.e. entire or complete portion of every finger. Impression on left of each sheet appears to be of fingers of left hand palm and that on right side appears to be of right palm fingers from placement of thumbs therein though any sheet does not expressly state it to be so. Above this row there are two rows of impressions, each consisting of 5 impressions. There is no mention on any of the sheets whether said impressions are only of thumb or thumbs &/or of tips of finger/fingers. Similarly it is not mentioned whether these impressions are of only one hand or of both hands. The expert witness PW-16 Pralhad has stated that he has put remarks as "S.R." & "S.L." by putting a border around it on first print in first & second row respectively in Ex. B-2. First impression at top has been put in a square by him with words "S.R." in it. Again first impression in second row has been put in a square by him with words "S.L." in it. Perusal of Ex. B-2 does not reveal any basis for putting such labels. Thus specimen impressions obtained by PW 15 ought to have been independently proved by prosecution by pointing out which impression is of which hand or finger. Prosecution has only proved fact of forwarding alleged specimen impression sheets but has failed to establish that said specimen are of appellant before us. In absence of this evidence connecting the specimen with accused/appellant, we find that the report of finger print expert does not assist the respondent prosecution in any way.
Page 2382
27. In Mohd. Aman v. State of Rajasthan, the prosecution case, briefly stated, is as under : (a) Jafar Alam (the deceased), who was a widower and had no arrangement of his own for cooking food and his close relatives including Sabir Hussain (P.W. 10) who lived nearby used to serve him daily. On April 13, 1983 at or about 10 a.m. her niece Mrs. Manohar (P.W. 3), found that he was lying dead on the floor in a pool of blood. There were a number of injuries on the person of the deceased, his mouth was gagged with his tehmad and that the house was ransacked. (b) Sabir Hussain then went to Nagaur Police Station and lodged a first information report (Ex. P/7). On that report a case under Section 302, I.P.C. was registered and investigation was taken up. In course of the investigation the site was inspected and a number of articles were seized, some of which appeared to have finger-prints on them. Besides, a foot-print was noticed there, photographs of which were taken. (c) The three appellants were arrested in connection with the case on April 20, 1983 and pursuant to the statement of Babu Khan a pair of silver anklets belonging to the wife of the deceased were recovered and his blood-stained clothes were seized. Statement made by Mohd. Yusuf resulted in recovery of a blood-stained knife and four stolen silver rings. (d) Specimen finger-prints and foot-prints of the appellants were taken by the Investigating Officers and they were sent to the Expert for comparison with the fingerprints and foot-prints earlier found in the house. The seized knives and the wearing apparels of Babu Khan were also sent for examination by the Forensic Science Laboratory. After receipt of the report of the experts and on completion of investigation police submitted charge-sheet against the four accused persons including the three appellants. In absence of any eye-witness to prove its case the prosecution relied upon the following circumstances to connect the three appellants with the offences alleged against them:
i) The three appellants and Mohd. Iqbal were seen by Habib Khan (P.W. 7) loitering near the house of the deceased at our about 10 p.m. on said date,
ii) Hanif Khan (P.W. 8) saw all four of them at or about 3 a.m. on April 13, 1983 proceeding across his house towards Ginani;
iii) In the house of the deceased fingerprints of appellants Mohd. Aman and Mohd. Yusuf were found on a brass jug and a glass tumbler respectively;
iv) Foot-print of Mohd. Yusuf were found in the house of the deceased;
v) Injuries were found on the persons of Mohd. Yusuf and Babu Khan when they were arrested by the police on April 20, 1983; and
vi) Four silver rings and knife were recovered from the possession of Mohd. Yusuf and a pair of anklets from that of Babu Khan in consequence of informations furnished by them.
Page 2383 In paragraph 8 Hon'ble Apex Court has observed as under
---Even though the specimen finger-prints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that underSection 4 thereof police is competent to take finger-prints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate. The other related infirmity from which the prosecution case suffers is that the---
In Inderjit Singh v. State of Punjab 1995 (3) SCC 289 Hon'ble Apex Court has maintained similar view taken by Punjab & Haryana High Court. Perusal of paragraphs 6, 9 & 13 of the reported judgment shows that High Court there refused to sustain conviction on the basis of expert evidence as specimen impressions were not taken under orders of magistrate under Section 5 of Identification of Prisoners Act.
28. The other evidence brought on record by the prosecution also needs to be scrutinized. P.W. 8 Charudatta, is the person who has deposed that on Thursday, at about 12 O'clock in the noon, Kishorilal came to his cattle shed at village Khanapur and in the evening expressed that they should go to Baihram. Both of them then came to Achalpur from Khanapur by auto rickshaw, took dinner at Durga Hotel at about 8.30 to 9 p.m. and went back to Khanapur and accused went to village of his uncle Madhaorao. He has further stated that at Achalpur, Kishorilal stated that he was possessing silver coins which were kept in the village and he was intending to sell those coins. He therefore showed him shop of one Ramesh Kashikar of Achalpur. In the cross examination, he accepted that wife of accused was living with one Chottelal (her brother) in field of his uncle Madhaorao. Independently or even otherwise there is nothing incriminating in this evidence.
29. P.W. 5 - Sukhdeo Gorde, is also resident of village Khanapur, and he has stated that about 12-13 months before the date of his deposition in court, on one day at about 7-8 p.m., Kishorilal came to his house at Khanapur. At that time he was possessing one cotton bag, in which clothes and a bundle of notes was kept. Then accused Kishorilal took dinner, spent that night in his house and left next day in the morning. He has stated that on third day thereafter police brought accused to Khanapur and accused told that he had committed murder of a woman. In the cross examination he has accepted that during his stay at Achalpur he was doing the business of illicit liquor, therefore, had contacts with police. Nothing material has been brought on record in his examination in chief. Moreover, he has not stated that there was any sickle in cotton bag of accused.
30. P.W. 6 - Kisan Kale, resident of village Gourkheda Bazar has deposed that Kishorilal is his relative. He has stated that on Tilsankrantri day i.e. Makarsankrat day at about 10 to 11 a.m. the accused Kishorilal came to Page 2384 his house at Gourkheda Bazar and at that time he was carrying a cotton bag. Kisan deposed that he inquired the purpose of visit of Kishorilal and Kishorilal stated that he had come casually. Both of them took lunch in the afternoon and he asked Kishorilal to stay to take dinner but Kishorilal refused and stated that he had some work. At about 12 to 1.30 p.m. Kisan went to village Deogaon for work leaving the accused in his house. At 4 to 4.30 p.m. Kisan returned back and accused had left by that time. Wife of Kisan told that Kishorilal might have gone either in village or to village Bidnapur, but he left his cotton bag in the house. He stated that thereafter accused did not come back to his house. 10 to 11 days thereafter, police brought Kishorilal to his house and inquired whether any article of Kishorilal was in the house of Kisan. Kisan deposed that he told police about cotton bag and his son Raju gave said cotton bag to the police. Police found one full pant, one shirt and one dupatta in the said cotton bag. He identified the cotton bag as Article 13, Dupatta Article 15, Full Pant Article 16and shirt Article 17. Though prosecution claims to have discovered the sickle murder weapon in this cotton bag, this witness has not uttered a word about sickle.
31. Prosecution has also placed on record recovery of stick and sickle i.e. weapons of murder at the instance of accused. They have also pointed out recovery of clothes and cotton bag at his instance from residence of P.W. 6 - Kisan. The seizure memo Exh. 34, memorandum of admission Exh. 36, recovery panchnama Exh. 37 regarding stick, memorandum of admission Exh. 38 about clothes and sickle, recovery panchnama Exh. 39 in relation thereto are the documents relied upon by the prosecution in this respect. Memorandum and seizure is witnessed by Panch witnesses Sk. Rehman (PW-9) and one M.R. Karwa. The panchnama of recovery of clothes and Khurpi (sickle) is drawn in presence of Police Sub Inspector, Mahure PW.17. Memorandum in relation to disclosure of Bamboo stick and panchnama of its recovery is drawn before P.W. 15 A.C. Gawande and is witnessed by P.W. 9 and M.R. Karwa. Exh. 34 seizure memo is also drawn in presence of P.W. 15 A.C.
Gawande and is witnessed by P.W. 9 and one M.R. Karwa. It is in relation to seizure of blood sample of accused Kishorilal and the same is admitted by accused.
32. P.W. 9 - Sk. Rehman has stated before the court that about a year back at 10 a.m., when he was going by road in front of Achalpur Police Station one head constable called him near the gate of police station and obtained his signature on panchnama. He stated that he did not go anywhere with police from police station. He accepted that memorandum Exh. 36, recovery panchnama Exh. 37 prepared on 21.1.2001 and Exh. 38 - memorandum dated 20.1.2001 as also Exh. 39 - recovery panchnama bear his signature. He was declared hostile and learned A.P.P. again has given him only suggestions in cross examination. He has denied those suggestions. He has further stated that the contents of documents were not read over to him. He stated that he did not inform the police that accused had not given any information in his presence, and as nothing was seized in his presence, he would not sign the document. He accepted that police did not exercise any force on him to obtain his signatures. He Page 2385 has not been cross examined by accused. Other witness Shri Karwa is again not examined by the prosecution.
33. Perusal of Exh. 36 and 37 shows that on 21.1.2001 in police station Achalpur, accused stated that he kept bamboo stick in a bush which was on dhura of village and he expressed his intention to produce it. This memorandum under Section 27 bears signature of P.W. 9 & M.R. Karwa and Police Inspector A.C. Gawande - P.W. 15. Panchnama of recovery Exh. 37, again bear signature of these three persons and it records that accused brought them to the spot in Tampalli shivar (also referred to as Khel-Tampalli shivar) and he produced one stick lying in the bush of Bori (a tree) standing on dhura. The said stick was 4 feet in length with girth of about 5.6 inches at one end and 4 inches at the other end, with blood stains on it.
34. Perusal of Exh. 38 shows that on 20.1.2001 accused Kishorilal stated that he kept the Khurpi (sickle), shirt and full pant which was on his person at the time of incident in bag and kept the said bag at the house of one Kisan (P.W. 6) at Gourkheda Bazar. He expressed his intention to produce that bag. Exh. 39 is the recovery panchnama, which reveals that accused brought them to Gourkheda Bazar and took them to the house of P.W. 6 Kisan. Kisan and his wife were present in the house and after explaining them the state of affairs, accused and police party along with witnesses entered the house. Accused pointed out that bag hanging on peg towards northern wall besides the main door. The bag was then taken out and inspected and one iron khurpi (sickle) with stains of blood on its blade, one white dupatta with red colour stains on it, one old white tericoat full pant with stains like blood and one old full sleeve white some what dirty shirt with one stain like that of blood, was found in the said bag and were seized and were taken into custody. The documents Exh. 38 and 39 bear signature of P.S.I. Mahure - P.W. 17, P.W. 9 - Sk. Rehman and M.R. Karwa.
35. Though P.W. 9 Sk. Rehman has not expressly supported the prosecution, at the end of his cross examination he has accepted that no force was used by police while he signed these documents. He has further stated that he has signed the documents without reading, but he did not refuse to sign the documents on ground that nothing transpired in his presence. In his examination-in-chief he states that he happened to go by road and police head constable called him and obtained his signatures on panchnamas. In this respect seizure memo Exh. 34 signed by this witness is admitted by the accused. Similarly P.W. 6 Kisan Kale has in his evidence stated that 10 to 11 days after Tilsankrant day in 2001 police brought accused Kishorilal to his house and he told police that one cotton bag of accused was hanging on the peg of his house and his son Raju gave that cotton bag to the police. He has further stated that when police saw the contents of that bag it was found containing full pant, one shirt and one dupatta. He does not say that it was containing any sickle. He has identified the said bag as Article 13, Dupatta as Article 13, Full Pant as Article 16 and Shirt as Article 17. In this background it is clear that P.W. 9 Sk. Rehman may not be telling truth. Still we have to find out whether story of seizure is established by prosecution.
36. Prosecution has also examined P.W. 15 and P.W. 17 to support their case. Both these witnesses who have conducted the investigation have Page 2386 deposed as per record and have proved the memorandum under Section 27, witnessed by P.W. 9 Sk. Rehman and by P.W. 11 - Milind, along with the corresponding seizures. They have attempted to establish seizure of Bamboo stick, sickle, clothes of accused, silver necklace of deceased and the seizure of purchase register and receipt books as reflected on record. Each of them have however claimed that he arrested accused on 17.1.2001. In his statement recorded under Section 313 of Code of Criminal Procedure, while answering question No. 96, the accused has accepted that he was arrested on 17.1.2001. P.W. 15 has also proved Exh. 61 and Exh. 62 by which clothes of deceased, pieces of her bangles, one ring of white metal and white head pin and one string of black beads were also seized in addition to clothes. Vide Exh. 62, sealed bottle containing blood of unknown woman and skin of fingers of her both hands were also seized.
37. Vide Exh. 63 police forwarded sickle and bamboo stick to medical officer for opinion and certificate Exh. 42 issued by Dr. V.R. Nathe - P.W. 10, in this respect is already mentioned by us above. The clothes and weapons were also forwarded to Chemical Analyzer and report of Chemical Analyzer is at Exh. 68 on record. The Chemical Analyzer has reported that there was human blood on sickle and bamboo stick. In description of parcel the chemical analyzer has mentioned that he had received 7 sealed parcels, one sealed cloth parcel and one partly wrapped and sealed bamboo stick, for opinion and he has also mentioned that all seals were intact. Thus he received total 9 parcels from police station. Against description of those parcels Exh. No. 1 to Exh. 9 are mentioned by him. It is apparent that Article at sr.no.4 Saree and cut blouse were wrapped together in one parcel and were labeled as Exh. 4 by police. But chemical analyzer has given both these articles a separate serial number. While giving results of his analysis, the Chemical Analyzer has mentioned exhibit numbers and therefore there is some confusion created while reading said result. Perusal of lower court records show that while giving serial numbers, chemical analyzer has given Sr. No. 4 to Saree and Sr. No. 5 to cut blouse. The sickle is at Sr. No. 6 and stick is at Sr. No. 10. The exhibit number of sickle is Exh. 5 while Exhibit number of stick is Exh. 9. But it is to be noted that in result of analysis Chemical Analyzer has stated that Exh. No. 6 is stained with blood on blade and Exh. No. 6 is dupatta wrapped in paper labeled as Exh. 6. It is apparent that there is no question of said dupatta (scarf) having any blade. Only article with blade forwarded to chemical analyser is sickle and Article at sr.no.6 as per serial number given by Chemical Analyzer is sickle which had blood when it was discovered as per prosecution. The reference vide Ex. 6 therefore, is only to sickle at sr.no.6. Another entry is about Exh. 10 and it is stated that it is stained with blood at one end. Again if one goes by exhibit numbers as given in description of Articles/parcels, in list a bamboo stick is mentioned at its end as Exh. No. 9 and there is no Exh. 10 in it. But when serial number given by the Chemical Analyzer to these articles in his report are looked into Article 10 is bamboo stick, partly wrapped in bandage cloth labeled Exh. 9. It is thus apparent that reference to Exhibit number in said report while recording result of analysis is incorrect and it is to be read as reference to serial number of articles. Thus, the result of analysis shows that human blood has been found on sickle and bamboo stick. It Page 2387 further says that group of blood found on sickle is "B", while blood-group of blood on stick could not be determined. The clothes of deceased are also found stained with blood and quilt with which her face was covered is also found stained with blood of group "B". However, no blood is found on either dupatta or full pant or shirt of the accused, which are Articles at sr. No. 7, 8 and 9, as per Serial numbers given by the Chemical Analyzer. The Chemical Analyzer has however, vide Exh. 69 and 70 reported that blood group of accused - Kishorilal and blood group of deceased Munni could not be determined as test-results were inconclusive. The fact remains that sickle and bamboo stick allegedly recovered by police at the instance of the accused had stains of human blood. In absence of any other supporting evidence, these findings in C.A. report by themselves can not connect appellant either with weapons or with crime.
38. Learned Additional Public Prosecutor Shri T.A. Mirza, has relied upon the judgment of the Hon'ble Apex Court reported at AIR 1978 SC 1511 Modan Singh v. State of Rajasthan, particularly paragraph No. 9 thereof to contend that, if evidence of investigating officer who recovered the material object is convincing, the recovery need not to be rejected on the ground that witness on seizure did not support the prosecution version. In said case before Hon'ble Apex Court only material apart from the evidence of co-accused of having seen alone for last time with the deceased was recovery of fire cartridge and seizure of Pistol. The witness examined for proving the seizure did not support the prosecution version and accused contended that the witness on seizure was man of status in the village and not supporting the recovery by him was fatal. The Hon'ble Apex Court states that it would rather not place any reliance on the witnesses who attested the seizure memo, if the evidence of investigating officer who recovered the material object is found to be convincing and in that case such recovery can be accepted. Hon'ble Apex Court has thereafter considered the evidence of P.W. 12 - investigating officer and considered the recovery memo, and also found that no question was put to ballistic expert as to how he was able to fire test cartridges when in his statement he stated that barrel of pistol was loose and bullets mentioned could not be identified in respect of the weapon under reference. This discussion and finding by the Hon'ble Apex Court is in the facts and the circumstances of said case. However, in the case before us, only handing over of cotton bag to police is independently established by evidence of P.W. 6-65, Kisan Kale and is also supported by evidence of P.W. 17 - PSI Pandurang Mahure. But prosecution could not prove presence of sickle in it. PW-5 Sukhdeo and PW-6 Kisan examined by Prosecution have not stated that cotton bag was containing any sickle. In view of our observations above about absence of evidence on record about the mode & manner in which dead body came to be first identified, circumstances in which appellant came to be arrested and his presence in police station even before PW-1 father reached, creates serious doubts about seizure of necklace from jweler etc., we are not ready to accept uncorroborated evidence of investigating officer about seizure of blood stained sickle or stick. Investigation itself appears to be faulty. Moreover blood group of blood of deceased and accused could not be ascertained. If appellant could conceal bamboo stick as alleged by prosecution, it is beyond Page 2388 comprehension that he would carry blood stained sickle along with him for days. We therefore, in facts before us hold that the prosecution has not succeeded in proving the discovery & seizure of bamboo Stick and sickle allegedly used as weapons by the accused. When we are not in position to accept the investigation itself, we find that the reliance upon Modan Singh vrs. State of Rajasthan (supra) by prosecution is totally misconceived here. In view of these findings it is clear that none of the circumstances relied upon by prosecution are proved beyond doubt on record and it was also not necessary for appellant to take any positive stand in the matter.
39. Anil Kumar Singh v. State of Bihar is the judgment of Hon Apex Court in which Hon. Apex Court has clarified circumstances in which conviction can be based on circumstantial evidence. The requirement is of establishing each and every piece of incriminating circumstance by reliable and clinching evidence & circumstances so proved must form such chain of events as would permit no conclusion other than the guilt of accused. Mere suspicion, howsoever strong, cannot be permitted to take the place of proof. In view of entire discussion above, it is clear that none of the circumstances relied upon by the prosecution to demonstrate the complete chain has been proved on record conclusively. In present situation, it was duty of prosecution to independently establish each such circumstance beyond reasonable doubt by leading cogent & convincing evidence. However, the prosecution failed to adduced cogent and trustworthy evidence in order to complete the requisite chain and therefore, failed to bring home the guilt of the accused for the offence of murder.
40. The Appeal is accordingly allowed. The judgment dated 19.01.2002 in Sessions Trial No. 25/2002, holding the appellant guilty of offence punishable under Section 302 of Indian Penal Code is quashed and set aside. The appellant is acquitted of the charges leveled against him. The appellant be released forthwith, if he is not required in any other case by the prosecution/State. Muddemal property be dealt with as directed by Lower Court after the expiry of period of appeal.
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