I , A B c D HIMACHAL PRADESH ADMINISTRATION v. SURI OM PRAKASH December 7, 1971 765 [P. JAGANMOHAN REDDY AND D. G. PALEKA!l, JJ.] Constitution of India, 1950, Art. 136-Criminal appeal against ac- quittal-Scope of interference by Supreme Court. Criminal trial-Circumstantial evidence-Approach by Court. Evidence &ct (! of 1872), s. 21-Weight of evidence re : recovery- Panch witnesses-If should b~ different for each recovery.
Criminal Procedure Code (Act 5 of 1898). s. 510-Admissibillty and weight of reporl of finger print expert. The accused was charged with murder by stabbing, ll;nd tha ev!den~e against him was circumstantial. It consisted of :
(a) evidence of 1ll-w1ll against the deceased furnishing a motive (b) evidence that he was last seen in the company of the deceased, ( c) evidence furnished by finger prints, that he was present in the room of the deceased at or about t~e time of the murder, ( d) evidence that he was subsequently found '!' possession of articles which had incriminating blood strains. and (e) evi- dence that he had hidden a dagger with bloodstains thereon, and certain other articles, which were discovered on information furnished by him.
The trial court convicted him but the High Court set aside the convic- tion on the ground that the \\ritnesses \vere not independent or impartial. Allowin~ the appeal to this Court, E HELD : (I) In an appeal against acquittal by special leave under Art. !36, this Court has pawer to interfere with the findings of fact, no distinction being made between iudgments of acquittal and conviction though in tho> case of acquittals, it will not ordinarily interfere with the appreciation of evidence or findings .of fact unless ~he High Court actec1 perverselv or otherwise improperly, [772 B-D] Slate of Madras v.
Vaidyanatha Iyer, [1958] S.C.R.
580. 587. referred F to. G H (2) In the case of circumstantial evidence if the links in the chain are complete leading to the undoubted conclusion that the accused alone could have committed the offence then it can be accepted. In aopreciating suc1' evidence the prime duty of a court is to •msure that the evidence is legally admissible, that the witnesses are credible and that they have no interest or motive in implicating the accused.
Since it js difficult to expect a scienti- fic or mathematical exactitude while dealing \vith such evidence corrobora~ tion is sou~ht w)lerever possible. If there is any reasonable doubt the accused is gi~-en the benefit of such doubt The doubt should be reason- able and not a remote po~ibilitv in favour of the accused. "That is, the greatest possible care should be taken by the court in convicting an accuse<!. who is presumed to be innooent till the contrary is clearh· established, and the burden of so establishing is always on the p'rosecution. [772 C-E, G; 773 E-H; 774 C] ( 3) (a) Whi.le considering the evidence relating to thi~ recovery under s. 27 of. the .Evidence Act the court will have to exercise that caution and care which 1s nece~sarv to lend assurance that the information furnished by the accused leadmg to the discovery of a fact is credible. [776 DJ 766 SUPREME COURT REPORTS (1972] 2 S.C.R.
In the. pr~sent case, the various panchnamas of seizure prepared by the Investi&atin& Officer could not be assailed on the &round that the wit- nesses who witnes•ed the recoveries were connected with the deceaseil or with his business, and that therefore, they were not independent or im- partial witnesses. [775 H; 776 G] (b) The evidence relating to recoveries is not similar to that contem- plated under s. 103, Cr.
P.C. It cannot be laid down as a matter of Jaw A or practice that where recoveries had to be effected from different places ,B. on the information furnished bv an accused different sets of persons should be called to witness them. [777 B-C] On the contrary, in the present case, the witnesses who worked with the deceased were pro,..r persons to witness the recoveries as thev could identify the things which were missing. [777 C-D] ( 4) The report of the Director of the Finger Print Bureau regardine c the finger prints can be used as evidence under s. 510 Cr.
P .C., without examining the 11erson making the report, because identification of finger prints has developed into an exact science. As long as the report shows that the opinion was based on relevant observations that opinion can be accepted. [783 A-El In the present case, .the report set out many points of similarity bet- ween the finger prints found in the room of the deceased and those of the D accused. [783 HJ ( 5) The information given by the accused that he purchased a dagger from one of the prosecution witnesses followed his leading the police to that witness and pointing him out is inadmissible under s. 27 of the Evi- dence Act.
The concealment of a fact which is not known to the police is what is discovered by the information given by an accused and lends assurance that the information was true. What make·s the informtaion E leading to the discowry of a witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know u_ntil information was furnished by the accused.
But a \\'itness cannot be said to have been discovered if nothing was found with or recovered frol)l. him, as a consequence of the information furnished by the acc'use<l. [778 F; 779 H; 780 A-C] Emperor v. Ramanuya Ayyangar, A.I.R. 1935 Mad.
528. over- F ruled. Pulukuri Kotayya & Ors. v. King Emperor, 14 I.A. 65, Ramkrishan Mithap/al Sharma v. State of Bombay, [1955] 1 S.C.R. 9(13, Sukhan v.
Crown, I. L. R. X Lah.
283. Public Prosecutor v. India China Llngiah & Ors., A.l.R. 1954 Mad. 435 and Re : Vellingiri, A.l.R. 1950 Macl.
613. referred to. (6) But that the accused had taken some of the prosecution witnesses to the witness from whom he bought the dagger and pointed him out. would be admissible under s. 8 of the Evidence Act as conduct of the accused. [780 C-D] G (7) Even after excluding some recoveries on the ground that the evi- dence regarding them was not satisfactory. the evidence against the accused consisted of eyidence of motive. recovery of a button in the room of the H deceased which matched with the button on the cutf of the coat recovered from the accused. the finger prints in the room, recoverv of a blood stained coat and other articles of clress, a blanket. and the dagger. and the I A B c D E F G H HIMACHAL PRADESH v.
OM PRAKASH (Jaganmohan Reddy, J.) 767 luct thaL the accu;ed and deceased were last se<•n toget_her. The evidence is cogent and conclusive and should not have been re1ected by the High Co·.irt. i78l C-E; 7Bfi C-D] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 67 of 1969. Appeal b!Y special leave from the judgment and order dated August 12, 1969 of the Delhi High Court in Criminal Appeal No. 68 of 1967 and Murder Reference No. 1 of 1967.
H. R. Khanna and R. N. Sachthey, for the appellant. Har Pershad aud O. N. Mohindroo, for the respondent. The Judgment of the Court was delivered by P. Ja~anmoban Reddy, J. This Appeal is by Special leave against the Judgment of the Himachal Bench of the High Court of Delhi acquitting the accused who had been sentenced to death for an offence of murder under Section 302 of the Indian Penal Code. The accused Respondent was a Manager at the Kotkhai Brunch of the Himachal Pradesh State Cooperative Bank of which .
Sunder Lal Chaturvedi the deceased was the General Manager. It appears that during the period the accused was working in that Bank there was a fire in the Kotkhai Branch in which the recordS- of the Bank were burnt and a sum of Rs. 10,000/,~ was found missing. The deceased had suspended the accused from the service and subsequently he was dismissed. In or about 1964, the de- ceased retired from the Bank and in 1965 started a Private Limited Company under the name of Himprasth Financiers with the ~cad Office at N agina Singh Building which was situated 1n the Mall at Simla of which he was the Managing Director.
He used to also !iv~ in the same building in one of the rooms of the office and have his meals in the Mansarovar Hotel. The other Directors of this· Company were Gurucharan Singh, Puran Chand Sood and Kailash Devi wife of I. C. Gupta, P.W.
2. who was at one time also Ma·nager in the Himachal PrQdesh State Cooperative Bank. After the accus- ed was dismissed from ,the Bank he had applied to the deceased for a job and was appointed as an Accountant in the Finance Com- pany but later when his request for increase in his pay was not sanctioned, he sent in his resignation by a letter dated 31-12-66 Exh.
P. 8 and it was accepted on 3-1-67 by a resolution of the Board of Directors Exh. P.
43. On the night of 30th January 1967 the deceased had his dinner at the Hotel and when he came out after taking his food it was alleged that he was met by the accused. This was witnessed by Romesh Chand P.W. 7 the Proprietor of the Hot.el who saw them both going towards the Mall. Thereafter at the betel shop which is near Nagina Singh Building.
Lal Chand P.W. 9 who was purchasing cigarettes at that shop saw them together and going towards the Nagina Singh Building. It 768 SUPREME OOU'llT REPORTS [1972] 2 S.C.R. was the last time he was seen alive. On the 31st January '67 at .about 9.30 a.m. I. C. Gupta P.W. 2, came to visit the deceased and found that the main door was bolted from inside. He then peeped through Ille glass of the window panes through the adjoining room · .and saw that the deceased was lying in a pool of blood.
He imme- ~iately telephoned to the Police. In response to this call the Sta- tion House Officer of the Saddar Police Station, Inder Raj Malik, P. W. 28 came to the building, broke open the room through the kitchen door and saw that the back door of the bath room was open. At that time there were present P.W.
2. Amar Chand P.W. 8, Baldev Krishan P.W.. 13 and others. The deceased had on him four incised wounds one on the neck and 3 on the hands. <On ii:ispecti?n of the room he found on the nearby table a key Ex. 4 stamed with blood and under the table there was a biscuit colour Coat button Ex.
I. Inside the shelf of an Almirah there was a water flask which appeared ~ have on its neck 3 finger impres- sions. On the glass pane of the door leading to the kitchen were :also found two finger marks. The curtain near the kitchen door showed that someone had wiped his blood stained hands on it. The key and the button wer~ seized and a panchnama was made. There were also· founc;I tlwo bunch.es of the keys underneath the pillow of the deceased.
Des Raj, P. W. 6, the Police Photographer took photographs not o.nly of the various objects in the room but also of the· finger marks on the flask and the window panes after the same were dusted with some grey powder. Thereafter the Investioating Officer P.W. 28 requested P.W. 2, P.y./. 8 and P.W. 13 to :scertain if any of the things belonging to the deceased were missing. These three persons informed him after inspection that two loan registers, one general ledger, one cash book and vouch~rs from April' -,66 to December '66 were missim!.
They further m- formed him that one blanket of the deceased, one tea-poy cover and one canvas bag was missing. A'n inquest on the dead body was held and the blood found was also seized. Thereafter P.W. 28 went to Mansarover Hotel and recorded the statement of P.W.
7. On 1-2-67 at about 11.30 a.m. P.W. 28 accompanied by the Assistant Sub-Inspector and Constables met P.W. 2, P.W. 8 and boarded the jeep of P.W. 2 driven by Roshan Lal and went towards the house of Om Prakash.
On the way PW. 2 saw Kala Ram, l'.W. 5, who was waiting for a bus and asked him to get into the jeep. Thereafter they went to the house of the accused situated at Anandale and there P.W. 28 went inside the house and saw the accused in one of-his rooms and brought him outside. After interrogating him he arrested him and pursuant to a statement made by him seized from him on~ sweater, one coat, one blanket which was hidden inside the nivar of his cot lying inside his room.
The sweater and the coat were sta~d by the accused to be his. The accused also gave them the pair of boots and socks which Ile ·was wearing and informed them that he had concealed one blood A B c E F , G H A B c D E F HIMACHAL PRADESH v. OM PRAKASH (Jaganmohan Reddy, J.) 769' stvined dagger under a stone slab below the Maidan of Burnt Market and over the bakeries which was by the side of a pipe and offered to have it recovered.
He further stated that he had kept the five registers in a canvas bag which be had hidden below a stone at Krishna Nagar on the bank of Ganda Nala and that he had thrown 8 or 9 bundles of the vouchers tied in a tea-poy cloth and his blood stained pants in the Ganda Nala and would get them recovered. The Investigating Officer reduced the statements to writing in the presence of the Panchas and took· their signatures.
This Panchnama is Ex. P.
6. The coat and sweater and the blanket inside the nivar of his cot were handed over by the accused to the police. These were found to contain blood and were seized through a Panclmama. The accused then took them to the market and on the way were met by Bhag Singh P.W. 12 and in the presence of all these persons he removed a piece of stone which was near a pipe and brought out a blood stained dagger from under it and gave it to P.W.
28.
He then took them to the Tekri of one Ganga Singh P.W. 11, in the Lower Bazar who sells daggers and there P.W. 28 recorded his statement that on the day of the incident the accused had purchased the dagger recovered from under the stone which was identified by P.W. 11, as the one sold to him. On the next day namely 2-2-07 P.W. 28, got a plan of the rooms and the office where the deceased was working and living prepared and from there accompanied by P.W. 2, P.W. 13 went to Krishna Nagar taking with them on the way Manohar Lal P.W. 14, from Krishna Nagar to Ganda Nala which was flowing in the khud.
From near there the accused pointed out a stone slab fre>m where a canvas bag which contained five registers said to be missing from the residence of the deceased were recovered and then the accused went into the Ganda Nala brought out a tea-poy cloth which con- tained vouchers and also recovered ablood stained pant which was lying under the water. The button and the coat were sent to the forensic laboratory at Chandigarh for examination.
The llash and the glass panes were sent to the Finger Print Examiner at Phillor and the button to the Forensic Laboratory which gave a report that it was similar to the button on the coat from which it was missing. The Chelllical Examiner and Serologist found hunian blood on the key, ihe dager, blanket, coat, sweafur and pant, the shoes G .and socks. The blood grouping could only be found on the pajama and shirt of the deceased which is of 'O' group while no blood grouping was possible in respect of the other articles referred to.
Vide Ex. P. 60 and Ex. P.
48. The finger print expert found on the flask and the glass pane reported as per Ex. P. 59 that they are~~ s~ne ~s those o~ the ~ccused and ~v~more than 12 points of s1m11anty 1.e. malchmg ndge charactenst1c details.H The High Court grquped the circumstances relied against the accused under 4 broad heads namely : 770 SUPREME COURT REPORTS [1972 J 2 S.C. R.
(i) that there was a motive for committing the murder;
(ii) that the deceased Chaturvedi was seen last in the Company of the accused;
(iii) that in pursuance of the statement said to have been made by the accused as per Ex.
P. 6 a recovery of blood stained sweater. coat, blanl..1:t. shoes and socks and blood stained dagger were made as per Ex. P. 6/A on 1-2-67 (the date given in t~e Judgment as 2-2-67 is not correct), and that on 2-2-67 five regi>ters contamed in a bag and 12 bundles of vouchers were recovered; and (iv) that the finger marks of the accused were found on the flask as well as on the glass panes at the place where the murder took Rlace.
If the circumstantial evidence as relied upon by the prosecution is credible and acceptable the offence with which the accused is charged can be held to be estabiished beyond reasonable doubt. The High Court however did not accept these circumstances as having been established by any independeu~ and reliable evidence. In so far as motive suggested by the prosecution is concerned it was of the view that while no doubt the accused was suspended by an orc.kr of the deceased on 21-6-63 that suspension must have been as a consequence of the ·action taken by the autl:J.orities of the Bank with the approval of the Board of Directors and this does not indicate that he ~ould have any grievance ·against him; that the accused had no grievance against the deceased is also shown by the fact that the deceased had given him employment in the Finance Company.
The second circumstance against the accused, that he was last seen in the Company of the deceased on 30-1-67 at 9.30 p.m. was also held not to incriminate him for the reason that even if Lal Chand P.W. 9's statement was true, it only goes to show that the accused was seen .going with the deceased towards the Nagina Singh Building but that does not mean that they had gone into that Building together, but on the other hand there was a possi- bility of the accused taking leave of the deceased and going away to his house without entering into. the Nagina Singh Building.
With respect to the third circumstance relating to the seizure and re- covery of articles and their admissibility under Sec. 27 of the Evidence Act, it was observed that the evidence adduced by the prosecution for establishing these circumstances reveals a number of irregularities ood is suspicious firstly because the prosecuting officer took with him all the witnesses who were neither independent nor impartial and even the witness P.
W. 5 Kala Ram cannot be considered to be independent or impartial as he was not a stranger but was known to the Enquiry Officer. A reading of Kala Ram's evidence gives tl!e impression that he is a person willing to be an agent 0f the police. It also appeared to the High Court that the A B c D E F .. G H A B c D E F G H HIMACHAL PRADESH v. OM PRAKASH (Jaganmohan Reddy. /.) 7 7 I action of P. W. 28 in bringing the accused out of the room when he and the other witnesses went to his house gives rise to the suspi- cion that it might have been done deliberately to clear the way for planting the articles in the cot which was in the room and fourthly the statement Ex. 6 said to have been made by the accused amount- ed to a confession by the accused and if as the enquiry officer P.W. 28 claimed that the statement was voluntary instead of recording it himself he could have produced the accused before a Magistrate for recording the same.
In view of this the Higi} Co\lrt wa~ not satisfied that the statements were freely and voluntarily made by the accused and accordingly neither the portions of those state- ments which related to the discovery of incriminating facts nor the admissibility under Sec. 27 of these Memos Ex. P6 & P. 6A and P. 7 which were signed by P.W. 2, P.W. 5, P.W. 8 and P.W. 28 both on 1-2-67 as well as on 2-2-67 could be relied upon.
Even the handing over of the shoes and socks it was observed cannot be treated as having been discovered because the accused was wearing them at the time when he handed them over to the police, and also that it was difficult to believe ~hat the accused will have the coaf, sweater and blanket which are said to have blood stains on them recovered because he could have discarded them in the same way as he is said to have done with his pants.
Moreover the coat and the sweater were not shown to belong to the accused by inde- pendent and reliable evidence. For these reasons the alleged dis- coveries or the recoveries of the coat, the sweater, the blanket, shoes and socks were rejected. Even with respect to the disco;cry of the dagger the High Court thought that Amar Chand P.W. 8 was not an independent witness, that Bhag Singh P.W. 12 who was just a worker at the bakery claimed to be present casually did not inspire confidence, nor in the absence of independent witnesses who could have been easily procured could the other evidence be relied upon.
The identification of the dagger by Ganga Singh P.W. 11 before the Magistrate was also not accepted because there was nothing to show that the dagger was the one which was purchased by the accused nor is it possible ~ distinguish the dagger in ques- tion from the other 3 daggers with which it was mixed up. Simi- larly the evidence relating to the recovery of the account books and vouchers was disbelieved.
The thumb impressions on the flask and the glass panes was rejected on the ground that no particulars were set out by the Director of the Finger Prints Bureau except the stereotyped statement that there was a similarity of more than 12 points. On this aspect the High Court observed as follows : "If the accused also had handled the flask, as suggest- ed by the prosecution, his finger impressions also would be on the flask, and there would be quite a good number of finger impressions on the flask.
But curiously only three finger impressions, and that too of the accused, are 772 SUPREME COURT REPORTS [1972] 2 s.c.R. said to be present on the flask. This in our opinion, is a very suspicious feature. Further, the existence of the finger-marks is said to have been noticed even at the earliest stage of the inquest, and that too not by any expert but by the Investigating Officer, J.C. Gupta, Amar Chand and Baldev Krishan, as though they anticipated the pn;sence of the finger-marks.
There .is thus no clear proof that the finger-marks alleged to have bleen found on the 1!ask and the glass pane were those of the accused, and we hold accordingly". in possession of articles which bear incriminating blood stains and Court has undoubted power to interfere with the findings of fact, no distinction being made between judgmepcs of acquittal and con- viction, though in the case of acquittals it will not ordinarily inter- fere with the appreciation of evidence or op findings of fact unless the High Court "acts perversely or otherwise improperly" (see State of.
Madras v. Vaidyanatha Iyer)('). The case against the accused as already stated depends entirely on circumstantial evi- dence the credibility of which is very much in issue. It is well established that circumstantial evidence consists in various links in a chain, which if conplete, leads to the undoubted conclusion that the accused and accused ~lone could have committed the offence with which he is charged.
It is said that this evidence is much more dependable than direct evidence provided that no link in the chain is missing. While it is possible that each of these links may not by itself incriminate the accused or be conclusive against him the linking of all of them may forge the chain in arriving at that con- clusion. The evidence that accused had ill will against the deceased furnishing a motive, that he was last seen in the company of the deceased, that he was present in the room of the deceased at or about the time he was murdered, that he was subsequently found in possession of articles which bear incriminating b'.ood stains and that he had hidden the dagger with blood stains thereon and cer- tain other articles which were discovered on the information fur- nished by him, all cl which if believed leads to the conclusion that he was the murderer.
In appreciating the evidence against the ac- cused the prime duty of a court is firstly to ensure that the evidence is legally admissible, that the witnesses who speak to it are credible and have no interest in implicating him or have ulterior motive. At the very outset an attempt was made on behalf of the de- fence to suggest that it was P. W. 2 who was the murderer and not the accused. This suggestion was made to him in the committal court as also in Sessions Court but it was denied.
It was submitted that P.W. 2 had a motive to do away with the deceased because he (l) [1958] S.C.R.
580. 587. A B c D E F G H A B c D E G H • HIMACHAL PRADESH v. OM PRAKASH (Jaganmohan Reddy, J.) 773 wanted to appropriate to himself the mone.y and property ?f the deceased. To this end he was cross-exammed with the ob1ect oi. establishing that he and th!) deceased had purchased jointly a land near Chhail and that the deceased was in possession of large sums of money and that P.W. 2 used to receive all the amounts from the loans adva,nced by the Finance Company and to avoid any liability for these amounts the murder was committed with the object of taking away the accounts and destroyjng the evidence relating there- to.
It was further suggested that ~cause of this motive he and P.W. 8 who admitted that he considered P.W. 2 as his superior and P.W. 13 Bhag Singh who is the brother-inclaw of P.W. 2 being the wife's brother, were interested in shifting the offence to the a1<eused by taking a prominent part during the investigation and became the main witnesses for proving the several incriminating circumstances against him.
While it is not the function of. this Court to determine who other than the person who has been charged with ·the murder hail committed it, the line which the defence adopted was to establish tljat the witnesses referred to above had 3;ll interest in implicating the accused or at any rate to create uncertainty and doubt suffi- cient to give the benefit to the accused. It is not beyond ·the \;:en of experienced able and astute. ]awyers to raise doubts .. and unce;:ainties in respect of the prosecution evidence either during trial by cross-examination or b!Y the marshalling of that evidenrie in the manner in which the emphasis is placed thereon.
But what has to be borne in mind is that the penumbra of uncertainty in. the evidence before a Court is generally due to the nature and quality of that evidence. It may be the witnesses are lying or where they are honest and truthful, they are not certain. It is J)l.1;1r~fore, difficult to expect a scientific or mathematical exacti- tude· while dealing with such evidence or arriving at a true con" clμsion; Beca~s~ of these diffic11lties corroboration is sought -~~rever possible and the maxim that the accused should be g.i.ve,n the bei_iefit_ of ·doubt becomes pivotal in the prosecution of offe.nd~rs which 1~ other words tne<1ns that the prosecution must p,rov". its case aga~nst. an. accu_sed beyond reasonable doubt by. a s\ifficiency of credible evidence.
The benefit of doubt to which th,e. ~ccused is entitled is reasonable doubt-the doubt which rational think~ng men will reasonably, honestly and c.onst:ien~ llo\!Sly entertam and not ·the doubt of a timid mind which fights slJ)'-though u_nwittingly it may be-'-0~ is afraid of the logica·J .c.onsequences; 1f that benefit was not given, Or as one gre'at J11dge said it is "not the «:foubt of a vacillating mind that ha~ not the, ll!C(fal courage to dee1de but shelters itself in a vain and idle scept1C1sm".
It does not mean that the evidence must hie so strong as to exclude even a remote possibility that the ac;cused could not have committed the offence. If that were so the law 2-L736 SuPCl/72 774 SUPREME COURT REPORTS [1972) 2 S.C.R. would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or un- tenable doubts and will result in deflecting the course of justice if ;not thwarting it altogether.
It is for this reason the phrase has been criticised. Lord Goddard C.J. in Rex v. Kritz('), said that when in explaining to the juries what the prosecution has to establish "a Judge begins to use the words "reasonable doubt" and to try to explain what is a reasonable doubt and what is not, he is much more likely to confuse the jury than if he tells them in plain language "It is the duty of the prosecution to satisfy you of the prisoner's guilt"".
What in effect this approach amounts to is that the greatest possible care should be taken 1zy the Court in convicting an accused who is presumed to be innocent till the cbntrary is clearly established which burden is always in the accusatory system, on the prosecution. The mere fact that there is only a remote possibility in favour of the accused is itself suffi- cient to establish the case beyond reasonable doubt.
This then is the approach. The High Court thought there was force in the suggestion of the learned Advocate for the accused that P.W. 2 had a clear motive to take away the registers and vouchers of the Company to make such use of them as would suit him and also to murder tbe deceased. On the contrary the evidence of P.W. 2 shows that he was a friend of the deceased. He had been a Manager in the Himachal Pradesh State Cooperative Bank when the de- ceased wa~ the General Manager.
There is nothing to show that during that period the deceased and he were on inimical tetms ·Or there was any disagreement between them of such a nature as would imply that he bore ill will towards the deceased. On the other hand both of them had jointly purchased a land, and when the deceased started the Himprasth Finance Company P.W. 2's wife was made a Director in that Company because P.W. 2 be- ing an employee in a State Cooperative Bank could not take direct interest therein.
At the time of the incident it appears that P.W. 2 was Jiving in Simla and according to him he had regard for the deceased ·and as he was his General Manager he used to go to him almost daily in the morning and in the even- ing. He further says he must have visited him hundred times inside the house, and on the evening of the 30th January, '67. the deceased and he went for an evening stroll as usual and at 9.30 p.m. that day he left him near the Nagina Singh Building. after which the deceased went away to take his food towards the Lower Bazar side and he went away to his house.
P.W. 2 knew of the financial position of the deceased which was according to the loan ledger entries of the Himprasth Finance Company (1) [1950] 1 K.B. 82 ·7" 90 A ll c D E F G A B c D E , H HIMACHAL PRADESH v. OM PRAKASH (Jaganmohan Reddy,!.) 775 Rs. 1157.71 np. as on 31-12-66, that there was a credit amount of Rs. 14,000 as on 29-11-66 which was not withdrawn till then; that certain amounts were also borrowed for the marriage of his daughter from Rawal Chand of Sanjouli whom he knew well and that from the accounts it appeared that there was only Rs. 6.10 np. as cash in hand of the Company which may be in the hands of P.W.
13.
He further states that he used to be present in every meeting of the Himprasth Financiers and he used to write the Minutes Book. There is no suggestion that these Account Books were manipulated or that the entries therein were not made con- temporaneously wit!J. the transactions which they evidenced. There is therefore no justification for holding that either P.W. 2, or P.W. 8 or P.W. 13 notwithstanding their close connectio.n with the deceased and the Himprasth Finance Company were inimically disposed towards the deceased or towards the accused.
No adverse inference can be drawn as contended by the learned Advocate for the accused, against P.W. 2 that the circumstanil's point out to him as being concerned with the murder or against the other two witnesses that they were supporting P. W. 2 with the object oi' .!xculpatlng him from any charge that may be levelled against him. The suggestion that P.W. 2 wanted to appropriate the property of the deceased or do away with the cash from the loans which were being paid to him directly had no rationale to support it, because firstly the deceased had one married daughter and another unmarried, and secondly that he had nephews who in the absence of the daughters would have inherited his property.
A suspicion wa, 3ought to be aroused because P. W. 2 did not send for the daughters ~ut sent for the nephews which was with the object of dividing the properties of the deceased in league with them. P.W. 2 said that he did not know the address of the daughters of deceased and therefore he sent for the nephews, as such no sinister motive can be attributed to him. P.W. 28 the lilvestigating Officer had known that P.W. 2, P.W. 8 and P.W. 13 were the· only persons closely connecied with the office and residence of the. deceased and therefore when he found some finger prints on the flask and the window panes, he out oi' abundant caution took their finger prints also on that very day long before the accused was suspected as being involved in the murder.
It was only after the Investigating Officer exa- mined P.W. 7 the Proprietor of Mansarover Hotel at about 8.30 p.m. on the day the murder was discovered. that he came to know that the accused had met the deceased outside the Hotel after he had taken his meals that night. The various Panchnamas of seizures that the Investigating Officer prepared in the ·presence of P.W. 2, P.W. 8 and P.W. 13 cannot be assailed merely on the ground that they were connected with the deceased or with Himprasth Finance Company.
The fact that a key and a button SUPREME COURT REPORTS [1972} 2 S.C.R. was recovered or that the flask or the win\!ow panes had finger prints were found in the room where the deceased was murdered are unassilable nor has any doubt b~en raised to discredit these recoveries. All that is said by the learned Advocate is that P.W. 28 being an experienced Investigator had created evidence and the Account Books, vouchers, tea-poy cloth, a canvas bag, blanket of the deceased were shown as missing in order to pla,nt thein subsequently on the accused.
But at t@ time when these seizures were made the part played by the accused if any was not known, and if at all P.W. 2, P.W. 8 aind P.W. 13 who were witness to the panchnama had not been cleared from suspicion. We are not unaware that Sectio,n 27 of the Evidence Act which makes the information given by the accused while in custody leading to the discovery of a fact and the fact admissible, is liable to be abused and for _that reason great caution. has to be exer- cised ill resisting any attempt to circumvent, by manipulation or ingenuity of the Investigating Officer, the protection afforded by Sec. 25 and Sec. 26 of the Evidence Act.
While considering the evidence relating to the recovery we shal! h,ive to exercise that caution and care which is necessary to lend assurance that the infoniiation furnished and the fact discovered is credible. As already stated, on 1st Fel:lruary 1967 the coat, sweater, shoes. and socks of the accused and a blanket of the deceased were recovered in the presence of P.W. 2, P.W. 5, P.W. 8 and P ..w.
28.
After this they proceeded to the place indicated by the accused and recovered the blood stained dagger from under a stone, which was witnessed by them. P.W. 2 did not accompany the .party as according to him he had to go to make arrangements for the funeral of the deceased. On the way to the place from where the dagger was to be recovered the party met qne Bhag Si.ugh P.W. 12 who also accompanied them to the place of re- covery and in the presence of Roshan Lal (who was not examin- ed) Amar Chand, P.W. 8, Bhag Singh, P.W. 12, and P.W.
28. the dagger was recovered and a Memo Ex.
P. 28 was prepared aind attested by the aforesaid witnesses. The High Court rejected the evidence of these recoveries under Ex. P. 6/A and P. 28 because P.W. 2, P.W. 8, P.W. 13 and Roshan .Lal the driver of P.W. 2, were all connected with the deceased and are not there- fore independent or impartial witirtesses. It thought that the Investigating. Officer should have called independent imd impar- tial witnesses preferably, and if possible, from the locality, as it could not b~ said that they were not available or if available would not be willing to be witnesses and that in any case calling of the same persons to witness several searches or recoveries, is objectionable, and would render the search or the recovery d®btful and suspect, if not invalid.
A B c D F G H B c D E F G H HIMACHAL PRADESH v. OM PRAKASH (Jaganmohan Reddy, J.) 777 Further having held this it nonetheless said that there was no injunction agai!IISt the same set of witnesses being present at the successive enquiries if nothing could be urged againsf them. In our view the evidence relating to recoveries is not similar to that contemplated under Sec. 103 of the Criminal Procedure Code where searches are required to be made in the presence of two or more inhabitants of the locality in which the place to be searched is situate.
In an investigation under Sec. 157 the re- coveries could be proved even by the solitary evid~ce of the Investigating Officer if his evidence could otherwise be believed. We cannot as a matter -0f Jaw or practice lay down that wh~re recoveries have to be effected from different places on the inf<li'· mation furnished by the accused differe,nt sets of persons should be called in to witness them. In this case P.W. 2 and P.W. 8 who worked with the deceased were the proper persons ·to \vit- ness the recoveries as they could identify som~ of the things that were missing and also they could both speak to the Wormation and the recovery made in consequence thereo.f as a continuous process.
At any rate P.W. 2 who is alleged to be the most interested was not present at the time of the recovery of the dagger. P.W. S's evideince was not considered to ~ independent be- cause the High Court thought that he was known to P. W. 28 from before. This by itself in our view will not justify the re- jection of his evidence. That apart there is nothing in his evidence to show that P.W. 28 knew him before he came to Simla while he was Jiving iin Kaithal.
The witness stated that the S.H.0. was never posted at Kaithal but knew the Daroga (SHO) from 2/3 months before that date. He had not met P.W. 28 before he arrived at Simla. It was suggested to him that Daroga had come ang sat in his shop at the Mandi but that was denied. He however stated that the Daro ga used to ask his 'ha! cha!' sometime and used to wish him and that was all. Wit- ness also denied having seen P.W. 2 and P.W. 8 before that day and came to know their names only when he went to Anandale.
The brothers of P.W. 5 were at Kaithal doing business but here again there was nothing to connect the brothers with P.W. 28 and though P.W. 28 admits that his own brothers Roshan Lal and Malik Harbans Lal reside in Kaitha! and one of them has some lands there, he was not on good terms with them and denies that they h_ad any connection with P.W.
5. From this evidence it is clear that apart from the fact that P.
W. 2 8 had known P.W. 5 after he had come to Simla which is not unusual for a Police Officer, there is nothing to indicated that P.W. 5 could be su'bservient to P.W.
28. It is not unknown that in some insfances where persons are made to witness Panchnamas they have resiled from them whi,Je giving evidence in Court, probably either dne to 778 SUPREME COURT REPORTS [1972) 2 S.C.R. the pressure exerted by the police at that time oI they have been won over by the defence.
Nothing of that nature is apparent in this case and the comment of the High Court that a reading of the e\idence of P.W. 5 gives the impression that he is a person willing to be pliable agent of the police and cannot be regarde? as an independent or impartial witness has in our view no justi- fication. It is said that P.W. 12 Bhag Singh was just a worker at the bakery and while he pretends to be present there casually at the spot .from where the dagger was taken out, the Investigating Officer said he had summoned him on the suggestion of the flead Constable; as such his evidence does i!lot inspire confidence. -We do not think that this is a sufficient reason for discarding the evidence of P.W. 5 because when P.W. 28 says he summoned Bhag Singh thro