Delhi High Court
Sapan Haldar & Anr. vs The State on 11 August, 2011
Author: Suresh Kait
Bench: Anil Kumar, Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal No.804/2001
% Date of Decision: 11.08.2011
Sapan Haldar & Anr. ...... Petitioners
Through Mr.Y.S.Chauhan and Mr.Madhav Singh,
Advocates.
Versus
The State ...... Respondent
Through Mr.Lovkesh Sawhney, APP for the State.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE SURESH KAIT
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
ANIL KUMAR, J.
*
1. The appellants have challenged the judgement dated 2nd May, 2001 in Sessions Case No. 92/1999 titled as „State vs. Sapan Haldar & Ors.‟ under sections 365, 364A, 506 of the Indian Penal Code, PS Badarpur, convicting the appellants under section 364A and 365 read with section 120 B of IPC and sentencing the appellants persons Sapan Haldar and Shefali Haldar to imprisonment for life and a fine of Rs. 3,000/- each, in default of which to further undergo rigourous imprisonment for three months each by order dated 4th May, 2001. Crl. Appeal No.804/2001 Page 1 of 110
2. The case of the prosecution in brief is that on 6th March, 1998 at about 7:15 a.m., Subashish s/o Sh. Ashish Chatterjee and his two sisters, had come down from their house, flat no. E-52, Sarita Vihar, as they were to leave for their school, DPS Vasant Kunj, in their private car. The driver of the car, namely Santosh, was sitting in the car, waiting for them. The sisters of Subashish were sitting behind him, while he was sitting besides the driver.
3. Suddenly four men with muffled faces entered the car forcefully. Two persons put a revolver on the temple of Santosh and one boy dragged Subashish out of the car and took him into a Maruti car bearing no. DL 3CC 6161. The fourth person was already sitting by the steering wheel of the Maruti car. Thus the child was kidnapped by these unknown persons. Before escaping in the car, the kidnappers had allegedly left behind a letter, written in Hindi, at the place from where the child was kidnapped. The note conveyed the following threat:
"Need not worry, your child is safe with us. He will not suffer even a scratch. But if you dare to inform the police you on your own will be responsible for the death of your child. If you want your child back safe and sound then you have to accept my terms, which will be told to you on the phone. If you dare to do anything undesirable such as taping the telephone or taking the assistance of police you will definitely be awarded the prize and that will be in the form of dead body of your son, which you will find lying on the side of some road. Police can only give you the corpse but not our address. If you want to get your son sound, safe and alive, that if you agree to accept our each and every terms & condition then tie a green coloured cloth on the grill of your terrace. You will receive our phone after 24 hours."Crl. Appeal No.804/2001 Page 2 of 110
4. A complaint was lodged with the police by Mr. Ashish Chaterjee, father of the kidnapped child, vide Ex.PW2/A. The note left by the kidnappers and a postcard, Ex 13/22 allegedly recieved from the kidnappers by the family of the kidnapped boy, were also handed over to the police. Thereafter a police team headed by SI Rajbir Singh gathered at Sarita Vihar, to trace out the child. The police received the information that the car having the child in it had gone towards Village Madan Pur Khadar. After which the police officials searched Parmar colony in search of the kidnapped child.
5. The police then received the information that the alleged car used by the kidnappers had met with a serious accident. A broken down electric pole was also found, which was on account of the said accident. The car was subsequently recovered at a Kucha Road ahead of Narula Farm. The number plate on the front of the car bore the registration No. DL 3C 661, while the number plate on the rear of the car bore the registration No. DL 3C 6261. However, no one was found inside the car. One broken injection of Diazepam was found in a polythene bag in the rear seat of the car, along with one green cloth. The cloth as well as the broken injection were wrapped in a cloth and sealed with the seal of „RS‟. The driver of the car, Santosh was also present at the time and he identified the car as the one in which the kidnapped child was taken and thus the car was seized by the police officials. Crl. Appeal No.804/2001 Page 3 of 110
6. The police party then extended their search to village Meetha Pur for further investigation. One Baldev Singh met the police and informed them that one lady and one boy had taken the child in an auto rickshaw driven by his tenant Tammana. At the time these persons had claimed that the child was sick. Tamana was subsequently joined in the search and he led the police team to a place in Village Meetha Pur. There one lady named Rita, told the police, that accused Shefali and her son co-accused, Sapan had come to her house along with a child who was covered with a sheet. Allegedly accused/appellant Shefali had told her that the child was sick and hence she had asked for some water. After 10 minutes the accused persons left saying that they were taking the child to the hospital. Thereafter Rita also joined in the investigation.
7. Rita took the police team to the house of appellant Shefali in Parmal Colony. The door of the house was found to be closed from inside and since there was a delay in opening the door, the police officials forcefully pushed the door open. As per the case of the prosecution, appellant Shefali was found inside the room along with the kidnapped child sitting on a wooden Takhat. The name of the child was Subashish and he was about 10 years old. Thereafter the police waited there, for the arrival of appellant Sapan Haldar as Shefali had told them that he had gone to buy some milk for the child and that he would be coming back soon. Accused, Sapan Haldar returned home after 20 mins and he was identified by Tammana and Rita and was thereafter arrested Crl. Appeal No.804/2001 Page 4 of 110 by the police. On the search of accused Sapan Haldar, a country made pistol was found in the left side pocket of his pant. Two live cartridges were also recovered from the right side pocket of his pant and one cartridge was found in the pistol itself. Three lined papers were also recovered from the side pocket of the shirt of accused Sapan Haldar, of which one was written and the remaining two were blank. Allegedly it contained a demand for Rs. 25 lacs as ransom. These papers were also seized vide memo Ex.PW 13/8. The child was recovered by the police around evening time, vide memo Ex P.W 13/1, and was handed over to his parents at about 10 p.m. Also a green colour sweater, Ex P2 and a belt with the words School of Vasant Kunj written on it, Ex.P1 belonging to the kidnapped child was seized and one number plate on which black paint had been applied on the registration number, Ex PW13/5 were produced by the accused Sapan Halder from his house in Parmal Colony, were also seized. The accused Sapan Haldar also produced one injection of Diazapam and some other injections from his clinic in Madanpur Khadar Extention which were allegedly used on the child to make him unconscious.
8. The case of the prosecution is that the appellants were party to the criminal conspiracy to kidnap the child Subashish for ransom. This is also the case of the prosecution that the house from where the child was recovered belonged to the appellants Shefali and Sapan Haldar and the child was found there sitting with Shefali.
Crl. Appeal No.804/2001 Page 5 of 110
9. Pursuant to his arrest, accused Sapan Haldar made a disclosure statement on 6th March 1998, in which he divulged that the conspiracy to kidnap the child Subashish included persons named, Suraj and Dharampal and also a Muslim person who he did not name. However on 14th March, 1998 he divulged the correct names of his accomplices as Umesh and Ramesh. Subsequently secret information was received by the police, that accused Umesh, who was wanted in this case was present near Jeevan Nursing Home. Thus Umesh was identified by appellant Sapan Haldar, and was arrested by the police at the spot mentioned above on 17th March, 1998. This is also the case of the prosecution that an Identity-Card, Ex PW7/1 of the kidnapped child was recovered from the possession of the accused Umesh on the day of the arrest. In the evening on the same day, the police party moved in search of accused Ramesh and at about 6:30 p.m. they were taken to Govind Puri by accused Sapan Haldar and Umesh. Thereafter accused Ramesh was found at a tempo stand, near a temple and was apprehended by the police. He was interrogated and he made a disclosure statement that a country pistol, one revolver and air gun and cartridges were concealed by him under the sand of river Yamuna, slightly ahead of the place where the Maruti car was abandoned. Accused Ramesh took the police to the place on 18th March, 1998 however nothing could be recovered. On 28th March, 1998 the police took further police remand of Ramesh and on 29th March 1998, accused Ramesh who was in police custody took the police to the Yamuna Bank Crl. Appeal No.804/2001 Page 6 of 110 near Narula Farm, pursuant to which one country made revolver/pistol, one revolver and four cartridges were recovered at the instance of accused Ramesh.
10. The specimen handwriting of Sapan Haldar S1 to S6 vide memo Ex. PW13/20 and that of Umesh S7 to S9 vide memo. Ex PW 13/19 was obtained by the Police. Thereafter the specimen handwritings were sent to the FSL, Malviya Nagar, for comparison with the threat letter, ransom note as well as the postcard allegedly received from the kidnappers. The handwriting expert opined that the writing on the letter left by the kidnappers at the place of the kidnapping matched with the sample handwriting of the appellant Sapan Haldar.
11. On 7th March, 1998 the IO had moved an application Ex. PW 17/12 for fixing a date for holding the TIP of accused Sapan Haldar. Accused Sapan Haldar was produced before the court in a muffled face. The TIP was fixed for 11th March 1998, however, on 11th March 1998 the court declined to hold TIP on the ground that photographs of the accused Sapan had appeared in The Hindustan Times on 8th March 1998 and therefore there was no point in holding TIP.
12. On 18th March, 1998 an application, Ex.PW11/1 for holding the TIP of accused Umesh and Ramesh was filed. The date of 23rd March, 1998 was also fixed for holding the TIP of the accused persons. However on that date another application was moved Ex. PW 11/2 for fixing Crl. Appeal No.804/2001 Page 7 of 110 another date as the witnesses had suddenly left for Calcutta. The date of 27th March 1998 was fixed by the Court for holding TIP of the accused persons, however, on that day the accused persons, who were produced in muffled faces, refused to participate in the proceedings.
13. Charges u/s 120-B, 364-A and 506 of IPC were framed against the accused persons by the learned Judge to which they pleaded not guilty and claimed trial . A separate charge u/s 25 of the Arms Act was framed against the accused Ramesh to which he pleaded not guilty and claimed trial.
14. The prosecution examined 19 witnesses in support of its case and the accused persons were examined under Section 313 of Cr.P.C, however no witness had been examined in their defense.
15. The trial court examined the evidence on record and considered the defense of the accused persons and ultimately concluded on the guilt of the appellants. However, the trial court was of the view that there wasn‟t sufficient evidence on record to inculpate the guilt of accused, Umesh and hence he was acquitted, while the Trial court found enough evidence on the record to convict accused Ramesh under Section 25 of the Arms Act.
16. It is against the order of conviction and their sentence that the appellants, Shefali and Sapan Haldar have preferred this appeal. Crl. Appeal No.804/2001 Page 8 of 110
17. Learned counsel for the appellants has contended that the star witness as per the prosecution is Tamanna, PW4 who deposed that appellant Shefali alongwith one man had come to him on the 6th of March 1998 with a boy of about 10 years and had hired his auto to be taken to a hospital, however on the way to the hospital they had stopped the auto and taken his scooter to Meetha Pur. Thereafter they had asked Tamanna, PW-4 to stop the auto outside a house and instructed him to knock on the door. The witness even identified accused Shefali in the Court. However the learned counsel contended that no reliance can be placed on this witness since he also deposed that the police had come to his house on the next day at about 7:00 a.m. which is diametrically opposite to the story of the prosecution, which is that the police had gone to the house of PW4 on the same day of the incident. It is also pointed out that while PW4 stated that the door of the house from where the child was recovered was locked from the outside, the police officials had claimed that the door was locked from the inside which was subsequently broken and opened by the police. The learned counsel asserted that such a major contradiction goes to the very root of the matter and hence should not be relied on and therefore the benefit of this inconsistency should be given to the appellants.
18. Learned counsel further contended that as per the deposition of PW-2, the mother of the kidnapped child, four men had come and that Crl. Appeal No.804/2001 Page 9 of 110 all of them were in muffled faces. Thus it was asserted that the witness could not have known who the four persons were, who had kidnapped her son and in any case no woman was present amongst them at that time. It is further argued that even the number plate of the car in which the child was allegedly kidnapped was given to PW-2 by the driver, Santosh, PW-8 and she hadn‟t noted the number plate on her own, hence the trial court gravely erred in taking this into consideration, as PW-8 himself deposed that he had not given the number of the car to the police as DL- 3C-6161. The learned counsel further substantiated his submission by placing reliance on the deposition of PW-3, Sh. Ashish Chaterjee, father of the kidnapped child, who also stated that he wasn‟t aware of the identity of the persons who had taken his child as they were in muffled faces. I It was thus submitted that there is absolutely no direct evidence that links the appellants to the offence committed, except for the circumstantial evidence that has many links missing in it and hence is not enough to inculpate the appellants.
19. The learned counsel has also attempted to highlight the improbabilities in the deposition of PW-4, Tamanna who had deposed that appellant Shefali, who was accompanied by a man and a child of about 10 years, had hired his auto for taking the child to the hospital. However instead of going to the hospital, the appellant had stopped the auto and took the scooter of PW-4 to a house. Thereafter, PW-4 was asked to knock on the door of the house and he had even assisted the Crl. Appeal No.804/2001 Page 10 of 110 appellant Shefali in lifting the child from the scooter. The learned counsel contended that if two persons were indeed present with the child at the time, then why was PW-4 asked to knock on the door of the house and also why was PW-4 asked to lift the child, as the child could have been easily lifted by the other two persons. According to the counsel, the house in which the child was taken to initially as deposed by PW-4, has not been identified by the prosecution and neither does PW-4 remember the number of the house nor the occupants of the same. Hence according to the counsel a very important link has not been established and thus the entire base of the prosecution‟s allegations has not been established.
20. It is also contended that it has come in the deposition of PW4 that another lady was present in the house at the time the child was allegedly recovered from the house of the appellant Shefali and apparently that lady was the daughter-in-law of the appellant. However nowhere has any statement of this lady been recorded nor has the lady been examined. Thus it is contended that there are serious lacunas in the story put up by the prosecution and the chain is not complete and major links are missing.
21. It was also contended that as per the deposition of PW4 Tamanna, he has categorically stated he had seen the accused Shefali on the day of the incident and since that day he had only seen her in the court. According to the learned counsel appellant Shefali should Crl. Appeal No.804/2001 Page 11 of 110 have been duly identified by PW4 by means of TIP and the lack of it, is a serious lapse on the part of the prosecution and the same cannot be held sufficient to inculpate the guilt of the appellant. It is further pointed out that Sapan Haldar and Shefali had never refused TIP and therefore an adverse inference for the same is not possible against the appellants.
22. The learned counsel further contended that the sister of the child that was kidnapped, Ms. Sananda Chatterjee PW5 had deposed that her brother had been kidnapped in the car brought by the four kidnappers, which was a white Maturi 800, which is diametrically opposite to the deposition of PW-8 Santosh the driver, who had deposed that there were three kidnappers and that the child was kidnapped in an ambassador. He had also deposed categorically that he had not given the number of the car as DL 3C 6161 nor had he stated that the car was a Maruti. He had also testified that he had narrated the events to the police, however his statement was not recorded in writing before him and that his signatures were obtained on plain papers. He had further testified that he had not given any letter to PW2 as deposed by her in court. As per the learned counsel these contradictions are too grave and the Trial court was wrong to have not taken them into consideration. According to the learned counsel, even though PW-8 had deposed that he could identify the driver of the car in which the child was kidnapped, however he didn‟t identify either of the appellants as being the driver of the car Crl. Appeal No.804/2001 Page 12 of 110 in which the child was kidnapped. Even the suggestion as to the fact that he had resiled from his earlier statement made before the police was denied by him. The learned counsel submits that on all counts the prosecution has failed to bring any conclusive evidence on record to inculpate the guilt of the appellants.
23. The learned counsel further discredited the deposition of PW6, the owner of the alleged car in which the child was allegedly kidnapped by the appellants and who had made a complaint at PS Kalkaji about his Maruti car no. DL 1CB 1729 being stolen on 4th March 1998. According to the learned counsel, the prosecution had propounded that at the time the car was seized it was having two number plates i.e. a number plate DL 3C 6261 in the front while the number plate DL 3C 661 in the rear, however Sh. Chander Bhan PW6 had deposed that there was no number plate on the car when it was delivered to him. Thus it could not be established that it was the same car bearing the two no. plates which was seized by the police and which allegedly was used by the appellants to kidnap the child. PW-6 had further deposed that the left window of the car was broken at the time of delivery, however no other damage was found on the car. Thus the learned counsel contended that it is extremely odd that when as alleged by the prosecution through the deposition of PW-17, SI Rajbir Singh, the car had hit an electric pole and was found in an overturned position, then how could the car have not been further damaged. It is contended that Crl. Appeal No.804/2001 Page 13 of 110 such inconsistencies cannot be viewed lightly and that the same ought to entitle the appellant the benefit of doubt. It was further asserted that in addition the appellants had not been convicted for the offence of theft of the car.
24. Learned counsel further contended that even though the prosecution had alleged that Tamanna and Rita both had led them to the appellants and subsequently a search was conducted, and certain recoveries were made, however neither Tamanna nor Rita had deposed about these recoveries. Thus there is every likelihood of the alleged recoveries having been planted by the prosecution. Also while PW-13, ASI Dharam Vir, had deposed that the child was recovered from A-59, Shiv Puri, Meetha Pur Extension, the prosecution alleges that the child was recovered from Parmal Colony, Madanpur Khadar. Learned counsel also asserted that there is absolutely no evidence of common intension, nor were any demands for ransom made by the appellants u/s 364 A of IPC, nor was any fire arm recovered from the appellants.
25. The learned counsel for the petitioner has relied on Mushir Khan @ Badshah Khan v. State of M.P, 2010 (3) JCC 1648; 2010 (3) JCC 2067, Shankar & Ors v. State of NCT of Delhi; 2009(1) JCC 482, Prem Kumar v. State of Rajasthan; 2009 (1) JCC 91, Ravinder Singh v. Government of NCT of Delhi; 2008 (3) JCC 1806, Syed Peda Aowlia v. Public Prosecutor of Andhra Pradesh; 2008 (1) JCC 542, Sambhaji Hindu Rao Deshmukh & Ors v. State of Maharashtra; 2008 (1) JCC Crl. Appeal No.804/2001 Page 14 of 110 554, Balu Bakthavatchalu v. State of Tamil Nadu; 2001 Crl.Law Journal 669; Netra Pal v. State; 2009 (3) JCC 2192, Chotey Khan v. State & decision dated 14th May, 2009 in Crl.Appeal No.513/2001 Awdesh v. State; State of Punjab v. Sucha Singh & Ors, 2003 (3) SCC 153 in support of his pleas and contentions, especially that if a prosecution witness has turned hostile and in the cross examination if the witness has deposed against the accused and in favour of the accused then the deposition in favour of the accused has to be accepted and that merely writing a letter by the accused and keeping it in his pocket would not tantamount to demand to pay ransom in the absence of its communication to the family of the kidnapped child. The learned counsel relied on Awdesh (Supra) to contend that if the specimen handwriting of the appellant were obtained by the investigation officer when the accused were in custody and the identification as required under the Identification of Prisoners Act, 1920 was not done nor orders were obtained from the Court of competent jurisdiction, then the specimen handwriting obtained for the expert has to be excluded while considering the evidence.
26. In State of Punjab v. Sucha Singh & Ors (Supra) 24 injuries were inflicted on the body of the son, however, the father allegedly remained a mute spectator. In such circumstances the presence of father was disbelieved. Another witness who was allegedly present at the place of occurrence and saw the occurrence who had, however, taken a shifting Crl. Appeal No.804/2001 Page 15 of 110 stand, had been held to be an unreliable witness and not credit worthy and no reliance was placed on the testimony of such a witness to establish his presence at the place of occurrence which would have formed the basis of conviction. The conduct of the father who remained a mere spectator to the innumerable wounds inflicted on his son was also disbelieved. Relying on Musheer Khan @ Bad shah Khan & Anr. v. State of M.P.(supra), the learned counsel for the appellants has contended that in case of circumstantial evidence, every link in the chain of evidence must be proved beyond reasonable doubt and such a chain must exclude any inference except the guilt of the accused. While appreciating the circumstantial evidence when there is a conflict between the presumption of innocence and any other presumption then the former must prevail. It is also contended that in order to justify inferences of guilt, the inculpatory facts must be incompatible with the innocence of the accused and it should be incapable of explanation upon any other reasonable hypothesis except his guilt. In the circumstances, it is contended that while construing the testimony of PW-9, Rita caution must be exercised since she had been declared hostile, after she deposed that she does not know accused person in the examination-in-chief. While on the other hand she made the statements that it is correct that on 6th March, 1998, accused Shephali and her son Sapan had come to her house along with a child who was covered with a sheet by them and that it is also correct that they had told her that the child brought by them was sick and demanded water from her and Crl. Appeal No.804/2001 Page 16 of 110 after 10 minutes they went back on the pretext that they had to take child to the hospital and police came to her house. As per the learned counsel these statements should not be accepted against the appellants, since the said witness in further cross-examination when asked to reconcile the diametrically opposite depositions made by her, had again deposed that she could not identify whether the accused Shephali and her son Sapan present in the court were same persons or not. According to the learned counsel for the appellants since two contradictory depositions have been made by the said witness, the deposition which establishes the innocence of the accused must be accepted and not the portion of the deposition which inculpates the alleged guilt of the appellants.
27. Referring to Shankar & Anr. v State (N.C.T) of Delhi (supra) decided by a Division Bench of High Court of Delhi, it has been contended on behalf of the appellants that before the Court bases conviction on the testimony of an eye witness, it must be satisfied that he is a truthful witness so that implicit reliance can be placed on his testimony. In order to form basis of conviction, the testimony of the eye witness should be such that it inspires confidence and leaves no reasonable doubt about his presence at the scene of occurrence. If the behaviour of the person claiming to be an eye witness is contrary to the course in which a similarly situated person would normally behave and there is no satisfactory explanation for such an abnormal conduct, it Crl. Appeal No.804/2001 Page 17 of 110 will not be safe to base the conviction solely on the basis of his testimony, since his very creditability stands impeached and becomes suspect on account of such behavior.
28. In Prem Kumar v. State of Rajasthan (supra), the Supreme Court had dealt with the principles governing and regulating the hearing of the appeal against an order of acquittal holding that before reversing the finding of acquittal, the High Court has to keep in view the fact that presumption of innocence is still available in favour of the accused and that the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court and the High Court should not substitute its own view with the view of the trial court as the trial court had the advantage of looking at the demeanor of witnesses and observing their conduct in the Court specially in the witness box.
29. The learned counsel for the appellants relied on on Syed Peda Aowlia (supra) in support of his contention that a portion of the testimony of a hostile witness supporting the case of the prosecution has to be rejected. It was held that a miscarriage of justice which may arise from acquittal of the guilty is no less than the conviction of an innocent, it was further held that in a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused really committed any offence or not.
Crl. Appeal No.804/2001 Page 18 of 110
30. Similarly, in Sambhaji Hindurao Deshmukh (supra), it was held that while appreciating the evidence, if two views are reasonably possible from the evidence on record, one which favors the accused and the other which goes against the accused, the view favoring the accused is to be preferred and adopted. It was further held that the very fact that two views are possible makes it clear that the prosecution has not proved the guilt of accused beyond reasonable doubt and consequently, the accused is entitled to the benefit of doubt.
31. In Netra Pal (supra), a Division Bench of this Court had held that mere writing of a letter by the accused which is not communicated to the concerned person seeking ransom and keeping such letter in his pocket would not tantamount to a demand to pay a ransom in the absence of communication of the same and an offence under Section 364A of the Indian Penal Code will not be made out in the facts and circumstances. In this case only one letter which was exhibited as Ex.P- 1 was recovered from the possession of the accused incorporating a demand to pay a ransom which admittedly was not delivered to the family of the kidnapped person. There was no allegation of communicating the demand of ransom in any other manner. In these circumstances, it was held that a letter incorporating the demand for ransom which was found in the pocket of accused which was not communicated to the family of the kidnapped child would not constitute Crl. Appeal No.804/2001 Page 19 of 110 demand, to pay ransom, as contemplated under Section 364A of the Indian Penal Code.
32. Relying on another judgment of the Division Bench in the matter of Chote Khan (supra) it is contended that where ransom calls are made on telephone with no threat of any kind, or simplicitor calls for ransom are made which eventually lead to recovery of the child, in total absence of evidence in regard to any threat to cause death or hurt to the kidnapped child and also lack of evidence in regard to the accused conducting themselves in a way that could raise a reasonable apprehension that the child would be put to death or hurt; the ransom demand simplicitor could not bring the offence within the ambit of Section 364A of Indian Penal Code. In the circumstances, the Division Bench had set aside the conviction and sentence for offence punishable under Section 364A and 365 of the Indian Penal Code and had maintained the conviction only under Section 363 of Indian Penal Code.
33. Per contra, the learned Additional Public Prosecutor, Mr.Sawhney has contended that sample handwritings of the appellant cannot be rejected on account of alleged non compliance of the provisions of the Identification of Prisoners Act, 1921. The contention of the learned counsel is that Section 4 of the said Act contemplates a situation where the accused gives the sample handwriting willingly whereas the sample handwriting of an accused can be obtained under Sections 5 & 6 of the said Act, even if he is not desirous to give the sample handwriting Crl. Appeal No.804/2001 Page 20 of 110 willingly. He further contended that since the consequences of not following the procedure have not been given in the said act, therefore, the sample handwriting and the disputed letters which are Exhibit Q-1 and Q-2, the ransom letters in the handwriting of the appellant no.1, cannot be excluded on the ground that the sample handwritings were not obtained in compliance with the provisions of the said Act. He further asserted that the term "prescribed procedure" in Section 4 does not imply a permission from the Courts/Magistrate but instead implies the procedure to be followed by the police while taking the measurements of a non convicted person as established under the rules of Section 8 of the Act.
34. According to the learned counsel, the appellant never objected to taking of sample handwriting and since the sample handwriting was given willingly and the plea that the sample handwriting was taken under coercion was not taken earlier nor was any such suggestion given to the witnesses in the cross examination, and has been taken for the first time in the supplementary statement of appellant under section 313 of Cr.P.C, it cannot be allowed to be taken now, at such a belated stage. The learned counsel further contended that the hand writing samples of the appellant Sapan Haldar was taken in the proper and prescribed manner and with his consent. The handwriting was taken in a fast mode, medium mode and slow mode and then sent for comparison.
Crl. Appeal No.804/2001 Page 21 of 110
35. Relying on Puran Mal v. Director of Investigation (Inspection), (1974) 1 SCC 345, learned Additional Public Prosecutor contended that in India relevant evidence cannot be excluded merely on the ground that it is obtained by illegal search or seizure or contrary to the provisions of certain Act where the consequence of not complying with the provisions are not provided. "Where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out."
36. The learned counsel for the State has also relied on State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 to contend that non compliance or inadequate compliance with the provisions of an enactment does not per se affect the admissibility unless the consequences of non compliance or inadequate compliance have been spelt out specifically. Relying on the Telegraphic Act which specifically prescribes rejection of the evidence obtained by taping without permission, it is contended that the Identification of Prisoners Act, 1921 does not prescribe or provides any such consequences. In the circumstances, according to the submission of learned Additional Public Prosecutor the factum of sample handwriting of Sapan Haldar cannot be ignored and consequently exhibit Q-1 and Q-2 which have been established to be in the handwriting of Sapan Haldar by the Crl. Appeal No.804/2001 Page 22 of 110 handwriting expert PW-19, Sh.Harsh, Senior Scientific Officer is also entitled to be considered.
37. Refuting the plea of the appellants that the material witnesses have not identified them, it is submitted by the learned Additional Public Prosecutor that the threat was extended to the father of the child, PW-1 who had been kidnapped about which he has deposed categorically in his statement on 27th June, 2000 where he had deposed that he was threatened to bear the consequence in case he appeared in the Court. The stand of the witnesses including the father, mother and the child reflects the consequent softening. According to him if all the testimonies are taken and considered, it is apparent that the essential facts regarding the accused/appellants have been deposed by the witnesses. It is contended that the kidnapped child as PW-1 has deposed in his unimpeachable testimony that he was kidnapped and taken away in a Maruti 800 car. He has also deposed about an injection being given to him in his hip after being kidnapped in the car where after he did not remember as to what had happened to him. He has, however, deposed about the involvement of four persons and one woman though he has denied that his belt and sweater were not with him, however the case of the prosecution is that belt and sweater of the kidnapped child Subhashish were recovered by the police from the appellant Sapn Haldar.
Crl. Appeal No.804/2001 Page 23 of 110
38. The learned Additional Public Prosecutor has contended that the driver of the car PW-8, Santosh Jha had deposed incorrectly in respect of certain matters either on account of collusion with the appellants or on account of fear of threat by the appellants who had also threatened the father of the kidnapped child. He has also referred to a suggestion given to him that he has deposed falsely deliberately in order to save the accused persons. According to him though he has deposed that the car in which the child was kidnapped was an Ambassador, however, the car was a Maruti 800, stands substantiated by the fact that at the very first instance the number of the car and the make of the car was given by the father of the kidnapped child and it was incorporated in the complaint as well. Even the kidnapped child categorically deposed that he was kidnapped in the Maruti 800 car and, therefore, the testimony of PW-8, Sh.Santosh Jha deposing that the car was Ambassador will not dilute the case of the prosecution regarding kidnapping of the child Subhashish by the appellants in a Maruti 800 car. The learned Public Prosecutor has also relied on the testimony of Tamanna, scooter driver who as PW-4 categorically identified accused Shefali as the woman who had come with a child to him and had represented that she had hired him to take the child to the hospital, stating that he was her son, however, on the way instead of going to hospital he was taken towards Meetapur. Since the incident of kidnapping is of 6th March, 1998 whereas the statement of the scooter driver was recorded on 1st September, 2000, therefore, on account of the time gap, if the driver Crl. Appeal No.804/2001 Page 24 of 110 had deposed that the child was recovered in the morning whereas it stands established that the child was recovered on 6th March, 1998 itself, the testimony of the scooter driver will not be weakened so far as the other facts deposed by the said scooter driver stood corroborated and established.
39. According to the counsel the link is further strengthened as it is on the basis of the information of PW-9 Rita that the child was recovered from the house of appellant Shefali. Further even appellant Sapan Haldar was apprehended from the same place. Pursuant to his arrest the recoveries were affected at his instance which were the injections used to keep the child in a drugged state, the ransom note from his shirt pocket and the fake number plates. In any case the said appellant has been unable to explain the possession of the number plate 191/ DL 1 CB 1729, which is the original number plate of the car, in which the child was kidnapped and belongs to PW6, the owner of the car, which was stolen on 4th March 1998 from outside his house i.e. two days prior to the incident of kidnap. The learned counsel further asserted that even under Section 313 when the identification of appellant Shefali by Tamanna was put to her, no explanation for the same was given by her and that even during the recording of evidence of Tamanna he was not cross-examined by the defense on this aspect. Crl. Appeal No.804/2001 Page 25 of 110
40. Learned counsel also asserted that as per Section 7 and 8 of the Indian Evidence Act, 1872, facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant and any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. Thus the recovery of the second letter pursuant to the first, all forms a link and is relevant under the facts and circumstances and can be taken into consideration. And in the proximity of the letters received, the telephone calls made to the family are all proof of the intention to demand ransom for the kidnapped child.
41. With regard to the aspect of not holding the test identification parade of the appellant Shefali, it is submitted that the child PW-1 was with the appellant Shefali for considerable time and had been recovered from her custody, therefore, the test identification parade would not have been of much consequence. The learned counsel has also explained the reason for not conducting TIP as against appellant Sapan Haldar. As on 7th March, 1998 the IO had moved an application Ex. PW 17/12 for fixing a date for holding the TIP of appellant Sapan Haldar and appellant Sapan Haldar was even produced before the court, muffled face and the TIP was fixed for 11th March 1998, however, on 11th March 1998 the court declined to hold TIP on the ground that, Crl. Appeal No.804/2001 Page 26 of 110 photographs of the accused Sapan had appeared in The Hindustan Times on 8th March 1998 and therefore there was no point in holding TIP. In the circumstance the case of the prosecution against the appellant is not weakened on account of not conducting the test identification parade.
42. Learned counsel vehemently asserted that the aspect of conspiracy has to be drawn from the facts and circumstances of the case. The recovery of the sweater and belt from the appellants, the threats received by the father of the child kidnapped, the recovery of the car in which the child was kidnapped and which was stolen two days prior to the incident from the house of PW6, the arrest of the appellants on the information of PW9 and PW4, the recoveries at the instance of the appellant and finally the FSL report conclusively recording the match of the ransom note with the specimen handwriting of appellant, Sapan Haldar all lead to the undeniable inference that the offence of kidnapping the child was carried out by the appellants.
43. This Court has heard the learned counsel for the parties in detail and has also perused the record of the trial Court including the testimonies of the witnesses and the documents established on record. This is a settled law that in reversing the finding of conviction, the High Court has to keep in view the fact that the presumption of innocence is still available in favor of the accused. If on fresh scrutiny and reappraisal of the evidence and perusal of the material on record, the Crl. Appeal No.804/2001 Page 27 of 110 Court is of the opinion that another view is possible or which can be reasonably taken, then the view which favors the accused should be adopted. However the view taken by the Trial Court which had an advantage of looking at the demeanor of the witnesses and observing their conduct in the Court is not to be substituted ordinarily by another view, unless another view if substantially and reasonably is possible in the opinion of the High Court. Reliance for this can be placed on AIR 2009 SC 1242, Prem Kanwar v. State of Rajasthan; 2008 (3) JCC 1806, Syed Peda Aowlia v. the Public Prosecutor, High Court of A.P, Hyderabad; Bhagwan Singh and Ors v. State of Madhya Pradesh, 2002 (2) Supreme 567; AIR 1973 SC 2622 Shivaji Sababrao Babade & Anr v. State of Maharashtra; Ramesh Babu Lal Doshi v. State of Gujarat, (1996) 4 Supreme 167; Jaswant Singh v. State of Haryana, 2000 (1) JCC (SC) 140. The Courts have held that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted because the paramount consideration of the Court is to ensure that miscarriage of justice is not done. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent person. The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial Court, if the findings are Crl. Appeal No.804/2001 Page 28 of 110 against the evidence on record or unsustainable or perverse. However, before reversing the finding of acquittal the High Court must consider each ground on which the order of conviction is based and should also record its own reasons for accepting those grounds.
44. In the instant case the evidence produced by the prosecution is circumstantial. The principles on which the circumstantial evidence is to be evaluated have been stated and reiterated by the Supreme Court in numerous judgments. We may notice here the observations made by the Apex Court, in the case of Hanumant Govind Nargundkar v. State of M.P.: 1952 SCR 1091 on the manner in which circumstantial evidence needs to be evaluated. In the aforesaid judgment, Mahajan, J. speaking for the Court stated the principle which reads thus:
" It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
The aforesaid proposition of law was restated in the case of Naseem Ahmed v. Delhi Admn : (1974) 3 SCC 668, by Chandrachud J. as follows:
This is a case of circumstantial evidence and it is therefore necessary to find whether the circumstances on which prosecution relies are capable of supporting the sole inference that the Appellant is guilty of the crime of which he is charged. The circumstances, in the first place, have to Crl. Appeal No.804/2001 Page 29 of 110 be established by the prosecution by clear and cogent evidence and those circumstances must not be consistent with the innocence of the accused. For determining whether the circumstances established on the evidence raise but one inference consistent with the guilt of the accused, regard must be had to the totality of the circumstances. Individual circumstances considered in isolation and divorced from the context of the over-all picture emerging from a consideration of the diverse circumstances and their conjoint effect may by themselves appear innocuous. It is only when the various circumstances are considered conjointly that it becomes possible to understand and appreciate their true effect.
45. In a case in which the evidence is of a circumstantial nature, the facts and circumstances from which conclusion of guilt is sought to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and circumstances so established should not only be consistent with the guilt of the accused, but they must be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence. It has been observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete, pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favor of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so Crl. Appeal No.804/2001 Page 30 of 110 established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however farfetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise. It has also been held that onus is on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defense or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
46. One of the strong links in proving the guilt of the appellant Sapan Haldar is the FSL report matching the specimen handwriting of the appellant with the threat letter Q1 found at the spot of kidnapping and the ransom note, Q2 recovered from the appellant. According to the learned counsel for the appellant specimen handwriting taken from the Crl. Appeal No.804/2001 Page 31 of 110 appellant is not admissible on account of non compliance of the provisions of Identification of Prisoner's Act, 1920, whereas according to the Learned Public Prosecutor the specimen handwriting taken are admissible and cannot be ignored. Both the counsels have relied on various judgments which are as under:
47. The judgments relied on by the learned counsel for the appellants in the tabular form are as under which include the judgments of co- ordinate benches of this Court:
S.No. Title Matter in Judgments Relied On
Issue
1. Harpal Singh v. Specimen 1. Crl. Appeal No. 682/2008
State : Crl. Handwriting 'Santosh @ Bhure v. State'
Appeal No.
362/2008 2. Crl. Appeal No. 316.2008
'Neeraj v. State'
Wherein the following
Supreme Court Judgments
were relied upon:
(a) State of Bombay v. Kathi
Kalu Oghad and Ors:
1961CriLJ856
(b) State of U.P. v. Rambabu
Mishra: [1980]2SCR1067
(c) Sukhwinder Singh and
Ors. v. State of Punjab:
[1994]3SCR1061
2. Raj Kumar @ Sample Supreme Court Judgments
Raju Vs. The Fingerprints relied on:
State (G.N.C.T. of (1) State of U.P. v. Ram Babu
Delhi): Crl. A. No. Mishra, AIR 1980 SC 791
979/2005 (2) Sukhvinder Singh v. State
of Punjab, 1994 (5) SCC 152
3. Mehmood Ali Vs. Sample Supreme Court‟s Judgments
State: Crl. Appeal Fingerprints relied on:
No. 326/2007 (1) State of U.P. v. Ram Babu
Crl. Appeal No.804/2001 Page 32 of 110
Mishra, AIR 80 SC 791
(2) Sukhvinder Singh and
Ors. v. State of Punjab, 1994
(5) SCC 152 and
(3) State of Haryana v. Jagbir
Singh, AIR 2003 SC 4377
4. Ashok Kumar @ Sample Judgment relied on:
Govind Vs. State Fingerprint (1) Crl. Appeal No. 682/2008
[Alongwith Crl.A. 'Santosh @Bhure v. State'
Nos. 275, 397, Wherein the following
398, 410 and Supreme Court Judgments
601/2007]: were relied upon:
2010CriLJ2329, (a) State of Bombay v. Kathi
159(2009)DLT383 Kalu Oghad and Ors:
1961Cri. L.J. 856
(b) State of U.P. v. Rambabu
Mishra: [1980] 2 SCR 1067
(c) Sukhwinder Singh and
Ors. v. State of Punjab;
[1994] 3 SCR 1061
5. Ganpat Singh Sample Supreme Court‟s Judgement
and Narpat Singh Finger relied on:
v. State of prints (1) Mohd. Aman v. State of
Rajasthan : RLW Rajasthan: 1997 Cri.L.J.
2007 (1) Raj 523 3567
(Rajasthan High
Court)
6. M.S. Syed Anwar Sample No Supreme Court Judgment
and Etc. v. Finger Print, relied on: Just a reference
Commissioner of Foot prints made to the provisions of
Police, Bangalore and Identification of Prisoners
City and Another: Photographs Act
1992 CriLJ 1606
48. In Harpal Singh Vs State; Crl. Appeal No. 362/2008 one of the issue was about admissibility of specimen handwriting taken from the accused. In this case permission was not taken from the Court of Competent Jurisdiction and Section 5 of the Identification of Prisoners Act 1920 was not complied with. In the circumstances the issue was whether the FSL report comparing the specimen handwriting of the Crl. Appeal No.804/2001 Page 33 of 110 accused taken by the Inspector during custody and the suicide note recovered from the spot of occurrence, allegedly authored by the appellant could be relied upon by the learned Trial Judge. The Trial Judge in this case was of the opinion that even though no permission was taken by the Inspector from the Court before obtaining the specimen handwriting of the appellant the same in no way dented the opinion contained in the FSL report, which stated that the suicide note Ex.P1 to Ex.P4 is in the handwriting of the appellant in view of the dictum of law laid down by Supreme Court in the decision reported as State of Haryana vs. Jagbir Singh AIR 2003 SC 4377 that pendency of some proceedings in the court is a sine qua non before a court can give direction to an accused to give his specimen handwriting under Section 73 of the Evidence Act and that such a direction can be given by the court only for enabling the Court to compare the handwriting of the accused and not for the purpose of the investigating or any other agency to compare the same and the fact that the appellant did not raise any dispute in the trial that the suicide note was not in his handwriting or that the police did not obtain his specimen handwriting and the fact that the suicide note Ex.P1 to Ex.P4 was written by the appellant established beyond any doubt that the appellant had murdered his wife and son. Another Bench of this Court, however, took a different view relying on the decision dated 5.3.2009 disposing of Crl. Appeal No. 682/2008 'Santosh @ Bhure v. State' and Crl. Appeal No. 316.2008 'Neeraj v. State', noting the decision of the Constitution Bench Crl. Appeal No.804/2001 Page 34 of 110 of Supreme Court reported as 1961 Cri.L.J. 856, State of Bombay v. Kathi Kalu Oghad and Ors. as also the decisions of Supreme Court reported as [1980] 2 SCR 1067, State of U.P. v. Rambabu Mishra and [1994] 3 SCR 1061, Sukhwinder Singh and Ors. v. State of Punjab; holding that the FSL report had to be excluded from the arena of admissible evidence for the reason that no orders were obtained by the competent court to obtain the specimen writings of the appellants nor were the provisions of the Identification of Prisoner's Act 1920 were complied with.
49. In Raj Kumar @ Raju Vs The State (G.N.C.T. of Delhi): Crl. A. No. 979/2005, another bench of this Court, also relying on Ram Babu Misra (supra) and Sukhvinder Singh (supra) had held that where the provisions of the Identification of Prisoner's Act, 1920 are violated, specimen samples pertaining to the fingerprints, handwriting etc. of an accused and the incriminating evidence stipulated in the reports relatable thereto will be inadmissible in evidence and hence has to be excluded while considering the circumstantial evidence against the appellant. Similarly in Mehmood Ali Vs State; Crl. Appeal No. 326/2007 relying on Ram Babu Misra (supra), Sukhvinder Singh (supra) and Jagbir Singh (supra) it was held by a Division Bench of this Court that the chance finger prints have to be compared with the sample finger prints after obtaining permission from the Court of competent jurisdiction and after the proper identification of the prisoner as per the Crl. Appeal No.804/2001 Page 35 of 110 requirement of Section 5 of the Identification of Prisoners Act 1920. If this is not done, then the incriminating evidence of the chance finger print lifted from the scene of crime cannot be compared with the sample finger prints which will be inadmissible. Yet another bench of this Court in Ashok Kumar @ Govind Vs State; 2010 Cri L. J. 2329 relying on Kathi Kalu Oghad (supra) Ram Babu Misra (supra) and Sukhvinder Singh (supra) had held that since no permission was obtained from the Court as required under the Identification of Prisoner's Act, 1920, it has to be excluded while considering the incriminating evidence.
50. A bench of Rajasthan High Court in Ganpat Singh Vs State of Rajasthan; RLW 2007 (1) Raj 523 relying on Mohd Aman Vs State of Rajasthan 1997 Crl.L.J 3567 had also held that since finger prints were not taken before or under the order of the Magistrate, it was unsafe to accept the evidence led on this regard.
51. The precendents relied on by the Learned Additional Public Prosecutor in the tabular form holding that the finger prints taken under section 4 of the Identification of Prisoners Act, 1920 would be admissible are as under:
S.No. Title Matter in Judgments Relied On Issue 1. State of Madhya Photographs No Judgments relied on Pradesh v. Devender: (2009) 14 SCC 80 Crl. Appeal No.804/2001 Page 36 of 110 2. Manikam v. State: Sample Supreme Court (2009) 5 CTC 316 Finger Judgments relied on: Prints (1) Ravanan v. State, (1994) 1 LW (Crl.) 58 (2) State of T.N. v. T. Thulasingam, 1994 Supp (2) SCC 405 3. Mohd. Aman, Babu Sample No judgments relied on Khan and Another Finger print v. State of and Foot Rajasthan: AIR print 1997 SC 2960
52. In State of Madhya Pradesh Vs Devender, (2009) 14 SCC 80 a bench of three judges of Supreme Court had held that on perusing the Sections 3, 4, and 5 of the Identification of Prisoner's Act, the Court is of view that Section 4 deals with taking of measurements, etc. of non- convicted persons and that it is taken if the police officer so requires it and it has to be done in the prescribed manner. So far as Section 5 is concerned, it deals with the power of the Magistrate to direct any person for measurement or photographs to be taken if he is satisfied that for the purpose of any investigation or proceedings under the Code the same is necessary. It was further held that in case of conflict of directions given by the Court and the provisions of an Act, the Regulations and the Code, the statute itself prevails. In Mohd Aman, Babu Khan & Anr. Vs. State of Rajasthan AIR 1997 SC 2960, a bench of two judges of Supreme Court had held that under Section 4 of the Identification of Prisoners Act, 1940 police is competent to take finger prints of the accused and such evidence will not be Crl. Appeal No.804/2001 Page 37 of 110 inadmissible. In Manikam Vs State, 2009) 5 CTC 316 it was also held that there is no law which prohibits the investigating officer from lifting the fingerprint of the accused for comparison during the course of investigation of the case. In fact, the provisions found under S. 5 of the Identification of Prisoners Act, 1920 and S. 311-A Cr. P.C. speak only about the powers of the Judicial Magistrate, when he is approached by the investigating officer concerned for a suitable direction to the accused to co-operate by giving his finger-print or signature or sample handwriting as the case may be. It is to be noted that those provisions do not put an embargo on the investigating officers from acting on their own for taking the fingerprint, signature or handwriting of the accused during the course of investigation. The Supreme Court has not specifically laid down that the investigating officer should mandatorily invoke the provisions under section 5 of the identification of Prisoner's Act, 1920.
53. While appreciating circumstantial evidence, the Court has to adopt a very cautious approach and should record a conviction only if all the links in the chain are complete and pointing to the guilt of the accused. In the present facts and circumstances one of the important links is the specimen handwriting of the appellant, Sapan Haldar which matches with the handwriting in the letter found at the place of kidnapping, Q1 and the ransom note found in the pocket of the appellant, Q2. Whether or not the specimen handwriting is covered as a Crl. Appeal No.804/2001 Page 38 of 110 „measurement‟ under the Identifications of Prisoner's Act, 1920 and even if it is, whether the specimen handwriting taken under section 4 of Identification of Prisoners Act, 1920 will be admissible or not is a relevant question in this case. In case the specimen handwriting is not admissible as has been contended by the counsel for the appellant, a very pertinent link will be snapped as the other evidence is only regarding recoveries of articles pursuant to the disclosure statements of the appellants.
54. The learned counsel for the appellant has relied mainly, on the judgments of other benches of this Court which have relied on Kathi Kalu Oghad (supra) Ram Babu Misra (supra),Sukhvinder Singh (supra) and Jagbir Singh (supra). In State of Uttar Pradesh v. Ram Babu Misra, AIR 1980 SC 791 the Supreme Court had held that Section 73 of the Evidence Act does not enable the Magistrate to give directions to the accused to give his specimen writings when the case is still under investigation because Section 73 contemplates pendency of some proceedings before a Court. It does not permit the Court, whether civil or criminal to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Relying on Barindra Kumar Ghose v. Emperor, ILR (1910) 37 Cal.467 the Supreme Court in Pushpadevi M.Jetia v. M.L.Wadhawan, (1987) 3 SCC 367 in paragraph 20 at page 388 had held that if evidence is relevant, the Court is not concerned Crl. Appeal No.804/2001 Page 39 of 110 with the method by which it was obtained. In Barindra Kumar Ghose (Supra) the contention that the Court must exclude relevant evidence on the ground that it was obtained by illegal search or seizure was repelled. Referring to page 500 of the report it was noticed:-
"Mr.Das has attacked the searches and has urged that, even if there was jurisdiction to direct the issue of search warrants, as I hold there was, still the provisions of the Criminal Procedure Code have been completely disregarded. On this assumption he has contended that the evidence discovered by the searches is not admissible, but to this view I cannot accede. For, without in any way countenancing disregard of the provisions prescribed by the Code, I hold that what would otherwise be relevant does not become irrelevant because it was discovered in the course of a search in which those provisions were disregarded."
55. Perusal of State of Bombay v. Kathi Kali Ughad, AIR 1961 SC 1808 reveals that the Supreme Court had held that by giving specimen writing, the accused person does not furnish evidence against himself and, therefore, when an accused person is compelled to give a specimen writing or impression of his finger, palm or foot, it may be such that he has been compelled to be a witness, however, it cannot be held that he had been compelled to be a witness against himself. In the circumstances, the Supreme Court had held that merely taking a specimen writing does not mean to be giving a statement so as to be hit by Section 162 of the Criminal Procedure Code.
56. What also emerges from the perusal of Sukhvinder case (supra) is that it is also distinguishable and does not hold that if the specimen Crl. Appeal No.804/2001 Page 40 of 110 handwriting is taken from a non convicted persons during custody, then the specimen handwriting would be inadmissible. The specimen writings in the instant case of appellant Sukhdev Paul were taken under the directions of Shri. Garg, Tehsildar -Executive Magistrate, PW13. No enquiry and trial in this case were pending in the Court of the Tehsildar-Executive Magistrate. Rather the enquiry and trial in this case was pending under TADA before the Designated Court only. In these circumstances the Court was of the view that the direction given by the Tehsildar -Executive Magistrate to the accused to give his specimen writings was clearly unwarranted and not contemplated or envisaged by Section 73 of the Evidence Act despite admission by the accused in his statement under section 313 of the Cr.P.C. In this case there was also inherent ambiguity as to the matter of the letters reaching the hands of the police officials, as the prosecution‟s explanation for the same was diametrically opposite to the explanation of the mother of the deceased.
57. A division Bench of this Court in Satyawan Vs State MANU/DE/1044/2009 had ignored the part of the report of handwriting expert wherein he had opined that the specimen writings S-1 to S-8 of an accused Satish matched the writing on the ransom note on the ground that the investigation officer had taken specimen writing in violation of the provisions of the Identification of Prisoners Act, 1920 and also on the ground of being contrary to the law that Crl. Appeal No.804/2001 Page 41 of 110 specimen writing for purposes of expert opinion can be directed to be taken under orders of the Court, where the trial is pending, relying on State of UP. Vs Ram Babu Misra, (supra) and Sukhwinder Singh & ors Vs State of Punjab, (supra). In this case the investigating officer took the specimen sample of the accused while he was in custody.
58. In Harpal Singh vs State, MANU/DE/1091/2010, the IO had obtained the specimen handwriting Ex.PX-1 to Ex.PX-4 of the accused and sent the same along with Ex.P-1 to Ex.P-4 recovered from the house of the accused to the Forensic Science Laboratory for comparison of the handwriting. Before taking the specimen sample of handwriting he had not taken permission of the Court. Vide FSL report Ex.PW-24/A it was opined that the writing Ex.P-1 to Ex.P-4 is in the same hand of the person who had written Ex.PX-1 to Ex. PX-4. During trial no suggestion was given to the witnesses in the cross examination that the specimen handwritings were not the handwritings of the accused. The Court however, excluded the opinion of the handwriting expert pertaining to the letter recovered by the police. While excluding the opinion of handwriting expert, the Court had relied on para 7 of the Kathi Kalu Oghad's (supra) and paras 3 to 6 and para 8 of Ram Babu Misra (supra). Paras 18 to 23 of Harpal Singh (supra) are as under:
18. Unfortunately, for the prosecution, the charge against Neeraj has to fail for the simple reason Neeraj's specimen handwriting was obtained by the police when he was in their custody. No permission was taken from the Court concerned to obtain his specimen handwriting.Crl. Appeal No.804/2001 Page 42 of 110
19. Learned Counsel for the State urges that a Constitution Bench of 11 Judges of the Supreme Court, in the decision reported as 1961 Cri.L.J. 856 State of Bombay v. Kathi Kalu Oghad and Ors. has upheld the constitutional validity of compelling an accused to give specimen handwritings. It has been held that the same does not contravene Article 20(3) of the Constitution of India and thus the fact that the police obtained the specimen handwriting of Neeraj when he was in their custody does not invalidate the said act. Learned Counsel was at pains to point out that the Constitution Bench of the Supreme Court was considering three references pertaining to three views taken by the High Court of Bombay, Punjab and West Bengal pertaining to compelling an accused to give his specimen handwriting, fingerprints and specimen signatures respectively and that in the latter two cases the palm and finger print impressions as also the specimen signatures were obtained with the permission of the magistrate concerned but in the first case pertaining to the Bombay High Court the specimen handwritings were taken when the accused was in police custody. Thus, learned Counsel urged that the Constitution Bench upheld the action of taking specimen handwriting by the police when the accused was in police custody.
20. It may be noted that the Constitution Bench of the Supreme Court was dealing with the issue whether to compel an accused to give his blood sample, palm and fingerprints impressions, signatures and handwriting etc. would or would not be violative of Article 20(3) of the Constitution of India which made it unconstitutional for a person to be a witness against himself. The Constitution Bench held that to be a witness means to give evidence. It was held that giving handwriting samples or fingerprints or palm impressions did not tantamount to giving evidence and that when a handwriting sample or a fingerprint or a palm impression was obtained by the police it did not amount to compelling an accused to be a witness against himself.
21. In the decision reported reference to the decision of the Constitution Bench in Kathi Kalu Oghad's case (supra) in para 7 it was observed as under:
7. Section 73 of the Evidence Act was considered by us in State (Delhi Administration) v. Pali Ram 1979 Cri.L.J. 17 where we held that a Court holding an enquiry under the Criminal Procedure Code was entitled under Section 73 of Crl. Appeal No.804/2001 Page 43 of 110 the Evidence Act to direct an accused person appearing before it to give his specimen handwriting to enable the Court by which he may be tried to compare it with disputed writings. The present question whether such a direction, under Section 73 of the Evidence Act, can be given when the matter is still under investigation and there is no proceeding before the Court was expressly left open. The question was also not considered in State of Bombay v.
Kathi Kalu Oghad 1961 Cri.L.J. 856, where the question which was actually decided was that no testimonial compulsion under Article 20(3) of the Constitution was involved in a direction to give specimen signature and handwriting for the purpose of comparison.
22. In para 3 to 6 and para 8 of the decision in Rambabu Mishra's case (supra) it was observed as under:
3. Section 73 of the Evidence Act is as follows:
73. In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
This section applies also, with any necessary modifications to finger-impressions.
4. The second paragraph of Section 73 enables the Court to direct any person present in Court to give specimen writings "for the purpose of enabling the Court to compare"
such writings with writings alleged to have been written by such person. The clear implication of the words "for the purpose of enabling the Court to compare" is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for Crl. Appeal No.804/2001 Page 44 of 110 the purpose of 'enabling the Court to compare' and not for the purpose of enabling the investigating or other agency 'to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Further Section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court. Would it be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing under Section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit in which the question would be whether certain alleged writings are those of the other person or not? Obviously not. If not, why should it make any difference if the investigating agency seeks the assistance of the Court under Section 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings?
5. We may also refer here to Section 5 of the Identification of Prisoners Act, 1920, which provides:
5. If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Cr.PC, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer:
Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class:
Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.Crl. Appeal No.804/2001 Page 45 of 110
Section 2(a) of the Act defines "measurements" as including "finger impressions and foot print impressions.
6. There are two things to be noticed here. First, signature and writing are excluded from the range of Section 5 of the Identification of Prisoners Act and, second, 'finger impressions' are included in both Section 73 of the Evidence Act and Section 5 of the Identification of Prisoners Act. A possible view is that it was thought that Section 73 of the Evidence Act would not take in the stage of investigation and so Section 5 of the Identification of Prisoners Act made special provision for that stage and even while making such provision, signature and writings were deliberately excluded. As we said, this is a possible view but not one on which we desire to rest our conclusion. Our conclusion rests on the language of Section 73 of the Evidence Act.
xxx xxx
8. The view expressed by us in the earlier paragraphs, on the construction of Section 73, Evidence Act was the view taken by the Madras High Court in T. Subbiah v. S.K.D. Ramaswamy Nadar AIR 1970 Mad. 85, the Calcutta High Court in Farid Ahmed v. the State AIR1960Cal32 (Mitter J., at page 32). and Priti Ranjan Ghosh and Ors. v. The State (1973) 77 CWN 865, the High Court of Punjab and Haryana in Dharamvir Singh v. State, the High Court of Madhya Pradesh in Brij Bhushan Raghunandan Prasad v. The State MANU/MP/0050/1957 : AIR 1957 MP 106, the Orissa High Court in Srikant Rout v. State of Orissa 1972 (2) CWR 1332 and the Allahabad High Court in the judgment under appeal. A contrary view was taken by the Patna High Court in Gulzar Khan and Ors. v. State MANU/BH/0069/1962 :
AIR 1962 Pat 255 and the High Court of Andhra Pradesh in B. Rami Reddy and Ors. v. State of Andhra Pradesh. We do not agree with the latter view. We accordingly dismiss the appeal and while doing so we would suggest that suitable legislation may be made on the analogy of Section 5 of the Identification of Prisoners Act and provide for the investiture of Magistrates with the power to issue directions to any person, including an Crl. Appeal No.804/2001 Page 46 of 110 accused person, to give specimen signatures and writings.
23. In the decision reported as MANU/SC/0783/1994 :
[1994] 3 SCR 1061 Sukhvinder Singh and Ors. v. State of Punjab, noting that the specimen writing of Sukhvinder Singh was obtained by the police when he was in police custody, notwithstanding the fact that Sukhvinder Singh had admitted in his statement under Section 313 Cr.P.C. that he gave the specimen handwriting it was held that the opinion of the handwriting expert had to be excluded while considering the evidence against Sukhvinder Singh. We note that the said evidence brought on record inculpatory evidence against Sukhvinder Singh in respect of ransom letters Ex.P-A and Ex.P-C alleged by the prosecution to be in the handwriting of Sukhvinder Singh.
59. Though the Division Bench had relied on Ram Babu Mishra (supra) for excluding the specimen writings, however, in Ram Babu Mishra it was rather held that section 73 does not permit the Court, whether Civil or Criminal to give direction to the accused to give specimen writing for anticipated necessity for comparison in a proceedings which may later be instituted. The Court had further observed that signatures and writings are excluded from the range of Section 5 of the Identification of Prisoners Act. It was further observed that Section 73 of the Evidence Act would not take in the stage of investigation and so Section 5 of the Identification of Prisoners Act made special provision for that stage and even while making such provision, signature and writings were deliberately excluded. But in Crl. Appeal No.804/2001 Page 47 of 110 Satyawan (supra) the investigating officer took specimen writings samples while in custody. Similarly in Sukhvinder Singh (supra) relied on by the Division Bench the Apex Court was of the view that under Section 73 of Evidence Act it is the court which has to make comparison and it may either confirm opinion by comparing the disputed and admitted writings or seek the assistance of an expert to put before the Court all the material together with reasons which induce the expert to come to the conclusion that the disputed and the admitted writings are that of one and the same, and so that the court may confirm its own opinion on its own assessment of the report of the expert based on the data furnished by the expert. It was further held that since directions under Section 73 of the Evidence Act can be given for the purpose of enabling the Court to compare and not for the purpose of enabling the investigating or prosecuting agency to obtain and produce as evidence in the case the specimen writings for their comparison with the disputed writings, the accused could be compelled to give his specimen signatures during the course of investigation. The Court was of the view that recourse to Section 73 of Evidence Act can be had only when the inquiry or trial is pending before the Court and the Court wanted the writing for the purpose of enabling it to compare the same. It was also held that the court, which can issue such a direction, would either be the court holding inquiry under the Code of Criminal Procedure or the court trying the accused.Crl. Appeal No.804/2001 Page 48 of 110
60. Rather in State represented by Inspector Police and ors v.
N.M.T.Joy Immaculate, (2004) 5 SCC 729 it was held that the admissibility of evidence or a piece of evidence has to be judged having regard to the provisions of the Evidence Act. The Evidence Act or the Code of Criminal Procedure or for that matter any other law in India does not exclude relevant evidence on the ground that it was obtained under an illegal search or seizure. In the circumstances, the directions of the High Court that the confession and alleged recovery have no evidentiary value was held to be clearly illegal and had been set aside. The Supreme Court had held that the effect of the confession and also the recovery of the incriminating articles at the instance of the accused have to be examined strictly in accordance with the provisions of the Evidence Act.
61. In (1997) 10 SCC 44, Mohd.Aman and Anr v. State of Rajasthan, the Supreme Court had held that under Section 4 of Identification of Prisoners Act, 1920 the police was competent to take specimen finger prints of the accused. It was further held that, however, to dispel any suspicion or to eliminate the possibility of fabrication of evidence such specimen finger prints should have been taken before or under the order of a Magistrate. In para 8 of the judgment the Supreme Court had held as under:-
"....... it is true that under Section 4 thereof police is competent to take fingerprints of the accused but to dispel any suspicion as to its bonafides or to eliminate the Crl. Appeal No.804/2001 Page 49 of 110 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 brass jug, production of which would have been the best evidence in proof of the claim of its seizure and subsequent examination by the Bureau, was not produced and exhibited during trial-for reasons best known to the prosecution and unknown to the Court. For the foregoing discussion we are unable to sustain the convictions of Mohd.Aman."
62. The Supreme Court again in Pooran Mal v. The Director of Inspection (Investigation), New Delhi and Ors., (1974) 1 SCC 345 had held that neither by invoking the spirit of our Constitution nor by a strained construction of any of the fundamental rights it can be held that the evidence obtained on an illegal search can be excluded. It was further held that so far as India is concerned its law of evidence is modeled on the rule of evidence which prevail in English law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure.
63. In Shankaria v. State of Rajasthan, (1978) 3 SCC 435 construing the provisions of Section 4 & 5 of Identification of Prisoners Act, 1920 it was held by the Supreme Court that police is competent under Section 4 of the said Act to take specimen fingerprints of the accused. In this case the fingerprints of the accused were taken before the Superintendent of Police Sh.K.P.Srivastava and it was held that it was not necessary for them to obtain an order from the Magistrate Crl. Appeal No.804/2001 Page 50 of 110 for obtaining such fingerprints. The relevant para 84 at page 458 is as under:-
"84: The contention appears to be misconceived because in the State of Rajasthan, the police were competent under Section 4 of the Identification of Prisoners Act, to take the specimen finger-prints of the accused, and this they did, in the instant case, before the Superintendent of Police, Sh.K.P.Srivastava. It was not necessary for them to obtain an order from the Magistrate for obtaining such specimen finger-prints."
64. In State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 a plea was raised on behalf of the accused that the tape recorded conversation obtained by interception could not be utilized by the prosecution to incriminate them. The plea was opposed by the prosecution contending that the illegality or irregularity does not affect its admissibility in evidence as there was no specific embargo against the admissibility in the Telegraph Act or in the rules. The Supreme Court had held at page 717 in paragraph 154 that the non compliance or inadequate compliance with the provisions of the Telegraph Act does not per se affect the admissibility. The Supreme Court had placed reliance on R.M.Malkani v. State of Maharashtra, (1973) 1 SCC 471 where it was clarified that a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible as res gestae under Section 7 of the Evidence Act. Reliance was also placed on Karuma v. Reginam, (1955) 1 All. ER 239 where the judicial committee had held that if evidence is admissible it matters not how it was obtained. It was, Crl. Appeal No.804/2001 Page 51 of 110 however, further held that the judge has the discretion to disallow evidence in a criminal case, if the strict rules of admissibility would operate unfairly against the accused.
65. From the above discussion it is apparent that the Division Bench in Harpal (supra) and other matters did not take into consideration the ratio laid down by the Supreme Court in Mohd. Aman & Anr. Vs State of Rajasthan(supra) categorically holding that under section 4 of the Identification of Prisioners Act, 1920, the police is competent to take measurements of the accused and similarly in Shankaria Vs State of Rajasthan, (1978) 3 SCC 435 the provision of section 4 & 5 of the Identification of Prisioner;s act, 1920 were considered and it was held that the police is competent under section 4 of the said act to take the measurements of the accused. In Ram Babu Misra (supra) the finger prints and signatures were not treated at par and it was rather observed that the specimen signatures and writing are excluded from the range of section 5 of the Identity of Prisoners Act, 1920. It was further observed that section 73 of the Evidence Act would not apply at the stage of investigation and so section 5 of the Identification of Prisoner's Act, 1920 has made special provisions for that stage and even while making such provision, signatures and handwriting were deliberately excluded. Sukhvinder Singh (supra) referred to in Harpal Singh (supra) has also not considered the ramification of section 4 of the Identification of Prisoners' Act, 1920 nor has taken into Crl. Appeal No.804/2001 Page 52 of 110 consideration Mohd Aman (supra) and Shankaria (supra) categorically dealing with the scope of section 4 of the Identification of Prisoner's Act, 1920.
66. What emerges from the above discussion is that section 73 of the Indian Evidence Act 1872 enables the Court to direct the taking of specimen handwritings, in matters pending before it. The direction is therefore, given by the Court for the purpose of enabling the Court to compare and not for the purpose of enabling the investigating or a prosecuting agency to obtain and produce as evidence in the case, the specimen handwritings for their ultimate comparison with the letter and the ransome note in question(Q1 & Q2). Thus it certainly does not bar the police officials to take specimen handwriting for the purposes of investigation. As noted by the Constitution Bench of Supreme Court in Kathi Kalu Oghad (supra) such evidence does not stand barred by Article 20(3) of the Indian Constitution, as it is not deemed as being "a witness against oneself", and it does not amount to testimonial compulsion. Rambabu Mishra (supra) also clearly lays down that specimen handwritings and signatures, do not come within the purview of the Identification of Prisoners Act.1920. It was further observed that Section 73 of the Evidence Act would not take in the stage of investigation and so Section 5 of the Identification of Prisoners Act made special provision for that stage and even while making such provision, signature and writings were deliberately excluded. Thus Crl. Appeal No.804/2001 Page 53 of 110 under the said Act, obtaining sample handwriting or signatures is not barred under any provisions of the said act and any sample handwriting or signatures taken by the police or investigating agency, unless specifically barred under any other legislation, cannot be excluded being not contrary to any provision of the said Act. In any case even if it is assumed that specimen handwriting comes within the ambit of "measurements" in the Identification of Prisoners Act, 1920, it was held categorically that police officials are undoubtedly empowered to take measurements, etc under S. 4 of the Identification of Prisoners Act, and S.4 of the Act is independent of Sec. 5, in its application.
67. In the circumstances, it is inevitable to infer that the Supreme Court has not held in Kathi Kalu Oghad (supra); Rambabu Mishra (supra) and Sukhvinder (supra) that the sample handwriting obtained by the police officials is not admissible and has to be excluded. Any view to the contrary appears to be not in consonance with these judgments of Supreme Court.
68. Thus I am of the view that the specimen handwritings which were taken from the appellant, Sapan Haldar is not covered the provisions of the Identification of Prisoners Act, 1920, and therefore since it is not specifically bared under any law, it will be admissible in evidence and cannot be made inadmissible on the ground that permission under section 5 of the said Act was not taken from the concerned Magistrate. Crl. Appeal No.804/2001 Page 54 of 110 In any case, I am of the opinion that section 4 and section 5 are independent of each other.
69. Another Bench of this Court in Crl.A. No. 1005 of 2008 titled as Bupender Singh Vs The State (Govt. of NCT of Delhi) by order dated 6th April, 2011 had held sample finger prints which were taken in that case under section 4 of the Identification of Prisoners Act, 1920 will be admissible in evidence and cannot be made inadmissible on the ground that permission under section 5 of the said Act had not been taken from the concerned Magistrate. The Bench which decided Crl.A. No. 1005 of 2008 by order dated 6th April, 2011, however referred the question "Whether the sample finger prints taken from the accused during investigation under section 4 of the Identification of Prisoners Act, 1920 will be admissible or not?" to the larger Bench.
70. The sample handwritings and signatures are not covered under the Identification of Prisoners Act, 1920 as had been held by the Supreme Court. If a measurement which is covered under the provisions of Identification of Prisoner‟s Act, 1920 is not inadmissible if it is taken under section 4 of the said act without the permission of the concerned Magistrate, a fortiori, sample handwritings and signatures which are not covered under the said Act will not be inadmissible on the ground that they were taken without the permission of the concerned Magistrate under section 5 of the said Act. Since other Benches of this Court as detailed hereinabove have held differently holding that such Crl. Appeal No.804/2001 Page 55 of 110 specimen handwritings and signatures will be inadmissible, it will be appropriate to have the decision of a larger Bench on this Issue.
71. The other issues raised in this appeal, therefore, should be decided after the decision of this issue by a larger Bench " Whether the sample handwritings and signatures taken from the accused during investigation without the permission of the Magistrate would be admissible or not and would be covered under the provisions of the Identification of Prisoners Act, 1920."
August 11, 2011 ANIL KUMAR, J.
Vk/k/rs
Crl. Appeal No.804/2001 Page 56 of 110
SURESH KAIT J.
1. The appellants have challenged the judgment dated 02.05.2001 passed by the Trial Judge, whereby the appellants were held guilty under section 364A and 365 read with section 120 B of Indian Penal Code, and order dated 04.05.2001 sentencing the appellants to imprisonment for life and a fine of Rs. 3,000/- each, in default of which to further undergo rigourous imprisonment for three months each.
2. The case of the prosecution in brief is that on 06.03.1998 at about 7:15 a.m., Subashish s/o Sh. Ashish Chatterjee and his two sisters, had come down from their house, flat no. E-52, Sarita Vihar, as they were to leave for their school in their private car to DPS Vasant Kunj. The driver, namely Santosh was sitting on the driver‟s seat of the car and waiting for them. The sisters of Subashish were sitting at the rear end of the car, while he was sitting besides the driver. Suddenly, four men with muffled faces entered into the car forcefully. Two persons put a revolver on the temple of Santosh and one person dragged Subashish out of the car and took him into a Maruti car bearing no.DL 3CC 6161. The fourth person was already sitting at the steering wheel of the Maruti car. Thus, the child was kidnapped by these unknown persons. Before escaping in the car, the kidnappers had allegedly left behind a letter, written in Hindi, at the place from where the child was kidnapped. The note reads as follows:-
"Need not worry, your child is safe with us. He will not suffer even a scratch. But if you dare to inform the Crl. Appeal No.804/2001 Page 57 of 110 police you on your own will be responsible for the death of your child. If you want your child back safe and sound then you have to accept my terms, which will be told to you on the phone. If you dare to do anything undesirable such as taping the telephone or taking the assistance of police you will definitely be awarded the prize and that will be in the form of dead body of your son, which you will find lying on the side of some road. Police can only give you the corpse but not our address. If you want to get your son sound, safe and alive, that if you agree to accept our each and every terms & condition then tie a green coloured cloth on the grill of your terrace. You will receive our phone after 24 hours."
3. A complaint was lodged with the police by Mr. Ashish Chaterjee, father of the kidnapped child, vide Ex.PW2/A. The note left behind by the kidnappers and a postcard, Ex 13/22 allegedly received, from the kidnappers, by the family of the kidnapped boy, were also handed over to the police. Thereafter, a police team headed by SI Rajbir Singh gathered at Sarita Vihar, to trace out the child. The police received the information that the car having the child in it had gone towards Village Madan Pur Khadar. After which the police officials searched Parmar colony in search of the kidnapped child. The police then received the information that the alleged car used by the kidnappers had met with a serious accident. A broken down electric pole was also found, which was on account of the said accident. The car was subsequently recovered at a Kucha Road ahead of Narula Farm. The number plate on the front of the car bore the registration No.DL 3C 661, while the number plate on the rear of the car bore the registration No. DL 3C 6261. However, no one was found inside the car. All what was recovered Crl. Appeal No.804/2001 Page 58 of 110 from the car was one broken injection of Diazepam which was found in a polythene bag in the rear seat of the car, along with one green cloth. The cloth, as well as, the broken injection were wrapped in a cloth and sealed with the seal of „RS‟. The driver of the car, Santosh was also present at the time and he identified the car as the one in which the kidnapped child was taken. Thus, the car was seized by the police officials.The police party then extended their search to village Meetha Pur for further investigation. One Baldev Singh met the police and informed them that one lady and one boy had taken the child in an auto rickshaw driven by his tenant Tammana. At the time these persons had claimed that the child was sick. Tamana subsequently joined in the search and he led the police team to a place in Village Meetha Pur. There, one lady named Rita, told the police, that accused Shefali and her son co-accused, Sapan Haldar had come to her house along with a child who was covered with a sheet. Allegedly accused/appellant Shefali had told her that the child was sick and hence she had asked for some water. After 10 minutes, the accused persons left saying that they were taking the child to the hospital. Thereafter, Rita also joined in the investigation.
4. Rita took the police team to the house of appellant Shefali in Parmal Colony. The door of the house was found to be closed from inside. Since, there was delay in opening the door, the police officials forcefully pushed the door open.
Crl. Appeal No.804/2001 Page 59 of 110
5. As per the case of the prosecution, appellant Shefali was found inside the room along with the kidnapped child sitting on a wooden Takhat. The name of the child was Subashish, who was about ten years old. Thereafter, the police waited there, for the arrival of appellant Sapan Haldar as Shefali had told them that he had gone to buy some milk for the child and that he would be coming back soon. Accused, Sapan Haldar returned home after 20 minutes, and was identified by Tammana and Rita. Thereafter, he was arrested by the police.
6. On the search of accused Sapan Haldar, a country made pistol was found in the left side pocket of his pant. Two live cartridges were also recovered from the right side pocket of his pant and one cartridge was found in the pistol itself. Three lined papers were also recovered from the side pocket of the shirt of accused Sapan Haldar, of which one was written and the remaining two were blank. Allegedly, it contained a demand for Rs.25 lacs as ransom. These papers were seized vide memo Ex.PW 13/8. The child was recovered by the police around evening time, vide memo Ex. PW 13/1, and was handed over to his parents at about 10 PM. A green colour sweater, was seized Ex. P2 and a belt with the words Delhi Public School, Vasant Kunj written on it, Ex.P1 belonging to the kidnapped child and one number plate on which black paint had been applied on the registration number, Ex. PW13/5 which were produced by the accused Sapan Halder from his house in Parmal Colony, were also seized. The accused Sapan Haldar also produced one Crl. Appeal No.804/2001 Page 60 of 110 injection of Diazapam and some other injections from his clinic in Madanpur Khadar Extention, which, were allegedly used on the child to make him unconscious.
7. The case of the prosecution is that the appellants were party to the criminal conspiracy to kidnap the child Subashish for ransom. This is also the case of the prosecution that the house from where the child was recovered belonged to the appellants Shefali and Sapan Haldar.
8. Pursuant to his arrest, accused Sapan Haldar made a disclosure statement on 06.03.1998, in which he divulged that the conspiracy was hatched to kidnap the child Subashish, also included persons namely, Suraj, Dharampal and a Muslim person, who he did not name. However, on 14.03.1998 he divulged the correct names of his accomplices as Umesh and Ramesh.
9. Subsequently, secret information was received by the police, that accused Umesh, who was wanted in this case was present near Jeevan Nursing Home. Thus, Umesh was identified by appellant Sapan Haldar and was arrested by the police at the spot mentioned above, on 17.03.1998.
10. This is also the case of the prosecution that an Identity card Ex PW7/1 of the kidnapped child was recovered from the possession of the accused Umesh on the day of the arrest. In the evening of the same day, the police party moved in search of accused Ramesh. At about 6:30 PM Crl. Appeal No.804/2001 Page 61 of 110 they were taken to Govind Puri by accused Sapan Haldar and Umesh. Thereafter, accused Ramesh was found at a tempo stand, near a temple and was apprehended by the police. He was interrogated whereby he made a disclosure statement that a country pistol, one revolver and air gun and cartridges were concealed by him under the sand of River Yamuna, slightly ahead of the place where the Maruti car was abandoned. Accused Ramesh took the police to the place on 18.03.1998, however, nothing could be recovered.
11. On 28.03.1998, the police further took police remand of Ramesh and on 29.03.1998, accused Ramesh, while in police custody took the police to the bank of River Yamuna near Narula Farm. Pursuant to which one country made revolver/pistol, one revolver and four cartridges were recovered at the instance of accused Ramesh.
12. The specimen handwriting of Sapan Haldar S1 to S6 vide memo Ex. PW13/20 and that of Umesh S7 to S9 vide memo. Ex PW 13/19 was obtained by the Police. Thereafter, the specimen handwritings were sent to the FSL, Malviya Nagar, for comparison with the threat letter, ransom note as well as the postcard allegedly received from the kidnappers. The handwriting expert opined that the writing on the letter left by the kidnappers at the place of the kidnapping matched with the sample handwriting of the appellant Sapan Haldar. Crl. Appeal No.804/2001 Page 62 of 110
13. On 07.03.1998, the IO had moved an application Ex. PW 17/12 for fixing a date for holding the Test Identification Parade (TIP) of accused Sapan Haldar. Accused Sapan Haldar was produced before the court in a muffled face. The TIP was fixed for 11.03.1998, however, on the said date the court declined to hold the TIP on the ground that the photographs of the accused Sapan Haldar had appeared in The Hindustan Times on 8th March 1998, therefore, there was no point in holding Test Identification Parade.
14. On 18.03.1998, again an application, Ex.PW11/1 for holding the TIP of accused Umesh and Ramesh was filed. The date of 23.03.1998 was also fixed for holding the test identification parade of the accused persons. However on that said date another application was moved by Ex. PW 11/2 for fixing another date as the witnesses had suddenly left for Calcutta. Thereafter the date of 27.03.1998 was fixed by the Court for holding TIP of the accused persons, however, on that day the accused persons who were produced in muffled faces, refused to participate in the proceedings.
15. Charges under Sections 120-B, 364-A and 506 of the Indian Penal Code were framed against the appellants by the learned Sessions Judge to which they pleaded not guilty and claimed trial . A separate charge under Section 25 of the Arms Act was framed against the accused Ramesh to which he pleaded not guilty and claimed trial. Crl. Appeal No.804/2001 Page 63 of 110
16. The prosecution examined 19 witnesses in support of its case and the accused persons were examined under Section 313 of the Code of Criminal Procedure however no witness had been examined in their defense.
17. The trial court examined the evidence on record and considered the defense of the accused persons and ultimately concluded on the guilt of the appellants. However, the trial court was of the view that there was no sufficient evidence on record to inculpate the guilt of accused Umesh and hence he was acquitted, while the Trial court found enough evidence on record to convict accused Ramesh under Section 25 of the Arms Act.
18. The instant appeal is against the order of conviction and sentence imposed on the accused persons being filed by appellants, Shefali and Sapan Haldar.
19. Learned counsel for the appellants has contended that the star witness, as per the prosecution, is Tammanna, PW4 who deposed that appellant Shefali along with one man had come to him on 06.03.1998 with a boy of about 10 years and had hired his auto to be taken to a hospital, however, on the way to the hospital they had stopped the auto and taken his scooter to Meetha Pur. Thereafter, they asked Tammanna, PW-4 to stop the auto outside a house and instructed him Crl. Appeal No.804/2001 Page 64 of 110 to knock on the door. This witness has identified accused Shefali in the Court.
20. However, the learned counsel contended that no reliance can be placed on this witness since he also deposed that the police had come to his house on the next day at about 7:00 AM which is diametrically opposite to the story of the prosecution; which is that the police had gone to the house of PW4 on the same day of the alleged incident. It is also pointed out that whereas PW4 had stated that the door of the house, from where the child was recovered, was locked from the outside, the police officials had claimed that the door was locked from the inside which was subsequently broken by the police.
21. The learned counsel asserted that such a major contradiction goes to the very root of the matter and hence should not be relied on and therefore the benefit of this inconsistency should be given to the appellants.
22. Learned counsel further contended that, as per the deposition of PW-2, the mother of the kidnapped child, four men had come and all of them were in muffled faces. Thus it is asserted that the witness could not have known who the four persons were, and also no woman was present at that time. It is further argued that even the number plate of the car in which the child was allegedly kidnapped was given to PW-2 by the driver Santosh, PW-8 and that she had not noted the number Crl. Appeal No.804/2001 Page 65 of 110 plate on her own, hence the trial court gravely erred in taking this into consideration, as PW-8 himself deposed that he had not given the number of the car to the police as DL-3C-6161.
23. The learned counsel further substantiated his submission by placing reliance on the deposition of PW-3, Sh. Ashish Chaterjee, father of the kidnapped child, who also stated that he was not aware of the identity of the persons who had taken his child as they were in muffled faces. It was thus submitted that there is absolutely no direct evidence that links the appellants to the offence committed, except for the circumstantial evidence which itself has many links missing and hence is not enough to inculpate the appellants.
24. The learned counsel has also attempted to highlight the improbabilities in the deposition of PW-4, Tammanna who had deposed that appellant Shefali, who was accompanied by a man and a child of about 10 years had hired his auto for taking the child to the hospital. However, instead of going to the hospital, the appellant had stopped the auto and took the scooter of PW-4 to a house. Thereafter, PW-4 was asked to knock on the door of the house and he had even assisted the appellant Shefali in lifting the child from the scooter. The learned counsel contended that if two persons were indeed present with the child at the time, then why was PW-4 asked to knock on the door of the house and also why was PW-4 asked to lift the child, as the child could have been easily lifted by the other two persons. According to the Crl. Appeal No.804/2001 Page 66 of 110 counsel, the house in which the child was initially taken to, has not been identified by the prosecution and neither does PW-4 remember the number of the house nor the occupants of the same. Hence, a very important link which is the foundation of the prosecution‟s allegations has not been established.
25. It is also contended that in the deposition of PW4 another lady was also present in the house at the time the child was allegedly recovered from the house of the appellant Shefali and apparently that lady was the daughter-in-law of the appellant. However, neither the statement of this lady had been recorded nor had she been examined. Thus, it is contended that there are serious lacunas in the story put up by the prosecution and chain is not complete, since the major links are missing. It was also contended that as per the deposition of PW4 Tammanna, he has categorically stated that he had seen accused Shefali on the day of the incident and since that day he had only seen her in the court.
26. According to the learned counsel appellant Shefali should have been duly identified by PW4 by means of TIP and the absence of it, in the facts and circumstances, is a serious lapse on the part of the prosecution and the same cannot be held sufficient to inculpate the guilt of the appellant. It is further pointed out that Sapan Haldar and Shefali had never refused TIP and therefore an adverse inference for the same is not possible against the appellants.
Crl. Appeal No.804/2001 Page 67 of 110
27. The learned counsel further contended that the sister of the kidnapped child, PW-5 Ms.Sananda Chatterjee had deposed that her brother had been kidnapped in a Maruti 800 car brought by the four kidnappers, which is diametrically opposite to the deposition of PW-8 Santosh the driver, who had deposed that there were three kidnappers and that the child was kidnapped in an ambassador. He had also deposed categorically that he had not given the number of the car as DL 3C 6161 nor had he stated that the car was a Maruti. He had also testified that he had narrated the events to the police, however his statement was not recorded in writing before him and that his signatures were obtained on plain papers. He had further testified that he had not given any letter to PW2 as deposed by her in court.
28. As per the learned counsel, these contradictions are too grave and the Trial court was wrong to have not taken them into consideration. According to the learned counsel, even though PW-8 had deposed that he could identify the driver of the car in which the child was kidnapped, however, he did not identify either of the appellants as being the driver of the car in which the child was kidnapped. Even the suggestion as to the fact that he had resiled from his earlier statement made before the police was denied by him. The learned counsel submits that on all counts the prosecution has failed to bring any conclusive evidence on record to inculpate the guilt of the appellants.
Crl. Appeal No.804/2001 Page 68 of 110
29. The learned counsel further discredited the deposition of PW6, the owner of the alleged car which was stolen and in which the child was allegedly kidnapped by the appellants and who had made a complaint at Police Station Kalkaji regarding his Maruti car bearing No.DL 1CB 1729 being stolen on 04.03.1998. According to the learned counsel, the prosecution had propounded that, at the time the car was seized it was having two number plates i.e. a number plate bearing No.DL 3C 6261 in the front while the number plate bearing No.DL 3C 661 in the rear, however PW-6Sh.Chander Bhan had deposed that there was no number plate on the car when it was delivered to him. Thus it could not be established that it was the same car bearing the two separate number plates which was seized by the police and which was allegedly used by the appellants to kidnap the child. PW-6 had further deposed that the left window of the car was broken at the time of delivery, however no other damage was found on the car. Thus, the learned counsel contended that it is extremely odd that when as alleged by the prosecution through the deposition of PW-17 SI Rajbir Singh, the car had hit an electric pole and was found in an overturned position; then how could it be possible for the car to have not been further damaged. It is contended that such inconsistencies cannot be viewed lightly and that the same ought to entitle the appellant the benefit of doubt. It was further asserted that in addition, the appellants had not been convicted for the offence of theft of the car.
Crl. Appeal No.804/2001 Page 69 of 110
30. Learned counsel further contended that even though the prosecution had alleged that Tammanna and Rita both had led them to the appellants and subsequently a search was conducted, and certain recoveries were made, however neither Tammanna nor Rita had deposed about these recoveries. Thus, there is a likelihood of the alleged recoveries been planted by the prosecution. Also while PW-13, ASI Dharam Vir, had deposed that the child was recovered from A-59, Shiv Puri, Meetha Pur Extension, the prosecution alleges that the child was recovered from Parmal Colony, Madanpur Khadar. Learned counsel also urged that there is absolutely no evidence of common intension, nor were any demands for ransom made by the appellants u/s 364 A of Indian Penal Code, nor was there any recovery of fire arm from the appellants.
31. The learned counsel for the petitioner has relied on the following citations:-
(i) Mushir Khan @ Badshah Khan v. State of M.P, 2010 (3) JCC 1648;
(ii) Shankar & Ors v. State of NCT of Delhi, 2010 (3) JCC 2067;
(iii) Prem Kumar v. State of Rajasthan, 2009(1) JCC 482;
(iv) Ravinder Singh v. Government of NCT of Delhi, 2009 (1) JCC 91;
(v) Syed Peda Aowlia v. Public Prosecutor of Andhra Pradesh, 2008 (3) JCC 1806;Crl. Appeal No.804/2001 Page 70 of 110
(vi) Sambhaji Hindu Rao Deshmukh & Ors v. State of Maharashtra, 2008 (1) JCC 542;
(vii) Balu Bakthavatchalu v. State of Tamil Nadu, 2008 (1) JCC 554 :
2001 Crl.Law Journal 669;
(viii) Netra Pal v. State; 2009 (3) JCC 2192;
(ix) Chotey Khan v. State & decision dated 14.05.2009 in Crl.Appeal No.513/2001; and
(x) Awdesh v. State; State of Punjab v. Sucha Singh & Ors, 2003 (3) SCC 153.
32. It is further contended by the learned counsel in support of his pleas and contentions that, if a prosecution witness has turned hostile and in the cross-examination the witness has deposed against the accused and in favour of the accused then the deposition in favour of the accused has to be accepted and that a mere writing of a letter by the accused and keeping the same in his pocket would not tantamount to demand of ransom in the absence of its communication to the family of the kidnapped child.
33. The learned counsel also relied on Awdesh v. State (Supra) to contend that if the specimen handwriting of the appellant were obtained by the IO when the accused were in custody and the identification as required under the Identification of Prisoners Act, 1920 was not done nor any orders were obtained from the Court of competent jurisdiction, Crl. Appeal No.804/2001 Page 71 of 110 then the specimen handwriting obtained for the expert has to be excluded while considering the evidence.
34. In State of Punjab v. Sucha Singh & Ors (Supra) 24 injuries were inflicted on the body of the son, however, the father allegedly remained a mute spectator. In such circumstances the presence of father was disbelieved. Another witness who was allegedly present at the place of occurrence and saw the occurrence who had, however, taken a shifting stand, had been held to be an unreliable witness and not credit worthy. No reliance was placed on the testimony of such a witness to establish his presence at the place of occurrence which would have formed the basis of conviction. The conduct of the father who remained a mere spectator to the innumerable wounds inflicted on his son was also disbelieved.
35. While, relying on Musheer Khan @ Badshah Khan & Anr. v. State of M.P.(supra), the learned counsel for the appellants has contended that in case of circumstantial evidence, every link in the chain of evidence must be proved beyond reasonable doubt and such a chain must exclude any inference except the guilt of the accused. While appreciating the circumstantial evidence, when, there is a conflict between the presumption of innocence and any other presumption then the former must prevail.
Crl. Appeal No.804/2001 Page 72 of 110
36. It is also contended that in order to justify inferences of guilt, the inculpatory facts must be incompatible with the innocence of the accused and it should be incapable of explanation upon any other reasonable hypothesis except his guilt.
37. In the circumstances, it is contended that while construing the testimony of PW-9 Rita caution must be , since she had been declared hostile after she deposed that she does not know the accused person in her examination-in-chief. While on the other hand she also made the statement that it is correct that on 06.03.1998, accused Shefali Haldar and her son Sapan had come to her house along with a child who was covered with a sheet and that they had told her that the child brought by them was sick and demanded water from her and that after 10 minutes, they went back on the pretext that they had to take the child to the hospital, when police came to her house. As per the learned cuncel this should not be accepted against the appellants since the said witness during her cross-examination when was asked to reconcile the diametrically opposite depositions made by her, had again deposed that she could not identify whether the accused Shefali and her son Sapan Haldar present in the court were the same persons or not.
38. According to the learned counsel for the appellants since two contradictory depositions have been made by the said witness, the deposition which establishes the innocence of the appellants must be Crl. Appeal No.804/2001 Page 73 of 110 accepted and not the portion of the deposition which inculpates the alleged guilt of the appellants.
39. Referring to Shankar & Anr. v State (N.C.T) of Delhi (supra) decided by a Division Bench of this Court, it has been contended on behalf of the appellants that before the Court bases conviction on the testimony of an eye witness, it must be satisfied that he is a truthful witness so that implicit reliance can be placed on his testimony. In order to form the basis of conviction, the testimony of the eye witness should be such that it inspires confidence and leaves no reasonable doubt about the accused‟s presence at the scene of occurrence. If the behaviour of the person claiming to be an eye witness is contrary to the course in which a similarly situated person would normally behave and there is no satisfactory explanation for such an abnormal conduct, it will not be safe to base the conviction solely on the basis of his testimony, since his very creditability stands impeached and becomes suspect on account of such behavior.
40. In Prem Kumar v. State of Rajasthan (supra), the Supreme Court dealt with the principles governing and regulating the hearing of the appeal against an order of acquittal holding that before reversing the finding of acquittal, the High Court has to keep in view the fact that presumption of innocence is still available in favour of the accused and is strengthened by the order of acquittal passed in his favour by the trial court, and the High Court should not substitute its own view with Crl. Appeal No.804/2001 Page 74 of 110 the view of the trial court as the trial court had the advantage of looking at the demeanor of the witnesses and observing their conduct in the Court specially in the witness box.
41. The learned counsel for the appellants relied on Syed Peda Aowlia (supra) in support of his contention that a portion of the testimony of a hostile witness supporting the case of the prosecution has to be rejected. It was held that a miscarriage of justice which may arise from acquittal of the guilty is no less than the conviction of an innocent, it was further held that in a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused really committed any offence or not.
42. Similarly, in Sambhaji Hindurao Deshmukh (supra), it was held that while appreciating the evidence, if two views are reasonably possible from the evidence on record, the view favoring the accused is to be preferred and adopted. It was further held that the very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently, the accused is entitled to the benefit of doubt.
43. In Netra Pal (supra), a Division Bench of this Court had held that mere writing of a letter by the accused which is not communicated to the concerned person seeking ransom and keeping such letter in his Crl. Appeal No.804/2001 Page 75 of 110 pocket would not tantamount to a demand to pay a ransom in the absence of communication of the same and an offence under Section 364A of the Indian Penal Code will not be made out in the facts and circumstances. In this case, only one letter which was exhibited as Ex.P-1 was recovered from the possession of the accused incorporating a demand to pay a ransom which admittedly was not delivered to the family of the kidnapped person. There was no allegation of communicating the demand of ransom in any other manner. In these circumstances, it was held that a letter incorporating the demand for ransom which was found in the pocket of accused, which was not communicated to the family of the kidnapped child would not constitute demand of ransom, as contemplated under Section 364A of the Indian Penal Code.
44. Relying on another judgment of the Division Bench in the matter of Chote Khan (supra) it is contended that where ransom calls are made on telephone with no threat of any kind, or simplicitor calls for ransom which eventually led to recovery of the child, in total absence of evidence in regard to any threat to cause death or hurt to the kidnapped child and also lack of evidence in regard to the accused conducting themselves in a way that could raise a reasonable apprehension that the child would be harmed or be killed; the ransom demand simplicitor alone could not bring the offence within the ambit of Section 364A of Indian Penal Code. In the circumstances, the Crl. Appeal No.804/2001 Page 76 of 110 Division Bench had set aside the conviction and sentence for offence punishable under Section 364A and 365 of the Indian Penal Code and had maintained the conviction only under Section 363 of Indian Penal Code.
45. Per contra, the learned Additional Public Prosecutor, Mr.Sawhney has contended that sample handwritings of the appellant cannot be rejected on account of alleged non compliance of the provisions of the Identification of the Prisoner's Act, 1921. The contention of the learned counsel is that Section 4 of the said Act contemplates a situation where the accused gives the sample handwriting willingly, whereas, the sample handwriting of an accused can be obtained under Sections 5 & 6 of the said Act, even if he is not desirous to give the sample handwriting willingly. He further contended that since the consequences of not following the procedure have not been given in the said act, therefore, the sample handwriting and the disputed letters which are Exhibit Q-1 and Q-2, the ransom letters in the handwriting of the appellant No.1, cannot be excluded on the ground that the sample handwritings were not obtained in compliance with the provisions of the said Act.
46. He further asserted that the term "prescribed procedure" in Section 4 does not imply a permission from the Courts/Magistrate but instead implies the procedure to be followed by the police while taking Crl. Appeal No.804/2001 Page 77 of 110 the measurements of a non-convicted person as established under the rules of Section 8 of the Act.
47. According to the learned counsel, the appellant never objected to taking of his sample handwriting and since the sample handwriting was given willingly and the plea that the same was taken under coercion, was not taken earlier nor was any such suggestion given to the witnesses in the cross examination, and it has been taken for the first time in the supplementary statement of appellant under section 313 of Code of Criminal Procedure, therefore, it cannot be allowed to be taken now, at such a belated stage. The learned counsel further contended that the hand writing samples of the appellant Sapan Haldar was taken in the proper and prescribed manner and with his consent. The handwriting was taken in a fast-mode, medium-mode and slow-mode and then sent for comparison.
48. Relying on Puran Mal v. Director of Investigation (Inspection), (1974) 1 SCC 345, learned APP contended that in India relevant evidence cannot be excluded merely on the ground that it is obtained by illegal search or seizure or contrary to the provisions of certain Act, where, the consequence of not complying with the provisions are not provided.
"Where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Crl. Appeal No.804/2001 Page 78 of 110 Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out."
49. The learned counsel for the State has also relied on State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 and contended that non compliance or inadequate compliance with the provisions of an enactment does not per se affect the admissibility unless the consequences of non compliance or inadequate compliance have been spelt out specifically.
50. Relying on the Telegraphic Act which specifically prescribes rejection of the evidence obtained by taping without permission, it is contended that the Identification of Prisoners Act, 1921 does not prescribe or provide any such consequences.
51. In the circumstances, according to the submission of the learned APP, the factum of sample handwriting of Sapan Haldar cannot be ignored and consequently Exhibit Q-1 and Q-2 which have been established to be in the handwriting of Sapan Haldar by the handwriting expert PW-19 Sh.Harsh, Senior Scientific Officer is entitled to be considered.
52. Refuting the plea of the appellants that the material witnesses have not identified them, it is submitted by the learned APP that the threat was extended to the father of the child PW-1, who had been kidnapped about which he had deposed categorically in his statement Crl. Appeal No.804/2001 Page 79 of 110 on 27.06.2000 where he had stated that he was threatened to bear the consequence in case he appeared in the Court. The stand of the witnesses including the father‟s, mother‟s and the child‟s itself reflects the consequent softening. According to him if all the testimonies are taken and considered, it is apparent that the essential facts regarding the accused/appellants have been deposed by the witnesses.
53. It is contended that the kidnapped child PW-1 Subhashish has deposed in his unimpeachable testimony that he was kidnapped and taken away in a Maruti 800 car. He has also deposed about an injection being given to him in his hip after being kidnapped in the car where after he did not remember as to what had happened to him. He has however, deposed about the involvement of four persons and one woman though he has denied that his belt and sweater were not with him, however the case of the prosecution is that the belt and sweater of the kidnapped child were recovered by the police from the appellant Sapan Haldar.
54. The learned APP has contended that the driver of the car PW-8 Santosh Jha had deposed incorrectly in respect of certain matters either on account of collusion with the appellants or on account of fear of threat by the appellants who had also threatened the father of the kidnapped child. He has also referred to a suggestion given to him that he has deposed falsely deliberately in order to save the accused persons.
Crl. Appeal No.804/2001 Page 80 of 110
55. According to him though he had deposed that the car in which the child was kidnapped was an Ambassador, however, the car was a Maruti 800 stands substantiated by the fact that at the very first instance the number of the car and the make of the car was given by the father of the kidnapped child and it was incorporated in the complaint as well. Even PW1 categorically deposed that he was kidnapped in the Maruti 800 car, therefore, the testimony of PW-8 Sh.Santosh Jha deposing that the car was an Ambassador will not dilute the case of the prosecution regarding kidnapping of the child PW- 1 Subhashish by the appellants in a Maruti 800 car.
56. The learned Public Prosecutor has also relied on the testimony of Tammanna, scooter driver PW-4 who has categorically identified accused Shefali as the woman who had come with a child to him and had represented that she had hired him to take the child to the hospital, stating that he was her son, however, on the way instead of going to hospital he was taken towards Meetapur. Since the incident of kidnapping is of 06.03.1998, whereas the statement of the scooter driver was recorded on 01.09.2000. Therefore, on account of the time gap, if the driver had deposed that the child was recovered in the morning, whereas, it stands established that the child was recovered on 06.03.1998 itself, the testimony of PW-4 will not be weakened so far as the other facts deposed stood corroborated and established. Crl. Appeal No.804/2001 Page 81 of 110
57. According to the counsel, the link is further strengthened as it is on the basis of the information of PW-9 Rita that the child was recovered from the house of appellant Shefali. Further even appellant Sapan Haldar was apprehended from the same place. Pursuant to his arrest the recoveries were affected at his instance, which were the injections used to keep the child in an unconscious state, the ransom note from his shirt pocket and the fake number plates. In any case, the said appellant has been unable to explain the possession of the number plate DL 1 CB 1729, which is the original number plate of the car, in which the child was kidnapped and belongs to PW6 and was stolen on 04.03.1998 from outside his residence i.e. two days prior to the incidence.
58. The learned counsel further asserted that, even under Section 313 when the identification of appellant Shefali by Tammanna was put to her, no explanation for the same was given by her. Even during the recording of evidence of Tammanna, he was not cross-examined by the defense on this aspect.
59. Learned counsel also asserted that as per Section 7 and 8 of the Indian Evidence Act, 1872, facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant and any fact is relevant which shows or constitutes a motive or Crl. Appeal No.804/2001 Page 82 of 110 preparation for any fact in issue or relevant fact. Thus, the recovery of the second letter pursuant to the first, forms a link and is relevant under the facts and circumstances and can be taken into consideration. And in the proximity of the letters received, the telephone calls made to the family are all proof of the intention to demand ransom for the kidnapped child.
60. With regard to the aspect of not holding the TIP of appellant Shefali, it is submitted that the child PW-1 was with the appellant Shefali for considerable time and had been recovered from her custody, therefore, a TIP would have been of not much consequence. The learned counsel has also explained the reason for not conducting TIP as against appellant Sapan Haldar, as on 07.03.1998 the IO had moved an application Ex. PW 17/12 for fixing a date for holding the TIP of appellant Sapan Haldar and he was produced before the court, muffled face and the TIP was fixed for 11.03.1998. However, on 11.03.1998 the court declined to hold the TIP on the ground that the photographs of the accused Sapan Haldar had appeared in The Hindustan Times on 08.03.1998 and therefore there was no point in holding TIP. In the circumstances, it is contended that the case of the prosecution against the appellants is not weakened on account of not conducting the TIP.
61. Learned counsel vehemently asserted that the aspect of conspiracy has to be drawn from the facts and circumstances of the case. The recovery of the sweater and belt from the appellants, the Crl. Appeal No.804/2001 Page 83 of 110 threats received by the father of PW-1, the recovery of the car in which the child was kidnapped, which was found to be stolen two days prior to the incident from the house of PW6, the arrest of the appellants on the information of PW9 and PW4, the recoveries at the instance of the appellant and finally the FSL report conclusively recording the match of the ransom note with the specimen handwriting of appellant Sapan Haldar; all lead to the undeniable inference that the offence of kidnapping the child was carried out by the appellants.
62. This Court has heard the learned counsel for the parties in detail and has also perused the record of the trial Court including the testimonies of the witnesses and the documents established on record. This is a settled law that in reversing the finding of conviction, the High Court has to keep in view the fact that the presumption of innocence is still available in favor of the accused. If on fresh scrutiny and reappraisal of the evidence and perusal of the material on record, the Court is of the opinion that another view is possible or which can be reasonably taken, then the view which favors the accused should be adopted. However, the view taken by the Trial Court which had an advantage of looking at the demeanor of the witnesses and observing their conduct in the Court is not to be substituted ordinarily by another view, unless another view if substantially and reasonably is possible in the opinion of the High Court.
Crl. Appeal No.804/2001 Page 84 of 110
63. Reliance for this can be placed on AIR 2009 SC 1242, Prem Kanwar v. State of Rajasthan; 2008 (3) JCC 1806, Syed Peda Aowlia v. the Public Prosecutor, High Court of A.P, Hyderabad; Bhagwan Singh and Ors v. State of Madhya Pradesh, 2002 (2) Supreme 567; AIR 1973 SC 2622 Shivaji Sababrao Babade & Anr v. State of Maharashtra; Ramesh Babu Lal Doshi v. State of Gujarat, (1996) 4 Supreme 167; Jaswant Singh v. State of Haryana, 2000 (1) JCC (SC) 140.
64. The Courts have held that, the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted, because the paramount consideration of the Court is to ensure that miscarriage of justice is not done. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent person. The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the Trial Court, if the findings are against the evidence on record or unsustainable or perverse. However, before reversing the finding of acquittal, the High Court must consider each ground on which the order of conviction is based and should also record its own reasons for accepting those grounds. Crl. Appeal No.804/2001 Page 85 of 110
65. In a case in which the evidence is of a circumstantial nature, the facts and circumstances from which conclusion of guilt is sought to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and circumstances so established should not only be consistent with the guilt of the accused, but they must be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence. It has been observed that while appreciating circumstantial evidence the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete; pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favor of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused, however, farfetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection, if the doubt is reasonable and not otherwise. It has also been held that onus is on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or Crl. Appeal No.804/2001 Page 86 of 110 plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned `must' or `should' and not `may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
66. One of the strong links in proving the guilt of the appellant Sapan Haldar is the FSL report matching the specimen handwriting of the appellant with the threat letter Q1 found at the spot of kidnapping and the ransom note, Q2 recovered from the appellant.
67. According to the learned counsel for the appellant specimen handwriting taken from the appellant is not admissible on account of non compliance of the provisions of Identification of Prisoner's Act, 1920, whereas, according to the Learned Addl. Public Prosecutor the specimen handwriting taken are admissible and cannot be ignored. Both the counsels have relied on various judgments which are as under:
Crl. Appeal No.804/2001 Page 87 of 110
68. The judgments relied on by the learned counsel for the appellants in the tabular form are as under which include the judgments of co- ordinate benches of this Court:
S.No. Title Matter in Judgments Relied On
Issue
1. Harpal Singh v. Specimen 1. Crl. Appeal No. 682/2008
State : Crl. Handwriting 'Santosh @ Bhure v. State'
Appeal No.
362/2008 2. Crl. Appeal No. 316.2008
'Neeraj v. State'
Wherein the following
Supreme Court Judgments
were relied upon:
(a) State of Bombay v. Kathi
Kalu Oghad and Ors:
1961CriLJ856
(b) State of U.P. v. Rambabu
Mishra: [1980]2SCR1067
(c) Sukhwinder Singh and
Ors. v. State of Punjab:
[1994]3SCR1061
2. Raj Kumar @ Sample Supreme Court Judgments
Raju Vs. The Fingerprints relied on:
State (G.N.C.T. of (1) State of U.P. v. Ram Babu
Delhi): Crl. A. No. Mishra, AIR 1980 SC 791
979/2005 (2) Sukhvinder Singh v. State
of Punjab, 1994 (5) SCC 152
3. Mehmood Ali Vs. Sample Supreme Court‟s Judgments
State: Crl. Appeal Fingerprints relied on:
No. 326/2007 (1) State of U.P. v. Ram Babu
Mishra, AIR 80 SC 791
(2) Sukhvinder Singh and
Ors. v. State of Punjab, 1994
(5) SCC 152 and
(3) State of Haryana v. Jagbir
Singh, AIR 2003 SC 4377
4. Ashok Kumar @ Sample Judgment relied on:
Govind Vs. State Fingerprint (1) Crl. Appeal No. 682/2008
[Alongwith Crl.A. 'Santosh @Bhure v. State'
Nos. 275, 397, Wherein the following
Crl. Appeal No.804/2001 Page 88 of 110
398, 410 and Supreme Court Judgments
601/2007]: were relied upon:
2010CriLJ2329, (a) State of Bombay v. Kathi
159(2009)DLT383 Kalu Oghad and Ors:
1961Cri. L.J. 856
(b) State of U.P. v. Rambabu
Mishra: [1980] 2 SCR 1067
(c) Sukhwinder Singh and
Ors. v. State of Punjab;
[1994] 3 SCR 1061
5. Ganpat Singh Sample Supreme Court‟s Judgement
and Narpat Singh Finger relied on:
v. State of prints (1) Mohd. Aman v. State of
Rajasthan : RLW Rajasthan: 1997 Cri.L.J.
2007 (1) Raj 523 3567
(Rajasthan High
Court)
6. M.S. Syed Anwar Sample No Supreme Court Judgment
and Etc. v. Finger Print, relied on: Just a reference
Commissioner of Foot prints made to the provisions of
Police, Bangalore and Identification of Prisoners
City and Another: Photographs Act
1992 CriLJ 1606
69. In Harpal Singh Vs State; Crl. Appeal No. 362/2008 one of the issues was about admissibility of specimen handwriting taken from the accused. In this case permission was not taken from the Court of Competent Jurisdiction and Section 5 of the Identification of Prisoners Act 1920 was not complied with.
70. In the circumstances the issue was whether the FSL report comparing the specimen handwriting of the accused taken by the Inspector during custody and the suicide note recovered from the spot of occurrence, allegedly authored by the appellant could be relied upon by the learned Trial Judge.
Crl. Appeal No.804/2001 Page 89 of 110
71. The Trial Judge in this case was of the opinion that even though no permission was taken by the Inspector from the Court, before obtaining the specimen handwriting of the appellant, the same in no way dented the opinion contained in the FSL report, which stated that the suicide note Ex.P1 to Ex.P4 is in the handwriting of the appellant.
72. In view of the dictum of law laid down by Supreme Court in the decision reported as State of Haryana vs. Jagbir Singh AIR 2003 SC 4377 that pendency of some proceedings in the court is a sine qua non before a court can give direction to an accused to give his specimen handwriting under Section 73 of the Evidence Act and such a direction can be given by the court only for enabling the Court to compare the handwriting of the accused and not for the purpose of the investigating or any other agency to compare the same and the fact that the appellant did not raise any dispute in the trial that the suicide note was not in his handwriting or that the police did not obtain his specimen handwriting and the fact that the suicide note Ex.P1 to Ex.P4 was written by the appellant established beyond any doubt that the appellant had murdered his wife and son.
73. Another Bench of this Court, however, took a different view relying on the decision dated 5.3.2009 disposing of Crl. Appeal No. 682/2008 'Santosh @ Bhure v. State' and Crl. Appeal No. 316.2008 'Neeraj v. State', noting the decision of the Constitution Bench of Crl. Appeal No.804/2001 Page 90 of 110 Supreme Court reported as 1961 Cri.L.J. 856, State of Bombay v. Kathi Kalu Oghad and Ors. as also the decisions of Supreme Court reported as [1980] 2 SCR 1067, State of U.P. v. Rambabu Mishra and [1994] 3 SCR 1061, Sukhwinder Singh and Ors. v. State of Punjab; holding that the FSL report had to be excluded from the arena of admissible evidence for the reason that no orders were obtained by the competent court to obtain the specimen writings of the appellants nor were the provisions of the Identification of Prisoner's Act 1920 complied with.
74. In Raj Kumar @ Raju Vs The State (G.N.C.T. of Delhi): Crl. A. No. 979/2005, another bench of this Court, also relying on Ram Babu Misra (supra) and Sukhvinder Singh (supra) had held that where the provisions of the Identification of Prisoner's Act, 1920 are violated, specimen samples pertaining to the fingerprints, handwriting etc. of an accused and the incriminating evidence stipulated in the reports relatable thereto will be inadmissible in evidence and hence has to be excluded while considering the circumstantial evidence against the appellant. Similarly in Mehmood Ali Vs State; Crl. Appeal No.326/2007 relying on Ram Babu Misra (supra), Sukhvinder Singh (supra) and Jagbir Singh (supra) it was held by a Division Bench of this Court that the chance finger prints have to be compared with the sample finger prints after obtaining permission from the Court of competent jurisdiction and after the proper identification of the prisoner as per the requirement of Section 5 of the Identification of Prisoners Act 1920. If Crl. Appeal No.804/2001 Page 91 of 110 this is not done, then the incriminating evidence of the chance finger print lifted from the scene of crime cannot be compared with the sample finger prints which will be inadmissible. Yet another bench of this Court in Ashok Kumar @ Govind Vs State; 2010 Cri L. J. 2329 relying on Kathi Kalu Oghad (supra) Ram Babu Misra (supra) and Sukhvinder Singh (supra) had held that since no permission was obtained from the Court as required under the Identification of Prisoner's Act, 1920, it has to be excluded while considering the incriminating evidence.
75. A Bench of Rajasthan High Court in Ganpat Singh Vs State of Rajasthan; RLW 2007 (1) Raj 523 relying on Mohd Aman Vs State of Rajasthan 1997 Crl.L.J 3567 had also held that since finger prints were not taken before or under the order of the Magistrate, it was unsafe to accept the evidence led on this regard.
76. The precedents relied on by the Learned Additional Public Prosecutor in the tabular form holding that the finger prints taken under section 4 of the Identification of Prisoners Act, 1920 would be admissible are as under:
S.No. Title Matter in Judgments Relied On Issue 1. State of Madhya Photographs No Judgments relied on Pradesh v. Devender: (2009) 14 SCC 80 Crl. Appeal No.804/2001 Page 92 of 110 2. Manikam v. State: Sample Supreme Court (2009) 5 CTC 316 Finger Judgments relied on: Prints (1) Ravanan v. State, (1994) 1 LW (Crl.) 58 (2) State of T.N. v. T. Thulasingam, 1994 Supp (2) SCC 405 3. Mohd. Aman, Babu Sample No judgments relied on Khan and Another Finger print v. State of and Foot Rajasthan: AIR print 1997 SC 2960
77. In State of Madhya Pradesh Vs Devender, (2009) 14 SCC 80 a bench of three judges of Supreme Court had held that on perusing the Sections 3, 4, and 5 of the Identification of Prisoner's Act, the Court is of the view that Section 4 deals with taking of measurements, etc. of non-convicted persons and that it is taken if the police officer so requires it and it has to be done in the prescribed manner. So far as Section 5 is concerned, it deals with the power of the Magistrate to direct any person for measurement or photographs to be taken if he is satisfied that for the purpose of any investigation or proceedings under the Code the same is necessary. It was further held that in case of conflict of directions given by the Court and the provisions of an Act, the Regulations and the Code, the statute itself prevails.
78. In Mohd Aman, Babu Khan & Anr. Vs. State of Rajasthan AIR 1997 SC 2960, a bench of two judges of Supreme Court had held that under Section 4 of the Identification of Prisoners Act, 1940 police Crl. Appeal No.804/2001 Page 93 of 110 is competent to take finger prints of the accused and such evidence will not be inadmissible. In Manikam Vs State, (2009) 5 CTC 316 it was also held that there is no law which prohibits the investigating officer from lifting the fingerprint of the accused for comparison during the course of investigation of the case. In fact, the provisions found under S. 5 of the Identification of Prisoners Act, 1920 and S. 311-A Cr. P.C. speak only about the powers of the Judicial Magistrate, when he is approached by the investigating officer concerned for a suitable direction to the accused to co-operate by giving his finger-print or signature or sample handwriting as the case may be. It is to be noted that those provisions do not put an embargo on the investigating officers from acting on their own for taking the fingerprint, signature or handwriting of the accused during the course of investigation. The Supreme Court has not specifically laid down that the investigating officer should mandatorily invoke the provisions under section 5 of the Identification of Prisoners Act, 1920.
79. While appreciating circumstantial evidence, the Court has to adopt a very cautious approach and should record a conviction only if all the links in the chain are complete and pointing to the guilt of the accused. In the present facts and circumstances one of the important links is the specimen handwriting of the appellant, Sapan Haldar which matches with the handwriting in the letter found at the place of kidnapping, Q1 and the ransom note found in the pocket of the Crl. Appeal No.804/2001 Page 94 of 110 appellant, Q2. Whether or not the specimen handwriting is covered as a „measurement‟ under the Identifications of Prisoner's Act, 1920 and even if it is, whether the specimen handwriting taken under section 4 of Identification of Prisoners Act, 1920 will be admissible or not is a relevant question in this case. In case the specimen handwriting is not admissible as has been contended by the counsel for the appellant, a very pertinent link will be snapped as the other evidence is only regarding recoveries of articles pursuant to the disclosure statements of the appellants.
80. The learned counsel for the appellant has relied mainly, on the judgments of other benches of this Court which have relied on Kathi Kalu Oghad (supra) Ram Babu Misra (supra),Sukhvinder Singh (supra) and Jagbir Singh (supra). In State of Uttar Pradesh v. Ram Babu Misra, AIR 1980 SC 791 the Supreme Court had held that Section 73 of the Evidence Act does not enable the Magistrate to give directions to the accused to give his specimen writings when the case is still under investigation because Section 73 contemplates pendency of some proceedings before a Court. It does not permit the Court, whether civil or criminal to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Relying on Barindra Kumar Ghose v. Emperor, ILR (1910) 37 Cal.467 the Supreme Court in Pushpadevi M.Jetia v. M.L.Wadhawan, (1987) 3 SCC 367 in paragraph 20 at page Crl. Appeal No.804/2001 Page 95 of 110 388 had held that if evidence is relevant, the Court is not concerned with the method by which it was obtained. In Barindra Kumar Ghose (Supra) the contention that the Court must exclude relevant evidence on the ground that it was obtained by illegal search or seizure was repelled. Referring to page 500 of the report it was noticed:-
"Mr.Das has attacked the searches and has urged that, even if there was jurisdiction to direct the issue of search warrants, as I hold there was, still the provisions of the Criminal Procedure Code have been completely disregarded. On this assumption he has contended that the evidence discovered by the searches is not admissible, but to this view I cannot accede. For, without in any way countenancing disregard of the provisions prescribed by the Code, I hold that what would otherwise be relevant does not become irrelevant because it was discovered in the course of a search in which those provisions were disregarded."
81. Perusal of State of Bombay v. Kathi Kali Ughad, AIR 1961 SC 1808 reveals that the Supreme Court had held that by giving specimen writing, the accused person does not furnish evidence against himself and, therefore, when an accused person is compelled to give a specimen writing or impression of his finger, palm or foot, it may be such that he has been compelled to be a witness, however, it cannot be held that he had been compelled to be a witness against himself. In the circumstances, the Supreme Court had held that merely taking a specimen writing does not mean to be giving a statement so as to be hit by Section 162 of the Criminal Procedure Code.
Crl. Appeal No.804/2001 Page 96 of 110
82. What also emerges from the perusal of Sukhvinder case (supra) is that it is also distinguishable and does not hold that if the specimen handwriting is taken from a non convicted persons during custody, then the specimen handwriting would be inadmissible. The specimen writings in the instant case of appellant Sukhdev Paul were taken under the directions of Shri. Garg, Tehsildar -Executive Magistrate, PW13. No enquiry and trial in this case were pending in the Court of the Tehsildar-Executive Magistrate. Rather the enquiry and trial in this case was pending under TADA before the Designated Court only. In these circumstances the Court was of the view that the direction given by the Tehsildar -Executive Magistrate to the accused to give his specimen writings was clearly unwarranted and not contemplated or envisaged by Section 73 of the Evidence Act despite admission by the accused in his statement under section 313 of the Cr.P.C. In this case there was also inherent ambiguity as to the matter of the letters reaching the hands of the police officials, as the prosecution‟s explanation for the same was diametrically opposite to the explanation of the mother of the deceased.
83. A division Bench of this Court in Satyawan Vs State MANU/DE/1044/2009 had ignored the part of the report of handwriting expert wherein he had opined that the specimen writings S-1 to S-8 of an accused Satish matched the writing on the ransom note on the ground that the investigation officer had taken specimen writing in Crl. Appeal No.804/2001 Page 97 of 110 violation of the provisions of the Identification of Prisoners Act, 1920 and also on the ground of being contrary to the law that specimen writing for purposes of expert opinion can be directed to be taken under orders of the Court, where the trial is pending, relying on State of UP Vs Ram Babu Misra, (supra) and Sukhwinder Singh & ors Vs State of Punjab, (supra). In this case the investigating officer took the specimen sample of the accused while he was in custody.
84. In Harpal Singh vs State, MANU/DE/1091/2010, the IO had obtained the specimen handwriting Ex.PX-1 to Ex.PX-4 of the accused and sent the same along with Ex.P-1 to Ex.P-4 recovered from the house of the accused to the Forensic Science Laboratory for comparison of the handwriting. Before taking the specimen sample of handwriting he had not taken permission of the Court. Vide FSL report Ex.PW-24/A it was opined that the writing Ex.P-1 to Ex.P-4 is in the same hand of the person who had written Ex.PX-1 to Ex. PX-4. During trial no suggestion was given to the witnesses in the cross examination that the specimen handwritings were not the handwritings of the accused. The Court however, excluded the opinion of the handwriting expert pertaining to the letter recovered by the police. While excluding the opinion of handwriting expert, the Court had relied on para 7 of the Kathi Kalu Oghad's (supra) and paras 3 to 6 and para 8 of Ram Babu Misra (supra). Paras 18 to 23 of Harpal Singh (supra) are as under: Crl. Appeal No.804/2001 Page 98 of 110
18. Unfortunately, for the prosecution, the charge against Neeraj has to fail for the simple reason Neeraj's specimen handwriting was obtained by the police when he was in their custody. No permission was taken from the Court concerned to obtain his specimen handwriting.
19. Learned Counsel for the State urges that a Constitution Bench of 11 Judges of the Supreme Court, in the decision reported as 1961 Cri.L.J. 856 State of Bombay v. Kathi Kalu Oghad and Ors. has upheld the constitutional validity of compelling an accused to give specimen handwritings. It has been held that the same does not contravene Article 20(3) of the Constitution of India and thus the fact that the police obtained the specimen handwriting of Neeraj when he was in their custody does not invalidate the said act. Learned Counsel was at pains to point out that the Constitution Bench of the Supreme Court was considering three references pertaining to three views taken by the High Court of Bombay, Punjab and West Bengal pertaining to compelling an accused to give his specimen handwriting, fingerprints and specimen signatures respectively and that in the latter two cases the palm and finger print impressions as also the specimen signatures were obtained with the permission of the magistrate concerned but in the first case pertaining to the Bombay High Court the specimen handwritings were taken when the accused was in police custody. Thus, learned Counsel urged that the Constitution Bench upheld Crl. Appeal No.804/2001 Page 99 of 110 the action of taking specimen handwriting by the police when the accused was in police custody.
20. It may be noted that the Constitution Bench of the Supreme Court was dealing with the issue whether to compel an accused to give his blood sample, palm and fingerprints impressions, signatures and handwriting etc. would or would not be violative of Article 20(3) of the Constitution of India which made it unconstitutional for a person to be a witness against himself. The Constitution Bench held that to be a witness means to give evidence. It was held that giving handwriting samples or fingerprints or palm impressions did not tantamount to giving evidence and that when a handwriting sample or a fingerprint or a palm impression was obtained by the police it did not amount to compelling an accused to be a witness against himself.
21. In the decision reported reference to the decision of the Constitution Bench in Kathi Kalu Oghad's case (supra) in para 7 it was observed as under:
7. Section 73 of the Evidence Act was considered by us in State (Delhi Administration) v. Pali Ram 1979 Cri.L.J. 17 where we held that a Court holding an enquiry under the Criminal Procedure Code was entitled under Section 73 of the Evidence Act to direct an accused person appearing before it to give his specimen handwriting to enable the Court by which he may be tried to compare it with disputed writings. The present question whether such a Crl. Appeal No.804/2001 Page 100 of 110 direction, under Section 73 of the Evidence Act, can be given when the matter is still under investigation and there is no proceeding before the Court was expressly left open. The question was also not considered in State of Bombay v. Kathi Kalu Oghad 1961 Cri.L.J. 856, where the question which was actually decided was that no testimonial compulsion under Article 20(3) of the Constitution was involved in a direction to give specimen signature and handwriting for the purpose of comparison.
22. In para 3 to 6 and para 8 of the decision in Rambabu Mishra's case (supra) it was observed as under:
3. Section 73 of the Evidence Act is as follows:
73. In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
This section applies also, with any necessary modifications to finger-impressions.
Crl. Appeal No.804/2001 Page 101 of 110
4. The second paragraph of Section 73 enables the Court to direct any person present in Court to give specimen writings "for the purpose of enabling the Court to compare" such writings with writings alleged to have been written by such person. The clear implication of the words "for the purpose of enabling the Court to compare" is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction is to be given for the purpose of 'enabling the Court to compare' and not for the purpose of enabling the investigating or other agency 'to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. Further Section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court. Would it be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing under Section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit in which the question would be whether certain alleged writings are those of the other person or not? Obviously not. If not, why should it make any difference if the Crl. Appeal No.804/2001 Page 102 of 110 investigating agency seeks the assistance of the Court under Section 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings?
5. We may also refer here to Section 5 of the Identification of Prisoners Act, 1920, which provides:
5. If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Cr.PC, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer:
Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class:
Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.
Section 2(a) of the Act defines "measurements" as including "finger impressions and foot print impressions.
6. There are two things to be noticed here. First, signature and writing are excluded from the range of Section 5 of the Identification of Prisoners Act Crl. Appeal No.804/2001 Page 103 of 110 and, second, 'finger impressions' are included in both Section 73 of the Evidence Act and Section 5 of the Identification of Prisoners Act. A possible view is that it was thought that Section 73 of the Evidence Act would not take in the stage of investigation and so Section 5 of the Identification of Prisoners Act made special provision for that stage and even while making such provision, signature and writings were deliberately excluded.
As we said, this is a possible view but not one on which we desire to rest our conclusion. Our conclusion rests on the language of Section 73 of the Evidence Act.
8. The view expressed by us in the earlier paragraphs, on the construction of Section 73, Evidence Act was the view taken by the Madras High Court in T. Subbiah v. S.K.D. Ramaswamy Nadar AIR 1970 Mad. 85, the Calcutta High Court in Farid Ahmed v. the State AIR1960Cal32 (Mitter J., at page 32). and Priti Ranjan Ghosh and Ors. v.
The State (1973) 77 CWN 865, the High Court of Punjab and Haryana in Dharamvir Singh v. State, the High Court of Madhya Pradesh in Brij Bhushan Raghunandan Prasad v. The State MANU/MP/0050/1957 : AIR 1957 MP 106, the Orissa High Court in Srikant Rout v. State of Orissa 1972 (2) CWR 1332 and the Allahabad High Court in the judgment under appeal. A contrary view was taken by the Patna High Court in Gulzar Khan and Ors. v.
State MANU/BH/0069/1962 : AIR 1962 Pat 255 and Crl. Appeal No.804/2001 Page 104 of 110 the High Court of Andhra Pradesh in B. Rami Reddy and Ors. v. State of Andhra Pradesh. We do not agree with the latter view. We accordingly dismiss the appeal and while doing so we would suggest that suitable legislation may be made on the analogy of Section 5 of the Identification of Prisoners Act and provide for the investiture of Magistrates with the power to issue directions to any person, including an accused person, to give specimen signatures and writings.
23. In the decision reported as MANU/SC/0783/1994 : [1994] 3 SCR 1061 Sukhvinder Singh and Ors. v. State of Punjab, noting that the specimen writing of Sukhvinder Singh was obtained by the police when he was in police custody, notwithstanding the fact that Sukhvinder Singh had admitted in his statement under Section 313 Cr.P.C. that he gave the specimen handwriting, it was held that the opinion of the handwriting expert had to be excluded while considering the evidence against Sukhvinder Singh. We note that the said evidence brought on record inculpatory evidence against Sukhvinder Singh in respect of ransom letters Ex.P-A and Ex.P-C alleged by the prosecution to be in the handwriting of Sukhvinder Singh.
85. As was also, in the case of Mohd. Aman, Babu Khan & another Vs. State of Rajasthan AIR 1997 SC 2960 held in para No.8 which is reproduced as follows:-
"8. After careful perusal of the evidence adduced in proof of the above circumstance we notice a glaring missing link, in that, the prosecution has failed to establish that the seized articles were not - or could not be - tampered with before it reached the Bureau for examination. Though evidence was led to prove that after seizure the articles were packaged and. then sealed, no evidence was led to indicate what was the mark Crl. Appeal No.804/2001 Page 105 of 110 given in the seals and whether the Bureau received the packages with the marked seals intact. Indeed, even the contemporaneous letters exchanged between them (Ext. P.59 and P.60) do not throw any light on this aspect of the matter. Rather, other circumstances appearing on record make the prosecution case doubtful in this regard: first, the articles were kept in the police station for five days without any justifiable reason, secondly the Investigating Officer (P.W. 20) admitted that the seal, mark of which was put on the articles, was with him since the time of seizure and lastly his letter (Ext. P.39) forwarding the seized articles to the Bureau contains admittedly, an overwriting as regards the date of its writing/dispatch and no satisfactory explanation is forthcoming for the same. Apart from the above missing link and the suspicious circumstances surrounding the same, there is another circumstance which also cast a serious mistrust as to genuineness of the evidence. 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 under Section 4 thereof police is competent to take finger prints of the accused but to dispel any suspicion as to its bonafides 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 brass jug, production of which would have been the best evidence in proof of the claim of its seizure and subsequent examination by the Bureau, was not produced and exhibited during trial - for reasons best known to the prosecution and unknown to the Court. For the foregoing discussion we are unable to sustain the convictions of Mohd. Aman."
86. Additionally, the present issue has already been decided by this Court on 14.05.2009 in the case of Avdesh Vs. State, Criminal Appeal Crl. Appeal No.804/2001 Page 106 of 110 No.513/2001 along with Criminal Appeal Nos.300/2002 and 301/2002, wherein para No.10, thereof it was held as under:-
"10. It is not in dispute that the specimen writings of the appellants were obtained by the investigation officer when the appellants were in custody. Their identification as required by the Identification of Prisoner's Act 1920 was not got done. Nor were orders obtained by the Court of competent jurisdiction to obtain the sample handwritings of the accused."
87. After carefully studying the law on this issue, as has been discussed above, the Division Bench of this Court came to the following conclusion in para No.12 of the judgment of Avdesh (Supra) which is as follows:-
"12. Thus, the report Ex.PW-14/A of the handwriting expert has to be excluded while considering the evidence, for the reason, no orders were obtained by the competent court to obtain the specimen writings of the appellants nor were the provisions of the Identification of Prisoner's Act 1920 complied with."
88. The other decision of this Court, where I, (Suresh Kait, J) was one of the members of the Bench, in Criminal Appeal No.362/2008 titled as Harpal Singh Vs. State decided on 25.05.2010, six arguments had been advanced by the Ld.Senior Counsel for the appellant and one of them was that no permission was taken from the Court of competent jurisdiction and Section 5 of the Identification of the Prisoners‟ Act 1920 was not complied with, hence, the FSL report Ex.PW24/A could not be relied upon by the Ld.Trial Judge. In this case the testimony of Inspector Jagdish Meena PW-22, made it abundantly clear that the Crl. Appeal No.804/2001 Page 107 of 110 specimen writings of the appellant were obtained by Inspector Jagdish Meena when the appellant was in custody. Since the specimen handwriting of the appellant was obtained without the prior permission of the competent Court as required u/s 5 of the Identification of Prisoners Act 1920, it was held that it is inadmissible in evidence. The relevant para no. 48 of the said judgment is as follows:-
"Thus, the FSL report Ex.PW-24/A has to be excluded from the arena of admissible evidence in the present case, for the reason, no orders were obtained by the competent court to obtain the specimen writings of the appellants nor were the provisions of the Identification of Prisoner's Act 1920 complied with."
89. My learned brother Shri Anil Kumar, J, is of the opinion that signatures are not covered under the provisions of the Identification of Prisoners Act, 1920 and, therefore, since it is not specifically barred under law, it ought to be admissible in evidence and cannot be made inadmissible on the ground that permission under Section 5 of the said Act was not taken from the concerned Magistrate. He has further observed that if a measurement which is covered under the provisions of the Identification of Prisoners Act, 1920 is not admissible and if it is taken under section 4 of the said Act without the permission of the concerned Magistrate, a fortiori, sample handwritings and signatures which are not covered under the said Act will not be inadmissible without the permission of the concerned Magistrate under Section 5 of the said Act.
Crl. Appeal No.804/2001 Page 108 of 110
90. Keeping in view the above discussion and the judgment of Harpal Singh (supra), I am of the view that sample handwritings and signatures obtained by the police authorities without complying with the provisions u/s 5 of Identification of Prisoners Act 1920, are inadmissible.
91. Additionally, it is pertinent to mention that Section 311-A has been inserted in the Code of Criminal Procedure by an amendment of 2005 (w.e.f.23.06.2006) whereby taking specimen signatures or handwritings are also included within the powers of the Magistrate, for the purposes of investigation. The amendment has been effected in pursuance of the many judicial verdicts given by the various High Courts and the Supreme Court of India.
92. I have the privilege of considering the judgment of my learned brother Shri Anil Kumar, J. however, I had held in Criminal Appeal No.362/2008 decided on 25.05.2010, titled as Harpal Singh Vs. State with another learned brother Sh.Pradeep Nandrajog, J that the sample handwriting obtained by the police when the accused was in custody, was not admissible as no permission was taken from the court concerned, to obtain his specimen handwriting nor were the provisions of Identification of Prisoners Act 1920, complied with.
93. Additionally, my learned brother Shri Anil Kumar, J, has relied on another Bench judgment in Criminal Appeal No.1005/2008 titled as Crl. Appeal No.804/2001 Page 109 of 110 Bhupinder Singh Vs. State (Govt of NCT of Delhi) vide order dated 06.04.2011 wherein a similar issue has been ordered to be referred to the larger bench. Therefore, I too hold that the question as raised by my learned brother Shri Anil Kumar, J be referred to the larger bench in the facts and circumstances of the instant case.
SURESH KAIT, J August 11th 2011 RS/J/Mk Crl. Appeal No.804/2001 Page 110 of 110