Rajasthan High Court - Jaipur
Satish @ Leelu vs State Of Rajasthan Through Pp on 31 January, 2018
Author: Mohammad Rafiq
Bench: Mohammad Rafiq, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 677/2016
Satish @ Leelu Son of Shri Satyapal, By Caste Yadav, R/o
Sherpur, Police Station Behror, at present Mohalla Sabalpura,
Behror, District Alwar (Raj.)
(At present confined in District Jail, Alwar)
----Accused-Appellant
Versus
State Of Rajasthan Through Public Prosecutor
----Respondent Connected With D.B. Criminal Appeal No. 678/2016 Ravindra S/o Mastaram @ Mahesh Chand, By Caste Saini, Resident of Burdod, Police Station Behror, District Alwar (Raj.), at present Resident of Tenant, Near Saini Dharamkanta, Kotputli, District Jaipur (Raj.) (At present confined in Central Jail, Alwar)
----Accused-Appellant Versus State Of Rajasthan Through P.P.
----Respondent D.B. Criminal Appeal No. 679/2016 Sher Singh @ Sheru Son of Rohitash Meena, by caste Meena, Resident of Dantil, Police Station Pragpura, at present R/o Ward No.3, Adarsh Nagar, Kotputali, District Jaipur (Raj.) (AT PRESENT IN DISTRICT JAIL, ALWAR)
----Accused-Appellant Versus The State Of Rajasthan Through P.P.
----Respondent D.B. Criminal Appeal No. 680/2016 Yuvraj @ Sonu Son of Ranjeet Singh, by caste Mali, Resident of Dharsu, Police Station Sadar Narnaul, Hariyana, At present R/o Ward No.2, Adarsh Nagar, Kotputali, District Jaipur (Raj.) (AT PRESENT IN DISTRICT JAIL, ALWAR)
----Accused-Appellant Versus The State Of Rajasthan Through P.P.
----Respondent For Appellant(s) : Mr. Vinay Pal Yadav for appellant Satish @ Leelu in Appeal No.677/2016 (2 of 26) [CRLA-677/2016] Mr. Gaurav Gupta and Mr. Pawan Saini for appellant Ravindra in Appeal No.678/2016 Pt. Shri Ram Joshi for appellant Sher Singh @ Sheru in Appeal No.679/2016 and appellant Yuvraj @ Sonu in appeal 680/2016 For Respondent(s) : Mrs. Sonia Shandilya, Public Prosecutor, for the State HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment Per Hon'ble Mr. Justice Mohammad Rafiq:
31/01/2018 All these four appeals are directed against judgment and order dated 03.06.2016 passed by the Court of learned Additional Sessions Judge No.3, Alwar, in Sessions Case No.111/2011, whereby accused-appellant Sher Singh @ Sheru was convicted for offence under Sections 396, 201 IPC and Section 4/25 of the Arms Act, whereas accused-appellants, namely, Yuvraj @ Sonu, Ravindra and Satish @ Leelu have been convicted for offence under Sections 396 and 201 of the IPC. For offence under Section 396 IPC, the accused-appellants have been sentenced to undergo simple life imprisonment with fine of Rs.25,000/- each; in default of payment of fine each to further undergo additional two years imprisonment. For offence under Section 201 IPC, the accused-
appellants have been sentenced to undergo seven years simple imprisonment each with fine of Rs.10,000/- each; in default of payment of fine each to further undergo one year's additional imprisonment. For offence under Section 4/25 of the Arms Act, accused-appellant Sher Singh @ Sheru has been sentenced to undergo one years' simple imprisonment with fine of Rs.1000/-; in (3 of 26) [CRLA-677/2016] default of payment of fine, he has to further undergo three months' additional imprisonment.
Brief facts giving rise to these appeals are that on 02.06.2011 one Rajendra Prasad S/o Shri Chaina Ram Raigar, submitted a written report to the Station House Officer, Police Station Narainpur, District Alwar, on the basis of which the police registered regular First Information Report No.53/2011 for offence under Sections 302 and 201 of the Indian Penal Code (for short, 'the IPC'). In the written report, it was alleged that on that date at 10:00, he received a telephonic information from a villager that dead body of a naked person was lying two kilometers ahead of Talvraksh road towards Alwar. Someone has murdered him by slitting his neck. It appears that he was murdered elsewhere but his dead body has been thrown at that place. In order to destroy the evidence, clothes of the deceased have also been removed. The police after investigation filed charge-sheet against the accused-appellants for offence under Sections 302 and 201 IPC as also under Section 4/25 of the Arms Act. The case being exclusively triable by a Court of Sessions, was committed to the Court of the District & Sessions Judge, Alwar and ultimately that came to be transferred to the Court of Additional Sessions Judge No.3, Alwar for trial. The trial court framed charges against the accused-appellant Sher Singh for offence under Sections 396, 201 IPC and Section 4/25 of the Arms Act, whereas against accused- appellants Yuvraj @ Sonu, Ravindra and Satish @ Leelu the charges were framed for offence under Sections 396 and 201 of the IPC. Later on the learned trial court additionally framed charge against the accused-appellants for offence under Section 302/149 (4 of 26) [CRLA-677/2016] IPC. The charges were read over to the accused-appellants. They denied the charges and claimed to be tried. The prosecution produced 27 witnesses and also exhibited 105 documents in support of its case. The defence produced one witness Daya Ram as DW-1 and exhibited eight documents from Exhibit D-1 to D-8. After hearing learned counsel for the parties, the learned trial court held the accused-appellants guilty of the charges and accordingly convicted and sentenced them as indicated above. Hence these four separate appeals on behalf of four accused- appellants.
Mr. Vinay Pal Yadav, learned counsel for accused-appellant Satish @ Leelu, has argued that the case of the prosecution is mainly based on three circumstances, namely, last seen, recovery of articles and finger prints. It is argued that evidence of last seen can be relied against the accused only where time gap between the point of time, when the accused and the deceased were last seen alive together and later when the deceased found dead, is so small that it can be inferred that possibility of any person other than the accused being the author of the crime, becomes impossible. In the present case, the prosecution examined two witnesses to prove the evidence of last seen, namely, Satish @ Satveer (PW-4) and Ravindra Kumar (PW-11). Both these witnesses during the course of investigation, though identified accused-appellant Satish @ Leelu in the test identification parade, but during trial, both the star witnesses were unable to identify accused-appellant Satish @ Leelu. Learned counsel argued that the test identification parade held during investigation is not a substantive piece of evidence and has no evidentiary value. It is (5 of 26) [CRLA-677/2016] used only for the purpose of investigation. The prosecution thus has failed to prove the circumstance of last seen of the deceased in the company of the accused-appellant.
Learned counsel submitted that another circumstance that has been made basis for conviction of the accused-appellant is that of recovery of jack and stepney of the vehicle vide Exhibit P-
15. The attesting witness of this recovery is constable Laxman Singh and constable Bharosi. Laxman Singh (PW-20) has clearly stated that stepney and jack did not have any blood stain marks. The godown from where stepney and jack have been recovered was also lying in an open area and there were number of helpers/labourers working there. None of them was associated with recovery as attesting witness. There is no evidence that this godown belonged to Satish or his any other family member. Umesh Beniwal (PW-26), the Investigating Officer, has clearly admitted that he did not make any investigation as to who was owner of the godown. Another attesting witness to this recovery is constable Bharosi. He has also not been examined and therefore an adverse inference should be drawn against the prosecution that had he appeared in the witness-box, he would have deposed against the prosecution. Recovery of jack and stepney allegedly recovered at the instance of accused-appellant does not prove anything against him, muchless beyond reasonable doubt. Recovered articles are not valuable articles and recovery has not been made soon after the incident. It cannot be believed that the accused-appellant had robbed the aforesaid articles and he would have kept in the custody for one-and-a-half-month. Besides, the recovery of the articles has not been made from the exclusive (6 of 26) [CRLA-677/2016] possession of the accused-appellant. In fact, there is no direct evidence to prove that the recovered articles were in the vehicle at the time of incident. Recovery is a weak type of evidence and can be used only for the purpose of corroboration. It is therefore easy for the Investigating Officer to plant the recovery. Learned counsel argued that it is a settled proposition of law that only on the basis of recovery, conviction under Section 302 of the IPC cannot be sustained. Learned counsel, in support of his argument, has also relied on judgments of the Supreme Court in Tarseem Kumar Vs. Delhi Admn. - 1994 Suppl. (3) SCC 367 and Dhanraj @ Dhand Vs. State of Haryana - (2014) 6 SCC 745.
Further argument of the learned counsel for the accused- appellant is that the prosecution has failed to produce relevant document regarding finger print. The settled proposition of law is that unexhibited documents can not be read and treated as the evidence. The prosecution examined Prahlad Swaroop (PW-15), Sanjay Singh (PW-16) and Harpal Singh (PW-17). Prahlad Swaroop (PW-15), in his statement, has stated that S.H.O., Narainpur, did not give any written request for obtaining chance print but only telephonically informed and that too through the Superintendent of Police, Alwar. Karampal (PW-2) has stated that the vehicle was locked but the police personnel broke open the lock. Sanjay Singh (PW-16) has stated that the sample specimen of the chance print of the vehicle were obtained in his presence at the Police Station, Narainpur, and that were taken by the A.S.I. of M.O.B. Branch, the number of which was five. Prahlad Swaroop (PW-15) has stated that he was posted as A.S.I. at M.O.B. Branch, S.P. Office, Alwar. A telephone message was received and (7 of 26) [CRLA-677/2016] thereafter he went to Police Station, Chirawa and developed the chance print from the vehicle, but the Investigating Officer did not support his version. Karampal (PW-2) has stated that lock of the vehicle was broken by the police on 08.06.2011. Karampal (PW-2) was the owner of the Scorpio vehicle, which was driven by the deceased. The entire case hinges on circumstantial evidence since there is no direct evidence to prove the charges against the accused-appellant. It is clear that Prahlad Swaroop (PW-15) has not stated correct version before the court because the vehicle was unlocked on 08.06.2011, therefore, it was impossible that Prahlad Swaroop (PW-15) would have developed the chance print on the vehicle on 03.06.2011. This chance print was developed in the presence of the Investigating Officer and no independent witnesses were called, therefore, it is not safe to sustain conviction of the accused-appellant on the basis of such weak evidence. It is argued that nothing has come on record which establishes that Prahlad Swaroop (PW-15) reached the Police Station, Chirawa, on 03.06.2011 because the S.H.O. and other police personnel, who were posted at the Police Station, Chirawa, were not examined before the Trial Court nor produced any document on record to establish that Prahlad Swaroop (PW-15) reached at the Police Station, Chirawa, on 03.06.2011. Sanjay Singh (PW-16) has specifically stated that chance print was developed at Police Station, Narainpur, and seized vide seizure memo Exhibit P-57. This witness does not support the document Exhibit P-58, because he has stated nothing which admits that finger prints were taken before him. Relying on the judgments of the Supreme Court in Prakash Vs. State of Karnataka - (2014) 12 SCC 133 and Mohd. Aman and Another Vs. State of Rajasthan -
(8 of 26) [CRLA-677/2016] (1997) 10 SCC 44, learned counsel argued that finger prints of the accused has to be obtained with the permission of the Magistrate, which has not been done. Alleged admitted finger prints of the accused therefore can not be read in evidence.
Mr. Gaurav Gupta, learned counsel for the accused-appellant in Criminal Appeal No.678/2016, argued that Satish @ Satyaveer Singh (PW-4) is not a reliable witness. It has not been established as to how the accused-appellant was involved in the crime. While in the test identification parade conducted in jail, he identified five accused but in court he could identify only two accused, namely, Ravindra and Yuvraj @ Sonu, though all five were present in the court. How could he earlier identify five persons, though, as per his police statement, he saw only three persons who came to hire the Scorpio vehicle. In fact, in his court statement, he has stated that accused were shown to him in the Tehsil office and that none of the accused were kept 'baparda' (muffled face). Ravindra Kumar (PW-11) could identify only three accused, namely, Ravindra, Sher Singh and Yuvraj in the court. He has stated that while he was returning back from 'Bharthari' temple on 01.06.2011 at about 8:30 PM, he saw Devendra @ Kaliya, the driver of Scorpio Vehicle No.RJ-2119 of white colour, with whom there were 4-5 more persons of the village but he could see only Devendra @ Kaliya. On enquiry, Devendra @ Kaliya told him that those 4-5 persons were consuming liquor and playing stereo in a very high sound. Then he left for his home. In the court statement, this witness has identified all other accused except Satish as those who were involved in the incident.
(9 of 26) [CRLA-677/2016] Learned counsel argued that recovery of wrist watch and key of the vehicle has been falsely shown at the instance of accused- appellant vide memo Exhibit P-39. These recoveries cannot be believed because none of the independent witnesses said that they were present while the recoveries were made. Laxman Singh and Bharosi Ram were attesting witnesses of recovery. Both are police constables. While Bharosi Ram has not been examined, therefore, adverse inference should be drawn against the prosecution. It is argued that the registration certificate of the vehicle was not recovered by the police. None of the articles that were relied by the prosecution were produced before the court. The articles that were recovered were not put to identification by the complainant party. Learned counsel has referred to Exhibit P- 12 vide which purse of the deceased was recovered. He argued that therein mention is made of certain love letters found in the purse, but no investigation was conducted by the police with regard to those love letters. Karampal (PW-2) also said that the accused were shown to him in the police station, therefore, his testimony also cannot be relied against.
Pt. Shri Ram Joshi, learned counsel for appellant Sher Singh @ Sheru in Appeal No.679/2016 and appellant Yuvraj @ Sonu in appeal 680/2016 has argued that blood group of none of the accused could be ascertained. He argued that the prosecution in the present case failed to get the blood group of the accused and the deceased ascertained. The blood stained knife was carried by accused Sher Singh @ Sheru. Learned counsel argued that the learned trial court has erred in law in convicting the accused for offence under Section 396 of the IPC, whereas requirement of law (10 of 26) [CRLA-677/2016] is that there should be involvement of five or more persons in the crime. Karampal (PW-2), Suresh Kumar (PW-3), Satish @ Satyaveer Singh (PW-4) and Ravindra Kumar (PW-11) have stated that there were 3-4 persons present whereas according to law, minimum five or more persons are essential for constituting the offence under Section 396 IPC. It is argued that learned trial court has erred in relying on statement of Satish @ Satyaveer Singh (PW-4) and Ravindra Kumar (PW-11), with regard to evidence of last seen, whereas both these witnesses have admitted that they have not seen deceased Devendra @ Kaliya.
Learned counsel argued that the accused were shown to the witnesses before conducting the test identification parade. Accused-appellants have therefore been falsely implicated in the present case. As per statement of Ravindra Kumar (PW-11), recovered articles were eventually deposited with the 'maal- khana'. Learned counsel argued that learned trial court has erred in convicting the accused-appellant for offence under Sections 396, 201 IPC and Section 4/25 of the Arms Act. No such offence is made out and proved against the accused-appellant. The prosecution has completely failed to prove the guilt of the accused-appellant beyond reasonable doubt.
Learned counsel argued that learned trial court has failed to consider that while appreciating the evidence in a criminal case, the court should keep in view the two cardinal principles that the guilt against the accused must be proved beyond reasonable doubt and that the burden on the accused is not so heavy to prove the plea taken by him as it lay on the prosecution. The burden can be discharged by the accused merely by showing the (11 of 26) [CRLA-677/2016] preponderance of probability in favour of the plea taken by him. There are several infirmities and contradictions in the statements of the prosecution witnesses and therefore no reliance can be placed upon the testimony of such witnesses. Statements of the prosecution witnesses are inconsistent, contradictory and suffer from infirmities. The witnesses of the prosecution have suppressed the genesis of the occurrence and have not corroborated the story of the prosecution. The prosecution witnesses cannot be treated as credible and reliable. Learned trial court has further failed to consider that before identification parade, the accused-appellants were already seen by the witnesses and such identification has got no relevance.
Mrs. Sonia Shandilya, learned Public Prosecutor appearing on behalf of the State, while arguing the matter at length, opposed the criminal appeals and supported the impugned judgments.
We have given our anxious consideration to rival submissions and perused the material on record.
First circumstance against the accused-appellants is that they hired Scorpio vehicle of Karampal (PW-2), which was being driven by deceased Devendra @ Kaliya, who was engaged as driver on that vehicle. Karampal (PW-2) has deposed that on 01.06.2011 at about 01:30 PM the deceased met him and said that he would go to 'Bharthari' (a nearly temple) for offering 'prasad' to deity. He had that conversation with Devendra @ Kaliya at 08:00 PM, who told that wind-sheet of the Scorpio vehicle was broken because a peacock suddenly hit it. On the next day, he could not contact the deceased as his phone was switched off.
(12 of 26) [CRLA-677/2016] When he went to taxi stand, he learnt that on the previous day three-four persons had booked the taxi for 'Bharthari' at about 04:00-05:00 PM. This witness has further stated that when he along-with father of the deceased and others went towards Neemrana in search of deceased Devendra @ Kaliya, they came to know about one Scorpio with 4-5 persons, who were drinking wine and playing loud music. Near the 'Bharthari' temple, blood was scattered and on the next day they came to know that an unknown dead body was taken to Community Health Center, Thanagaji. When this witness along-with father of the deceased went to Community Health Center, Thanagaji, they found that it was dead body of Devendra @ Kaliya. Exhibit P-1 is the written report lodged by Rajendra Prasad (PW-1), the Sarpanch of Village Mundawra, on 02.06.2011, who was telephonically informed by the villagers that a naked dead body was lying at a distance of two kilometers at outer road of 'Taalvraksha'. He along-with other villagers went to the spot and also informed the Police Station, Narainpura. When Karampal (PW-2) tried to call him on cellphone at 6:00 PM on 01.06.2011 he missed his call. Thereafter when he called him back on his two numbers, he told him that he (this witness) would call back after some time and disconnected the phone. Then around 8:00 PM on that day, he received phone call from driver Devendra @ Kaliya that since the wind-sheet of the vehicle has been broken due to peacock, he would come on following day i.e. 02.11.2011. On 02.06.2011 when this witness tried to contact him at 10:00-11:00 AM, but his phone could not be connected. Thereafter this witness enquired from the father of Devendra @ Kaliya but he too had no information about him.
(13 of 26) [CRLA-677/2016] The police reached the spot within twenty minutes and started investigation. The police recovered blood stained soil and control soil vide Exhibit P-4. The police also recovered blood stained and control pebbles vide Exhibit P-5. Photography of the spot and the dead body is Exhibit P-6. One packet Gold Flake Cigarette was recovered vide Exhibit P-7. One torn shirt was recovered vide Exhibit P-8. The police seized the Scorpio vehicle bearing registration number RJ-32-UA-2119 vide memo Exhibit P- 11 on 08.06.2011 from the Police Station Chirawa. The purse of the deceased was seized vide memo Exhibit P-12. This witness was the attesting witness. The seat cover of the vehicle was seized vide memo Exhibit P-13. He was signatory to all these memos. The seizure memo of the liquor bottle was Exhibit P-14. The stepney and jack of the vehicle were recovered vide Exhibit P-15. A wrist watch and key of the vehicle were also recovered at the instance of accused Ravindra vide memo Exhibit P-16, which the accused got from 'tand' (shelf stone slab) of a room of his house and handed over to the police in his presence. An attachee and identity card of the deceased were recovered from the house of accused Yuvraj @ Sonu vide Exhibit P-18.
Suresh Kumar (PW-3), father of the deceased, has stated that on 01.06.2011 his son Devendra told him that he would go to 'Bharthari' temple as that was the day of 'amavasya' (last day of 'krishna paksha') and he took his clothes in a suitcase. He was driving the vehicle of Karampal, who owned 4-5 vehicles. He telephoned his daughter-in-law at around 08:00-08:30 PM, and told that wind-sheet of his vehicle has been broken on being hit by a peacock and that he would come back on the following day.
(14 of 26) [CRLA-677/2016] When on the next day he did not return back, he along-with Karampal went to 'Bharthari Tiraha' at around 04:00-05:00 PM and on enquiry from the taxi drivers, learnt that on previous day, 2-3 persons were talking about going to 'Bharthari' by taxi and it might be possible that deceased would have taken the taxi for them. The cellphone of the deceased was lying switched off. These persons narrated their identity saying that one was wearing T- shirt, another one had ear-rings and that they were in the age group of 20-22 years. Those persons were saying that they would pick another two persons from Pratapura. This witness further stated that when he tried to call the deceased, his cellphone was switched off. Thereafter this witness got a vehicle hired and went to 'Bharthari' along-with Karampal and his son Surendra. They reached 'Bharthari' at around 12:30 Hrs., where they enquired from the local residents, who told them that they saw a vehicle standing near a tree at a distance of about five hundred meters from there and 4-5 persons were consuming liquor there and that when they reached there, then those 4-5 persons left the place. They saw some liquid coming out of the vehicle and then they saw that liquid in the light of torch and they found that there were blood spots on the earth and thereafter they informed the police thereabout. Accused Yuvraj @ Sonu got the attachee of the deceased recovered vide memo Exhibit P-17 from his house. He was signatory to this memo. He also stated that the police recovered the wrist watch and key of the Scorpio vehicle at the instance of accused Ravindra in his presence.
Satish @ Satyaveer Singh (PW-4) has stated that he was driver of the vehicle (Bolero) of his maternal uncle Anil Kumar. It (15 of 26) [CRLA-677/2016] was on 01.06.2011 at around 04:00-05:00 PM that three boys came and expressed the desire to hire a vehicle to go to 'Bharthari'. They wanted to hire a Scorpio vehicle. On this, he thought of Devendra, who was driver on Scorpio vehicle. He gave him a missed call. Devendra called him back. This witness told him that certain passengers wanted to hire Scorpio vehicle. Devendra came and went with these three boys. This witness received a phone call from Devendra on his cell informing about the breakage of the wind-sheet on being hit by a peacock. On the following day, father of Devendra and owner of the Scorpio vehicle were making enquiry about Devendra. On that day, they received an information that a dead body of an unknown person was found in the area of Narainpur Police Station. One out of three boys, who hired the vehicle, had worn T-shirt and jeans, and second had worn white T-shirt. This witness has rightly identified accused Ravindra and Sonu in the court. This witness also stated that he had gone to jail for identifying the accused and correctly identified Satish and Ravindra. The memo of Identification Parade was Exhibit P-22. He has stated that he correctly identified the accused in the test identification parade, which was conducted in the present of the Judicial Magistrate.
Sitaram (PW-5) and Ramkishan (PW-6) have both stated that on 01.06.2011 at around 8-9 PM while they were going to the house of Ramkishan, they saw a white colour Scorpio vehicle lying parked on the way. While they were returning back from the house of Ramkishan, they noticed that the vehicle was not parked there but they saw there some blood stains. The blood was spread on and around the place where the vehicle was parked. They went (16 of 26) [CRLA-677/2016] to the police chowki and informed the police. Certain police personnel came with them. When they saw the place in the light of torch, they found that blood was spread on the road and the marks of the blood were found up to the crossing. There were 5-6 persons in the Scorpio vehicle on the spot, who were smoking 'bidi-cigarette'. All these were seized by the police. Vikram (PW-7) is the attesting witness of these recovery memos. Site plan is Exhibit P-2. Seizure memo of blood stained and control soil is Exhibit P-4. The blood stained road gravel (pebbles) and control road gravel were recovered vide Exhibit P-5. Photographs of the place of occurrence are Exhibit P-6. The blood stained gold flake cigarette packet was recovered vide Exhibit P-7 and the seizure memo of shirt of the deceased is Exhibit P-8.
Ravindra Kumar (PW-11) is another taxi driver. He has stated that on 01.06.2011 in the evening around 08:30 PM, he was returning from 'Bharthari Tiraha'. He noticed the Scorpio vehicle, which was being driven by deceased Devendra and there were 4-5 persons sitting in the vehicle and they were taking drinks and consuming other eatables. When he reached the village, he learnt that Devendra @ Kalu has been murdered. Thereupon, he told the owner of the vehicle about the presence of the vehicle at given address. In cross-examination, this witness has stated he identified all the accused persons present in the court except Satish.
Lakhan Singh (PW-12) has stated that he along-with Karampal went on vehicle to Narainpur Police Station. The vehicle of Karampal was lying there. There were blood stains inside the vehicle including the seat cover. Liquor bottles were also lying in (17 of 26) [CRLA-677/2016] the vehicle. There was also a purse lying in the vehicle. Ranveer (PW-14) has stated that a blood stained shirt was recovered from the 'kotri' (room) near the well of agriculture field at the instance of accused Ravindra vide memo Exhibit P-40. Prahlad Swaroop (PW-15), who was at the relevant time posted as A.S.I., MOB Branch, S.P. Office, Alwar, has stated that he went to Police Station, Chirawa, where the Scorpio vehicle was lying parked. He took the chance print and developed them in several copies on 05.06.2011. All chance prints were taken from inside the vehicle and handed over to the In-charge of the Police Station, Narainpur. The disputed chance print was taken vide memo Exhibit P-57. The undisputed finger print of accused persons was taken on 20.07.2011 vide Exhibit P-58. In cross-examination, he has stated that he did not receive any written requisition from the S.H.O., Police Station Narainpur for taking chance print and it was a telephonic message and that too was given in the office of the Superintendent of Police, Alwar. He received the telephonic message on 03.06.2011 and he departed on that day itself. He stated that it is true that it was not noted on Exhibit P-57 that he left on 03.06.2011 for obtaining chance print. He obtained finger print and brought them to Police Station Narainpur, where he sealed them. He obtained admitted finger print of the accused in Police Station, Narainpur vide Exhibit P-58. In cross-examination, this witness denied to have obtained the finger print of the accused in the presence of a Gazetted Officer or a Magistrate.
Here in this connection, learned counsel has argued that finger print of the accused could be obtained only before a Magistrate. Reliance in this connection has been placed on the (18 of 26) [CRLA-677/2016] judgment of the Supreme Court in Prakash Vs. State of Karnataka
- (2014) 12 SCC 133 and Mohd. Aman and Another Vs. State of Rajasthan - (1997) 10 SCC 44. We are not inclined to countenance the submission in view of the latest judgment dated 13.10.2017 of this court in Mahaveer Prasad Vs. The State of Rajasthan - D.B. Criminal Appeal No.1140/2008, wherein this court had an occasion to consider the question whether finger print could be obtained in absence of a Magistrate. In that case, reliance was also placed on the judgment of the Supreme Court in Mohd. Aman, supra. Distinguishing these judgments, it was held as under:-
"Contention that the fingerprints of the accused, as per the provisions of Section 4 and 5 of the Identification of Prisoners Act, 1920 (for short 'the Act of 1920'), having not been obtained with due permission of the Magistrate, would not be admissible in evidence, is noted to be rejected for the stated reasons. This question came up for consideration before the Larger Bench of Delhi High Court on a reference made by Division Bench of that Court in Bhupinder Singh Vs. State (Criminal Appeal No. 1005/2008) decided on 30.09.2011. The question that was required to be answered was whether the sample finger prints given by the accused during investigation under Section 4 of the Act of 1920, without prior permission of the Magistrate under Section 5 of the Act of 1920, will be admissible in evidence or not? Relying on judgment of three-judge Bench of the Supreme Court in Shankaria Vs. State of Rajathan - (1978) 3 SCC 435, it was held that concept of investigation as defined in Section 2(h) of Cr.P.C. clearly stipulates that investigation includes all the proceedings under the Code for collection of evidence conducted by a police officer or by any person other than a Magistrate, who is authorised by the Magistrate in this behalf. The term investigation as defined in Cr.P.C. is an inclusive definition and includes all efforts of a Police Officer for collection of evidence namely proceeding to the spot, ascertaining facts and circumstances, discovery and arrest of the suspected offender, collection of evidence relating to commission of offence, which may consist of examination of various persons including the accused and taking of their statements in writing and the search of places or seizure of things, which are considered essential for investigation and to be produced at the trial. Delhi High Court also (19 of 26) [CRLA-677/2016] relied on the judgment of the Supreme Court in Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi, (1974) 1 SCC 345 and Inspector of Police & Ors. Vs. N.M.T. Joy Immaculate, (2004) 5 SCC 729 wherein it was held that evidence obtained on an illegal search cannot be excluded and the criminal justice should not be allowed to become casualty for the wrongs committed by the investigating officers; secondly it was laid down that admissibility of evidence or a piece of evidence has to be judged having regard to the provisions of the Evidence Act.
Relied judgment of the Supreme Court in Mohammad Aman (Supra) cannot be taken as authority to hold that the police is not competent to obtain finger prints of the accused in the course of investigation, unless permitted to do so by the Judicial Magistrate. Although the Supreme Court in that case held that it is true that under Section 4 of the Act of 1920, the police is competent to take finger prints of the accused, but to dispel any suspicion as to its bona fide or to eliminate fabrication of evidence, it is eminently desirable that they are taken before or under the order of a Magistrate. Thus, the observation only mentions about the desirability and the manner in which finger prints ought to have been obtained. Three-Judge Bench of the Supreme Court in Shankaria (supra) while dealing with the provisions of Sections 4 and 5 of the Act of 1920 held as under:
"83. Mr. Gambhir next contends that in view of Section 5 of the Identification of Prisoners Act, it was incumbent on the police to obtain the specimen thumb-impressions of the appellant before a Magistrate, and since this was not done, the opinion rendered by the Finger Print Expert, Mr. Tankha, by using those illegally obtained specimen finger-impressions, must be ruled out of evidence.
84. The contention appears to be misconceived because in the State of Rajasthan, the Police were competent Under Section 4 of the Identification of Prisoners Act, to take the specimen finger-prints of the accused, and this they did, in the instant case, before the Superintendent of Police, Shri K. P. Srivastava. It was not necessary for them to obtain an order from the Magistrate for obtaining such specimen fingerprints."
Again in State of Madhya Pradesh Vs. Devendra, (2009) 14 SCC 80, a three-Judge Bench of the Supreme Court analysing the anatomy of Sections 3, 4 and 5 of the Act of 1920 held as under:
"10. Section 3 deals with taking of measurements of the convicted persons. The photographs and measurements can be taken by the police officer in the manner prescribed. Section 4 deals with taking of measurement, (20 of 26) [CRLA-677/2016] etc. of non-convicted persons. It is taken if the police officer so requires it and it has to be done in the prescribed manner.
11. So far as Section 5 is concerned, it deals with the power of the Magistrate to direct any person for measurements or photographs to be taken if he is satisfied that for the purpose of any investigation or proceedings under the court the same is necessary. XXX XXX XXX l4. Needless to say, the directions are subject to provisions of the Act, the Regulations and the Code. In case of conflict statute itself prevails. In case of complainant as well as witnesses, where the prosecution wants to protect the identity, the reasons, therefor, must be recorded. In case of rape victims, photographs should not be taken."
Argument before the Supreme Court in State of Bombay Vs. Kathi Kalu Oghad, AIR 1961 SC 1808 was that Section 27 of the Indian Evidence Act 1872 is violative of Article 14 of Constitution of India and the impression of the palms and finger prints taken from the appellant and there after his arrest for comparison with the impression on the glass panes and phials were not admissible in view of the provisions contained in Article 20(3) of the Constitution. Though the provisions of Section 4 and 5 of the Act of 1920 were not challenged or relied in that case, but it was argued in the context of Article 20(3) of the Constitution that the measurements collected would be inadmissible. Dealing with the said argument, the Supreme Court in para 16 held as under:
"16. In view of these considerations, we have come to the following conclusions:
(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.
(3) 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving (21 of 26) [CRLA-677/2016] materials which may be relevant at a trial to determine the guilt or innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'.
(5) 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in court or otherwise.
(6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in court. Case law has gone beyond this strict literal interpretation of the expression, which may now bear a wider meaning, namely, bearing testimony in court or out of court by a person accused of an offence, orally or in writing.
(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made."
Even Sanjay Singh (PW-16), a Constable of Police Station, Narainpur, has proved that the chance prints were taken from the vehicle. Sube Singh (PW-19), a Constable, has stated that he was entrusted three packets for depositing with Forensic Science Laboratory by Head Constable Sube Singh (PW-19), the In-charge of 'Malkhana'. He duly deposited the packets and produced the receipt (Exhibit P-61) thereof in the 'Malkhana' obtained from the F.S.L. He stated that on the same day seven sheets of the chance prints with the sample finger prints were deposited in the Finger Print Bureau, Jaipur, receipt of which was Exhibit P-61.
Laxman Singh (PW-20) is the attesting witness of various memos of the prosecution. Dr. Duli Chand Meena (PW-21), who conducted the postmortem along-with two other doctors on the body of the deceased, has proved that the cause of death of the deceased was haemorrhagic shock due to injury to major vessels, mechanical asphyxia due to trachea injury and neurogenic shock (22 of 26) [CRLA-677/2016] due to injury to spinal cord. Dr. Manish Jain (PW-22) has also proved the postmortem report (Exhibit P-70). Arjun Singh (PW-
23), a Constable of Police Station, Malakhera, has stated that on 01.06.2011 at about 10:30 PM, Sitaram Yogi and Ramkishan Yogi were passing by the house of Ramkishan. Scorpio vehicle was parked out on the road. Four-five boys were sitting therein and were smoking. After 15-20 minutes, Sitaram and Ramkishan were coming back from the house of Ramkishan. The blood stains were spread on the road where Scorpio vehicle was parked. Umesh Beniwal (PW-26), the Investigating Officer, has proved different stages of investigation and all the memos.
Satish @ Satyaveer Singh (PW-4) and Ravindra Kumar (PW-
11) have identified all the accused in the test identification parade. But in the court, Satish Satyaveer Singh (PW-4) identified accused Ravindra and Yuvraj @ Sonu. Attesting witness Ravindra Kumar (PW-11) in the court identified accused Ravindra, Sher Singh @ Sheru and Yuvraj @ Sonu. Satish @ Satyaveer Singh (PW-4) has given detailed account of clothes which the accused were wearing and that has also been corroborated by the test identification parade. Articles that were sent to F.S.L. gave report (Exhibit P-97) that knife, shirt of the accused, cigarette packet, seat cover and crap bandage recovered by the prosecution were found to contain positive human blood, which connects the accused with the crime. Besides, the looted articles were recovered from the accused and that is also an incriminating circumstance. The chance print lifted from the Scorpio matched with admitted signature of the accused. The stepney and jack of the Scorpio were recovered at the instance of accused Satish @ Leelu vide Exhibit P-15, pursuant to (23 of 26) [CRLA-677/2016] information given under Section 27 of the Evidence Act vide memo Exhibit P-98. Laxman Singh (PW-20) and Karampal (PW-2), the attesting witnesses, have proved the recovery.
Contention raised on behalf of the defense that since there were only three accused, who had come to hire the Scorpio vehicle on the taxi stand and therefore the identification of the five accused by three witnesses in the 'test identification parade', makes the prosecution case doubtful qua at-least two of them and since does not ascertainable as to which two of the five did not come to the taxi stand, all accused are entitled to benefit of doubt, is liable to be rejected. The witnesses have identified the accused in regard to the event of visiting to the taxi stand for hiring the Scorpio vehicle and alleged that they were three accused but in regard to their being seen in the Scorpio vehicle taking liquor and listening to music loudly, they had seen 4-5 accused and therefore identification of the accused by the witnesses when they saw them in two different spells cannot be disbelieved. No doubt, Satish @ Satyaveer Singh (PW-4) has stated that three persons had come to hire Scorpio vehicle on the taxi stand, one of them was wearing T-shirt and jean pants, another one was wearing white coloured T- shirt and for third he could not say as to what he was wearing but he identified Ravindra and Sonu by touching them in the court that they were amongst those three. In examination-in-chief, he has also stated that he went to the jail for identifying Satish and Ravindra and correctly identified them. In this connection, this witness has proved Exhibit P-22, the memo of identification, and also admitted his signatures on the same.
(24 of 26) [CRLA-677/2016] Ravindra Kumar (PW-11) has, however, stated that about 4-5 accused were seen by him in the Scorpio vehicle and taking drinks and listening to loud music. When he saw Devendra @ Kalu (deceased), he enquired from him as to what he was doing, he told that they were enjoying the party. On the following day, he learnt that deceased Devendra @ Kaliya was murdered. He told this fact to Bholya, the owner of the vehicle, that he had seen the said vehicle in 'Bharthari' on the previous day and that he could identify the accused. This witness also proved the memo of 'test identification parade' vide Exhibit P-22 in which he correctly identified accused Satish, accused Ravindra S/o Mastaram vide Exhibit P-23, accused Radhey Shyam Saini vide Exhibit P-24, accused Yuvraj vide Exhibit P-25 and accused Sher Singh vide Exhibit P-26. In this manner, five accused, who according to him were seen by him in the Scorpio vehicle, were taking drinks and listening the music loudly in the party. Having stated that, he correctly identified Satish in the 'test identification parade', he has made the statement in the examination-in-chief that he was not present among them. He supported his statement with respect to rest of the accused. In cross-examination, he has substantially stood the scrutiny of cross-examination. Out of four accused present in the court, Ravindra Kumar (PW-11) has denied the presence of Satish with rest of the accused at the time in the Scorpio vehicle but correctly identified Ravindra Sher Singh and Yuvraj. The recovery of stepney and jack of the vehicle has been proved by Karampal (PW-2), the owner of the vehicle.
Minor discrepancies and inconsistencies in the statements of the prosecution witnesses and minor lacuna in the investigation (25 of 26) [CRLA-677/2016] left by the police cannot be a reason for discarding the entire prosecution case, if the evidence is otherwise sufficient and inspiring to bring home the guilt of the accused. In Leela Ram (D) through Duli Chand Vs. State of Haryana and Another - AIR 1999 SC 3717, it was held by the Supreme Court that there is bound to be some discrepancies between the narrations of different witnesses, when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. The court shall have to bear in mind that different witnesses react differently under different situations whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. So it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise. It is in that light that the conduct of the witnesses has to be appreciated.
At this juncture, a very pertinent observation made by Hon'ble Supreme Court in case of Sucha Singh & Anr. Vs. State of Punjab (2003 (2) WLC (SC) Cr., 285) at para 17 are required to be reproduced as under :-
(26 of 26) [CRLA-677/2016] "Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law.
In view of the above discussion, we do not find any infirmity in the impugned judgment and order of the learned trial court and the same is affirmed. There is no merit in these appeals and the same are dismissed. The accused-appellants are in jail and have to serve out the remaining sentence.
(GOVERDHAN BARDHAR),J (MOHAMMAD RAFIQ),J //Jaiman//