Delhi District Court
State vs Mahadev Jha @ Rok on 21 February, 2017
IN THE COURT OF SHRI KULDEEP NARAYAN : ADDITIONAL SESSIONS
JUDGE: PILOT COURT: WEST: TIS HAZARI COURTS: DELHI
SC No.57632/16
FIR No. 285/11
U/s. 302/394/397/404/411 IPC
P.S Kirti Nagar
In the matter of :
State
Versus
Mahadev Jha @ Rok
S/o late Shri Suresh Jha
R/o Village Sasan Basti,
PO and PS Hasanpur,
District Samstipur
Bihar and Village Itahri
PS New Ram Nagar,
District Munger, Bihar.
Date of Institution : 28-08-2012
Date of reserving Judgment : 16-02-2017
Date of pronouncement : 21-02-2017
Appearance
For the State: Ms. Reeta Sharma, Ld. Additional Public
Prosecutor.
For the accused: Ms. Chitra Mal, Advocate, Ld. Amicus Curiae.
SC No. 57632/16 Page 1/31
JUDGMENT
Accused Mahadev Jha @ Rok son of late Suresh Jha, aged 26 years was sent up for trial on the basis of report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) submitted on 28.08.2012 upon conclusion of investigation into First Information Report (FIR) no. 285/2011 of police station (PS) Kirti Nagar for offences punishable under Sections 302/394/397/411 of the Indian Panel Code, 1860 (IPC).
2. As per the prosecution story, on 28.09.2011 on receipt of DD No. 8 A at 7.12 a.m Sub-Inspector (SI) Bahadur Singh alongwith Constable Rajesh No. 1632/W reached at the scene of crime in H.No. 7/113, First Floor, Ramesh Nagar New Delhi where a dead body of a male aged about 70-75 years was found lying on the bed. Inspector Kishore Kumar alongwith constable Paramvir No. 2904/W also reached at the spot. The name of the deceased was revealed to be one Shri Vilayat Chand Setia son of late Shri Mool Chand Setia. The statement of Shri Rajesh Sodhi son of Shri Jagdish Lal Sodhi was recorded wherein he stated that the deceased Shri Vilayat Chand Setia, a retired teacher, was his father-in-law, who would reside on the first floor of the said house. Shri Rajesh Sodhi was married to Smt. Suman Sodhi, elder daughter of deceased Shri Vilayat Chand Setia. He would prepare morning tea daily for his father-in-law. On 28.09.2011 in the morning, when he had gone to hand over the tea to SC No. 57632/16 Page 2/31 his father-in-law at around 6.45 a.m, he found that his father-in-law was lying straight on the bed and one plastic rope was tied around his neck. The other end of the rope was tied with a table. He immediately went upstairs and informed his wife that somebody had killed the father-in-law. He also called on 100 number.
3. On the statement of Shri Rajesh Sodhi, a rukka was prepared, the case FIR No. 285/2011 was registered and investigation was carried out. During investigation, the scene of crime was got inspected by Crime Team and the Dog Squad. Chance prints were also lifted from the spot, site plan was prepared, statements of witnesses were recorded and the dead body of Shri Vilayat Chand Setia was sent to DDU hospital mortuary where the postmortem was conducted on the dead body of the deceased. The search of the accused was also made but in vain.
4. Subsequently, on 21.05.2012 after receiving secret information, accused Mahadev Jha @ Rok was arrested from Village Itahri, District Munger, Bihar. At the time of making arrest, the arrest memo was prepared and personal search of the accused was conducted whereby one gold ring was recovered which was seized and sealed with the seal of 'RA'. The discloser statement of the accused was also recorded. After obtaining transit remand from the court of Chief Judicial Magistrate, Munger, the accused was brought to Delhi and was produced before the court concerned. During interrogation, the accused confessed that the gold SC No. 57632/16 Page 3/31 ring recovered from his personal search was the same ring which was taken away by him from the finger of the deceased after committing his murder. The judicial Test Identification Parade (TIP) of the said gold ring was got conducted during which the gold ring was correctly identified by Smt. Suman Sodhi, the daughter of the deceased. The finger prints of the accused were also sent to the Finger Prints Bureau for comparison with the chance print lifted by the Crime Team from the scene of crime and as per the report, the chance print marked Q1 was found identical with accused's right thumb impression marked S1 on the finger impression slip of the accused. After concluding the investigation, the Investigating Officer (IO) came to a conclusion that sufficient evidence has come on record against the accused Mahadev Jha @ Rok qua commission of offences under Section 302/394/397/411 IPC and accordingly, chargesheet under Section 173 Cr.P.C was prepared and filed in the court.
5. On the basis of police report, the learned Metropolitan Magistrate took cognizance of the offences and after complying with the provisions contained in Section 207 Cr.P.C, committed the case to the Court of Session vide order dated 24.09.2012.
6. On 10.12.2012, after hearing the learned Additional Public Prosecutor and the learned Amicus Curiae for the accused, charge was framed against the accused for commission of offence punishable under Section 302/394/397/404/411 IPC The charge so framed was read over SC No. 57632/16 Page 4/31 and explained to the accused to which he pleaded not guilty and claimed trial.
7. To bring home the afore-mentioned charge to the accused, the prosecution got examined constable Praveen (PW1), Shri Rajesh Sodhi (PW-2), Head Constable Sanjay Prasad (PW-3), constable Rajinder Singh (PW-4), constable Paramvir (PW-5), Smt. Suman Sodhi (PW-6), Assistant Sub-Inspector Ajeet Singh (PW-7), Inspector N.K Sharma (PW-8), Ms. Aditi Garg (PW-9), Inspector Mahesh Kumar (PW-10), constable Raj Singh (PW-11), Head Constable Anil Kumar (PW-12), constable Suresh Chand (PW-13), Sub-Inspector Bahadur Singh (PW-14), SI Rohit Kumar (PW-15), SI Rajesh (PW-16), Dr. B.N Mishra (PW-17) and Inspector Kishore Kumar (PW-18). The prosecution also relied on documents tendered in evidence i.e seizure memo (Ex.PW-1/A), Rukka (Ex.PW-2/A), identification statement of dead body (Ex.PW-2/B), receipt of dead body to his relatives (Ex.PW-2/C), PCR form (Ex.PW-3/A), arrest memo of accused Mahadev Jha @ Rok (Ex.PW-4/A), personal search memo (Ex.PW-4/B), disclouser statement (Ex.PW-4/C), disclouser statement (Ex.PW-5/A), pointing out memo (Ex.PW-5/B), seizure memo of wrist watch and ring (Ex.PW-6/A), crime visit report (Ex.PW-7/A), finger-print comparison report (Ex.PW-8/A), detailed description of finger print comparison (Ex.PW-8/B), site plan (Ex.PW-10/A), TIP proceeding (case property) (Ex.PW-12/P), DD entry No. 8 A dated 28.09.2011 (Ex.PW- SC No. 57632/16 Page 5/31 14/A), FIR (Ex.PW-15/A), DD entry no. 12 A dated 28.09.2011 (Ex.15/B), certificate U/s 65B of Indian Evidence Act (Ex.PW-15/C), postmortem report (Ex.PW-17/A), endorsement of rukka (Ex.PW-18/A), site plan of the spot (Ex.PW-18/B), death report (Ex.PW-18/C).
8. On 08.11.2016, the statement of accused under Section 313 Cr.P.C was recorded wherein he denied the correctness of all the incriminating circumstances appearing in the evidence against him and stated that he was falsely implicated in the present case. The accused further stated that he had left Delhi in the year 2008 and thereafter he never visited Delhi. Further, though he was arrested from his village in Bihar, he denied to have given any discloser statement. He also denied the factum of recovery of gold ring from him. The accused stated that the gold ring was planted upon him to falsely implicate him in the present case. The accused further denied to be a rickshaw puller and stated that he was doing labour work at his village since 2004 with one Shri Kaushal Singh. He further stated that the police had taken his thumb impression on some blank paper and converted them in the documents to falsely implicate him in the present untraced case. The accused also desired to lead evidence in his defence.
9. The accused, however, failed to lead any evidence in his defence despite opportunities given to him and vide order dated 15.12.2016, on the statement of learned Amicus Curiae made on behalf of the accused, SC No. 57632/16 Page 6/31 the defence evidence was closed.
10. I heard the arguments addressed by Ms. Reeta Sharma, Ld. Additional Public Prosecutor and Smt. Chitramal, Ld. Amicus Curiae for the accused. I have also gone through the entire material available on record.
11. During the course of arguments, the Ld. Amicus Curiae for the accused argued that the prosecution failed to establish the ownership of gold ring recovered from the possession of the accused as no documents or photographs in respect of the said gold ring could be produced. She further argued that the prosecution also failed to establish when the finger prints of the accused were obtained, when the same were sent to the Finger Prints Bureau for comparison or who had taken the samples to the Finger Prints Bureau. Further, the IO did not care to verify the owner of any rickshaw as stated by Smt. Suman Sodhi (PW-6) in her testimony. The IO did not record the statement of Smt. Suman Sodhi (PW-6) under Section 161 Cr.P.C regarding seeing the accused prior to the alleged commission of the offence and, therefore, the prosecution failed to link the accused with the commission of offence and could not prove the case against the accused beyond all reasonable doubts.
12. Per contra, it was argued by the learned Additional Public Prosecutor for the State that the prosecution successfully established the case against the accused beyond all reasonable doubts as the gold ring SC No. 57632/16 Page 7/31 (Ex.P-1) was recovered from the possession of the accused and during judicial TIP the recovered ring (Ex.P-1) was duly identified by Smt. Suman Sodhi (PW-6) to belong to the deceased. She also duly identified the accused to be the same rickshaw puller, who had dropped the deceased at the house the night before the date of incident.
13. Learned Additional Public Prosecutor for the State further argued that one of the chance prints lifted from the scene of crime also matched with the finger print of the accused which leaves no doubt that it was the accused only, who committed the offences alleged. The learned Additional Public Prosecutor for the State also relied upon the presumption available under Section 114 of the Indian Evidence Act, 1872.
14. I have given my thoughtful consideration to the submissions of both sides and have carefully gone through the entire material available on record as well as the cited judgments.
15. The legal provisions pertaining to offences which the accused has been charged with, in the ascending order per gravity, are reproduced as under:
411 IPC. Dishonestly receiving stolen property -
Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. SC No. 57632/16 Page 8/31 404 IPC. Dishonest misappropriation of property possessed by deceased person at the time of his death - Whoever dishonestly misappropriates or converts to his own use property, knowing that such property was in the possession of any person legally entitled to such possession, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offender at the time of such person's decease was employed by him as a clerk or servant, the imprisonment may extend to seven years.
394 IPC. Voluntarily causing hurt in committing robbery - If any person, in committing or in attempting to commit robbery, voluntarily causes hurt to such person, or any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397 IPC. Robbery, or dacoity, with attempt to cause death or grievous hurt- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. SC No. 57632/16 Page 9/31 302 IPC. Punishment for murder - Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
16. In view of the above-mentioned legal provisions, the points for determination emerging in the present case are:-
1. Whether the accused would ply a rickshaw and had dropped Shri Vilayat Chand Setia at his house i.e. H. No. 7/113, First Floor, Ramesh Nagar, Delhi, in the evening on 27.09.2011.2.
2. Whether the accused voluntarily caused hurt/grievous hurt or attempted to cause death of deceased Shri Vilayat Chand Setia while committing robbery in H. No. 7/113, First Floor, Ramesh Nagar, Delhi.
3. Whether the accused committed murder of Shri Vilayat Chand Setia on the relevant date, time and place.
4. Whether the accused dishonestly misappropriated the ring (Ex.P-1) after taking it from the possession of the deceased Shri Vilayat Chand Setia.
5. Whether the accused was found dishonestly or knowingly retaining stolen property (in the present case gold ring (Ex.P-1) or having reason to believe the same SC No. 57632/16 Page 10/31 to be the stolen property.
17. To bring home the afore-mentioned charges to the accused, the prosecution got examined 18 prosecution witnesses, who are categorized in two sets for proper appreciation of their testimonies. Under the first set of PWs, HC Sanjay Prasad (PW-3), after receiving the communication from the telephone operator of number 100 regarding murder and theft in Kirti Nagar, had forwarded information to PCR van Power-21 through the wireless set and had mentioned the same in PCR form (Ex.PW-3/A).
18. Shri Rajesh Sodhi (PW-2) proved his statement (Ex.PW-2/A) bearing his signatures at point A wherein he stated that his father-in-law Shri Vilayat Chand Setia was residing at the first floor whereas he and his family were residing at second floor of H. No. 7/113, Ramesh Nagar, Delhi and it was his routine that he used to prepare tea for his father-in- law in the morning. On 28.09.2011 at about 6.15 a.m he had gone down stairs for serving tea to his father-in-law who was not found sitting upon the stairs where he would usually sit. Shri Rajesh Sodhi (PW-2) went inside the room and found Shri Vilayat Chand Setia lying on the bed with one plastic rope tied to his neck and the other end of the rope was tied with the table placed near his bed. He immediately called his wife who also came down stairs in the room. No movement in the body of Shri Vilayat Chand Setia was observed by them. Thereafter, he dialed at 100 SC No. 57632/16 Page 11/31 number. Shri Rajesh Sodhi (PW-2) also identified the dead body of his father-in-law vide his statement (Ex.PW-2/B). The dead body, after the postmortem was received vide receipt (Ex.PW-2/C).
No cross-examination of Shri Rajesh Sodhi (PW-2) was coducted on behalf of the accused.
19. Constable Paramvir (PW-5) on receipt of DD entry No. 8 A had reached at the house i.e. H. No. 7/113, First Floor, Ramesh Nagar, Delhi alongwith Inspector Kishore Kumar (PW-18) on 28.09.2011 where one male dead body was found lying on the bed in the room. The name of the dead person was revealed to be Shri Vilayat Chand Setia. Inspector Kishore Kumar (PW-18) recorded the statement of Shri Rajesh Sodhi, (PW-2) prepared the rukka (Ex.PW-2/A) and handed it over to Constable Paramvir (PW-5) for registration of FIR consequent upon which he had gone to PS Kirti Nagar, got the FIR No. 285/11 registered and came back to the spot with a copy of FIR (Ex.PW-15/A) and original rukka (Ex.PW- 2/A) to hand it over to the IO. The dead body was shifted to DDU hospital for the conduct of postmortem.
20. SI Rohit Kumar (PW-15) had recorded the FIR (Ex.PW-15/A) on the basis of Tehrir sent by Inspector Kishore Kumar (PW-18) through constable Paramvir (PW-5) and also endorsed the same vide endorsement Ex.PW-15/B. He also proved a certificate under Section 65 B of the Indian Evidence Act, 1872 (Ex.PW-15/C).
SC No. 57632/16 Page 12/31
In his cross-examination only one suggestion was put by counsel for the accused that the FIR was ante-time and ante-date.
21. Constable Raj Singh (PW-11) was posted in Dog Squad, PS Janak Puri and on 28.09.2011 on receipt of an information from District Control Room, he had reached at the spot at H. No. 7/113, First Floor, Ramesh Nagar, Delhi with dogs, however, the dogs did not give any lead.
22. HC Anil Kumar (PW-12) was posted as photographer with the Mobile Crime Team West District, Janak Puri Delhi and on 28.09.2011 had reached at the spot, taken 15 photographs of the spot and got them exhibited as Ex.PW-12/A to Ex.PW-12/O with their negatives (Ex.PW- 1/P) collectively.
In his cross-examination, HC Anil Kumar (PW-12) stated that the photographs Ex.PW-12/A to Ex.Pw-12/O were handed over to the IO from his office and he had taken photographs of different rooms as per the instruction of the IO.
23. Constable Suresh Chand (PW-13), who was working as Finger Print Proficient on 28.09.2011 also reached at the spot and lifted 6 chance prints from different places at the spot which were sent to the Finger Print Bureau.
24. SI Bahadur Singh (PW-14), on receipt of DD No.8 A had reached at the spot alongwith constable Rajesh where inspector Kishore Kumar (PW-
18) and constable Paramvir (PW-5) also arrived. SI Bahadur Singh (PW- SC No. 57632/16 Page 13/31
14) had taken the dead body to the mortuary.
In his cross-examination, SI Bahadur Singh (PW-14) stated that when he reached at the spot, 2-4 persons were present there and Inspector Kishore (PW-18) and constable Paramvir (PW-5) came at the spot together after 15 to 20 minutes.
25. SI Rajesh (PW-16), on receiving the call, accompanied IO SI Bahadur (PW-14) to the spot and was instructed to take the dead body to the mortuary of DDU hospital. He received a receipt for conducting the postmortem which was handed over by him to the IO.
26. Constable Parveen (PW-1) had collected the postmortem report alongwith three duly sealed parcels from the DDU hospital alongwith the sample seal and had handed over the postmortem report and Pulandas to IO. The Pulandas were taken into possession vide seizure memo Ex.PW- 1/A.
27. Dr. B.N Mishra (PW-17) had conducted the postmortem examination on the body of deceased Shri Vilayat Chand Setia He proved the postmortem report Ex.Pw-17/A bearing his signatures at point A. He had also observed multiple bruises and abrasions including nail marks on the different parts of the body. One ligature material was found around the neck without leaving any ligature mark/imprint on the neck. On internal findings multiple soft tissue of neck including larynx and pharynx were found contused alongwith extra vacation of blood. The body of head bone SC No. 57632/16 Page 14/31 was fractured vertically with collection of clotted blood at the vicinity of the fractured site. Further, the chest muscles were contused in addition to fractured multiple ribs i.e. 2nd to 6th.
28. Dr. B.M Mishra (PW-17) opined the cause of death to be due to traumatic asphyxia caused by heavy pressure on the chest and neck area. The kneeling on the chest was not ruled out for the purpose of homicide. All injuries were found ante-mortem in nature and of same duration. He also deposed that despite the ligature material tightened around the neck, the ligature mark was absent on the neck, which suggested that the ligature material was applied around the neck after death of the deceased to give resemblance of suicide by mode of hanging.
29. In view of the afore-discussed testimonies of the prosecution witnesses, it is clear that all the afore-mentioned prosecution witnesses deposed about the commission of offence of robbery at H. No. 7/113, First Floor, Ramesh Nagar, Delhi, murder of Shri Vilayat Chand Setia, registration of FIR in this regard and subsequent investigation carried out by the IO of the case. The testimonies of afore-mentioned prosecution witnesses do not incriminate the accused in any manner whatsoever as none of them deposed about any circumstance which indicate towards the culpability of the accused.
30. As far as the second set of PWs and appreciation of their recorded testimonies are concerned, as per the prosecution version, there are three SC No. 57632/16 Page 15/31 main circumstances which link the accused with the commission of offences in the present case. The first circumstance pertains to the recovery of gold ring (Ex.P-1) from the possession of the accused, which belonged to deceased Shri Vilayat Chand Setia. This circumstance is sought to be proved with the testimonies of Inspector Kishore Kumar (PW-18), constable Rajinder Singh (PW-4) and constable Paramvir (PW-
5) in whose presence one gold ring (Ex.P-1) was recovered from the possession of the accused.
31. Ms. Aditi Garg (PW-9), learned Metropolitan Magistrate (West) conducted the TIP of the case property i.e. the gold ring (Ex.P-1) during which Smt. Suman Sodhi (PW-6) identified the gold ring (Ex.P-1) belonging to his father. It is noteworthy here that a perusal of the proceedings of TIP of gold ring (Ex.P-1) conducted by Ms. Aditi Garg (PW-9) indicate that the TIP proceedings (Ex.PW-9/B) were not conducted properly as the case property and the similar sample rings brought by the IO for mixing with the case property were not clearly marked and distinguished.
32. During the course of arguments, an interesting argument was advanced by the Ld. Additional Public Prosecutor about the sixth sense of women in identification of jewellery article to explain the improper conduct of TIP of the case property. Suffice it to say that no scientific research result was produced on the case file by the prosecution about any SC No. 57632/16 Page 16/31 such sixth sense of women for identifying the jewellery articles nor any judicial notice can be taken of the said fact. However, the facts remains that during the conduct of TIP proceedings Smt. Suman Sodhi (PW-6) identified the case property i.e. gold ring (Ex.P-1) and a certificate of correctness of proceedings (Ex.PW-9/C) was also appended by Ms. Aditi Garg (PW-9).
33. Despite the short comings in conduct of TIP proceedings of the case property i.e. gold ring (Ex.P-1), the fact of recovery of gold ring (Ex.P-1) from the possession of the accused has been established as the testimonies of Constable Rajinder Singh (PW-4), Constable Paramvir (PW-5) and Inspector Kishore Kumar (PW-18) could not be rebutted in any material terms in this regard. The accused did not lead any evidence to the contrary and accordingly, failed to account for his legal possession of gold ring (Ex.P-1). Therefore, in my considered opinion, the prosecution succeeded in establishing the recovery of gold ring (Ex.P-1), belonging to deceased Shri Vilayat Chand Setia from the possession of the accused and the accused could not account for its possession. The fifth point for determination is, accordingly, decided in favour of the prosecution.
34. As far as the second circumstance of lifting of chance prints from the spot and matching of finger prints of the accused with the chance prints so lifted is concerned, the prosecution examined ASI Ajeet Singh SC No. 57632/16 Page 17/31 (PW-7) who deposed that seven chance prints from the spot were lifted by constable Suresh Kumar (PW-13). In his cross-examination, ASI Ajeet Singh (PW-7) stated that total six chance prints were developed by the finger print proficient. All the chance prints were taken from the same room where the dead body was lying. Constable Suresh Chand (PW-13) who was working as finger print proficient on the relevant date, deposed that he lifted six chance prints from different places at the spot which were sent to Finger Print Bureau. Inspector Kishore Kumar (PW-18) stated that he sent the finger prints of the accused to CRO on 04.07.2012 and obtained the report from there in this regard.
35. Inspector N.K Sharma (PW-8) was posted as a finger print expert in the Finger Prints Bureau, Crime Branch, Delhi Police, who proved his finger prints analysis report (Ex.PW-8/A) alongwith description of point of identity with enlarged photographs of chance prints and specimen finger prints (Ex.PW-8/B). He deposed that on 12.10.2011 the photographs, lifted chance prints and developed chance prints Mark Q1 to Q6 pertaining to the present case were examined by him and he found that the chance prints Mark Q1 and Q2 were partial chance prints which could not be searched on the record of Finger Prints Bureau whereas chance prints Mark Q3 to Q6 were found unfit for comparison. Inspector N.K Sharma (PW-8) further deposed that on 06.07.2012, this case was re- marked to him alongwith specimen finger prints of the accused Mahadev SC No. 57632/16 Page 18/31 Jha, inmates and deceased. On examination, he found the chance prints Mark Q1 to be identical with right thumb impression marked S1 of accused Mahadev Jha whereas chance print Mark Q2 was not identical.
36. During the course of arguments, it was argued by the Ld. Amicus Curiae for the accused that IO had not taken permission from any Magistrate before obtaining the finger prints of the accused nor the same were obtained in presence of any Magistrate to rule out the tampering with the finger-prints of the accused. Per contra, relying upon judgment titled as Shankaria V. State of Rajasthan - 1978 AIR 1248 and Mahadev Prasad Pant V. State of Delhi passed by the Delhi High Court on 17.05.2007 in Criminal Appeal No. 337/2002 and Criminal Appeal No. 338/2002, Ld. Additional Public Prosecutor for the State argued that no such permission was required to be taken by the IO and there is no merit in this contention of the Ld. Amicus Curiae for the accused. Further, as per Sections 4 & 5 of the Identification of Prisoners Act, 1920, where photographs, finger prints and measurement are taken of a person, the very nature and characteristic of this material renders it inherently impossible for any agency to fabricate them.
37. To address this contention, it is relevant to refer Sections 4 & 5 of The Identification of Prisoners Act, 1920 (the Act) which are as under:-
4. Taking of measurements, etc., of non-convicted persons. - Any person who has been arrested in SC No. 57632/16 Page 19/31 connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner.
5. Power of Magistrate to order a person to be measured or photographed- If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898 (5 of 1898), it is expedient to direct any person to allow his measurement or photograph to be taken, he may make an order to the 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 official:
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.
38. As per Section 2(a) of the Act, "measurements" include finger impressions and foot print impressions.
39. In view of the above-mentioned provisions, it is clear that both SC No. 57632/16 Page 20/31 Section 4 and 5 of the Act are mutually exclusive. Section 4 of the Act stipulates about the power of a police officer whereas Section 5 of the Act speaks about the power of a Magistrate for taking measurements of an accused. It is nowhere stipulated under Section 4 of the Act if any permission from a Magistrate is required to be taken by a police officer before taking measurements of an accused. The only requirements as stipulated is that such measurements are to be taken in the "prescribed manner". As per Section 8 of the Act, the State Government may make rules for the purpose of carrying into effect the provisions of this Act, which may provide for the nature of the measurement that may be taken, the method in which any class or classes of measurements shall be taken and the preservation, safe custody, destruction and disposal of record of measurements and photographs.
40. It is pertinent to note that in Criminal Appeal No. 804/2001 titled as Sapna Haldar & Anr V. State vide its judgment dated 25-05-2012, it was laid down by the Hon'ble High court of Delhi that Section 4 of the Act mandates that the measurement of a person arrested in connection with an offence would be subject to the manner prescribed for doing the needful. Placing reliance on Mahmood V. State of Uttar Pradesh - AIR 1976 SC 69, in the absence of a manner prescribed for taking the finger print impressions, specimen finger print impression taken by the investigating officer were held to be a case of evidence not being admissible with SC No. 57632/16 Page 21/31 respect to the finger prints obtained and the opinion of the expert thereon. It was further held that in such situation, Section 5 of the Act ought to have been followed. In Sapna Haldar (Supra) case, the Hon'ble High Court also discussed Shankaria (Supra) case to note that in the said case State of Rajasthan had framed the necessary rules pertaining to the manner in which an investigating officer could obtain the specimen finger prints of the person, accused of an offence and thereby there being complete compliance with the requirement of Section 4 of the Act. It would be relevant to quote the observation of the Hon'ble High Court, which is as under:-
"The identification of Prisoners Act, 1920 is applicable only to measurements which include finger print impression. Even with respect to finger print impressions, the weight of the judicial pronouncement leans to hold that unless there is a manner prescribed, be it under the Rules framed by the State Government or an executive instruction issued, evidence pertaining to finger print impressions obtained by the investigating officer would be inadmissible in evidence; and even when the same is provided, as held by the Supreme Court in Mohd. Aman's case (Supra) to obviate any suspicion, it should be desirable that the procedure prescribed under Section 5 of the Identification of Prisoners Act, 1920 should SC No. 57632/16 Page 22/31 be followed".
41. As is clear from the record of the present case, no "prescribed manner" as stipulated under Section 4 of the Act could be brought on record by the prosecution. It is also not clear if any such "prescribed manner" even exists under any rules formulated under Section 8 of the Act. It is also clear that in the present case, the investigating officer did not take recourse to Section 5 of the Act to seek permission of a Magistrate for obtaining the finger prints of the accused. From the testimonies of ASI AjeetSingh (PW-7) and Constable Suresh Chand (PW-
13), it is evident that the chance prints were not lifted from the spot in any scientific manner. It is not specified in what manner or through which method, the chance prints were lifted. It is also not clear from which exact place or upon what object in room i.e. scene of crime such chance prints were lifted. It is noteworthy that Constable Suresh Chand (PW-13) who had lifted chance prints from the spot, deposed about the dead body lying on the floor in the room whereas all other PWs deposed about the dead body lying on the bed in the room. Further, as per the testimony of SI Bahadur Singh (PW-14), 2-4 persons were also present at the spot and, therefore, the probability of tampering with the scene of crime cannot be absolutely ruled out. Moreover, Inspector Kishore Kumar (PW-18) failed to depose in categorical terms how and through whom and under what conditions the finger prints and chance prints were present and sent to SC No. 57632/16 Page 23/31 Finger Prints Bureau and how the result was got collected there from. Admittedly, no such record could be filed on the record by the prosecution.
42. Therefore, in the given facts and circumstances, it can be safely concluded that the lifting of chance prints from the spot and sending of finger prints of the accused alongwith chance prints to Finger Print Bureau by the IO was not done in any scientific and prescribed manner and accordingly, no credence can be lent to the report (Ex.PW-8/A) prepared by Inspector N.K Sharma (PW-8). Moreover, as held in Sapna Haldar (supra) case, in relation to offence punishable with death or imprisonment for life, Section 4 of the Act would not be applicable because the said provision specifies a pre-requisite; that the person concerned is accused of having committed an offence which is punishable with a sentence to undergo rigorous imprisonment for a term of one year or upwards i.e. the sentence must relate to imprisonment for a 'term' and would thus exclude such offences where either capital punishment or imprisonment for life is a sentence contemplated. It becomes abundantly clear that in view of the law laid down in Sapna Haldar (Supra) case, the investigating officer must have taken recourse to Section 5 of the Act in the present case as Section 4 of the Act was not applicable to the facts of the present case. The finger-print analysis report (Ex.PW-8/A) is accordingly, inadmissible in evidence and resultantly the afore-mentioned SC No. 57632/16 Page 24/31 second circumstance could not be said to have been established by the prosecution.
43. As far as the third circumstance of the identity of the accused as the person who might have committed the offences alleged, is concerned, the statement of Smt. Suman Sodhi (PW-6) was recorded under Section 161 Cr.P.C by the IO wherein she stated about one rickshaw puller who had dropped her father on 27.09.2011 in the evening and had also come up-stairs. However, in her testimony before the court while deposing as PW-6, she did not utter a single word in this regard. Instead, Smt. Suman Sodhi (PW-6) testified directly that she identified the accused on 04.06.2012 when he was brought to her house by the police officials, being the same rickshaw puller who had dropped her father one day prior to the incident. At the cost of repetition, it is noted that Smt. Suman Sodhi (PW-6) did not depose before the court about any rickshaw puller dropping her father one day prior to the incident. Her statement under Section 161 Cr.P.C given to the police during investigation cannot be taken into consideration as the same is hit by Section 162 Cr.P.C. No material fact stated by Smt. Suman Sodhi (PW-6) under Section 161 Cr.P.C could be deposed by her before the court rather she improved upon her statement when she identified the accused on being brought to her house. Her deposition, therefore, in this regard cannot be taken into consideration.
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44. Inspector Kishore Kumar (PW-18) IO of the case, also did not make any investigation about such rickshaw puller as stated by Smt. Suman Sodhi (PW-6) in her statement under Section 161 Cr.P.C to verify if the accused ever owned or plied rickshaw or ever took any rickshaw on hire basis from any person. The statement of Smt. Suman Sodhi (PW-6) under Section 161 Cr.P.C was not worked out by the IO during investigation, which raises doubt on the credibility of her testimony. To top it all, constable Paramvir (PW-5) who had also joined the investigation, categorically stated in his cross-examination that no statement of any relative of the deceased was ever recorded that the deceased was dropped by a rickshaw puller on the previous night.
45. In these circumstances, it appears that a feeble attempt was made by the prosecution to create "last seen theory" in order to incriminate the accused, which is of no use to the prosecution in the absence of any categorical deposition by Smt. Suman Sodhi (PW-6), at the first place, before the court in this regard. Therefore, the testimony of Smt. Suman Sodhi (PW-6) to establish the identity of the accused as the person who might have visited the said house to commit offences alleged is not reliable and cannot be taken into consideration. The prosecution, therefore, failed to prove the third circumstance beyond reasonable doubt.
46. Hon'ble Supreme Court in case titled as Jose @ Pappa Chan V. The SC No. 57632/16 Page 26/31 Sub-Inspector of Police, Koyilandy & Anr, criminal appeal no. 919 of 2013 decided on 03.10.2016, relying upon Sujit Biswas V. State of Assam (2013) 12 SCC 406, in the contextual facts constituting circumstantial evidence, ruled that in judging the culpability of an accused, the circumstances adduced when collectively considered must lead to the only irresistible conclusion that the accused alone is the perpetrator of crime in question and the circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused. As observed above, the prosecution could establish only one circumstance which in itself is not sufficient to hold that it was the accused and only the accused, who committed robbery and murder as alleged in the present case. The reliance placed by the Ld. Additional Public Prosecutor for the State on Mahadev Prasad Pant (supra) case wherein the possession of the stolen property and its recovery from the accused was held to be indicative not merely of the offence of robbery but also of more aggravated crime of murder connected with theft is clearly distinguishable on facts and circumstances established in the present case. Even in Mahadev Prasad (supra) case, there were other circumstances established which clearly indicated the involvement of the accused in the commission of crime of robbery and murder whereas in the present case, the prosecution could succeed in establishing only one circumstance i.e. the recovery of gold ring (Ex.P-1) from the possession of the accused. In this SC No. 57632/16 Page 27/31 regard, the law laid down in Sanwat Khan & Anr V. State of Rajasthan AIR 1956 SC 54 is fully applicable to the facts of the present case where the Hon'ble Supreme Court had taken a view that recovery of ornaments of the deceased from the accused or production of the same by the accused in the course of investigation, howsoever suspicious, cannot be conclusive of the question of the accused having committed the offence and unless there are "circumstances" to show that the theft/robbery and murder took place "in the same transaction" the accused would not be liable for the offence under Section 302 IPC. The Sanwat Khan (supra) case was relied on with approval by the Hon'ble Supreme Court in its recent decision in Raj Kumar @ Raju V. State (NCT of Delhi) Criminal Appeal No. 1460 of 2011 decided on 20.01.2017 to reiterate that the recovery of ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation, but beyond a strong suspicion nothing else would follow in the absence of any other circumstances, which could suggest the involvement of the accused in the offences alleged and even with the aid of presumption under Section 114 of the Indian Evidence Act, 1872 the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murders occurred at the same time i.e. in the course of the same transaction.
47. In the above-discussed facts and circumstances, in my considered SC No. 57632/16 Page 28/31 opinion, the prosecution succeeded in establishing only the fifth circumstance i.e. recovery of gold ring (Ex.P-1) from the possession of the accused, who failed to account for its lawful possession with him. The fifth point for determination is accordingly decided in favour of the prosecution.
48. The fourth point for determination i.e. accused dishonestly misappropriating the gold ring (Ex.P-1) after taking it from the possession of the deceased Shri Vilayat Chand Setia, the second and third point for determination i.e. accused voluntarily causing hurt or grievous hurt while committing robbery and murder of Shri Vilayat Chand Setia are decided against the prosecution. The prosecution further failed to establish that the accused being a rickshaw puller, had dropped Shri Vilayat Chand Setia at his house in the evening of 27.09.2011 i.e. one day prior to the incident and accordingly the first point of determination is also decided against the prosecution.
49. Resultantly, the accused Mahadev Jha @ Rok is acquitted of the offences of committing robbery, misappropriation of property of the deceased, causing hurt/grievous hurt and murder punishable under Sections 394/397/404/302 IPC. He is held guilty only for the offence of receiving the stolen property punishable under Section 411 IPC and is convicted for the same.
50. Let the convict be heard on the point of sentence. SC No. 57632/16 Page 29/31
51. It is submitted by Ld. Amicus Curiae on behalf of the convict that convict belongs to a poor family. He has two school going children. His parents have already expired. Prior to involvement in the present case, the convict used to do furniture work (carpentry) to earn his livelihood. It is, therefore, prayed that in view of the poor financial background of the convict, he would not be able to pay a single penny by way of imposition of fine and, therefore, while imposing sentence of imprisonment, fine may not be imposed.
52. On the other hand, Ld. Additional Public Prosecutor for the State submitted that the victims of the offence i.e. legal heirs of the deceased may be awarded suitable compensation either by way of imposing fine upon the accused or by passing the order for compensation to be paid to the legal heirs of the deceased by virtue of Section 357A Cr.P.C.
53. Having heard the submissions on both sides, I am not inclined to impose fine on the convict, especially in view of the fact that the convict who remained in custody throughout could not even afford a private advocate to defend his case and Amicus Curiae was appointed to defend him, which only indicates about the poor financial condition of the convict as stated by the Ld. Amicus Curiae. As per record, Shri Rajesh Sodhi (PW-5) the son-in-law of deceased is gainfully employed and is residing with his family in their own house. The convict, on the other hand, comes from poor strata of the society and he being in custody for SC No. 57632/16 Page 30/31 more than four and half years, his financial resources would have presumably dried up. The legal heirs of the deceased are accordingly, not in need of any compensation or rehabilitation. Accordingly, I hereby sentence the convict Mahadev Jha @ Rok to undergo rigorous imprisonment for three years only for committing offence punishable under Section 411 IPC.
54. The poor financial background of the convict do not warrant imposition of fine.
55. The benefit of Section 428 Cr.P.C is extended to the convict.
56. Bail Bonds under Section 437A Cr.P.C were furnished by the convict with photo and residential proof of the surety vide order dated 10.02.2017.
57. File be consigned to record room.
(Pronounced in the open Court (Kuldeep Narayan)
on 21.02.2017). Additional Sessions Judge
Pilot Court : West: THC
Delhi
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