Sunday, 20 January 2019

Whether court should rely on recovery as per S 27 of Evidence Act if it is obtained by investigating officer by compulsion?

Once a confessional
statement of the accused on facts is found to be involuntary, it is
hit by Article 20(3) of the Constitution, rendering such a
confession inadmissible. There is an embargo on accepting selfincriminatory
evidence, but if it leads to the recovery of material
objects in relation to a crime, it is most often taken to hold
evidentiary value as per the circumstances of each case. However,
if such a statement is made under undue pressure and
compulsion from the investigating officer, as in the present matter,
the evidentiary value of such a statement leading to the recovery is
nullified.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1980 OF 2008

Ashish Jain  Makrand Singh and Ors.

Mohan M. Shantanagoudar, J.
Dated:January 14, 2019.

The instant appeals arise from the judgments of the High
Court of Madhya Pradesh, Jabalpur, Gwalior Bench, passed in
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Death Reference No. 01 of 2004 and Criminal Appeal No. 312 of
2004. Vide the impugned judgments, the High Court acquitted the
accused respondents Makrand Singh, Raj Bahadur Singh and
Shyam Sunder for the offences punishable under Sections 302
read with 34, 394 read with 34 and 449 of the Indian Penal Code
(in short “the IPC”), and Sections 11 read with 13 of the Madhya
Pradesh Dakaiti and Vyapharan Prabhavit Kshetra Adhiniyam (in
short “the MPDVPKA”) and additionally respondent Makrand
Singh for offences under Section 25(1)(b)(a) read with Section 27 of
the Arms Act and Sections 11 and 13 of the MPDVPKA for causing
the death of three people, viz. Premchand Jain, his wife Anandi
Devi and unmarried daughter Preeti, and for committing robbery
of Rs. 30,000/in
cash and about Rs. 8,00,000/worth
of gold
and silver.
2. The case of the prosecution is reiterated below in brief:
Deceased Premchand Jain was in the occupation of money
lending, and pawning gold and silver ornaments. The incident
took place on the intervening night of 4th 5th
January 2003,
where the aforementioned accused persons, on the pretext of
doing electrical repairs in the house of the deceased, entered the
house and committed the said murder and robbery. After
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committing the offence, they locked the house from outside and
fled.
3. The appellant in Criminal Appeal No. 1980 of 2008 is the
complainant Ashish Jain (PW26), who is the nephew of the
deceased Premchand. The appellant upon growing suspicious
about finding the house locked from outside on 5.1.2003, asked
some relatives about the whereabouts of the family, but to no
avail. Therefore, towards the end of the day at around 09:45pm,
he informed the Police Station about the house being suspiciously
locked from outside. The police reached the house, broke open the
lock, and found all three residents lying dead on the third floor of
the house. Multiple injuries were also noticed on the bodies of the
deceased, and some electrical equipment (such as wires and a
screwdriver) was found inside the house. The chest in which the
deceased Premchand used to keep the pawned gold and silver
ornaments and cash was found broken open with its contents
missing. Thus, an inference was drawn that the accused persons,
who are electricians, and who did regular repair works at the
house of the deceased, had committed the said offence. The first
information (Dehati Nalishi) Ex. P5 was lodged by Ashish Jain,
who deposed as PW26. This first information was registered as the
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FIR Ex. P6 soon after.
After completing due procedure and upon investigation, the
accused persons were arrested the next morning. The robbed gold
and silver ornaments, cash, bloodstained
clothes, and certain
electrical tools, i.e. a suja and a chisel, which were said to be the
weapons of offence, were recovered from the possession of the
three accused persons at their instance. The key used to lock the
house from outside after the commission of the crime was also
recovered from a field at the instance of Accused No.1, Makrand
Singh. The robbed ornaments were said to be the ornaments
which were pledged by different people as a part of the business
run by the deceased. The Naib Tehsildar, the Executive
Magistrate, conducted the identification of the robbed ornaments
by the pledgors, who identified the ornaments which belong to
them.
4. The Trial Court, upon framing charges and appreciating
evidence, found the accused persons guilty of the said offences,
and sentenced them to capital punishment.
5. The reference for the death sentence and an appeal by the
accused persons were filed before the High Court. Both were heard
by a Division Bench; however, the learned judges could not reach
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a consensus and had a difference of opinion. One learned Judge
was in favour of acquittal of the accused persons and another
learned Judge concurred with the judgment of the Trial Court.
Hence, the matter was heard by the learned Third Judge, and as
his findings were in consonance with acquittal, upon a majority of
2:1, the High Court acquitted the accused persons from all
charges levelled against them.
6. To satisfy our conscience, we have reappreciated the entire
evidence. The case mainly revolves around the statements of
Ashish Jain, PW26, who is the complainant, Kailash Chandra,
PW12, a last seen witness, and Vinod Kumar Jain, PW20, another
last seen witness, as well as the recovery made of all the
incriminating materials like the stolen articles, bloodstained
weapons and bloodstained
clothes of the accused at the instance
of the accused persons.
7. PW26 has deposed that he is the nephew of the deceased
Premchand and he frequented the house of the deceased, though
he himself lived in a different house. He sometimes used to help
the deceased Premchand with his business. On the morning of 5th
January, he had planned to visit his uncle but the house was
locked from outside. He presumed that since his deceased aunt,
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the wife of Premchand, was not keeping well, their family must
have taken her for medical examination. Thereupon, he enquired
from their relatives about Premchand’s whereabouts, but did not
get any response. Night fell, and Ashish Jain, PW26 along with a
few others lodged a report at the Police Station, City Kotwali,
Bhind about the suspicious circumstances. The police arrived at
the scene, broke open the lock and found the dead bodies inside
the house with the ornaments and cash stolen from the chest. At
the scene of the crime, PW26 noticed tea tumblers in the kitchen
area, and some electrical equipment lying around the house. He
further deposed that Kailash Chandra, PW12, who was a
neighboring shopkeeper as well as a relative, had told him that he
had seen the accused persons entering the house of the deceased
at around 6:006:
30 p.m. the previous evening carrying a bag
containing electrical equipment. Vinod Kumar Jain, PW20, had
also informed him that he had seen the accused persons coming
out of the said house between 9:009:
30 p.m. going towards the
Dhanwanti Bai Dharamshala in a hurried fashion carrying two
bags. Based on this information, the first information was lodged,
naming the accused persons and their addresses, after which the
FIR was registered.
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8. The first circumstance relied upon by the prosecution is the
“last seen circumstance”. PW12, Kailash Chandra, who runs a
shop neighbouring the deceased Premchand’s establishment and
house, is the brother of the deceased Premchand. He categorically
deposed that on the relevant date at around 6:006:
30 p.m., while
he was sitting outside his shop, he saw Accused No. 1, Makrand
Singh, Accused No. 2, Raj Bahadur Singh and Accused No. 3,
Shyam Sunder entering the house of the deceased carrying a bag
containing electrical equipment. He was acquainted with Accused
Nos. 1 and 2, and therefore enquired about the purpose of their
visit, to which they answered that they had been called to do some
electrical repair work in the house of deceased Premchand. He
had also asked them about the third person, and they had
answered that his name was Shyam Sunder. He further
corroborated the evidence given by PW26 with regard to finding
the dead bodies, and the broken open chest. He further stated
that he mentioned about the accused persons entering the house
to PW26 and others soon after the discovery of the bodies.
9. Another important witness for the prosecution case is Vinod
Kumar Jain, PW20, who is a nephew of the deceased Premchand.
He testified that on the 4th of January, 2003 at around 9:00 p.m.,
7
while he was returning home from his shop, which is nearby, he
saw the three accused persons coming out of the house of the
deceased, and Accused No. 1, Makrand Singh and Accused No. 2,
Raj Bahadur Singh were carrying a bag each, walking in a hurried
fashion towards the Dhanwanti Bai Dharamsala. He further
supported the version of PW26 about finding the bodies and
learning about the robbery. He also deposed that he had
discussed with the people gathered at the scene of the crime,
including PW26, about him seeing the accused persons exiting the
house of the deceased on the previous night.
10. The Investigating Officer, K.D. Sonakiya deposed as PW35
before the Trial Court. He had been present at the scene of the
incident from the start and completed the investigation.
11. The second incriminating circumstance against the accused
persons is the recovery of various articles based on their
statements. All the accused persons have confessed to committing
the crime and have led to the recovery of the stolen gold and silver
ornaments and cash hidden at various places in their respective
houses. A countrymade
pistol was also seized at the instance of
Accused No. 1 from his possession. Other incriminating material
seized at the instance of the accused persons includes the blood8
stained clothes of the accused and the bloodstained
weapons
suja and chisel at the instance of Accused No.2 and Accused No.1
respectively. The key to the lock used to lock the house from
outside after the commission of the crime was also seized from a
vacant land beside the house of Accused No. 1 based on his
statement.
Ashish Jain, PW26 is the witness for the recovery of all the
materials relating to the incident.
12. The postmortem
of the three dead bodies was done by a
team of three doctors out of which Dr. Renu Sharma, PW21 and
Dr. U.P.S. Kushwaha, PW22 were examined by the Trial Court.
Upon a perusal of the PostMortem
Reports, we find that on the
body of the first deceased Premchand, there were five injuries
which were all lacerated wounds. Upon the body of the second
deceased Anandi Devi also, five lacerated wounds were found. On
the body of the third deceased Preeti, three lacerated wounds, one
incised wound and one contusion were identified. All the said
injuries were antemortem
in nature and sufficient to cause the
death of a person in the ordinary course of nature. The cause of
death of all the deceased was opined to be shock due to
haemorrhage, with the time of death between 1224
hours prior to
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the postmortem,
i.e. between 12 noon of 4th January and 12 noon
of 5th January. The Doctor PW22 in his crossexamination
has
deposed that one injury was inflicted by a hard and sharp weapon,
and the rest of the injuries were inflicted by a hard and blunt
weapon on the deceased.
13. The deceased Premchand’s hand was found by the police to
be clutching some hair, which was taken and sent to the Forensic
Science Laboratory along with the seized bloodstained
clothes,
weapons and blood recovered from the floor of the scene of the
crime. Hair samples of Accused Nos. 1 and 2 were also sent along
with these samples to the FSL for examination. The FSL has found
that the hair recovered from the hand of the deceased was similar
in nature to both the hair samples of Accused No. 1 and Accused
No. 2 (but the results were inconclusive nevertheless) and that the
blood stains found on the clothing and weapons were identified as
human blood. Out of the stains that could be identified, the blood
was identified as belonging to group ‘O’. Fingerprint marks were
seized from the tea tumblers found by the police at the scene of
the crime and were also sent for FSL examination. The samples of
the fingerprints of the accused persons were also sent along with
it for identification. The fingerprint expert opined that there was
10
similarity between a few prints upon the tea tumblers and the
fingerprints of Accused No. 1, Makrand Singh.
14. Learned counsel for the appellantcomplainant
has strongly
opposed the acquittal of the accused persons. He took the court
through the evidence on record, and urged that the recovery of the
robbed articles itself should be a sufficient ground for a
conviction, though it is further supported by other circumstantial
evidence. He further argued that the High Court in its majority
opinion erred in giving undue importance to small shortcomings in
the investigation, because of which justice had to suffer. He also
argued that the last seen evidence of PW12 and PW20 along with
the evidence of recovery of the stolen ornaments and cash at the
instance of the accused persons, from their possession, is not to
be ignored. He placed reliance on the recovery of the key used to
lock the house from outside after the commission of the crime, at
the instance of the first accused, and said that the recovery of the
same is conclusive proof of the participation of the accused
persons in the said offence. He also argued that finding blood of
the group ‘O’ on the clothes of the accused in light of the
recoveries made could only lead to one conclusion, i.e. the guilt of
the accused, since this was also the blood group of the deceased
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persons. However, he admitted that the fingerprint examination
report could not be relied upon, and that the hair sample test
report was inconclusive.
15. The State of Madhya Pradesh has also filed an appeal against
the acquittal by the High Court. The learned counsel for the State,
while adopting the arguments of the counsel for the complainant
in opposing the acquittal, submitted that the circumstantial
evidence on record, which is fully proved, would only lead to the
conviction of the accused.
16. The Supreme Court Legal Services Committee was directed
by us to engage a counsel for the accused Respondents since none
had appeared for them. An Amicus Curiae was appointed to
assist us in relation to the arguments for the Respondents. He
supported the majority view taken by the High Court in acquitting
the accused persons, in entirety. He argued that there are
discrepancies in the evidence relating to the arrests made and the
alleged recoveries made by the police at the instance of the
accused. Learned amicus also stated that out of the recovery
witnesses, who are all relatives of the deceased, only PW26 has
been examined. The nonexamination
of other witnesses,
especially one Bahadur Yadav (the only independent witness), a
12
servant of Premchand, who had allegedly assisted the police in the
identification of the recovered ornaments by the mortgagees, was
said to be crucial for the prosecution case. He further argued that
no proper procedure was followed for the identification of the
ornaments by the mortgagees, and the police had taken active
interest in the identification of the ornaments, which was
suspicious. Lastly, he submitted that the last seen circumstance
was not proved.
17. In a case wherein the High Court has acquitted the accused
of all charges, there is a double presumption in favour of the
accused, as the initial presumption of innocence is further
reinforced by an acquittal by the High Court. In such a case, this
Court will keep in mind that the presumption of innocence in
favour of the accused has been fortified by the order of acquittal
and thus if the view of the High Court is reasonable and based on
the material on record, this Court should not interfere with the
same. Interference is to be made only when there are compelling
and substantial reasons to do so, and if the ultimate conclusion
reached by the High Court is palpably erroneous, constituting a
substantial miscarriage of justice. Moreover, interference can be
made if there is a misconception of law or erroneous appreciation
13
of evidence or the High Court has completely misdirected itself in
reversing the order of conviction by the Trial Court. (See State of
Rajasthan v. Islam and Ors., (2011) 6 SCC 343, State of U.P. v.
Awdhesh, (2008) 16 SCC 238, and State (Delhi Admin.) v. Laxman
Kumar and Ors., (1985) 4 SCC 476).
18. As mentioned supra, the present case of circumstantial
evidence primarily hinges on two main aspects, which is the last
seen evidence and the recovery of stolen property.
PW12 and PW20, as discussed above, are the last seen
witnesses who saw the entry and the exit of the accused persons
from the crime scene, respectively. It has been deposed by the
witnesses that soon after the bodies were found, they had
discussed amongst themselves about the participation of the
accused persons based on the fact that PW12 saw them enter the
house of the deceased at around 06:30 p.m. on the preceding day,
and that PW20 saw them coming out of the house and leaving the
area in a hurried manner at around 09:0009:
30 p.m. These two
witnesses have categorically stated that they had conveyed this
piece of valuable information to the complainant PW26 right
before he filed the first information. However, there is no whisper
of such an important fact anywhere in the first information, Ex. P5
14
nor the FIR arising from it, Ex. P6. It is only stated in these
documents that there was a suspicion that the accused might
have caused the said incident as they were seen loitering around
the house of deceased Premchand at around 9:00 p.m. of the
night of the incident. PW26 has also stated that he learnt about
the presence of the accused persons from the verbal dialogue
between him and the said witnesses. If PW12 and PW20 had really
seen the accused as deposed, the same would have been reflected
in the FIR, and the absence of such a crucial piece of information
that PW26 learnt right before filing the first information casts a
dark shadow of suspicion over the testimony of the last seen
witnesses. Moreover, PW12 and PW20 have deposed that they
were present at the spot when the bodies were found. However,
their statements were not taken by the police on the same day,
rather they were taken subsequently on the next day. Considering
the fact that the details of the last seen circumstance as deposed
by PW12 and PW20 are not found in the first information (though
PW26, the informant was informed about the same by PW12 and
PW20 before filing the First Information Report), we are of the
opinion that PW12 and PW20 did not see the accused entering or
exiting the house of the deceased, as is sought to be made out by
15
the prosecution. Moreover, there was deliberate delay in recording
the statements of these important witnesses with regard to the
last seen circumstance. Hence, the statements of PW12 and PW20
were clearly an afterthought.
19. The High Court had observed that PW20 is a chance witness,
and we find that it has been held rightly so. Moreover, there are
discrepancies and contradictions in the statement of PW20,
inasmuch as it is only in his testimony that he asserts for the first
time that he saw the accused coming out of the house of the
deceased, as opposed to walking hurriedly away from the area,
towards the Dhanwanti Bai Dharamshala. Also, he admitted that
he could not remember how many people came out holding bags,
and how many came out emptyhanded,
along with the fact that
he did not usually take the route in front of the house/shop of the
deceased to reach his house from his shop, which shows that he is
a chance witness. Keeping in mind that this witness was related
to the deceased, and appears to be a chance witness with material
discrepancies in his account, we are inclined to discard his
evidence as to the last seen circumstance.
20. The first information given by the complainant PW26 clearly
mentions the name of the accused as well as their addresses. It is
16
also stated by the witnesses that they are acquainted with the
accused persons as they are electricians who frequented the house
of the deceased for repair works. Based on the same and
corroborated by the statement of PW26, the police could have
easily arrested the accused. It was stated by the Investigating
Officer K.D. Sonakiya, PW35, that the police went in search of the
accused in order to arrest them at different locations that night
itself. However, the material on record shows that the arrests were
made only the next morning between 11:00 a.m. and 11:30 a.m.,
that too at the houses of the accused persons, which also,
incidentally, shows that the accused persons were not absconding,
which is unnatural conduct on the part of an offender who knows
that he has been observed entering the house of the deceased on
the day of the offence. Be that as it may, the delay in the arrest,
despite clear knowledge of the whereabouts of the accused
persons, casts a serious shadow of doubt over the case of the
prosecution.
21. As regards the recovery of incriminating material at the
instance of the accused, the Investigating Officer K.D. Sonakiya,
PW35, has categorically deposed that all the confessions by the
accused persons were made after interrogation, but the mode of
17
this interrogation does not appear to be of normal character,
inasmuch as he himself has deposed that the accused persons
were further grilled and interrogated multiple times before
extracting the confessions which lead to the recovery of the
ornaments, cash, weapons and key. We find from the totality of
facts and circumstances that the confessions that led to the
recovery of the incriminating material were not voluntary, but
caused by inducement, pressure or coercion. Once a confessional
statement of the accused on facts is found to be involuntary, it is
hit by Article 20(3) of the Constitution, rendering such a
confession inadmissible. There is an embargo on accepting selfincriminatory
evidence, but if it leads to the recovery of material
objects in relation to a crime, it is most often taken to hold
evidentiary value as per the circumstances of each case. However,
if such a statement is made under undue pressure and
compulsion from the investigating officer, as in the present matter,
the evidentiary value of such a statement leading to the recovery is
nullified. It is noteworthy to reproduce the observations of this
Court regarding the relationship between Section 27 of the
Evidence Act and Article 20(3) of the Constitution in Selvi v. State
of Karnataka, (2010) 7 SCC 263:
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“102. As mentioned earlier “the right against selfincrimination”
is now viewed as an essential
safeguard in criminal procedure. Its underlying
rationale broadly corresponds with two objectives—
firstly, that of ensuring reliability of the statements
made by an accused, and secondly, ensuring that
such statements are made voluntarily. It is quite
possible that a person suspected or accused of a
crime may have been compelled to testify through
methods involving coercion, threats or inducements
during the investigative stage. When a person is
compelled to testify on his/her own behalf, there is a
higher likelihood of such testimony being false. False
testimony is undesirable since it impedes the
integrity of the trial and the subsequent verdict.
Therefore, the purpose of the “rule against
involuntary confessions” is to ensure that the
testimony considered during trial is reliable. The
premise is that involuntary statements are more
likely to mislead the Judge and the prosecutor,
thereby resulting in a miscarriage of justice. Even
during the investigative stage, false statements are
likely to cause delays and obstructions in the
investigation efforts.
103. The concerns about the “voluntariness” of
statements allow a more comprehensive account of
this right. If involuntary statements were readily
given weightage during trial, the investigators would
have a strong incentive to compel such statements—
often through methods involving coercion, threats,
inducement or deception. Even if such involuntary
statements are proved to be true, the law should not
incentivise the use of interrogation tactics that violate
the dignity and bodily integrity of the person being
examined. In this sense, “the right against selfincrimination”
is a vital safeguard against torture and
other “thirddegree
methods” that could be used to
elicit information. It serves as a check on police
behaviour during the course of investigation. The
exclusion of compelled testimony is important
otherwise the investigators will be more inclined to

extract information through such compulsion as a
matter of course. The frequent reliance on such
“short cuts” will compromise the diligence required
for conducting meaningful investigations. During the
trial stage, the onus is on the prosecution to prove
the charges levelled against the defendant and the
“right against selfincrimination”
is a vital protection
to ensure that the prosecution discharges the said
onus.
… 133. We have already referred to the language of
Section 161 CrPC which protects the accused as well
as suspects and witnesses who are examined during
the course of investigation in a criminal case. It
would also be useful to refer to Sections 162, 163
and 164 CrPC which lay down procedural safeguards
in respect of statements made by persons during the
course of investigation. However, Section 27 of the
Evidence Act incorporates the “theory of confirmation
by subsequent facts” i.e. statements made in custody
are admissible to the extent that they can be proved
by the subsequent discovery of facts. It is quite
possible that the content of the custodial statements
could directly lead to the subsequent discovery of
relevant facts rather than their discovery through
independent means. Hence such statements could
also be described as those which “furnish a link in
the chain of evidence” needed for a successful
prosecution. This provision reads as follows:
“27. How much of information received
from accused may be proved.—Provided
that, when any fact is deposed to as
discovered in consequence of information
received from a person accused of any
offence, in the custody of a police officer,
so much of such information, whether it
amounts to a confession or not, as relates
distinctly to the fact thereby discovered,
may be proved.”

134. This provision permits the derivative use of
custodial statements in the ordinary course of events.
In Indian law, there is no automatic presumption
that the custodial statements have been extracted
through compulsion. In short, there is no
requirement of additional diligence akin to the
administration of Miranda [16 L Ed 2d 694 : 384 US
436 (1965)] warnings. However, in circumstances
where it is shown that a person was indeed
compelled to make statements while in custody,
relying on such testimony as well as its derivative
use will offend Article 20(3).
135. The relationship between Section 27 of the
Evidence Act and Article 20(3) of the Constitution was
clarified in Kathi Kalu Oghad [AIR 1961 SC 1808 :
(1961) 2 Cri LJ 856 : (1962) 3 SCR 10]. It was
observed in the majority opinion by Jagannadhadas,
J., at SCR pp. 3334:
(AIR pp. 181516,
para 13)
“13. … The information given by an
accused person to a police officer leading
to the discovery of a fact which may or
may not prove incriminatory has been
made admissible in evidence by that
section. If it is not incriminatory of the
person giving the information, the
question does not arise. It can arise only
when it is of an incriminatory character
so far as the giver of the information is
concerned. If the selfincriminatory
information has been given by an accused
person without any threat, that will be
admissible in evidence and that will not
be hit by the provisions of clause (3) of
Article 20 of the Constitution for the
reason that there has been no
compulsion. It must, therefore, be held
that the provisions of Section 27 of the
Evidence Act are not within the
prohibition aforesaid, unless
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compulsion [has] been used in
obtaining the information.”
(emphasis supplied)
22. We are of the opinion that the recovery of the stolen
ornaments, etc. in the instant matter was made on the basis of
involuntary statements, which effectively negates the
incriminating circumstance based on such recovery, and severely
undermines the prosecution case.
23. Furthermore, the prosecution has examined many witnesses
who were alleged to be the pledgors of the said ornaments, who
identified their ornaments in an identification conducted by the
Naib Tehsildar. This was to prove that the recovered ornaments
were in fact the ornaments which were robbed from the house of
the deceased Premchand and later recovered from the accused
persons. We find substance in the argument of the learned Amicus
Curiae that this identification was not done in accordance with
due procedure. It is evident from the testimony of several of the
examined pledgors, such as PWs 15, 16 and 28, that the
identification procedure was conducted without mixing the
recovered jewellery with similar or identical ornaments.
Additionally, there is nothing on record to show the identity of the
pledgors and to prove that the identified ornaments were pledged
22
by them to the deceased Premchand, except for the account books
maintained by the deceased Premchand for his business, but
these cannot be relied upon. This is because these account books
were seized by the police from the possession of Shailendra Kumar
Jain, PW11, who is the soninlaw
of the deceased. Incidentally,
he also runs a similar moneylending
business as a pawn broker
in another town. No valid reason is accredited to the recovery of
deceased Premchand’s alleged account books from the possession
of his soninlaw.
Moreover, these account books were returned to
him without any prayer for the same and without following any
procedure. Later, it was found that there were additional entries
made in the account book after the date of the incident. Moreover,
none of the witnesses have spoken about the particular entry
relating to them in the account books. No signature of any
witness is identified and marked in the account books. In other
words, none of the witnesses have deposed about any relevant
entry found in the account books with reference to their respective
gold/silver articles. All these issues discussed above, coupled with
the fact that the investigation officer has put forth an artificial and
gotup
story in the matter of identification of the ornaments,
creates grave suspicion with regard to the recovery of the
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ornaments, as well as their identification by the different pledgors.
Hence, learned Amicus Curiae may be justified in contending, as
held by the High Court, that the aspect of recovery is a gotup
story, only to suit the purposes of the prosecution.
24. The witnesses for the recoveries which were effected at the
instance of the accused are Ashish Jain, PW26 and one Sanjeev
Jain. Both of them are close relatives of the deceased. Sanjeev
Jain has not been examined. Similarly, one Bahadur Yadav was
also not examined, who was a servant of the deceased Premchand
who had allegedly assisted the police by giving information about
the pledgors to locate them to be brought for identification of the
recovered articles. The nonexamination
of these two important
witnesses in light of the recoveries adversely affects the
prosecution case.
25. Another circumstance which has been contended to point to
the guilt of the accused is the recovery of bloodstained
weapons
at the instance of the accused. A pointed suja and a chisel were
recovered from the houses of Accused Nos. 2 and 1, respectively,
at their instance. However, the prosecution has not established
that these are the weapons which were used for the commission of
the crime. The medical evidence indicates that the injuries that
24
were found on the bodies of the deceased persons could not have
been caused with the weapons seized, and the likelihood of the
seized weapons causing the present injuries are very slim, as all
the injuries, except one, were lacerations caused by a hard and
blunt object.
The bloodstained
clothes of the accused persons were also
recovered from the houses of the accused at their instance.
However, the veracity of the said recovery is doubtful in light of
the fact that the said recovery was made two days after the arrest
of the accused and the recovery of the stolen articles from the
houses of the accused, which the investigating officer had
thoroughly searched previously. From Accused No. 3, Shyam
Sunder, clothes were recovered hanging from a hook inside his
oneroom
house, which had also been searched previously and
from where ornaments had also been seized before. All these
apparent infirmities create nothing but doubts in our minds
regarding the guilt of the accused.
26. All the bloodstained
items (including the weapons, clothes of
the deceased and the flooring and tiles of the spot where the
bodies were found) were sent to the FSL for examination, however
the reports do not, in any way, help the case of the prosecution.
25
The blood stains were found to be of human blood, however, only
the stains on the clothes of Accused No. 2 and Accused No. 3 were
found to be of the blood group ‘O’. Identification of the rest of the
stains was opined to be inconclusive. Although it is argued that
the blood group of the deceased persons is ‘O’, there is nothing
conclusive to prove the same. Therefore, no reliance can be placed
on the recovery of the bloodstained
weapons or clothes of the
accused.
27. Another incriminating factor as argued by the counsel for
the complainant is that the fingerprints of Accused No. 1 were
found upon the tea tumblers found at the scene of the crime. We
do not agree with the conclusion of the High Court that the
fingerprint samples of the accused (used for comparison with the
fingerprints on the tumblers) were illegally obtained, being in
contravention of the Identification of Prisoners Act, 1920,
inasmuch as they were obtained without a magisterial order.
Importantly, Section 4 refers to the power of a police officer to
direct taking of measurements, including fingerprints:
“4. Taking of measurements, etc., of nonconvicted
persons.—Any person who has been arrested in
connection with an offence punishable with rigorous
imprisonment for a term of one year or upwards shall,
26
if so required by a police officer, allow his
measurements to be taken in the prescribed manner.”
Section 5 of this Act provides for the taking of such samples upon
an order of a Magistrate, if the Magistrate is satisfied as to its
expediency:
“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 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.”
However, as affirmed recently by this Court in Sonvir v. State
(NCT) of Delhi, (2018) 8 SCC 24, Section 5 is not mandatory but is
directory, and affirms the bona fides of the sampletaking
and
eliminates the possibility of fabrication of evidence. The Court
also relied on various judgments on the point, including
Shankaria v. State of Rajasthan, (1978) 3 SCC 435, a threeJudge
Bench decision of this Court to reach this conclusion. While
27
discussing the decision of this Court in Mohd. Aman v. State of
Rajasthan, (1997) 10 SCC 44, the Court observed at paragraphs
6062
as follows:
“60. This Court observed 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. Further the following was
stated in para 8: (Mohd. Aman case [Mohd.
Aman v. State of Rajasthan, (1997) 10 SCC 44 : 1997
SCC (Cri) 777] , SCC p. 49)
“8. … Apart from the above missing link and the
suspicious circumstances surrounding the same, there
is another circumstance which also casts a serious
mistrust as to genuineness of the evidence. Even
though the specimen fingerprints 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 fingerprints
of the accused but to dispel any suspicion as to its
bona fides or to eliminate the possibility of fabrication
of evidence it was eminently desirable that they were
taken before or under the order of a Magistrate.”
(emphasis supplied)
61. The above observation although clearly
mentions that under Section 4 police officer is
competent to take fingerprints of the accused but
to dispel as to its bona fide or to eliminate the
fabrication of evidence it was eminently desirable
that they were taken before or under the order of
the Magistrate.
62. The observation cannot be read to mean that this
Court held that under Section 4 police officers are not
entitled to take fingerprints until the order is taken
from the Magistrate. The observations were made that
28
it is desirable to take the fingerprints before or under
the order of the Magistrate to dispel any suspicion…”
(emphasis supplied)
Even otherwise, pursuant to S. 8 of the Identification of Prisoners
Act, rules have been framed by the Madhya Pradesh government
for the purpose of carrying into effect the provisions of the said
Act. The relevant rules for the matter on hand are Rules 3, 4 and
5, which are reproduced herein:
“3. Taking of photographs or measurements. Allow
his photograph or measurements to be taken under
Section 3 or Section 4, shall allow them to be taken
under the directions of a police officer.
4. Places at which measurements and photographs
can be taken. (
1) Measurements and photographs
may be taken(
a) in Jail, if the person whose photograph, or
measurements are to be taken, is in Jail;
(b) at a police station or at any other place at which the
police officer may direct the taking of the
measurements or photographs, if the person whose
photograph or measurements are to be taken is in
police custody.
(2) If the person whose photograph or measurements
are to be taken has been released from jail before his
measurements or photograph have been taken or is
not in police custody, he shall on receipt of an order in
writing from an officer in charge of a Police Station
attend at such place as may be specified in such order,
on the date and at the time stated therein, for the
29
purpose of having his measurements or photograph
taken.
5. Measurements how to be taken. (
1)
Measurements of the whole or of any part of the body
may be taken.
(2) The measurements of a woman shall be taken by
another woman with strict regard to decency.”
A bare reading of these rules makes it amply clear that a police
officer is permitted to take the photographs and measurements of
the accused. Fingerprints can be taken under the directions of the
police officer. As held by this Court in Sonvir (supra), although
Section 4 mentions that the police officer is competent to take
measurements of the accused, but to dispel doubts as to its bona
fides and to rule out the fabrication of evidence, it is eminently
desirable that they were taken before or under the order of a
Magistrate. However, the aforesaid observations cannot be held to
mean that this Court observed that under Section 4, police officers
are not entitled to take fingerprints until the order is taken from a
Magistrate. If certain suspicious circumstances do arise from a
particular case relating to lifting of fingerprints, in order to dispel
or ward off such suspicious circumstances, it would be in the
interest of justice to get orders from the Magistrate. Thus there
30
cannot be any hard and fast rule that in every case, there should
be a magisterial order for lifting the fingerprints of the accused.
Thus, it cannot be held that the fingerprint evidence was
illegally obtained merely due to the absence of a magisterial order
authorizing the same.
At the same time, we find that in the current facts and
circumstances, the absence of a magisterial order casts doubts on
the credibility of the fingerprint evidence, especially with respect to
the packing and sealing of the tumblers on which the fingerprints
were allegedly found, given that the attesting witnesses were not
independent witnesses, being the family members of the deceased.
Thus, we cannot rule out the possibility of tampering and postfacto
addition of fingerprints, and concur with the High Court in
discarding the fingerprint evidence.
28. It is noteworthy to mention that the DIG of Police had visited
the scene of the crime shortly after finding the bodies, which is
evident from the deposition of witnesses such as PW1. The DIG,
upon seeing three tea tumblers and some electrical equipment at
the scene of the crime, inferred that the crime may have been
committed by three persons who were electricians. This inference
drawn by a highranking
officer in the police is likely to have
31
impeded the course of investigation and created prejudice against
the accused persons. The whole investigation and the prosecution
case seem to be concocted around this inference made by the DIG,
and such a circumstance does not help the case of the
prosecution.
29. In light of the aforementioned discussion and reappraisal of
evidence by this Court, we do not find any glaring infirmity in the
acquittal granted by the High Court. On the other hand, we find it
wellreasoned,
and therefore accept the view of the High Court.
The appellants have failed to establish that the High Court has
erred in its conclusion. Unless any blatant illegality or substantial
error in the order of acquittal is proved by the appellants, and as
long as the conclusion of acquittal is a possible view based on the
circumstances and material on record, this Court is not bound to
interfere with the same. As a reasonable suspicion or doubt
persists in our minds regarding the guilt of the accused based on
the case of the prosecution, the scales of criminal justice tilt in
favour of acquittal of the accused. In such a scenario, the
acquittal of the accused persons is confirmed.
30. At this juncture, we would like to extend our appreciation to
the learned counsel and especially for the able assistance of Mr.
32
V.N. Sinha, Senior Counsel appointed as the Amicus Curiae.
31. Therefore, Criminal Appeal Nos. 19801981
of 2008 are
dismissed, and the judgment and order of acquittal of the High
Court is maintained.
…………………………………….….J.
[N.V. RAMANA]
………………………………………..J.
[MOHAN M. SHANTANAGOUDAR]
New Delhi;
January 14, 2019.

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