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TMI Blog1971 (12) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... rted a Private Limited Company under the name of Himprasth Financiers with the Head Office at Nagina Singh Building which was situated in the Mall at Simla of which he was the Managing Director. He used to also live in the same building in one of the rooms of the office and have his meals in the Mansarover Hotel. The other Directors of this-Company were Gurucharan Singh, Puran Chand Sood and Kailash Devi wife of I. C. Gupta, P.W. 2. who was at one time also Manager in the Himachal Pradesh State Cooperative Bank. After the accused was dismissed from the Bank he had applied to the deceased for a job and was appointed as an Accountant in the Finance Company but later when his request for increase in his pay was not sanctioned, he sent in his resignation by a letter dated 31-12-66 Exh. P. 8 and it was accepted on 3-1-67 by a resolution of the Board of Directors Exh. P. 43. On the night of 30th January 1967 the deceased had his dinner at the Hotel and when he came out after taking his food it was alleged that he was met by the accused. This was witnessed by Romesh Chand P.W. 7 the Proprietor of the Hotel who saw them both going towards the Mall. Thereafter at the betel shop which is nea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Constables met P.W. 2, P.W. 8 and boarded the jeep of P.W. 2 driven by Roshan Lal and went towards the house of Om Prakash. On the way PW. 2 saw Kala Ram, P.W. 5, who was waiting for a bus and asked him to get into the jeep. Thereafter they went to the house of the accused situated at Anandale and there P.W. 28 went inside the house and saw the accused in one of his rooms and brought him outside. After interrogating him he arrested him and pursuant to a statement made by him seized from him one sweater, one coat, one blanket which was hidden inside the nivar of his coat lying inside his room. The sweater and the coat were stated by the accused to be his. The accused also gave them the pair of boots and socks which he was wearing and informed them that he had concealed one blood stained dagger under a stone slab below the Maidan of Burnt Market and over the bakeries which was by the side of a pipe and offered to have it recovered. He further stated that he had kept the five registers in a canvas bag which he had hidden below a stone at Krishna Nagar on the bank of Ganda Nala and that he had thrown 8 or 9 bundles of the vouchers tied in a tea-pot cloth and his blood stained pants i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 points of similarity i.e. matching ridge characteristic details. 2. The High Court grouped the circumstances relied against the accused under 4 broad heads namely: (i) that there was a motive for committing the murder; (ii) that the deceased Chaturvedi was seen last in the Company of the accused; (iii) that in pursuance of the statement said to have been made by the accused as per Ex. P. 6 a recovery of blood stained sweater, coat, blanket shoes and socks and blood stained dagger were made as per Ex. P. 6/A on 1-2-67 (the date given in the Judgment as 2-2-67 is not correct), and that on 2-2-67 five registers contained in a bag and 12 bundles of vouchers were recovered; and (iv) that the finger marks of the accused were found on the flask as well as on the glass panes at the place where the murder took place. 3. If the circumstantial evidence as relied upon by the prosecution is credible and acceptable the offence with which the accused is charged can be held to be established beyond reasonable doubt. The High Court however did not accept these circumstances as having been established by any independent and reliable evidence. In so far as motive suggested by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfied that the statements were freely and voluntarily made by the accused and accordingly neither the portions of those statements which related to the discovery of incriminating facts nor the admissibility under Section 27 of these Memos Ex. P6 P. 6A and P. 7 which were signed by P.W. 2, P.W. 5, P.W. 8 and P.W. 28 both on 1-2-67 as well as on 2-2-67 could be relied upon. Even the handing over of the shoes and socks it was observed cannot be treated as having been discovered because the accused was wearing them at the time when he handed them over to the police, and also that it was difficult to believe that the accused will have the coat, sweater and blanket which are said to have blood stains on them recovered because he could have discarded them in the same way as he is said to have done with his pants. Moreover the coat and the sweater were not shown to belong to the accused by independent and reliable evidence. For these reasons the alleged discoveries or the recoveries of the coat, the sweater, the blanket, shoes and socks were rejected. Even with respect to the discovery of the dagger the High Court thought that Amar Chand P.W. 8 was not an independent witness, that Bhag S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various links in a chain, which if complete, leads to the undoubted conclusion that the accused and accused alone could have committed the offence with which he is charged. It is said that this evidence is much more dependable than direct evidence provided that no link in the chain is missing. While it is possible that each of these links may not by itself incriminate the accused or be conclusive against him the linking of all of them may forge the chain in arriving at that conclusion. 4. The evidence that accused had ill will against the deceased furnishing a motive, that he was last seen in the company of the deceased, that he was present in the room of the deceased at or about the time he was murdered, that he was subsequently found in possession of articles which bear incriminating blood stains and that he had hidden the dagger with blood stains thereon and certain other 'articles which were discovered on the information furnished by him, all of which if believed leads to the conclusion that he was the murderer. In appreciating the evidence against the accused the prime duty of a court is firstly to ensure that the evidence is legally admissible, that the witnesses who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Because of these difficulties corroboration is sought wherever possible and the maxim that the accused should be given; the benefit of doubt becomes pivotal in the prosecution of offenders which in other words means that the prosecution must prove its case against an accused beyond reasonable doubt by a sufficiency of credible evidence. The benefit of doubt to which the accused is entitled is reasonable doubt-the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy-though unwittingly it may be-or is afraid of the logical consequences; if that benefit was not given, Or as one great Judge said it is not the doubt of a vacillating mind that has not the, moral courage to decide but shelters itself in a vain and idle scepticism . It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay to take his food towards the Lower Bazar side and he went away to his house. P.W. 2 knew of the financial position of the deceased which was according to the loan ledger entries of the Himprasth Finance Company Rs. 1157.71 No. as on 31-12-66, that there was a credit amount of Rs. 14,000 as on 29-11-66 which was not withdrawn till then; that certain amounts were also borrowed for the marriage of his daughter from Rawal Chand of Sanjouli whom he knew well and that from the accounts it appeared that there was only Rs. 6.10 np. as cash in hand of the Company which may be in the hands of P.W. 13. He further states that he used to be present in every meeting of the Himprasth Financiers and he used to write the Minutes Book. There is no suggestion that these Account Books were manipulated or that the entries therein were not made contemporaneously with the transactions which they evidenced. There is therefore no justification for holding that either P.W. 2, or P.W. 8 or P.W, 13 notwithstanding their close connection with the deceased and the Himprasth Finance Company were inimically disposed towards the deceased or towards the accused. No adverse inference can be drawn as contended by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly on the accused. But at the time when these seizures were made the part played by the accused if any was not known, and if at all P.W. 2, P.W. 8 and P.W. 13 who were witness to the panchnama had not been cleared from suspicion. We are not unaware that Section 27 of the Evidence Act which makes the information given by the accused while in custody leading to the discovery of a fact and the fact admissible, is liable to be abused and for that reason great caution has to be exercised in-resisting any attempt to circumvent, by manipulation or ingenuity of the Investigating Officer, the protection afforded by Section 25 and Section 26 of the Evidence Act. While considering the evidence relating to the recovery we shall have to exercise that caution and care which is necessary to lend assurance that the information furnished and the fact discovered is credible. 8. As already stated, on 1st February 1967 the coat, sweater, shoes and socks of the accused and a blanket of the deceased were recovered in the presence of P.W. 2, P.W. 5, P.W. 8 and P.W. 28. After this they proceeded to the place indicated by the accused and recovered the blood stained dagger from under a stone, which was w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he most interested was not present at the time of the recovery of the dagger. 10. P.W. 5's evidence was not considered to be independent because the High Court thought that he was known to P.W. 28 from before. This by itself in our view will not justify the rejection of his evidence. That apart there is nothing in his evidence to show that P.W. 28 knew him before he came to Simla while he was living in Kaithal. The witness, stated that the S.H.O. was never posted at Kaithal but knew the Daroga (SHO) from 2/3 months before that date. He had not met P.W. 28 before he arrived at Simla. It was suggested to him that Daroga had come and sat in his shop at the Mandi but that was denied. He however stated that the Daroga used to ask his 'hal dial' sometime and used to wish him and that was all. Witness also denied having seen P.W. 2 and P.W. 8 before that day and came to know their names only when he went to Anandale. The brothers of P.W. 5 were at Kaithal doing business but here again there was nothing to connect the brothers with P.W. 28 and though P.W. 28 admits that his own brothers Roshan Lal and Malik Harbans Lal reside in Kaithal and one of them has some lands there, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to which the information directly relates. In order to render the information admissible the fact discovered must be relevant and must have been such that it constitutes the information through which the discovery was made. What is the fact discovered in this case? Not the dagger but the dagger hid under the stone which is not known to the police. (See Pulukuri Kotayya and Ors. v. King-Emperor 74 India Appeals p. 65. But thereafter can it be said that the information furnished by the accused that he purchased the dagger from P.W. 11 led to a fact discovered when the accused took the police to the than of P.W. 11 and pointed him out? A single Bench of the Madras High Court in Public Prosecutor v. India China Lingiah and Ors. AIR 1954 Mad. 333, and in re Vellingiri AIR 1950 Mad 613 , seems to have taken the view that the information by an accused leading to the discovery of a witness to whom he had given stolen articles is a discovery of a fact within the meaning of Section 27. In Emperor v. Ramanuja Ayyangar AIR 1935 Mad. 528, a Full Bench of three Judges by a majority held that the statement of the accused I purchased the mattress from this shop and it was this woman (another wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h whom some material fact, such as the weapon of murder, stolen property or other incriminating article is not hidden sold or kept and which is unknown to the Police can be said to be discovered as a consequence of the information furnished by the accused. These examples however are only by way of illustration and are not exhaustive. What makes the information leading to the discovery of the Witness admissible is the discovery from him of the thing sold to him or hidden or kept with him which the police did not know until the information was furnished to them by the accused. A witness cannot be said to be discovered if nothing is to be found of recovered from him as a consequence of the information furnished by the accused and the information which disclosed the identity of the witness will not be admissible. But even apart from the admissibility of the information under Section 27, the evidence of the Investigating Officer and the panchas that the accused had taken them to P.W. 11 and pointed him out and as corroborated by P.W. 11 himself would be admissible under Section 8 of the Evidence Act as conduct of the accused. 14. We then come to the recovery on the second February of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered and therefore it cannot be said that they were discovered as a consequence of the information furnished by the accused. 15. After excluding the recoveries made under Ex, 7 namely the Account Books etc. the evidence against the accused which remains to be considered is, the motive, the recovery of the button, the ringer prints on the flask and the window panes, blood stained coat, sweater, shoes and socks alleged to be of the accused, blanket, the dagger and the deceased being last seen alive in his Company. As we have already noticed the High Court had rejected the evidence of motive but in our view it failed to consider one aspect which is important namely that the accused wanted to be re-employed with the Himprasth Finance Company and though the other Directors were willing the deceased was not. It is true that the initial ill will which he may have had against the deceased when he suspended him in 1964 may have been forgotten because the deceased subsequently extended his sympathy and employed him in his Finance Company. The accused was not satisfied with the conditions of his service and wanted an increase in the pay which the Company was not prepared to give causing hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p.m. on 30th January when he was the last one to have seen him alive. That the accused was in the room with the deceased is established by the fact that his finger prints were on the flask and the window panes and that a coat button of his was found in the room. It was however contended on behalf of the accused that these finger prints were not blood stained nor do they indicate that the accused was present at the time when the offence was committed because the evidence shows that he was seeking to get re-employment and the possibility of his having visited the deceased earlier in the day or a few days before the offence when the finger prints could have been found on the flask and the window panes cannot be ruled out. Secondly it was urged that the report of the finger print expert as the High Court has held does not furnish the reasons for the opinion that they belonged to the accused. On the first of these contentions it may be observed that there is no evidence that he had been to see the deceased earlier that day or had seen him before that clay as would probabilise these finger prints being still present on the 31st January. The evidence merely points out to the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd compared with the finger prints taken of P.W. 2, P.W. 13 and P.W. 8 and the accused. In so far as the Finger Prints of the accused are concerned though somewhat smudged they were said to be readably clear and in each of the finger impressions found on the flask and the window pane there were more than 12 points of similarity i.e. matching ridge characteristic details in their identical sequence, without any discordances in their comparable portion and the corresponding portion of the left thumb impression, middle finger impression, left index finger, right middle finger of Om Prakash the accused. It was also stated that so many points of similarity cannot be found to occur in the impressions of different thumbs and fingers and they are therefore of one and the same person. In respect of a thumb impression compared with the right thumb impression of Om Prakash the expert had found not less than 10 points of similarity and even with respect to this his opinion was that so many points of similarity cannot be found to occur in the impressions of different thumbs and fingers and are therefore identical or are of one and the same person. There appears to be no difficulty in coming to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the sweater were recovered from his room while the shoes and socks from his person as Tie was wearing them. There can be no doubt of the ownership being that of the accused. 17. Then there is the recovery of the blood stained knife with respect to which similar contentions were raised. Where a person who is not a hardened criminal is burdened with the guilt of a gruesome crime, is confronted with a tell tale finding the possibility of his making a clean breast of what is weighing heaving on him cannot be ruled out. It is difficult to generalise as to what a man may or may not do after committing a ghastly murder nor can there be an infallible test to determine the course of human reaction, conduct or behavior in a given situation which might manifest itself in various ways. In this case when the accused was confronted with the button of his coat he gave information leading to the incriminating discoveries. 18. Whether the knife could have been properly identified by P.W. 11 in the identification held before the Magistrate there can be little doubt, if we believe his evidence, the accused had purchased a knife that day, which is similar in nature to the one he was selling. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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