1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Om Singh & Anr. vs. State of Rajasthan (1)DBCriminal Appeal No.291/2009 Rajendra Singh Vs. State of Rajasthan (2)DBCriminal Appeal No.243/2009 Man Singh Vs. State of Rajasthan (3)DBCriminal Appeal No.264/2009 Appeals against the judgment dated 31.3.2009 passed by Additional Sessions Judge, Bali District Pali, in Sessions Case No.02/2003(04/2003). Date of Judgment :: 19th May, 2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR HON'BLE MR.JUSTICE C.M.TOTLA Mr. Suresh Kumbhat ] Mr. Sheetal Kumbhat] for the appellants. Mr. M.K.Garg ] Mr. Farzand Ali ] Mr. KR Bishnoi, PP, for the State. .... 2 BY THE COURT : (PER HON'BLE MATHUR,J.) REPORTABLE These three appeals are arising out of the judgment and order dated 31.3.2009, whereby the Learned Additional Sessions Judge, Bali convicted the accused appellants for the offences punishable under Sections 302/34, 449 and 397 Indian Penal Code, thus, sentenced each of them as under:- U/s.302/34 IPC : Imprisonment for life with a fine of Rs.500/- and in default of payment of fine further to undergo six months simple imprisonment; U/s.449 IPC : Imprisonment for life with a fine of Rs.500/- and in default of payment of fine further to undergo six months simple imprisonment; and U/s.397 IPC : Seven years rigorous imprisonment. The factual matrix necessary to be noticed for adjudication of present appeals is that PW-25 Lachhi Ram, brother of deceased Ganeshmal, submitted a written report (Ex.P/27) at Police Station Nana District Pali on 22.4.2002 at 08:00 PM, with assertion that Ganeshmal and his wife were residing at Chimanpura Road and were also running a provision store there. In early morning of 22.4.2002, PW-7 Harjiram Driver informed to PW-13 Devichand son of PW- 25 Lachhi Ram about closure of the house of Ganeshmal 3 at its exit. Devichand then went to the house where he found that windows were opened and all the household articles were lying scattered. He then telephonically informed the police about some ill-happening at the residence of Ganeshmal. The police officials in presence of PW-28 Chiman Singh, Sarpanch of the village, opened the door and found dead bodies of Ganeshmal and his wife Vimla lying in varandah. Other household articles including weight measures and provision material were lying on the floor. On basis of the information aforesaid, a case under Section 460 IPC was registered and after investigation all the accused persons viz. Om Singh @ Tiger son of Bheek Singh, Jitendra Singh son of Hanuman Singh, Man Singh son of Dhan Singh and Rajendra Singh son of Chiman Singh were arrested on different dates. During the course of investigation certain recoveries were made from the accused persons and after completion of the investigation, charge sheet was filed. The trial court framed charges against the accused appellants for commission of the offences punishable under Sections 460, 397 and 302/34 IPC. On denial of the same, regular trial was conducted. The prosecution supported its case with the aid of 37 witnesses and several documents marked as Ex.P/1 to Ex.P/56. 4 Learned trial court examined the accused persons as per provisions of Section 313 Cr.P.C. for getting an explanation relating to the adverse material available in the prosecution evidence against them. All the accused stated that whatever evidence available against them is false and they were falsely implicated in the case in question. Accused Man Singh while pleading his innocence also stated that witnesses Jitendra, Devichand and Ganeshmal were partners in a business. Ganeshmal was issueless and Devichand was interested in getting himself adopted as son by Ganeshmal. On the day of incident Devichand alongwith his other friends consumed liquor. On basis of the aforesaid explanation this accused tried to defend himself with allegation that as a matter of fact Devichand and his other friends who consumed liquor on the day of incident may be responsible for killing of Ganeshmal and Vimla. The trial court after considering the entire material available on record reached at the conclusion that chain of circumstances framed by the prosecution indicates only one conclusion i.e. guilty of the accused appellants for the charges levelled. Learned trial court while establishing guilt of the accused appellants relied upon the following circumstances:- 5 - availability of a hand written note in the palm of deceased Ganeshmal, writing of which was found similar to the handwriting of accused Man Singh; - the accused persons stayed at several Dharamshalas at Jodhpur, Bikaner, Ambaji etc. with forged identity; - recovery of knife from the baggage of accused Jitendra Singh; - recovery of a note book from accused Jitendra Singh mentioning therein the date of incident i.e. “21.4.2002” and then mentioning the term “the end”; - recovery of news cutting pertaining to the incident in question from accused Om Singh; - verification and acceptance of the incident by accused persons in witness of responsible persons; - extra judicial confession of Man Singh and threatening given by him to Arjun Singh; - reky of the spot by the accused persons as stated by PW-27 Vada Ram; - visit of village Nagana as stated by PW-15 Ladu Singh; and 6 - recovery of certain articles from the accused persons and their test identifications. For convenience, it shall also be appropriate to summarise the evidence available against each of the accused, and that is as under:- Accused Man Singh : - A paper chit mentioning certain food and provision articles, found in the palm of deceased Ganeshmal. The chit aforesaid was found to be having a writing similar to the writing of this accused; - Ex.P/22 is the forwarding letter from Superintendent of Police Pali remitting the chit aforesaid for its examination to the Assistant Director (Documents), Forensic Science Laboratory, Jodhpur; - Ex.P/23 is receipt given by Forensic Science Laboratory on receiving the chit and other documents said to be written by the accused; - Ex.P/24 is report of Forensic Science Laboratory with opinion that “the writer of standard writings as S/1 to S/27, A/1 to A/12 also wrote the disputed writing marked as Q1”; 7 - recovery of silver rod from this accused as per recovery memo Ex.P/40. The recovery aforesaid was made in presence of motbirs Durga Prasad and Jitendra Mewara; - Ex.P/6 is a document wherein PW-10 Arjun Singh stated that accused Man Singh threatened him on telephone for dire consequences and also confessed about commission of crime by him, however, PW-10 Arjun Singh in his statements before the court did not supported the prosecution and as such was declared hostile. Accused Jitendra Singh : - This accused was arrested on 7.9.2002 and the arrest memo is Ex.P/9; - As per Ex.P/11 the accused was searched at the time of arrest and from his possession following articles were recovered:- -A knife -Receipts relating to his stay at certain Dharamshalas; -A note book mentioning the date “21.4.2002” and showing his name as “Baba Thakur”; -As per spot verification report Ex.P/20 dated 12.9.2002 he narrated entire chain of incidence and his involvement in the crime. 8 -Recovery of gold pendent as per recovery memo Ex.P/21. Accused Om Singh @ Tiger : - This accused was arrested on 7.9.2002 as per arrest memo Ex.P/10. At the time of arrest a search was made and the search report is available on record as Ex.P/12. During search a news cutting relating to incident in question was found from possession of this accused; - On 11.9.2002 as per Ex.P/19 a report of site verification was made wherein the accused verified the entire incident and his participation in crime in question; - Recovery of gold chain as per recovery memo Ex.P/44 from the accused in presence of Natwar and Jitendra Kumar. Accused Rajendra Singh : - This accused was arrested on 2.7.2003 as per arrest memo Ex.P/50. - Ex.P/55 is the report of site verification wherein the accused verified the incident and accepted his participation therein; 9 - recovery of ear rings as per Ex.P/53 from a place at the distance of 200 meters from Kothar Railway Station near a bani entry. The recovery aforesaid was made in presence of PW-36 Gopal Lal. In appeal, learned counsel for accused Man Singh urged that the circumstances upon which learned trial court relied are having no evidentiary value and those in no manner leads to establish guilt of the accused. It is stated that the writings on the papers which were taken from the house of this accused though are said to be undisputed, but as a matter of fact no evidence is available on record to settle that the specimen documents were written by the accused. It is also urged that the report of a handwriting expert is nothing but only an opinion, being not based on scientific studies but on observations only, and as such the opinion given by handwriting expert cannot be a foundation for conviction. It is also urged that recovery said to be made at the instance of the accused too is not reliable. The silver rod was recovered as per Ex.P/40 in absence of the reliable witnesses. According to the counsel for this accused, the accused was arrested on 24.8.2002 i.e. after a lapse of more than four months from the date of incident and thereafter recovery of a minor article was made and i.e. not at all reliable in view of the erroneous test identification. It is asserted by learned counsel that though PW-10 Arjun Singh was 10 declared hostile, the trial court relied upon document Ex.P/6 which as a matter of fact could have not been a credil to sustain the conviction. Shri Suresh Kumbhat, learned counsel for accused Jitendra Singh and Om Singh, in quite detail pointed out several faults and contradictions in prosecution case. It is urged that the sole evidence against accused Jitendra Singh is recovery of a gold pendent and availability of a knife and certain receipts relating to his staying at various Dharamshalas. Learned counsel pointed out that the recovery of knife is nothing to do with the incident under consideration and even the prosecution has not connected this article with the crime concern. The recovery of other articles is also of no consequence as PW-30 Natwar did not support the prosecution case. The other witness of recovery PW-37 Jitendra Kumar has also not given any description of the articles recovered and he has also not said regarding sealing of recovered articles. Beside that, it is also urged that the recovery from accused Jitendra Singh was made at Abu Road but motbir PW-37 Jitendra Kumar is a resident of village Chamunderi and he is a stock motbir taken by the police while making each and every recovery irrespective of the place of recovery. The motbirs relating to the recoveries made were taken by the police from Chamunderi village though the recoveries were made at distant place. It is pointed 11 out that the recoveries from accused Jitendra Singh were made at Abu Road, whereas the recovery from accused Om Singh was made at Falna. The same witness PW-37 Jitendra Kumar was a motbir while effecting recovery from accused Om Singh and, therefore, on the same arguments recovery from this accused is also assailed. Beside that, it is stated that the test identification itself is erroneous as all the articles were earlier shown to the witness concerned. It is also stated that witness PW-25 Lachhi Ram was not even knowing the articles recovered. In general, the defence advanced on behalf of accused Jitendra Singh and Om Singh is that the recovery of articles is erroneous, the test identification before the Magistrate PW-23 Shri Dalpat Singh is of no consequence as the articles were already shown to PW- 25 Lachhi Ram, the receipts relating to stay of accused persons at different Dharamshalas are having no evidentiary value as no identification parade was conducted which was necessary in view of the statements given by PW-8 Amritlal, Manager of Seth Nanalal Manchharamji Dharamshala, Ambaji, that he was not knowing the accused previously. Certain doubts about these receipts are also created in view of the fact that the register Ex.P/3 was not having requisite entries of check in and check out. While advancing the case of accused Rajendra Singh, it is argued that the accused was arrested 12 after a lapse of about one year three months from the date of incident and only evidence available against him is recovery of ear rings from an open place. According to learned counsel for this accused the recovery said to be made at the instance of the accused is not at all reliable. While supporting the conviction recorded, learned Public Prosecutor in general stated that in the instant matter the articles taken from the body of deceased Smt. Vimla were recovered from accused Jitendra Singh, Rajendra Singh and Man Singh. Accused Om Singh sold gold articles at Abu Road and those were recovered by the investigating agency. As per learned Public Prosecutor, the accused persons utterly failed to explain availability of looted articles with them. We have considered the arguments advanced and also scrutinised the entire record. In the instant matter homicidal death of Ganeshmal and Vimla is not at all in dispute. It is also not in dispute that the deceased couple was issueless and they were having a shop-cum-residence. As per prosecution all the four accused in the intervening night of 21.4.2002 and 22.4.2002 jointly made house breaking, committed dacoity and murdered Ganeshmal and his wife Vimla. The first 13 terminal of the thread, framing circuit of the circumstances is a paper chit found in palm of deceased Ganeshmal. This chit enlists certain food and provision articles. As per the prosecution the chit aforesaid was written by accused Man Singh who was already known to deceased Ganeshmal and Vimla being resident of the same village i.e. Chamunderi. The door of the house was opened by deceased couple at the instance of Man Singh, who pretended as a customer for the articles referred in the chit aforesaid. The other accused persons entered in the house subsequently and committed dacoity and also murdered Ganeshmal and Vimla by strangulation. The chit found in the palm of Ganeshmal was sent for comparison with handwriting of accused Man Singh, wherein an affirmative opinion was given. The investigating agency on basis of the chit aforesaid adopted a definite direction of investigation and subsequently arrested accused Man Singh and other co-accused persons. Recoveries too were subsequently made. In the factual background aforesaid, the chit and the writing made therein is the starting terminal of the prosecution case and as such that requires minute examination. Hon'ble Supreme court in S.Gopal Reddy v. State of Andhra Pradesh (AIR 1996 SC 2184), while holding that the evidence of an expert is not conclusive, observed that “the evidence of an expert is a rather weak type of evidence and the courts do 14 not generally consider it as offering “conclusive” proof and therefore safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal v. State of Punjab (AIR 1977 SC 1091), while dealing with the evidence of a handwriting expert, this Court opined: ..We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P. (AIR 1957 SC 381) that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Misra v. Mohd. Isa (AIR 1963 SC 1728) that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee (AIR 1964 SC 529) where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if 15 ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. (AIR 1967 SC 1326) and ti uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial.” As per Sections 45 and 47 of the Indian Evidence Act, the evidence relating to handwriting is an opinion, therefore, the court just by adopting available means satisfy itself about absolute authenticity of such opinion. No doubt, the opinion given by an expert relating to handwriting by a scientific comparison and also on basis of familiarity resulting from frequent observations is a relevant evidence, but i.e. not at all conclusive. Such opinion always warrants reasonable corroboration. The prosecution while relying upon an opinion pertaining to handwriting is not only suppose to corroborate the same but also duty bound to establish that the specimen writings are of the accused. 16 In the instant case learned trial court heavily relied upon the opinion of the handwriting expert on the count that as per Section 293 Cr.P.C. such opinion is acceptable in evidence, the opinion was given after comparison of the same with signatures of accused Man Singh taken by PW-33 Dr. Mahendra Dabi as E/1 to E/81 and certain other documents made available to the prosecution by Dhan Singh, father of accused Man Singh. True it is, as per Section 293 Cr.P.C. any document purporting to be a report under the hands of a scientific experts to whom this section applies upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under the Code of Criminal Procedure, may be used as evidence in any inquiry, trial or other proceeding, but at the same time a doubt can always be created in relying upon such opinion, if there is any discrepancy relating to remission of the material subject to scientific examination. In the case in hand signatures of accused Man Singh were said to be taken by PW-33 Dr. Mahendra Dabi as E/1 to E/81 but recording of such signatures is not at all established in view of the fact that the witness aforesaid has not said a single word in his statements about signatures so taken. The prosecution though came with the case that the signatures of accused Man Singh were taken by 17 PW-33 Dr. Mahendra Dabi but establishment of the fact aforesaid was obligatory for the prosecution and that failed to do so. The other specimen documents taken into consideration by the Forensic Science Laboratory as per prosecution were supplied by Dhan Singh, father of accused Man Singh. Dhan Singh was not produced in evidence and a presumption is drawn by learned trial court that even if Dhan Singh would have been produced in evidence, he would have not supported the prosecution case being, father of accused Man Singh. We do not find any just reason for drawing such presumption. Be that as it may, the resultant is that the specimen documents have not been established as the documents written by accused Man Singh himself. In absence of authenticity of the specimen documents the opinion given by the expert is of no consequence. We are having no hesitation in saying that the opinion pertaining to handwriting as per Ex.P/22 has been erroneously relied upon by the trial court for convicting the accused persons. An important aspect relating to the chit recovered is that it was found with deceased Ganeshmal and was seized by the investigating agency as per Ex.P/19-A on 22.4.2002. No entry of the chit so recovered is available in malkhana register Ex.P/3 and Ex.P/3-A, though the chit was subsequently sent for its scientific examination under Ex.P/22 by the Superintendent of Police, Pali. No explanation is 18 available with learned Public Prosecutor regarding custody of the chit from the date of its seizure to the date of its remission i.e. 22.10.2002 to the Assistant Director (Documents), Forensic Science Laboratory, Jodhpur. On this count too the reliability of the chit and its author is under heavy clouds. Before discussing value of the evidence relating to recovery made by the prosecution in present case, we consider it appropriate to examine the test identification parade made as per Ex.P/31, Ex.P/32 and Ex.P/33. As per Ex.P/31, PW-25 Lachhi Ram identified a gold chain that was recovered from accused Om Singh. A pair of silver rods recovered from accused Man Singh as per Ex.P/32 was also identified by PW-25 Lachhi Ram. PW-25 Lachhi Ram also identified a gold pendent recovered at the instance of accused Jitendra Singh. PW-25 Lachhi Ram in quite unambiguous terms stated that before conducting test identification parade, recovered articles 1 to 4 were shown to him at Police Station. An another aspect of the matter is that PW-25 Lachhi Ram stated that he identified the recovered articles on basis of identifications disclosed by his wife. We are of the considered opinion that the person identifying the articles is required to have his own knowledge about identity of such articles. The identification made on basis of certain identifications disclosed by some other person is not at all reliable. 19 Though, on failure of the evidence relating to identification of articles, the evidence relating to recovery of articles looses its substantial force but as much emphasis is given by learned Public Prosecutor on that, we consider it appropriate to discuss the value of the evidence available in this regard too. The investigating agency recovered a pair of silver rods as per recovery memo Ex.P/20 at the instance of accused Man Singh. Accused Man Singh was arrested on 24.8.2002 and the recovery as per Ex.P/40 was made on 28.8.2002. The recovery was made in presence of motbirs PW-29 Durga Prasad and PW-37 Jitendra Kumar Mewara. The articles aforesaid were not at all entered in malkhana register upto 28.11.2002, as such custody of articles so recovered from 28.8.2002 to 28.11.2002 is highly questionable. Similarly, the recovery of gold chain from accused Om Singh is also of no consequence as the motbir PW-30 Natwar did not support the prosecution case. The other witness PW-31 Narayanlal also has not said anything that may connect the accused with the recovery aforesaid. From accused Jitendra Singh the investigating agency recovered a knife and certain receipts relating to his stay in Dharamshala. So far as knife is concerned, even if it is accepted that the 20 same was found with accused on 7.9.2002, at the time of his arrest, then too that is not at all connected with the crime in question. Merely on basis of availability of a knife no inference can be drawn about involvement of this accused with the crime that took place in the intervening night of 21.4.2002 and 22.4.2002. The prosecution also failed to connect the receipts recovered from this accused relating to his stay in Dharamshala at Ambaji. From accused Rajendra Singh recovery of two ear rings was made as per Ex.P/53 after a lapse of about one year four months from the date of incident. The recovery so made was from an open place. Beside this recovery no other evidence is available against this accused. We