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MOHAN LAL & ANR. v.

AJIT SINGH AND ANR.

May 2, 1978

[P. N. SIIINGHAL AND D. A. DESAI, JJ.] Evidence Act, 1872-S.114 (a)-Presumption to be drawn against the accused is a niatter lvhich depends on the circumstances of each case.

Crin1inal Procedure Code, 1973, s. 313-It is permissible to accept that part of the staten1ent which accords with the evidence on the record and ta act upon

it-Evidence-f"'inger print evidence at crime, scenes, reliability of.

Nishan Chand (deceased), son of appellant l\fohan Lal, resident of Roran- \vali, was the Secretary of Roranwali, and Phulukhere Co-operative Societies.

Respondent Ajit Singh, Nishan Chand's friend, was the Secretary of Roranwali Patti Sikhan Co-operative Society. He also lived in village, Roranwa.li, with his maternal Uncle Gurdial Singh who was the viilage Chairman.

On June 17, 1974 both Nishan Chand and the respondent left for villages Lambi and Malaut on the farmer's bicycle for depositing the moneys realised on account of the dues of the Co-operative societies.

They did not, howev'er, return to Roranwali that night.

On the next day, Satpal, the younger brother of Nishan Chand, found the bicycle of his brother lying at some distance from the boundary of the village near a culvert and his brother's body in a field at a short distance from there anci informed his father Mohan Lal. Mohan Lal and his brother Dharam Chand went to the place where the dead body lay.

The dead body had many in1uries, and a blood stained blade of a knife (Ex. P3) was lying near it. A black piece of cloth "fifty" was lying at some distance on the road, and as it was worn by Ajit Singh the_ previous day, a report was lodgca with the police.

Ajit Singh was arrested on 21st June, 1974 and on his information that be had buried a sum of 41.00/~ and a gold ring in his purse, tied in a handkerchief, near the 'J.rater lift. and had concealed the blood stained clothes and a shoe inside the heap of cotton 'sticks' in a kiln on a road, the Police recovered those articles at his instance.

The bundle of currency .notes which was recovered at the instance of the respondent contained one currency note of Rs. 100/- \Vhich was suspected to have fingerprints.

Ajit Singh '\\'as tried and was convicted by the Additional Sessions Judge of offences under ss. 302, 392 and 397 I.P.C. The Additional Sessions Judge sentenced him to death for the offence under secton 302 I.P.C. a:nd to rigorous imprisonment for flve years and seven vears respectively for the offences under sections 392 and 397 J.P.C. On appeaJ, the High Court gave him the benefit of doubt and acquitted him.

Mohan Lal (father of the deceased) and one Surinder Kuniar filed the present appeal, by special leave.

Allowing the appeal, the Court, IIELD : (I) While considering the statement of the accused under section 313 Cr!. P.C .. 1973 it is permissible to reject the exculpatory part .of the statement if it is disproved. by the evidence on record, and to acts upon it. l832 BC]

:\Tishfkant Jha v. State of Bihar [1969] 2 SCR 1033~ Applied.

(2) The evidence on record \Vas sufficient to sbo'v that the staten1ent of the respondent which led to the recovery of certain articles was not only voluntary but fell within the purview of section 27 of the Evidence Act in as much as the ''fact discovered" was the place from which the various articles were produced by the respondent and his knowledge of it. Moreover the actual recovery of the currency qotes. the ring (bering the initials of the deceased) nd the purse (containing a libi; ary card having the address of the resl?on9ent) in pursuance of the information given by the respondent, and at his instance, was sufficient -marantee of the truth of that information and it could safely have been relied upon by the High Court. [834 C-D]

(3) There is no gainsaying the fact that a majority ?f. fingerprints fo'!nd at crime scenes or crime articles are partially smudged, and 1t 1s for the expenenced and skilled fingerprint expert to say whether a mark is usable as fingerprint

evidence.

Similarly it is for a competent technician to examine and give his opinion whether the identity can be established, and if so whether that can be done on eight or even less identical characteristics in an appropriate case.

Jn this case there was the categorical statement of the Director, Finger Print Bureau, Phillaur, that one particular impression on the currency note was photographically enlarged alongwith the right middle finger impression of the res~ pendent, that it was comparable, and there existed not less than eight points of similarity i.e. mat9hing characteristic details in their identical sequence, without any discordance, between its comparable portion and the corresponding portion of the photographically enlarged right middle finger impression.

The Director graphically showed the eight points of similarity iheir same form and position and indicated the nature, direction and sequence of each point. He clearly stated that so many points of similarity could not be found to occur in impressions of different thumbs and fingers and that they were identical and were of one and the same person.

[840 F-G, 841 D-E]

( 4) The recovery of incriminating articles in pursuance of the respondent's information is an important piece of evidence against him. The question whether a presumption should be drawn against him under illustration (a) of section 114 of the Evidence Act is a matter with depends on the evidence and the circumstances of each case. The nature of the recovered articles, the manner of their acquisition by the owner, the nature of the evidence about their identification, the manner in which the articles were dealt with by the accUsed, the place and the circumstances of their recovery, the length of the intervening period and the ability oi; otherwise of the accused to explain the recovery, are some of those circumstances.

All these factors were against the respondent.

[841 G-H, 842 A] Baiju @ Bharosa v. State of Madhya Pradesh [1978] 2 SCR 594 reiterated.

(5) The ring (Ex. Pl) was made of gold and bore the initials of the deceased, and the goldsmith was able to establish that it belonged to the deceased.

It was found tied in a handkerchief alongwith other two highly incriminating articles, namely, the finger marked currency note and the respon dent's own purse about whose identity there could possibly be no reason for any doubt. The respondent knew that he would be suspected of the crime because the deceased was last seen in his company, and the fact that he buried the articles near the water lift in the. middle of the way leading from Khankanwali to his village shows that he wanted the articles to lie there until he could feel reassured enough to dig them out. It so happened however that he was suspected from the very beginning, was arrested within four days and gave the informa tion within the next two days which led to the discovery of an important fact within the meaning of section 27 of the Evidence Act. It must therefore be held that the incriminating articles were acquired by the respondent at one and the same time and that it was he and no one else who had robbed the deceased of the money and the ring and had hidden them at a place and in a manner which was known to him. Then there is the further fact that the respondent was unable to explain his lJOSSession.

All these facts were not only proof of robbery but were presumptive evidence of the charge of murder as well. [842 BFl Wasim Khan v. The State of U.P. [1956] SCR 191; Tulsiram Nanu v. The State, AIR 1954 SC 1; Sunder/al v. The State of M.P., AIR 1954 SC 28 Alisher

v. State of TJ.P. [1974] 4 SCR 254; and Baiju @ Rharosa v. State of M.P., [1978] 2 SCR 594 reiterated.

(6) The High Court committed serious errors in reading the evidence on the record and very often based its findings on mere conjectures. Its finding that the prosecution had failed to "connect the accued with the. commission o! the crime" was quite incorrect and must be set aside.

Reasoning of Hirrh Court e.xamined with reference to the direct and circumstantial evidence on record.

[838-C-D]

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 377 of 1975.

From the Judgment and Order dt. 9th July, 1975 of the Punjab and Haryana High Court in Criminal Appeal No. 1423 of 1974.

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S. C. Manchanda and N. K. Agarwal for the Appellants.

D. Mookerjee, S. K. Mehta, K. R. Nagaraja and P. N. Puri for Respondent No. 1

Hardev Singh for Respondent No. 2.

The Judgment o~ the Conrt was delivered by

SmNGHAL, J.-This appeal by special leave is directed against the judgment of the Punjab and Haryana High Conrt dated July 9, 1975, giving beaefit of doubt to respondent Ajit Singh (hereinafter referred to a~ the respondent) and acquitting him of offences under

sections 302, 392 and 397 I.P.C. for which he was convicted by the Addi, tional Sessions Judge of Faridkot on Oc;:>ber 31. 1974.

The Additiomil Sessions J udgc had sentenced the respondoat to death for the offence under section 302 I.P.C. and to rigorous imprison ment for five years and seven years respectively for the offences under sections 392 anc.I 397 J.P.C.

Nishan Chand (deceased); son of appellant Mohai' Lal (P. W. 5). was a resident of Roranwali. He was Secretary of Roramval; and Phulu Khera Co-operative Societies.

The respondent was Nishan Chand's friend and was Secretary of Roranwali Patti Sikhan Cp-opcrative Society.

He also used to live in village Roranwali with his malernal-unclc Gurdial Singh who was the village Chairman.

It is alleged that Nishan Chand and the rcsponde11t left together E on June l 7, 1974, for villages Lambi and Malout on Nisban Chand's

bicycle. as they had to deposit the money realised hy them.

They did not however return to Roranwali that •night.

Mohan Lal's other s<1n Satpal, who was studying in Class VIII in a_school at Sikhanwala, saw Nishan Chand's bicycle lying at some distance from the boundary of village Roranwall, near a culvert, on the "pakka" road leading to

Sikhanwala, and he also saw a man lying dead in a field at a short dis-.

F tance from there.

As the dead body appeared to be of Nishan Chand, Satpal went back to his house and informed his father Mohan Lal (P. W. 5) at about 7 a. m. Mohan Lal (P. \V. 5) and his brother Dharam Chand (P. W. 8) went to the place where the dead body was lying.

It had many injnries and a blood stained blade of knife ( E~. P. 3) was lying near it.

A black piece , of cloth ("fifty") was !yin!! at some distance towards the road.

As Nishan G Chand used lo bring home the monev of the societies some times.

Mohan Lal rnspected that the respondent might have murdered him for the money.

It seemed to him that the black piece of cloth (''fifty") belonged to the respondent which he was . wearing on the previous morning.

Mohan Lal therefore left for police station Lambi, which was at a distance of about 9 miles from the place of occurancc.

As he found Sub-inspector Harnek SinQh (P. W. 19) at Sikhanwnfa H bus stand. he reported the matter to him at about 9.30 a.m.

The Sub-Inspector recorded. Mohan Lal's statement and sent it along with constable Mal Singh to police station Lambi for registering a case.

2-329 SCI/78

S. I. Harnek Singh went to the place of occurrence with Mohan Lal and found Dharam Chand (P. W. 8) and Nishan Chand's mother Smt. Agyawanti near the dead body.

He found foot-prints two of bare foot and one with the shoe near the dead body.

The blade of knife (Ex. P. 3) was also found lying near the dead body and a shoe was found lying in the water channel at a distance of 7 or 8 'karams' The small piece of black cloth ("fifty") (Ex. P. 4) was found lying at a distance of 25 or 30 'karams' from the dead body.

The Sub-Inspector recorded the statement of Smt. Agyawanti.

He lifted moulds of the foot-prints and took them in his possession.

The blood stained blade of knife (Ex. P. 3) was also taken in possession vide memorandum (Ex. P. K.) and was sealed. The Sub-Inspector tonk the shoe also in his possession.

He prepared an inquest report and sent Nishan Chand's dead body for post-mortem examination.

Dr. P. K. Narang (P. W. 1) of Civil Hospital Gidderbaha examined the dead body and found 12 injuric~, all of which were ante-mortem.

The doctor found that Nishan Chand's death was due to the injuries to vital organs \Of the brain as a result of injuries Nos. I and 2 which were as follows,-

"(i) A stab wound with clean cut edges 2. 5x0.5 cm. on the front of left side of forehead just above the eye brow.

Blood stained brain matter was coming out of the wound.

Bone underneath was cut, and the wound was directed backwards and downwards .

(ii) A stab wound 3.5Xl cm. with clean cut edges on the left temporal region of head 7 .5 cm. above the ear, directed downwards and inwards.

Bone unde;- neath was cut."

The medics! officer expressed the opinion that these two injuries were individually sufficient to canse death in the prdinary course of nature.

It was found during the course of the investigation that Nishan Chand had collected the dues of the co-operative societies from Atma Singh, Avtar Singh and Balli Singh and others on June 17, 1974, and had gone with the respondent to deposit the same in the Central Cooperative Bank, Malout.

Inspector Gurdial Singh (P. W. 14) of the Co-operative department had also gone there to attend a meeting of his department.

Nishan Chand and the respondent met him after 3 p.m. and asked him to get the sum of about Rs. 2000/- deposited in the Bank.

He could not however succeed in . depositing the mioney as the cash had been closed by that time.

It i"s alleged that Nishan Chand collected Rs. 4156/- and that he and the respondent met Darshan Lal (P. W. 6) at Lambi at 6.30 o.m.

The prosecution has relied on the statement of Darshan Lal (P. W. 6) for the subsequent conduct of the respondent and has Jed its evidence to show that he was searched bnt could not be found.

He was arrested on June 21, 1974, at about 8 p.m, ne"r vi!JaQe Fatuekhera.

He was interrogated bv the Investigatin~ Ofllcer and is alleged to have made statement Ex.P.O. on June 23, 1974, to the effect that he had buried a sum of about Rs. 41001and

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a gold ring in his purse tied in a handkerchief uear the water litt in the middle of the way leading from village Khankhanwali to Roranwali which he could recover, and that he had kept concealed his clothes and one shoe under the heap of cotton "sticks" in a kiln on the road outside Khankhanwali village which also he could recover. The respondent's statement to that effect was recorded in the presence of witnesses Balbir Singh (P. W. 7) and Avtar Singh. The respondent then went to the place near the heap of cotton "sticks" and recovered the blood stained clo!hes Ex. P. 5 to P. 7, which were in

jhola' Ex. P. 8, along with a shoe.

The recovered articles were taken in police custody vide memorandum Ex. P. Q. 'lt is fiirther alleged. that the respondent went to the place near the water lift and dug out a handkerchief which contained currency notes of Rs. 4142/- gold ring Ex. P. 1 and purse Ex. P. 9.

One currency note No. AD 53007632 <.>f Rs. 100/- (Ex. P. 10), which was at the top of the bundle of currency notes, had some blood stained fingerprints.

The purse (Ex. P. 9) was of plastic on which Government College, Mukhtsar, was written in Punjabi and English and it contained a library card of R.S.D. College, Ferozepur, which contained the address of the respondent written in English.

The ring was of gold and weighed about 3 grams.

The initials 'N. C.' were inscribed on it.

All the articles were sealed and were taken in possession vide memorandum Ex. PR. Mohan Lal (P. W. 5) ha~ identified the ring to be that of his son Nishan Chand which he was wearing when he left the house.

Kartar Singh (P. W. 17) of village Lambi has stated that he prepared the ring for Nishan Chand 8 or 9 months before his statement and had made the inscription as desired by him.

The Sub-Inspector made an application before Magistarte Mukhtiar Singh (P. W. 3) on JU!le 28, 1974, for taking the moulds of the foot-prints of the responde11t.

The moulds prepared by him were not found fit for comparison and were again taken on July 4, 1974 in the presence of Magistrate Dina Nath (P. W. 2).

They were sent for comparison to the Director of Forensic Laboratory who has made his report Ex. P. FF stating that the impressions on the crime mould were found to tally with the test moulds.

Finger impressions (Ex. PF /2) of the respondent were also taken by Magistrate, Mukhtsar, and were sent for comparison along with the finger impression on the currency note of Rs. 1001- (Ex. P. 10) to the Director Fingerprint Bqreau, Phillaur.

The Director's report Ex. P. BB is on the record.

He photographically enlarged the impressions and expressed the opinion that there were eight points of similarity in respect of the form and the position, which were graphically shown by him in his report, and that the nature, direction and sequence of each p0int had been indicated in its relevant circle.

According to the expert, so many points of similarity could not be found to occur in the impressions of different fingers and that they were "identical or are of one and the same person''.

The expert ignored the

ofer impre>sions which were sufficiently smud, ged or were partly interfered with bv the design and the printed writing of the currency note or were faint.

A The respondent was , medically examined on the wry next day -~· of hrs arrest and th~. medical officer's report E~. P .F has been placed on the rcc'?rd, accoramg to which he had three simple lacerated wounds of a duraton of more than 48 hours on the left ring finger.

As has been sfated, the Additional Sessions Jndge of Faridkot found

B the respondent gmlty of the offences under sections 302, 392 and 397

I.P C.

As the High Court has set aside the conviction by its impugned 1udgment dated July 9, 1975, by giving the benefit of'doubt to the

-~ respondent, Mohan Lal (P. W. 5), father of Nishan Chand (deceased), and one Surinder Kumar have filed the present appeal by special leave. ' ·~ The High Court has examined the question of motive first of all .. c and has referred to the good relations between the rcsoondent and - the deceased.

It has also made a mention of the statement of the re, pondent that he and the deceased left village Roranwali on the ,. bicycle of the deceased, for Malout, on June 17, 1974, at about 7.30 I a.m.

The High Court has then examined the evidence of the prose-

I ; cution regarding the alleged collection of Rs. 42561by Nishan Chand ·- from four persons on June 17. 1974. and his failure to deposit the D same in the Central Go-operative Bank at Malout and has taken the view that the collection of the money by Nishan Chand had not been proved and that the motive for the crime had not been established. ' The first item of collection relates to the recovery of Rs. 2000 /- from Avtar Singh (P. W. 10) at Malout on June 17, 1974. Avtar Singh has stated that he had taken a loan from the Co-operative So E ciety of his village and had been asked by the deceased to repay it.

He promised to make the repayment at Malout Mandi. 1Ie took his • wheat there pn June 17, 1974. and asked his commission agent to • pay Rs. 20001to the deceased.

Rs. 20001were accordingly paid by his commission agent to the deceased.

He has further stated that one Atma Singh (P. W. 12) paid Rs. 623/- in his presence to Nishan Chand.

Avtar Singh hpwever did not obtain a receipt for ., F the payment from Nishan Chand.

The High Court has disbelieved the payment because the name of the commission agent was not disclosed by Avtar Singh and he d.id not take any receipt or the signature of Nishan Chand in his bahi in token of the payment. The prosecution -.. examined Behari Lal (P. W. 26) as the commission agent who had made the payment of Rs. 20001on behalf of Avtar Singh to the \ deceased. The witness produced his bahi entry Ex. P. W. 26/ A in res- •

G pect of the payment, but the High Court rejected the evidence because • the signature of Nishan Chand was not obtained by Behari Lal.

As it was possible for the High Court to take that view, we would leave it al that. • Atma Sinh (P. W. 12) has stated that he paid Rs. li23/- to the deceased on June 17, 1974, at 2 p.m. after obtaining the money from '

H the firm of Shadi Ram Amar Nath of Malout.

Avtar Singh (P. W. 10) has also stated about the making of that payment hy Atma ........

Singh m his presence. but the High Court has rejected the evidence for want of Nishan Chand's receipt for the payment, ancf tlie failure

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MOHAN LAL v. AJJT SINGH (Shinghal, J.) 829

to cxammc someone on behalf of the firm which had made the payment.

Herc again, it cannot be said that the view taken by the High Court was not possible, and we wonld therefore not disturb i.ts finding in this respect also.

The prosecution, however, examined Balli Singh (P. W. l 1) who stated that he paid Rs. 856/- to the deceased on June 17, 1974, vide :receipt Ex. PS at Malout at 2 p.m. after obtaining the money from his commission agent. It was stated in the receipt that the payment had been made by way of recovery of the loan from Balli Singh. It was not disputed that the receipt was signed by Nishan Chand, and it is not disputed before us that the name has wrongly been printed as Nishan Singh in the paper hook.

The High Court however rejected the evidence on the ground that Balli Singh did not state who wrote the receipt Ex. PS and that it bore the signature of Nishan Chand.

We have gone through the statement of Balli Singh and we have no doubt that it shows that the payment of Rs. 856/- was made to the deceased vide receipt Ex. PS. There was as such no• justification for insisting on the disclosure of the name of the scribe of the receipt; or the production of other evidence to prove the signature of Nishan Chand thereon.

There was also no justification for the High Court to reject the evidence merely because of the failure to examine a witness from the shop of the commission agent who had made the payment.

It has to be appreciated that there was in fact no crosscxamlnation worth the name regarding Balli Singh's statement about ' his liability to pay Rs. 856/- to the, Co-operative Society, and tbe payment of that money by him to the deceased against receipt Ex. PS.

The prosecution. has, all the same, relied on the statement of Inspector Gurdev Singh (P.W. 14) who was Inspector of Co-operative Societies at Lambi, to prove the signature of the deceased on receipt Ex. PS. The High Court has rejected his evidence to this effect

on the ground that the witness did not state that he had seen Nishan Chand signing and writing, and could identify his signature, and also because he did not state that "in the ordinary course of business F documents purported to be written by Nishan Chand had been habitually submitted to him." We have gone through the statement of Gurdev Singh (P.W. 14). He was the Inspector of Co-operative Societies, Lambi, and Nishan Chand was the Secretary of two Co- ()perative Societies within his area.

The witness was therefore in a position to state that receipt Ex. PS was in the hand writing of Nishan Chand and he in fact made a clear statement to that effect in the trial G court.

H the defence had any reason to think that he -was not a competent witness for the purpose of expressing an opinion under

ection 47 o[ the Evidence, Act, it was open to it to cross-examine him on the point.

The fact however remains that this was not done.

It would thus appear that the High Court could not have rejec- ''-""' ted the evidence which was furnished by the prosecution in regard H to the payment of Rs. 856/- by examining Balli Singh (P.W. 11) and Gurdev Singh (P.W. 14) and by producing the original receipt

Ex. PS, and we have no hesitation in holding that the finding of the trial court in regard to that payment was correct and must be restored.

Evidence has also been led to prove the payment of Rs. 667 /- to the deceased by one Budh Singh on June 17, 1974, vide pass book entry Ex. P. 11. It was stated by Gurdev Singh (P.W. 14) that the entry in the pass book had been made in the hand writing of Nishan Chand, but the High Court rejected that evidence for the reason already stated.

As there was no justification for doing so, we would restore the finding of.the trial court regarding that item of payment as well.

The High Court has gone to the extent of basing its finding to thC" contrary for the further reason that Mohan Lal (P.W. 5), who was the father of the deceased, did not state that receipt Ex. PS and the pass book Entry Ex. P. 11 were written and signed by his son Nishan Chand.

The High Court however forgot that Mohan Lal was an illiterate man who had thumb-marked even the first information report Ex. P.G./l and was not in a position to make a statement regarding the hand-writing or the signature of his son on t!:e two documents.

So even if the items of Rs. 2,000/- and Rs. 623/- are left out, the fact would still remain that the deceased had a sum of abcut Rs. 1533/- with him at the time of his murder.

The High Court has brushed aside the prosecution evidence in this respect by observing that none of the witnesses has deposed that the respondent was with the deceased at the time when the payments were made to him.

Here again, the High Court lost sight of the statement of Inspector Gurdev Singh (P. W. 14) who as the Inspector of Co-operative Societies must have known the Secretaries or the societies within his jurisdiction. He has stated that a meeting was called by the Joint Registrar of Co-operative Societies at Mafout on June 17, 1974, and

tha.t the deceased and the respondent met him in the Central C!>- operative Bank at Malout after 3 p.m.

The deceased asked him to get the mm of more than Rs. 2,000 /- deposited in the bank and the witness told him that as the cash had been closed by that time, the money could not be deposited.

He has further stated that the deceased then told him that he would deposit the amount of Rs. 5,000/- the next day as 1w had some more recoveries to make.

No effective cross-examination was directed against the statement of the Inspector to this effect, and no effective argument has been made before us why he should not have been believed.

The High Court thus failed to read the statement of Gurdev Singh correctly even though it had a direct bearing on the question of the respondent's knowledge of the money in the possession of the deceased. Its finding to the contrary must be set aside and it must be held that the prosecution has succeeded in proving its case about the respondeni's knowledge that the deceased had collected at least Rs. 2,000/- by the time he met Inspector Gurdev Singh some time after 3 p.m.

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The High Court has examid the question whether there was A evidence to prove that the respondent had absconded after the incident, and has found that it could not be said that he did so to conceal his guilt.

He was arrested on June 21, 1974, and it appears that the intervening delay would not by itself be evidence of his guilt.

While dealing with the evidence that the deceased was last seen in the company of the respondent, the High Court has made a reference to the statement of Mohan Lal (P, W. 5) and to the respondent's admission that he had gone with the deceased, on his bicycle, to Malout, on June 17, 1974, The prosecution has examined Darshan Lal (P.W. 6) in regard to their movements at about 6 p.m. in Lambi and has placed reliance on the statement of Pritam Smgh

(P.W. 9) about their movements within a short distance of village Roranwali.

We think that the view taken by the High Court m regard to the evidence of thee two witnesses is justified and does not call for interference.

But the High Court went wrong in finding that there was no cw1dence to prove that the accused was seen with the deceased "before or after the occurrence," There could possibly be no evidence to prove that the respondent was seen with the deceased "after" the occurrence i, e, after his death and the prosecution cannot be blamed for its inability to -produce any such evidence.

The prosecution has however led its evidence to prove that the deceased was last seen in the company of the responden\, and it will be enough to refr to two basic facts in this respect- Firstly, the respondent has adniittcd-in his statement in the trial court that he and Nishan Chand first went to Lambi on June 17, 1974; and he did not deny that they went the.re on Nisl]an Chand's bicycle at about 7.30 a.m. He has also admitted that he was with Nishan Chand at Malout upto 10 a.m.

He claimed that he went to village Ferozepur thereafter to meet his elder brother, but that was a matter for hilll to prove, and thereby establish a good defence.

The fact however remains that he did not do so and his learned counsel has not thought it possible to explain why he could not examine his own brother to establish that olea, or to invite our attention to any other evidence that may have been led in that behalf.

Secondly, the High Court Jost sight of the fact that Inspector Gurdev Singh (P. W. 14) of the Co-operative Societies.

Department had clearly stated that he went to Malout OJli J unc 17, 1974 to attend the meeting which had been called by the Joint Registrar of Co-operative Societies and that the respondent and the deceased met him there after 3 p.m. in the Central Co-operative Bank He has further stated that the deceased asked him to get the sum of Rs. 2,000/- deposited in the bank, but that could not be done as the cash had been closed.

The witness has stated that a meeting was actually held in the Rest House that day and that he had gone to the Bank to collect the figures of recovery for purposes of that meeting, The presence of. the deeased. and , the respondent was therefore quite natural as 1t explams their anxiety to make as much recovery as possible before the meeting.

As has been sho:vn, there was no reason for disbelieving the statement of Gurdev Smgh, and

A the _High Coun clearly misread the record in respect of a material particular m holdmg that there was no evidence to prove that the respondent was last seen in the company of the deceased.

An attempt was made to argue that if the statement of the respondent is to be considered at all. it must be taken as a whole and that it is not permissible to act upon one portion of the statement which shows the presence of the respondent in the company of the deceased, and leave out those portions which arc exculpatory. It will be enough to say that the matter has been examined by this Court in Nishi Kant Iha v. State of Bihar('), and as the evidence on the record disproves the exculpatory part of the respondent's statement in the trial court, it is clearly permissible to accept that part of the statement which accords with the evidence on the record, and to act upon it.

Another important piece of evidence against the respondent was his statement Ex. P-0. dated June 21, 1974, under section 27 of the Evidence Act and the recoveries which were made iii pursuance thereof.

The statcincnt was recorded by Sub-Inspector Hainek Siiigh (P.W. 19) in the presence of Avtar Singh and Balbir Singh (P.W. 7). The prosecution gave up Avtar Singh on the ground that he ha'J been won over, but Balbir Singh and Harnek Singh were examined in the trial court.

The High Court however rejected the entire evidence in that respect on the ground that the statements of these two witnesses were contradictory and inconsistent with each other and held that the making of disclosure statement and the alleged recovery were "concocted by the police." The only contradiction which has been pointed out by the High Court is that while according to Harnck Singh the interrogation of the respondent started on June 23, 1974 at about 12 noon and continued for two hours, Balbir Singh has stated that he and Avtar Singh reached the police station at about

12.30 p.m. and the respondenj was interrogated for about 5 or 7 minutes in their orcsence and that he did not make the disclosure statement.

The High Court has stated further that Balbir Singh has claimed that he advised the respondent to give the articles which he Jrnd in his possession, and then he made the disclosure statement.

reference to the statements of Harnck Singh (P.W. 19) and Balbir Singh (P.W. 7) shows however that there is no contradiction or inconsistency between them.

Balbir Singh (P.W. 7) has clearly stated that when he reached the police station at about 12.30 p.m. the respondent was being interrogated there.

His further statement that the respondent was interrogated for five or seven minutes in his presence, cannot therefore belie the statement of Harnek Smgh tnat the interrogation lasted for about two hours.

The Hi!!h Court therefore misread the evidence in this respect.

The High Court also misread the statement of Balbir Singh when it observed that he had admitted that he did not "know" whether the disclosure statement (Ex. P.O.) was recorded at the police station before the articles were recovered or thereafter.

Here again a reference to Balbir Singh's statement shows that what he stated was that he did not "remember"

(I) [1969] 2 S.C.R. 1033.

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MOHAN LAL l'. AJIT SINGll (Shinghal, J.) 833

if the disclosure statement was recorded before or after the recovery.

He however proved statement Ex. P.O. and admitted that he attested it.

He also stated that his own statement was recorded after the recovery. It was not found possible to point out any inconsistency in his version in that statement and his statement in. the trial court.

The High Court, therefore, clearly fell into an error of record in reaching the .conclusion that the statement of the Sub-Inspector was belied by the statement of the witness.

The High Court has observed in this connection that Balbir Singh (P.W. 7) has stated that there were certain footprints near the place where the money was recovered, but no moulds were prepared by the police even though it was incumbent for it to do so.

We have gone through the statement of Balbir Singh, but he has not made any such statement.

If however anything turned on the failure to take the moulds of the footprints at the place where the money was recovered, the proper course for the defence was to cross-examine the Investigating Ofiicer concerned in that respect, but that was not done.

The High Court has disbelieved the statement of Balbir Singh (P.W. 7) for the further reason that he had been convicted on some occosions and his explanatioa that he had gone to the police station to inquire from the Sub-Inspector whether they should continue to depute men to keep watch on electricity installations and the Sub- Inspector's reply in the negative. had not been entered in the record of the police station.

The High Court has obviously relied in this respect on Balbir Singh's statement that no entry was made in the daily diary about his visit and inquiry from the Sub-Inspector, but it was not noticed by the High Court that Balbir Singh was not iii a position to depose anything about the making er not making of an entry in the police diary.

That was a matter which could be established by cross-examining the Sub-Inspector or by producing any

other evidence which could show that the entry had not been made in the daily diary.

So here again the High Court cannot be said to have read the evidence on the record correctly.

The High Court has gone to the extent of recording a finding that the disclosure statement Ex. P.O. was involuntary as the respondent was "interrogated for several 11 ours after his arrest'', and was hit by section 24 cf the Evidence Act.

The fact however remains that even tile respondent has not stated that he was compelled to make the disclosure statement. and there is no other evidence to show that this was so. The High Court has arrived at its conclusion to the contrary on the basis of the statement of Harnek Singh

(P.W. 19).

The relevant portion of that statement reads as follows,-

"On 21st June, 1974, I interrogated him where he was arrested.

He was then taken to Roranwali and was interrogated there in the presence of many persons.

From there we returned to police station at I 0-30 P.M. On 22nd June, 1974 he was again interrogated at the police station.

But no other person was present at the time of the interrogation.

He did not give any disclosure statement that day.

He was interrogated regarding the handle of the knife.

On 23rd June, 1974 I started interrogating the accused at about 12 noon.

The witnesses came to the police station of their own accord.

I interrogated him for about two hours."

Three fact~ therefor~ emerge from the statement : (i) that the total penod of mtcrrogat10n was about two hours, (ii) the interrogation was made m th.e presence of many persons, and (iii) the interrogation was regardmg the discovery of the handle of the knife of which

th~ blade was found lying near the dead body.

There was thus no evidence on the reco.rd to justify the finding of the High Court that the respondent was mterrogated for several hours and that his disclosne statement was involuntary so as to attract section 24 of the Evidence Act. .As it is, the evidence on the record was sufficient to silo"'. that the statement was not only voluntary bnt it fell within the purview of section 27 of the Evidence Act in as much as the "fact

discovered" was the place from which the various articles were produced by the respondent and his knowledge of it.

As the information given by the respondent related to that important fact, it was clearly admissible under section 27 of the Evidence Act.

Moreover the actual ifecovery of the currency notes, the ring and the purse in pursuance of the information given by the respondent, and at his instance, was sufficient guarantee of the truth of that information and it could safely have been relied upon by the High Court. The High Court misread the evidence on the record in taking a contrary view.

The disclosure statement led to the recovery of clothes in bag Ex. P. 8 and a shoe underneath the cotton 'sticks' in the kiln near the 'phirni' of village Khankhanwali vide memorandum Ex.

P.O.

Then there was the recovery of a bundle of currency notes of the value of Rs. 4142/- on top of which was the currency note Ex. P. 10 of Rs. 100/- which was suspected to have some fingerprints, the ring Ex. P. 1 bearing the initials cl Nishan Chand, and the purse Ex. l>. 9 containing the library card of R.S.D. College, Ferozcpur, with the address of the respondent.

All these were found tied in a handkerchief. which was dug out by the respondent at a place near the water lift in the middle of the way leading from village Khankhanwali vide memorandum Ex. P.R.

The High Court brushed aside all this highly incriminating evidence simply on the ground that the respondent ha~ stated (in his statement under section 313 Cr.P.C.) that the purse was taken by the Sub-Inspector at the time of his arrest and he had obtained Rs. 4000/- from his. relations on the pretext that he would get him discharged but later on astened .a false case on him.

The High Court went on to say that 1t was highly doubtful 1f the respondent would have buried such a big amount of money and the ring in a field situated in anote'. village :when he could hayc concealed them in the land or bmldmg of his maternal-uncle 111 village Roranwali.

The High Court lost sight of the fact that while on one side there was the testimony on oath which was subjected to cross-examination on the other there was the bare statement of the accused.

The High Court could not reasonably haye oubted e recoveries simply because the property was found buned m a field 111

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MOHAN LAL V. AJIT SINGH (Shingha/, J.) 835

another village and not in the land or building of his maternal uncle.

As is obvious, the reasoning of the High Court was nothing more than a conjecture, for which there was no evidence or justification.

The respondent was anxious to hide the ill gotten property as soon as possible, and the fact that it was recovered in pursuance of his information under section 27 of the Evidence Act, and at his instance, by his digging out the place where it lay buried, was quite sufficient to prove the genuineness of the recovery. It appears that as the High Court had reached the conclusion that the information under section 27 was involuntary and was not admissible in evidence, it did_ not find it possible to attach any importance to the recovery of the articles in pursuance of that information.

The High Court has disbelieved the statements of Mohan Lal (P.W. 5) father of the deceased, and Kartar Singh (P.W. 17) goldsmith of Lambi, that ring Ex. P. 1 belonged to the deceased.

The statement of Mohan Lal has _been disbelieved on the ground that he did not know the name of the person who prepared it, he could not tell the date of its preparation, he did not identify the ring at a!est identification and he did not state in the .first information report that his son Nishan Chand was wearing the ring.

We have gone through the evidence and it appears that the High Court did not read it correctly.

Mohan Lal has stated that the ring was got prepared by his son Nishan Chand in village Lambi two or four months before the incident.

He was not therefore in a position to name the goldsmith or to give the date of its preparation. The ring was not put up for test identification and there was therefore no evidence to show that Mohan Lal did not identify it "from the other rings of the same kind".

As regards the omission from the first information report of the fact regarding the wearing of the ring by Nishan Chand, the High Court did not take into consideration that part of Mohan Lal's statement where he had stated that as his wife did not tell him that Nishan Chand was wearing the ring, he could not mention that fact in the report.

Moreover his wife did not accompany him to the police station.

The High Court disbelieved the statement of Kartar Singh (P.W

17) for the reason that he did not pay income-tax or sales-tax and had admitted that there was no special mark on the ring to show that

it had been prepared by him.

In taking that view the High Court Jost sight of fhe fact that Kartar Singh was a goldsmith of a village like Lambi and, in the absence of the evidence to the contrary, he could G not have been disbelieved merely because he did not pay income-tax or sales-tax.

The statement of Kartar Singh that he prepared ring Ex. P. 1, eight or nine months before the recording of his statements

at the instance of Nishan Chand, and that the inscription thereon was made under Nishan Chand's instructions, was quite clear and categorical, and could not have been rejected in the absence of evidence to the contrary. It is true that the ring did not bear any spe6al H mark to show its preparation by the witness, but the High Court did not read that part of Kartar Singh's statement where he had stated that he had started working as a goldsmith from the age of 12 years

a.nd that although he had prepa:ed many rings, he could tell which rmg_was p_rep?red by him on_see1~ it: There was therefor.e no justificat10n fo1 re1ectmg Kartar Smgh s evidence and for doubbmg him as a "highly unreliable" witness. ·

As has been stated, the purse Ex. P.9 was also recovered at the

mtance of the. respondent along with ring Ex. P. 1 and the currency notes and the fact of its recover7 could not have been rejected merely

on the basis. of the respondents statement under section 313 of the Code of Criminal Procedure that it had been taken by the Sub-Inspector from his pocket at the time of his arrest.

Apart from the fact that the explanation of the respondent was quite improbable, we find tliat he has not found it possible to establish it by any evidence on the record.

The purse was of black coloured plastic on which Government College, Mukhtsar, was written in Punjabi and English and it contained a library card of R.S.D. College, Ferozepur. on which the address of the respondent was written in English.

The fact that the purse was found tied in the same handkerchief along with the ring Ex. p. 1 and the currency notes, could leave no room for doubt that it belonged to the respondent and all the recovered articles were in his possession soon after the' incident.

As has been stated, the bundle of currency notes, which was recovered at the instance of the respondent contained the'-hiin<lred rupee currency note (Ex. P. 10) No. AD 53007632 with fingerprints thereon.

The High Court rejected that important piece of evidence on the ground that Balbir Singh (P. W. 7) did not state that the currency note had fingerprints, it was not explained wh\ the currency note was not sent to the Finger Print Bureau immedwtclv. why it was sent there after the arrest of the respondent alongwith his specimen impressions, and also because there was no proof that the specimen fingerprint impressions were of the respondent and there was no evidence to , show on what date they were taken.

The High Court has once again made a reference to the statement of the respondent under section 313 of the Code of Criminal Procedure that the Police took his fingerprint impressions on the currency note while he was in police custody, and rejected the report (Ex. P. BB) of the Director Finger Print Bureau, Phillaur.

We have gone tl1rough the statement of Balbir Singh (P.W, 7) and we find that he has clearly stated that "one currency note co~ tains fingerprint marks".

The High Court therefore misread the evidence in this respect also.

The other reason about not sending the currency note to the Finger Print Bureau until after the arrest of the respondent, is equally untenable because the High Court lost sight of the fact , that the currency note was recovered on June 23, 1974, only after the arrest of the respondent, and there was. nothing wrong _if it was sent. alongwith his specimen fingerprmts whch had necessanly to be obtamed bv making an application to a magistrate.

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The specimen impressions Ex. PF /2 of the fingers of the respondent A were taken by the Muktsar Magistrate on June 28, 1974.

Question No. 28 was asked of the respondent whether that was so, and he gave a categorical reply that the evidence in that respect was "correct".

The High Court therefore again did not read a material part of the record in taking the contrary vi<; w.

The High Court seems to have accepted the statement of the respondent that the Police took -11is finger impressions on the currency note while he was in Police cus- B tody, bu\ it not only lost sight of the fact that there was no evidence to that effect, but also of the fact that the prosecution had succeeded in proving the recovery by the reliable evidence on the record. Moreover if the Police had forcibly taken the fingerprints, none of them would have been faint or smudged or on the printed or written portion of the note. -

It will be recalled that Dr. P. K. Narang (P.W. 1) performed the post-mortem examination on the body of Nishan Chand, and the High Court has taken the view that his evidence showed that the injuries could not have been inflicted with the knife of which Ex.P. 3 was the blade and that "possibly three types of weapons were nse<l to cause injuries".

We have gone through the statement of Dr. Narang (P.W. 1). What he has stated is that some of the injuries were caused hy a sharp pointed weapon, one injury by a sharp-edged weapon and injuries Nos. 10. 11 and 12 by a blunt weapon.

The witness clarified that injuries Nos. 11 and 12 could be caused by a fall. and injury No. l 0 being a linear abrasion could be caused by the point of any substance.

As regards the incised injuries, the wit- 11ess has stated that it was not necessary that the stab wounds could

have been caused by a weapon of which both the edges were sharp.

The presence of those injuries could not therefore justify the inference of the High Court that they required three types of weapons.

Blade (Ex.P. 3) was sent to the Chemical Examiner to the Government of Punjab and his report Ex.P. AA contains a diagram of its shape, which clearly shows that it was a peculiar blade with a pointed end as well as a sharp blade.

The High Court therefore erred in holding

•ht the injuries which were found on the person of the deceased could not have been inflicted with a knife having Ex.P. 1 as its blade.

The High Court rejected the prosecution evidence for the further reason that the bicycle of the deceased, which was lying on the road. was not in a damaged condition and did net have blood stains, and also because the respondent could not have dragged the deceased alone to a distance of 50 or 60 'karams' and inflicted all the injuries with his knife.

Herc again, the High Court went beyond the record because it was not the case of the prosecution that the bicycle \Vas

damaged at the time of the incident, or that it was stained with blood, or that the incident took place near the place where the bicycle was found by the witnesses so as to have blood stains near it. It was also not the case of the prosecution that the respondent dragged the deceased to a distance of 50 or 60 'kararns' from the road.

As regards the infliction of the injuries by the respondent singly, there was no reason for the High Court to think that was not possible.

Blade of the knife was recovered near the dead body of Nishan

Chand, without the handle, and it is not disputed before us. that it was stained with human blood.

We have made a reference To the diagram of the knife and the fact that it had a pointed end and a sharp edge.

Dr. Narang (P.W. 1) has stated that the first two injuries were stab wounds on the left side of the fore-head and the left temporal region, and were indivitlually suflicient to cause death.

They could be caused by a sharp pointed weapon and there was nothing to prevent a single person from inflicting one of those injuries initially and disabling the victim of his capacity to resist thereafter.

It is the case of the prosecution that the deceased and the respondent were friends and were moving abont on the bicycle of the decca; c<l.

The deceased must therefore have been caught unawares when the respondent dealt him the first fatal blow on a vital part of t11c body and would not have been in a position to resist him thereafter.

The handle of the knife gave w_ay, and that also showed that it was used with force.

It would thus appear that the High Court committed the aforesaid serious errors in reading the evidence on the record and very often based its findings on mere conjectures.

Its finding that the prosecution had failed to "connect the accused with the commission of the crime" is quite incorrect and must be set aside''.

The evidence against the respondent in this case is circumstantial.

We have discussed a part of it while examining the findings of the High Court, and it will be enough to mention those facts and circumstances which have been established against the respondent beyond any doubt.

It has been stated by Mohan Lal (P.W. 5) that his son Nishan Chand and the respondent had good relations with each other and that they left for Malout on June 17, 1974, together, on Nishan Chand's bicycle. This has in fact not been disputed before us.

W c have examined th.e evidence regarding the collection of at least Rs. 1523/- by Nishan Chand from Balli Singh (P.W. 11) and Budh Singh and have given our reasons for the finding that the deceased had at least that much money with him when he and the respondent met Inspector Gurdev Singh (P.W. 14) at Malout.

The prosecution has in fact Jed its evidence to prove that the deceased had collected Rs. 4156/- on that day, but as a matter of abundant caution we have left out two of those collections in holding that at least Rs. 1523/- had been collected by him.

We have also made a mention of Gurdcv Singh's statement that the deceased asked him to get a sum of more than Rs. 2000/- deposited in the Central Co-operativ<j Bank at Malout in the presence of the respondent and ms inability to do so as the cash had been closed.

The allegation of the prosecution that the respondent committed the murder of Nishan Chand for the purpose of robbing him of the money has been established by the fact that Rs. 4142/- were actually recovered at the instance of the resoondent. in pursuance of the information furnished by him in Ex. P. o. on June 23, 1974, and at his instance within two days of his arrest.

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The respondent has himself admitted that he and the deceased A

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went to village Lambi on June 17, 1974, at 7.30 a.m. and then went to Malout.

Inspector Gurdcv Singh (P.W. 14) has stated that his moresaid talk with Nishan Chaud in the presence of the respondent took place when they met him at Malout after 3 p.m. on June 17,

1974. The respondent stated, in the trial court that he left Nishan Chand at Malout at 10 a.m.

He did not however lead any evidence to prove his contention, which has in fact been disproved by the B statement of Inspector Gurdev Singh that they were together with him until some time after 3 p.m. that day.

The deceased was not seen alive after he had met Inspector' Gurdev Singh in the company of the respondent and the categorical statement of the Inspector Gurdev Singh that they both went away leaves no room for doubt that was the last occasion when they were seen together.

Mohan Lal (P.W.

5) has stated that neither his son Nishan Chand nor the respondent C returned to the village in the evening, and the next day his son's bicycle was found lying on the "pakka" road going from Roranwali to Sikhanwala and Nishan Chand's dead body was also found nearby.

The respondent tried to take the plea, in his statement in the trial court, that he was at F erozepur on the night of the alleged incident D as he had gone there to meet his cider brother who was a conductor in the Punjab Roadways.

He did not however lead any evidence in support of that statement.

On the other hand, Sub-Inspector Hamek Singh (P.W. 19) has stated that after recording the first information report he made a search for the respondent in villages Roranwali and Khankhanwali and even stayed in village Khankhanwali for the night.

He has stated further that the respondent could be arrested only on June 21, 1974, at about 8 p.m. near village Fatuekhera. The respondent has not succeeded in explaining his absence or his movements during the intervening period and has failed in his attempt to establish his presence at Ferozepur on the fateful night.

A halting attempt was made by the respondent to set up the explanation tho! he was produced before the police on June 18, 1974, by hi~ relation Hazra Singh, but he did not find it possible to establish it also.

We have referred to our finding that the respondent voluntarily made the disclosure statement Ex.P.O. on June 23, 1974, and Rs. 4142/- in currency notes (including currency note Ex.P. 10 having fingerprints), ring Ex.P. 1 and purse Ex.P. 9 were recovered

in pursuance o~ that information, tied in a handkerchi_ef, when the G respondent dug them out from a place near the water lift in the middle of the way going from Khankhanwali to Roranwali.

The ring Ex.P. 1 bore the initials of the name of the deceased and the purse Ex. P. 9 contained enough particulars to show that it belonged to the respondent and to no ooe else. In fact the identity of the purse, as kis own property, has been admitted by the respondent in his <Mement in the trial court where he merely contended that the nurse containing bi's address was taken bv the Sub-Tnsoector from his pocket H at the time of his arrest.

As has been stated, he could not establish that contention, and we have no doubt that it is quite false.

As regards the recovery of Rs. 4142/-, all that the respondent could contend was that after his arrest the Sub-Inspector asked his relations to give him Rs. 4000/- on the pretext that he would act him discharged from the case, and that his relations contributed the

amount and handed it over to the Sub-Inspector who later on "foisted the amount on me to implicate me falsely in this case." Apart from the fact that the respondent has not led any evidence to prove his contention, we find that the prosecution has succeeded in proving beyond doubt that the hundred rupee currency note !'10~ AD 53007632, which was on the top of all the currency noteswliich were recovered .at the instance of the respondent, bore fingerprints at least one of which has been found to be of the respondent and of no one else.

We have given our reasons for rejecting the statement of the respondent that the police got his finger impression on the currency not•" while he was in custody at the police station.

The respondent was an educated man who was employed as the Secretary of the local Co-operative Society and who had an influential maternal uncle. The police could not therefore hav•o obtained his fingerprints in the maimer alleged by him and the respondent wou:d have resisted any such

attempt to create irrebuttable evidence against him of a serious charge like murder and he or his unck would have exposed it immediately.

We have examiocd the evidence of the prosecution regarding the taking of specimen fingerprints of the respondent, their comparison and examination with the fingerprint on the currency note by the Director, E Fing"r Print, Bureau, Phillaur. and his report Ex. P. BB.

As the impression mark A on the currency note was partly smudged and partly on the design a'nd the printed writing, it was photographically enlarged along with the right middle finger impression of the respondent, and the two photographic enlargements were marked Al A and I/I respectively.

The Director has given the opi'nion that the photographically enlarged impression marked A/ A was "partly smudged but. otherwise. it is comparable and there exist sufficient (not F less than 8) points of similarity i.e. matching ridge characteristic details in their identical sequence. without any discordances. between its comparable portion and tho corresponding portion of the photographically enlarged right middle finger impression of A.iit Singh marked I/I." The Director has further stated that he had graphical:y show'n the 8 points of similaritv "in their same form and position" and had G indicated the "nature, dirzction and sequence of each point" in its relevant circle. He has exprerned the categorical opinion that so many points of similarity could not be found to occur i'n impressions of different thumbs and fingers and that thev \Wre therefore "identical" or were "of one and the -sa1ne person." There were other impressions also on the currency no1's. but thev were either sufficiently smudged awl nartlv interfered with by the design a'nd the printed matter or were

H sufficiently faint and were rejel'ted as unfit for comparison.

Nothing substantial has been urged to challenge the opinion of the Director of the Finger Print Bureau, and all that has be•en argued is

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ihat as there were only 8 points of similarity, ther•.o was not enough basis for the expert's opinion about the identity of the fingerprints.

Reference in this connection has been made to B. L. Saxena's "Jdentification of Handwriting, Disputed Documents, Finger Prints, Foot Prints

and Detection of Forgeries'', 1968 edition, page 247, Walter R. Scott's "Fingerprint Mechanics" page 62, and M. K Mehta's "The Identifi- J:

cation of Thumb Impressions and the Cross-Examination of Finger B Prillt ExP'.orts" 2nd edition, page 28.

We have gone through these books but they do not really support the argument of the learned counsel for the respondent.

While referring to the old practice of

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looking for a minimum of 12 identical characteristic d•etai!s, Saxena has

admitted that the modern view is that six points of similarity of pattern are sufficient to establish the identity of the fi'ngerprints. Walter Scott - has stated that "as a matter of practice, most •experts who work with fingerprints constantly satisfy themselves as to identity with eight or c

~ even six points of identity. Mehta has also stated that iri the case -0f blurred impressions the view of some of the Indian experts is that if I there were three identical points, they would be sufficient to prove the -1 identity.

Thre is no gainsaying the fact that a majority of fingerprints found D at crime scene or crime articles are partially smudged, and it is for the experienced and skilled fingerprint expert to say whether a mark is usable as fingerprint evidence. Similarly it is for a competent technician to examine and give his opinion whether the identity can be established, and if so whether that can be done Dn eight or even less identical characteristics in an appropriate case.

As has been point•od out, the opinion of the Director of the Finger Print Bureau in this case is E • j. clear and categorical and has been supported by adequate reasons. We have therefore no hesitation in accepting it as correct. • It will be recalled that the explanatioll of tho respondent about the recovery of Rs. 41421from his purse Ex. P. 9 is quite unsatisfactory.

He has not found it possible to give any explanation why the deceased's ring Ex. P. l was found tied with thoo articles in his handkerchief. p We have no doubt that the recovery of these articles is a strong piece -0f circumstantial evidence against him. The prosecution recoverod some blood stained clothes and shoes ·~ ' ' ulso ail~ led its evidence regarding the taking of the moulds, and their

-comparison.

We do not however think it necessary to examin1~ it as I

it cannot be said to be quite clear.

G The recovery of the incriminating articles in pursuance of the res-

't pondoont's information is an important piece of evidence against him.

As has been held by this Court in Baiju alias Bharosa v. State of Madhya Pradesh('), the question whether a presumption should be drawn against the respondent under illustration (a) of section 114 of ·- .... the Evidence Act is a matter which depends on the evidence and the circumstances of each case. The nature of the recovered articles, the H manner of their acquisition by the owner, the natnre of the evidence

(1) [1978] 2 SCR. 594.

3-329 SCI/78

A about their identification, the manner in which the articles were dealt with by the accused, the place and the circumstances of their recovery, the length of the intervooibg period and the ability or otherwise of the accused to explain the recovery, are some of those circumstances. As. the ring Ex. P. 1 was made of gold and bore the initials of the deceased, and the goldsmith Kartar Singh (P.W. 17) had established its identity, there could be no doubt whatsoever that it belonged to the deceased.

B It is also a matter of great significance that it was found tied in a handkerchief alongwith the other two highly incriminating articles, namely, the finger marked cnrrency note Ex. P. 10 and the respondent's purse Ex. P. 9 about whose identity there can possibly be no reason for any doubt. The re!!pondent knew that he would be suspected of the crime because the deceased was last seen in his company, and the fact that he buried the articles near the water lift in the middle C of the way leading from Khankhanwali to his village Roranwali snows that he wanted the articles to lie there until he could feel reassured enough to dig them out. It however so happened that he was suspected from the very beginni"ng, was arrested within four days and gave the information within the next two days which led to the discovery of an important fact within the meaning of section 27 of the D Evidence Act. It must therefore be held that the incriminating articles were acquired by the respondent at one and the same time and that it was he and no ane else who had robbed the deceased of the money and the ring and had hidden them at a place and in a manner which was known to him. Then there is the further fact that the responde"nt was unable to explain his possession of the ring and the money and did not even attempt to do so. The currency note Ex. P. 10 was found E on the top of the bundle of currency notes of the value of Rs. 41421-, and we have given our reasons for holding that it bore the respondent's fingerprint. It will be recalled that the deceased was undoubtedly in possession of currency notes because of the realisation he had made from the debtors of the Co-operative Society only a little while earlier, and the fact that the respondent hid the notes after tying them in a handkerchief, shows that he knew that their possessions with him would F be incriminating and unexplainable.

The intervening period between the loss of the money and the ring by the dceased and their recovery was not more tha"n six days, which was quite a short period. All these facts were not only proof of robbery but were presumptive evidence of the charge of murder as well. Rerereuce in this connection may be made to the decisions in Wasim Khan v. The State of Uttar Pradesh('), Tulsiram Kanu v. The State,(2) Sunder/al v. The State of Madhya G Pradesh("), Alisher v.

Statte of Uttar Pradesh (') and Baiju alias Bharosa v. State of Madhya Pradesh, (supra).

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In fact it has not been disputed before us that if the respodent's possession of the incriminating articles was held proved, the crrcum- 7 stantial evidence against him would be sufficient to justify the trial

(I) [1956) S.C.R. 191.

(2) AIR 1954 S.C. I

(3) A.LR. 1954 S.C. 28.

(4) [1974) 4 s.c.c. 254.

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court's :finding that he was guilty of the offence under section 302 for A colilmitting the murder of Nishan Chand and the offence of robbery under section 392 read with section 397 I.P.C.

F1>r the reasons mentioned above, the appeal is allowed, the impugned judgment of the High Court is set aside and respondent Ajit Singh is convicted of the offunces under sections 302 and 392/397 B I.P.C. In the circumstances of the case, we think it sufficient to sentence him to imprisonment for life for the offence under section 302 I.P.C. and to imprisonment for seven years for the offence under section 392/397 I.P.C. Both the sentences will run concurrently.

s.R.

Appeal allowed.