Pritam Pal, J.@mdashThe aforementioned two appeals are directed against the judgment and order dated 8-11 -1996 passed by learned Sessions Judge, Karnal whereby appellant Sham Sunder was convicted under Sections 302/452/411 of the Indian Penal Code and appellant Yogesh Kumar was convicted only u/s 411 of the Indian Penal Code. The appellants were sentenced as under:--
Appellant-Sham Sunder :--
To undergo imprisonment for life and to pay a fine of Rs. 2000/- or in default of payment of fine, to further undergo RI for two years for the offence u/s 302, IPC. To undergo RI for a period of five years and to pay a fine of Rs. 500/- or in default of payment of fine to further undergo R.I. for a period of one year for the offence u/s 452, IPC. Imprisonment for a period of one year u/s 411. All the sentences awarded to run concurrently.
Appellant-- Yogesh Kumar :
To undergo RI for a period of one year u/s 411, IPC.
Since both these appeals arise out of one and the same judgment and order passed by learned Sessions Judge, Karnal in case FIR No. 170 dated 23-3-1995, Police Station City, Karnal, therefore, they are being disposed of by this common judgment.
2. In nut-shell, facts culminating to the commencement of these two appeals may be recapitulated thus :
On 23-3-1995, Lalat Chand, a complainant in this case, had his lunch with his wife Krishna Kumari alias Rani, (since deceased) in his house No. 300, Old Housing Board Colony, Karnal. After his lunch, he left for his office. When at about 5.25 p.m. he came back from the office to his house and called his wife, but she did not respond. He then noticed that her dead-body was lying in a pool of blood in the kitchen. There were splashes of blood on the wall. Other items and house-hold articles were also lying scattered. Complainant further noticed that the ornaments worn by his wife were also missing from the dead-body. The steel almirah and other places in the house were also found ransacked. Immediately, after seeing so, the complainant rushed to the police and made a statement Ex. P/H before Mohinder Kumar, Sub Inspector in the above, narration of facts. The endorsement Ex. PH/1 was made thereon and ultimately, FIR No. 170 dated 23-3-1995 (Ex. PH/2) was registered on the same day at 7.15 p.m. vide Daily Dairy Report No. 37. He then also informed about the occurrence to his daughters who had gone to Delhi. The matter was investigated. Appellant Sham Sunder on his arrest made a disclosure statement leading to the recovery of four bangles and a pair of carryings (topus) which were taken into possession and identified by the complainant. Similarly, appellant Yogesh Kumar, after his arrest also got recovered a golden chain and a ring from an empty cabinet of a television lying in the shop-- G. K. Electronics belonging to his brother, situated at Meeran Ghati, Karnal. The aforesaid ornaments were also identified by Lalat Chand, complainant as belonging to his wife-- Krishna Kumari alias Rani (since deceased). These were taken into possession. During investigation of this case, it was found that the sample palm prints of accused Sham Sunder, when compared with the chance palm prints, tallied to each other.
3. After completion of the formal investigation of the case, both the appellants were challaned and ultimately, they were charged for commission of offence punishable under Sections 302 read with Sections 34 and 411 of the Indian Penal Code, to which they pleaded not-guilty and claimed trial.
4. Prosecution, in order to substantiate its case, examined as many as 10 witnesses, namely, P.W. 1 Dr. Varinder Parmar, P.W. 2 Ram Singh, Finger Print Expert, Madhuban, P.W. 3 Prem Chand Hudda Addl. Director Finger Prints, P.W. 4 Mulakh Raj, Draftsman, P.W. 5 Lalat Chand, Complainant, P.W. 6 Head Constable Gurdev Singh, P.W. 7 Ramesh Chand, Finger Print Expert, P.W. 8 Const. Surinder Pal, P.W. 9 Sub Inspt. Mohinder Kumar, P.W. 10 Inspector Nripjeet Singh and also tendered certain documents into evidence. In his statement, learned Public Prosecutor placed on record report of F.S.L. Ex. PR and Ex. PR/1. After closure of the prosecution case, appellants were examined in terms of Section 313, Cr. P.C. wherein they denied all the allegations appeared against them during the trial. When they were called upon to enter in their defence, they chose in the negative.
5. Learned trial Court after hearing learned Counsel for the parties and going through the file, convicted and sentenced both the appellants as mentioned in the opening part of this judgment. This is how, feeling aggrieved, the appellants have come up in appeal before this Court.
6. We have heard learned Counsel for the parties and have gone through the material placed on the file.
7. The first and foremost limb of arguments raised on behalf of the appellant--Sham Sunder is that here in the instant case, both the appellants were arrested after about 9 months of the date of occurrence and when no clue could be found, appellant-- Sham Sunder has been falsely implicated in this case on the basis of finger prints comparison report Ex. P/E wherein the chance prints taken from the place of crime are shown to have been identical with that of specimen finger prints as well as palm prints of said appellant-- Sham Sunder son of Sat Pakash. According to learned Counsel, the specimen of palm prints of one another Sham Sunder son of Kishan Chand were also taken by the police during investigation of the case. He also argued that in fact, police could not have taken the aforesaid specimen of the appellant without the permission/direction of the Court or the Magistrate. Thus the manner of taking specimen of finger prints/palm prints of appellant-- Sham Sunder by the police is "highly doubtful. In order to support, his aforesaid point of argument, reliance has also been placed on the decision in
"Section 73. Evidence Act does not contemplate that the accused can be asked, persuaded or coerced to give his handwriting or thumb impressions at the instance of the police so that these may be at a later stage, used against him. Hence, an order passed by the Judicial Magistrate on an application by the police directing the accused at the stage of investigation to give his specimen handwriting and signatures for the purpose of comparison is illegal and should be quashed in revision."
8. Further, learned Counsel appearing on behalf of the appellant-- Sham Sunder has also relied upon the decision of Hon''ble Supreme Court in
"A Court holding an enquiry under the Code of Criminal Procedure in respect of an offence triable by itself or by the Court of Session, does not exceed its powers u/s 73, if, in the interest of justice it directs an accused person appearing before it to give his sample writing to enabling the same to be compared by a handwriting expert chosen or approved by the Court, irrespective of whether his name was suggested by the prosecution or the defence, because even in adopting this course the purpose is to enable the Court before which he is ultimately put up for trial, to compare the disputed writing with his (accused''s) admitted writing and to reach its own conclusion with the assistance of expert."
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"In addition to Section 73, there are two other provisions resting on the same principle, namely Section 165, Evidence Act and Section 540, Cr. P.C. 1898, which between them invest the Court with a wide discretion to call and examine any one as a witness, if it is bona fide of the opinion that his examination is necessary for a just decision of the case".
9. Reliance has also been placed on the decision in the case of
10. At the second place, learned Counsel for the appellants also argued that the Investigating Officer had retained with hirn the sample finger prints for an unduly long delay of about 8 days, which provided him an opportunity to tamper with the same.
11. The aforesaid points of arguments have been repelled by learned Additional Advocate General, Haryana, Shri S. K. Garg and at the same time, he submitted that police official could take the finger prints of a suspect during the course of investigation for arriving at an appropriate conclusion as to whether the finger prints of the appellant tallied with chance finger prints found at the scene of crime. In support of his aforesaid point of argument, he also relied upon the observations made by Hon''ble the Supreme Court in
"At the trial the identification of the respondent, as one of the two alleged culprits, was the most important question to be decided by the Court. Besides, other evidence, the prosecution adduced in evidence a chit-- Ex. 5-alleged to be in his handwriting and said to have been given by him. In order to prove that Ex. 5 was in the handwriting of the respondent, the police had obtained from him, during the investigation, three specimen handwritings of his on three separate sheets of paper which were marked as Exs. 27, 28 and 29. The disputed document, namely Ex. 5 was compared with the admitted handwritings on Exs. 27, 28 and 29 by the Handwriting Expert whose evidence was to the effect that they are all writings by the same person. At the trial and in the High Court, the question was raised as to the admissibility of the specimen writings contained in Exs. 27, 28 and 29, in view of the provisions of Article 20(3) of the Constitution. It is an admitted fact that those specimen writings of the accused had been taken by the police while he was in police custody, but it was disputed whether the accused had been compelled to give those writings within the meaning of Clause (3) of Article 20."
The legal proposition was formulated as follows :--
"On these facts, the only questions of constitutional importance that this Bench has to determine are : (1) whether by the production of the specimen handwritings--Exs. 27, 28 and 29-- the accused could be said to have been a witness against himself within the meaning of Article 20(3) of the Constitution; and (2) whether the mere fact that when those specimen handwritings had been given, the accused person was in police custody could, by itself, amount to compulsion, apart from any other circumstances which could be urged as vitiating the consent of the accused in giving those specimen handwritings".
It was answered as follows :--
"In view of these considerations, we have come to the following conclusions :--
(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lead itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement which may ultimately turn out to be incriminatory is not ''compulsion''.
(3) "To be a witness" is not equivalent to furnishing evidence in its widest significance that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or by way of identification are not included in the expression ''to be a witness''.
(5) ''To be a witness'' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.
(6) To be a witness'' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.
(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is enough that he should become an accused, any time after the statement has been made".
12. In these above given facts and circumstances and the observations made by their Lordships, as mentioned above, it can be safely observed that here in the instant case, it has come in the evidence that some days prior to the date of occurrence of this case, appellant-- Sham Sunder had also visited the house of the complainant-- Lalat Chand to repair his scooter and this factum was disclosed by the complainant to the police only on 31 -7-1995. It is thereafter that Police Inspector Nripjit Singh, P.W. 10 had taken the sample of finger/palm prints of the appellant but, still he was not arrested. It has also come on the file that the sample finger prints of another Sham Sunder son of Kishan Chand were also taken and those were sent to Finger Print Bureau. At this place, it is also important to mention that none of the accused-appellants was arrested in this case till the confirmation of sample finger prints with the chance finger prints. Ultimately, the Finger Print comparison report Ex. P/E dated 5-9-1995 was received by the Investigating Officer and as per opinion mentioned therein, the chance finger/ palm prints of appellant Sham Sunder son of Sat Parkash were found identical with his sample right hand palm print. It is thus, thereafter, on receipt of the said report, that the police arrested the appellant, whereupon, he made his disclosure statement, Ex. P-1 /1 and in pursuance thereof, he got recovered four bangles, Ex. P-1/1 to 4 and topus (ear-rings) x. P-2/1-2 vide recovery memo Ex. P/J-1. Similarly, the other appellant-- Yogesh Kumar, who Was earlier found missing from his shop was also ultimately arrested in this case. On interrogation, he also made disclosure statement Ex. P/J/1 and in pursuance thereof, he also got recovered a golden chain (Ex. P3) and ring (Ex. P/4) and the same were taken into possession vide recovery memo Ex. P/K and all these aforesaid items which were found missing from the body of Krishna Kumari alias Rani were duly identified by the complainant. No bias or any animous has . been alleged against the complainant or the police for involving the appellants falsely in this case. No doubt, in this case, specimen of palm impressions were sent after about 8 days, but there was no scope at all for making any tampering with the said specimens. As stated above, in this case, the finger prints palm impressions had already been taken by the team of Finger Print Bureau from the scence of crime on the day of occurrence itself. So, in these given facts and circumstances, the delay in sending the specimen of palm impressions could hardly be of any help to the appellants.
13. This case solely rests upon the circumstantial evidence and the scientific investigations made by the police. If all are taken together, as stated above, we find nothing wrong or any doubt in the manner of connecting the appellants with the commission of crime of this case.
14. At the fag end of their arguments, learned Counsel for both the appellants also assailed the findings of the learned trial Court with regard to identification of ornaments alleged to have been recovered at the instance of the appellants and at the same time, it was also argued that in this case, no independent witness was joined at the time of effecting the recovery of bangles, earrings, chain and ring. No doubt, in this case, there was no identification mark on any of the ornaments shown to have been recovered from the appellants, but it has come in the statement of the complainant-- Lalat Chand that the ornaments were of his wife given to her by her parents at the time of marriage, which had taken place in the early sixties. In his statement, he has specifically stated that his wife was very fond of wearing the ornaments and she was meticulous in maintaining those ornaments so much so she had also got polished those ornaments 20 days prior to the date of occurrence. All this shows that complainant who had identified these ornaments had been seeing them for the last more than 30 years. Even otherwise, with the passage of time, if any mark was there, that must have vanished away.
15. As discussed above, this case is primarily based on the circumstantial evidence and the reports of Forensic Science Laboratory which have safely connected the appellants with the crime. Faced with such a situation and taking note of the peculiar circumstances of this case, non-joining of any independent witness is not fatal to the prosecution case.
16. In the premises aforesaid, no interference is called for in any of the findings arrived at by the learned trial court. Hence, the judgment of conviction and order of sentence dated 8-11-1996 are hereby maintained. Accordingly, both the appeals bearing Criminal Appeal No. 7-DB of 1997 and Criminal Appeal No. 743-SB-1996 filed by Sham Sunder and Yogesri Kumar respectively are dismissed.
