REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1980 OF 2008

Ashish Jain …Appellant

Versus

Makrand Singh and Ors. …Respondents

With

CRIMINAL APPEAL NO. 1981 OF 2008

State of Madhya Pradesh …Appellant

Versus

Makrand Singh and Ors. …Respondents

J U D G M E N T

Mohan M. Shantanagoudar, J.

The  instant appeals  arise from the judgments of the  High

Court  of  Madhya Pradesh,  Jabalpur,  Gwalior  Bench,  passed  in

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Death Reference No. 01 of 2004 and Criminal Appeal No. 312 of

2004. Vide the impugned judgments, the High Court acquitted the

accused respondents  Makrand Singh, Raj Bahadur Singh and

Shyam Sunder for the offences  punishable  under  Sections 302

read with 34, 394 read with 34 and 449 of the Indian Penal Code

(in short “the IPC”), and Sections 11 read with 13 of the Madhya

Pradesh Dakaiti and Vyapharan Prabhavit Kshetra Adhiniyam (in

short “the MPDVPKA”) and additionally respondent Makrand

Singh for offences under Section 25(1)(b)(a) read with Section 27 of

the Arms Act and Sections 11 and 13 of the MPDVPKA for causing

the death of three people, viz. Premchand Jain, his wife Anandi

Devi and unmarried daughter Preeti, and for committing robbery

of Rs. 30,000/­ in cash and about Rs. 8,00,000/­ worth of gold

and silver.

2. The case of the prosecution is reiterated below in brief:

Deceased Premchand Jain was in the occupation of money

lending, and  pawning gold and silver ornaments. The incident

took  place  on the intervening  night  of  4th  ­  5th  January  2003,

where the aforementioned accused persons, on the pretext of

doing electrical repairs in the house of the deceased, entered the

house and committed the said murder and robbery. After

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committing the offence, they locked the house from outside and

fled.  

3. The appellant  in Criminal Appeal No.  1980 of  2008  is  the

complainant Ashish Jain (PW26), who is the nephew of the

deceased Premchand. The appellant upon growing suspicious

about finding the house locked from outside on 5.1.2003, asked

some relatives  about the  whereabouts  of the family,  but to  no

avail. Therefore, towards the end of the day at around 09:45pm,

he informed the Police Station about the house being suspiciously

locked from outside. The police reached the house, broke open the

lock, and found all three residents lying dead on the third floor of

the house. Multiple injuries were also noticed on the bodies of the

deceased,  and some electrical equipment (such as  wires  and a

screwdriver) was found inside the house. The chest in which the

deceased  Premchand used to  keep the  pawned gold  and silver

ornaments  and cash was found  broken open  with its contents

missing.  Thus, an inference was drawn that the accused persons,

who  are electricians,  and  who  did regular repair  works  at the

house of the deceased, had committed the said offence. The first

information  (Dehati  Nalishi)  Ex.  P5 was  lodged by Ashish Jain,

who deposed as PW26. This first information was registered as the

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FIR Ex. P6 soon after.

After completing due procedure and upon investigation, the

accused persons were arrested the next morning. The robbed gold

and silver ornaments, cash,  blood­stained clothes, and certain

electrical tools, i.e. a suja and a chisel, which were said to be the

weapons  of  offence,  were recovered from  the  possession  of the

three accused persons at their instance. The key used to lock the

house from outside after the commission of the crime was also

recovered from a field at the instance of Accused No.1, Makrand

Singh. The robbed ornaments  were said to be the ornaments

which were pledged by different people as a part of the business

run by the deceased. The Naib Tehsildar, the Executive

Magistrate, conducted the identification of the robbed ornaments

by  the  pledgors,  who  identified  the  ornaments  which belong to

them.  

4. The Trial Court, upon framing charges and appreciating

evidence, found the accused persons guilty of the said offences,

and sentenced them to capital punishment.  

5. The reference for the death sentence and an appeal by the

accused persons were filed before the High Court. Both were heard

by a Division Bench; however, the learned judges could not reach

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a consensus and had a difference of opinion. One learned Judge

was  in  favour  of  acquittal  of the  accused persons and another

learned Judge concurred with  the  judgment of the Trial  Court.

Hence, the matter was heard by the learned Third Judge, and as

his findings were in consonance with acquittal, upon a majority of

2:1, the High Court acquitted the accused persons from all

charges levelled against them.

6. To satisfy our conscience, we have reappreciated the entire

evidence. The case  mainly revolves around the statements of

Ashish  Jain,  PW26,  who is the  complainant,  Kailash Chandra,

PW12, a last seen witness, and Vinod Kumar Jain, PW20, another

last seen witness, as well as the recovery made of all the

incriminating materials like the stolen articles, blood­stained

weapons and blood­stained clothes of the accused at the instance

of the accused persons.  

7. PW26 has deposed that he is the nephew of the deceased

Premchand and he frequented the house of the deceased, though

he himself lived in a different house. He sometimes used to help

the deceased Premchand with his business.  On the morning of 5th

January,  he had planned to visit  his  uncle  but the house was

locked from outside. He presumed that since his deceased aunt,

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the wife of Premchand, was not keeping well,  their family must

have taken her for medical examination. Thereupon, he enquired

from their relatives about Premchand’s whereabouts, but did not

get any response. Night fell, and Ashish Jain, PW26 along with a

few  others lodged  a report at the Police  Station,  City  Kotwali,

Bhind about the suspicious circumstances. The police arrived at

the scene, broke open the lock and found the dead bodies inside

the house with the ornaments and cash stolen from the chest.  At

the scene of the crime, PW26 noticed tea tumblers in the kitchen

area, and some electrical equipment lying around the house.   He

further deposed that Kailash Chandra, PW12, who was a

neighboring shopkeeper as well as a relative, had told him that he

had seen the accused persons entering the house of the deceased

at  around  6:00­6:30  p.m. the  previous  evening carrying  a  bag

containing electrical  equipment.  Vinod Kumar Jain,  PW20,  had

also informed him that he had seen the accused persons coming

out of the said house between 9:00­9:30 p.m. going towards the

Dhanwanti  Bai  Dharamshala  in  a hurried  fashion carrying  two

bags. Based on this information, the first information was lodged,

naming the accused persons and their addresses, after which the

FIR was registered.

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8. The first circumstance relied upon by the prosecution is the

“last seen circumstance”.  PW12, Kailash Chandra, who runs a

shop neighbouring the deceased Premchand’s establishment and

house, is the brother of the deceased Premchand. He categorically

deposed that on the relevant date at around 6:00­6:30 p.m., while

he was sitting outside his shop, he saw Accused No. 1, Makrand

Singh,  Accused No.  2,  Raj  Bahadur  Singh and Accused No.  3,

Shyam Sunder entering the house of the deceased carrying a bag

containing electrical equipment. He was acquainted with Accused

Nos. 1 and 2, and therefore enquired about the purpose of their

visit, to which they answered that they had been called to do some

electrical repair work in the house of deceased Premchand.   He

had also asked them about the third person, and they had

answered that his name was Shyam Sunder.   He further

corroborated the evidence given by PW26 with regard to finding

the dead bodies,  and the broken open chest.  He further stated

that he mentioned about the accused persons entering the house

to PW26 and others soon after the discovery of the bodies.

9. Another important witness for the prosecution case is Vinod

Kumar Jain, PW20, who is a nephew of the deceased Premchand.

He testified that on the 4th of January, 2003 at around 9:00 p.m.,

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while he was returning home from his shop, which is nearby, he

saw the three accused persons coming out of  the house of the

deceased, and Accused No. 1, Makrand Singh and Accused No. 2,

Raj Bahadur Singh were carrying a bag each, walking in a hurried

fashion towards the Dhanwanti Bai Dharamsala. He further

supported the version of PW26 about finding the bodies and

learning about the robbery. He also deposed that he had

discussed  with the  people gathered  at the scene of the crime,

including PW26, about him seeing the accused persons exiting the

house of the deceased on the previous night.

10. The  Investigating  Officer,  K.D.  Sonakiya deposed as  PW35

before the Trial Court.   He had been present at the scene of the

incident from the start and completed the investigation.  

11. The second incriminating circumstance against the accused

persons is the recovery of various articles based on their

statements. All the accused persons have confessed to committing

the crime and have led to the recovery of the stolen gold and silver

ornaments and cash hidden at various places in their respective

houses. A country­made pistol was also seized at the instance of

Accused No. 1 from his possession. Other incriminating material

seized at the instance of the accused persons includes the blood­

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stained clothes of the accused  and the  blood­stained  weapons

suja and chisel at the instance of Accused No.2 and Accused No.1

respectively.  The  key to the lock  used to lock the  house from

outside after the commission of the crime was also seized from a

vacant land  beside the  house of Accused  No. 1  based on  his

statement.

Ashish Jain, PW26 is the witness for the recovery of all the

materials relating to the incident.

12. The post­mortem of the three  dead bodies  was done by a

team of three doctors out of which Dr. Renu Sharma, PW21 and

Dr. U.P.S. Kushwaha, PW22 were examined by the Trial Court.

Upon a perusal of the Post­Mortem Reports, we find that on the

body  of the first  deceased  Premchand, there  were five injuries

which were all lacerated wounds. Upon the body of  the second

deceased Anandi Devi also, five lacerated wounds were found. On

the body of the third deceased Preeti, three lacerated wounds, one

incised  wound  and  one  contusion  were identified.  All the said

injuries were ante­mortem in nature and sufficient to cause the

death of a person in the ordinary course of nature. The cause of

death of all the deceased was opined to be shock due to

haemorrhage, with the time of death between 12­24 hours prior to

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the post­mortem, i.e. between 12 noon of 4th January and 12 noon

of  5th  January.  The Doctor  PW22  in his  cross­examination has

deposed that one injury was inflicted by a hard and sharp weapon,

and the rest of the  injuries were  inflicted by a hard and blunt

weapon on the deceased.  

13. The deceased Premchand’s hand was found by the police to

be clutching some hair, which was taken and sent to the Forensic

Science  Laboratory  along with  the  seized blood­stained clothes,

weapons and blood recovered from the floor of the scene of the

crime.  Hair samples of Accused Nos. 1 and 2 were also sent along

with these samples to the FSL for examination. The FSL has found

that the hair recovered from the hand of the deceased was similar

in nature to both the hair samples of Accused No. 1 and Accused

No. 2 (but the results were inconclusive nevertheless) and that the

blood stains found on the clothing and weapons were identified as

human blood.  Out of the stains that could be identified, the blood

was identified as belonging to group ‘O’.   Fingerprint marks were

seized from the tea tumblers found by the police at the scene of

the crime and were also sent for FSL examination. The samples of

the fingerprints of the accused persons were also sent along with

it for identification. The fingerprint expert opined that there was

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similarity  between a  few prints  upon the  tea  tumblers and the

fingerprints of Accused No. 1, Makrand Singh.  

14. Learned counsel for the appellant­complainant has strongly

opposed the acquittal of the accused persons. He took the court

through the evidence on record, and urged that the recovery of the

robbed articles itself should be a sufficient ground for a

conviction, though it is further supported by other circumstantial

evidence. He further argued that the High Court in  its majority

opinion erred in giving undue importance to small shortcomings in

the investigation, because of which justice had to suffer. He also

argued that the last seen evidence of PW12 and PW20 along with

the evidence of recovery of the stolen ornaments and cash at the

instance of the accused persons, from their possession, is not to

be ignored. He placed reliance on the recovery of the key used to

lock the house from outside after the commission of the crime, at

the instance of the first accused, and said that the recovery of the

same is conclusive proof of the participation of the accused

persons in the said offence. He also argued that finding blood of

the group ‘O’ on the clothes of the accused in light of the

recoveries made could only lead to one conclusion, i.e. the guilt of

the accused, since this was also the blood group of the deceased

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persons. However, he admitted that the  fingerprint examination

report could not  be relied upon,  and that  the hair  sample  test

report was inconclusive.

15. The State of Madhya Pradesh has also filed an appeal against

the acquittal by the High Court. The learned counsel for the State,

while adopting the arguments of the counsel for the complainant

in opposing the acquittal, submitted that the circumstantial

evidence on record, which is fully proved, would only lead to the

conviction of the accused.  

16. The Supreme Court Legal Services Committee was directed

by us to engage a counsel for the accused Respondents since none

had appeared for them.   An  Amicus  Curiae  was appointed to

assist  us  in relation to the arguments for  the Respondents.  He

supported the majority view taken by the High Court in acquitting

the accused persons, in entirety. He argued that there are

discrepancies in the evidence relating to the arrests made and the

alleged recoveries  made by the police at the instance of the

accused. Learned amicus also stated that out of the recovery

witnesses, who are all relatives of the deceased, only PW26 has

been examined. The non­examination of other witnesses,

especially one Bahadur Yadav (the only independent witness), a

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servant of Premchand, who had allegedly assisted the police in the

identification of the recovered ornaments by the mortgagees, was

said to be crucial for the prosecution case. He further argued that

no proper procedure  was followed for the identification of the

ornaments  by the  mortgagees,  and  the  police  had  taken active

interest in the identification of the ornaments, which was

suspicious.  Lastly, he submitted that the last seen circumstance

was not proved.  

17.  In a case wherein the High Court has acquitted the accused

of  all charges, there is  a  double  presumption in favour  of the

accused, as the initial presumption of innocence is further

reinforced by an acquittal by the High Court.  In such a case, this

Court  will  keep in  mind  that the  presumption  of innocence in

favour of the accused has been fortified by the order of acquittal

and thus if the view of the High Court is reasonable and based on

the material on record, this Court should not interfere with the

same. Interference is to be made only when there are compelling

and substantial reasons to do so, and if the ultimate conclusion

reached by the High Court is palpably erroneous, constituting a

substantial miscarriage of justice. Moreover,  interference can be

made if there is a misconception of law or erroneous appreciation

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of evidence or the High Court has completely misdirected itself in

reversing the order of conviction by the Trial Court. (See State of

Rajasthan  v.  Islam and Ors.,  (2011) 6 SCC 343,  State of U.P.  v.

Awdhesh, (2008) 16 SCC 238, and State (Delhi Admin.) v. Laxman

Kumar and Ors., (1985) 4 SCC 476).

18. As  mentioned supra, the present case of circumstantial

evidence primarily hinges on two main aspects, which is the last

seen evidence and the recovery of stolen property.  

PW12 and PW20, as discussed above, are the last seen

witnesses who saw the entry and the exit of the accused persons

from the crime scene,  respectively. It  has been deposed by  the

witnesses that soon after the bodies were found, they had

discussed amongst themselves about the participation of the

accused persons based on the fact that PW12 saw them enter the

house of the deceased at around 06:30 p.m. on the preceding day,

and that PW20 saw them coming out of the house and leaving the

area in a hurried manner at around 09:00­09:30 p.m. These two

witnesses have categorically  stated that they had conveyed this

piece of valuable information to the complainant PW26 right

before he filed the first information. However, there is no whisper

of such an important fact anywhere in the first information, Ex. P5

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nor the  FIR  arising from  it,  Ex.  P6. It is only stated in these

documents that there  was  a  suspicion that the  accused  might

have caused the said incident as they were seen loitering around

the  house  of  deceased  Premchand  at  around  9:00  p.m.  of the

night of the incident. PW26 has also stated that he learnt about

the presence of the accused  persons from the verbal dialogue

between him and the said witnesses. If PW12 and PW20 had really

seen the accused as deposed, the same would have been reflected

in the FIR, and the absence of such a crucial piece of information

that PW26 learnt right before filing the first information casts a

dark shadow  of suspicion  over the testimony of the last seen

witnesses.  Moreover, PW12  and  PW20  have deposed that they

were present at the spot when the bodies were found. However,

their statements were not taken by the police on the same day,

rather they were taken subsequently on the next day.  Considering

the fact that the details of the last seen circumstance as deposed

by PW12 and PW20 are not found in the first information (though

PW26, the informant was informed about the same by PW12 and

PW20 before filing the  First Information Report),  we  are  of the

opinion that PW12 and PW20 did not see the accused entering or

exiting the house of the deceased, as is sought to be made out by

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the prosecution. Moreover, there was deliberate delay in recording

the statements of  these  important witnesses with regard to the

last seen circumstance. Hence, the statements of PW12 and PW20

were clearly an afterthought.

19. The High Court had observed that PW20 is a chance witness,

and we find that it has been held rightly so. Moreover, there are

discrepancies and contradictions in the statement of PW20,

inasmuch as it is only in his testimony that he asserts for the first

time  that  he  saw  the  accused coming out  of the  house  of the

deceased, as opposed to walking hurriedly away from the area,

towards the Dhanwanti Bai Dharamshala. Also, he admitted that

he could not remember how many people came out holding bags,

and how many came out empty­handed, along with the fact that

he did not usually take the route in front of the house/shop of the

deceased to reach his house from his shop, which shows that he is

a chance witness.  Keeping in mind that this witness was related

to the deceased, and appears to be a chance witness with material

discrepancies in his account, we are inclined to discard his

evidence as to the last seen circumstance.

20. The first information given by the complainant PW26 clearly

mentions the name of the accused as well as their addresses. It is

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also stated by  the witnesses  that  they are acquainted with  the

accused persons as they are electricians who frequented the house

of the deceased for repair works.   Based on the same and

corroborated  by the statement  of  PW26, the  police could  have

easily  arrested the accused.  It  was stated by the  Investigating

Officer K.D. Sonakiya, PW35, that the police went in search of the

accused in order to arrest them at different locations that night

itself. However, the material on record shows that the arrests were

made only the next morning between 11:00 a.m. and 11:30 a.m.,

that too at the houses of the accused persons, which also,

incidentally, shows that the accused persons were not absconding,

which is unnatural conduct on the part of an offender who knows

that he has been observed entering the house of the deceased on

the day of the offence. Be that as it may, the delay in the arrest,

despite clear knowledge of the whereabouts of the accused

persons,  casts  a  serious shadow of  doubt  over the  case  of the

prosecution.  

21. As regards the recovery of incriminating  material at the

instance of the accused, the Investigating Officer K.D. Sonakiya,

PW35, has categorically deposed that all the confessions by the

accused persons were made after interrogation, but the mode of

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this interrogation does not appear to be of normal character,

inasmuch as he himself  has deposed that the accused persons

were further grilled and interrogated multiple times before

extracting the confessions which lead to the recovery of the

ornaments, cash, weapons and key. We find from the totality of

facts and circumstances that the confessions that led to the

recovery of the incriminating  material  were not voluntary, but

caused by inducement, pressure or coercion. Once a confessional

statement of the accused on facts is found to be involuntary, it is

hit by Article 20(3) of the Constitution, rendering such a

confession inadmissible. There is an embargo on accepting self­

incriminatory evidence, but if it leads to the recovery of material

objects in relation to a crime, it is  most often taken to hold

evidentiary value as per the circumstances of each case. However,

if such a statement is made under undue pressure and

compulsion from the investigating officer, as in the present matter,

the evidentiary value of such a statement leading to the recovery is

nullified. It is  noteworthy to reproduce the observations of this

Court regarding the relationship between Section 27 of the

Evidence Act and Article 20(3) of the Constitution in Selvi v. State

of Karnataka, (2010) 7 SCC 263:

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“102. As  mentioned earlier “the right against self­ incrimination” is now viewed as an essential safeguard in criminal procedure. Its underlying rationale  broadly corresponds with two objectives— firstly, that of ensuring reliability of the statements made  by  an  accused,  and secondly, ensuring that such statements are  made voluntarily. It is quite possible that a person suspected or accused of a crime  may  have  been  compelled to testify through methods involving coercion, threats or inducements during the investigative stage. When a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the “rule against involuntary confessions” is to ensure that the testimony considered during trial is reliable. The premise is that involuntary statements are more likely to mislead the Judge and the prosecutor, thereby resulting in  a  miscarriage  of justice.  Even during the investigative  stage, false  statements  are likely to cause delays and obstructions in the investigation efforts.

103. The concerns about the “voluntariness” of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements— often through  methods involving coercion, threats, inducement  or  deception.  Even  if such  involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of  the person being examined. In this sense, “the right against self­ incrimination” is a vital safeguard against torture and other “third­degree methods” that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important otherwise the investigators will  be more  inclined to

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extract information through such compulsion  as  a matter of course. The frequent reliance on such “short  cuts”  will  compromise  the diligence required for conducting meaningful investigations. During the trial stage, the onus is on the prosecution to prove the charges  levelled against the  defendant and the “right against self­incrimination” is a vital protection to ensure  that  the prosecution discharges  the said onus. … 133. We have already referred to the language of Section 161 CrPC which protects the accused as well as suspects and witnesses who are examined during the course of investigation in a criminal case. It would also be useful to refer to Sections 162,  163 and 164 CrPC which lay down procedural safeguards in respect of statements made by persons during the course of investigation.  However,  Section 27 of the Evidence Act incorporates the “theory of confirmation by subsequent facts” i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could  directly lead to the subsequent discovery of relevant facts rather than their discovery through independent  means.  Hence such statements could also be described as those which “furnish a link in the chain of evidence” needed for a successful prosecution. This provision reads as follows:

“27. How much of information received from accused  may be proved.—Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the  fact thereby discovered, may be proved.”

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134. This provision permits the derivative use of custodial statements in the ordinary course of events. In Indian law, there is no automatic presumption that the custodial statements  have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda [16 L Ed 2d 694 : 384 US 436  (1965)]  warnings.  However, in circumstances where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3).   

135. The relationship between Section 27 of the Evidence Act and Article 20(3) of the Constitution was clarified in Kathi Kalu  Oghad [AIR 1961 SC 1808 : (1961) 2 Cri LJ 856 : (1962) 3 SCR 10]. It was observed in the majority opinion by Jagannadhadas, J., at SCR pp. 33­34: (AIR pp. 1815­16, para 13)

“13. … The information given by an accused person to a police officer leading to the discovery of  a  fact which may or may not prove incriminatory has been made admissible in evidence by that section. If it is  not incriminatory  of the person giving the information, the question does not arise. It can arise only when it  is of  an incriminatory character so far as the giver of the  information  is concerned. If the self­incriminatory information has been given by an accused person  without any threat, that  will be admissible  in evidence and that will  not be hit  by the provisions of  clause (3)  of Article 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of Section 27 of the Evidence Act are not within the prohibition aforesaid, unless

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compulsion [has] been used in obtaining the information.”

   (emphasis supplied)

22. We are of the opinion that the recovery of the stolen

ornaments, etc. in the instant matter was made on the basis of

involuntary statements, which effectively negates the

incriminating circumstance based on such recovery, and severely

undermines the prosecution case.

23. Furthermore, the prosecution has examined many witnesses

who were alleged to be the pledgors of the said ornaments, who

identified their ornaments in an identification conducted by the

Naib Tehsildar. This was to prove that the recovered ornaments

were in fact the ornaments which were robbed from the house of

the  deceased Premchand and  later recovered from the  accused

persons. We find substance in the argument of the learned Amicus

Curiae that this  identification was not done in accordance with

due procedure.   It is evident from the testimony of several of the

examined pledgors, such as PWs 15, 16 and 28, that the

identification procedure was conducted without mixing the

recovered jewellery with similar or identical ornaments.

Additionally, there is nothing on record to show the identity of the

pledgors and to prove that the identified ornaments were pledged

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by them to the deceased Premchand, except for the account books

maintained by the deceased Premchand for his business, but

these cannot be relied upon. This is because these account books

were seized by the police from the possession of Shailendra Kumar

Jain, PW11, who is the son­in­law of the deceased. Incidentally,

he also runs a similar money­lending business as a pawn broker

in another town. No valid reason is accredited to the recovery of

deceased Premchand’s alleged account books from the possession

of his son­in­law. Moreover, these account books were returned to

him without any prayer for the same and without following any

procedure. Later, it was found that there were additional entries

made in the account book after the date of the incident. Moreover,

none of the  witnesses  have spoken  about the  particular entry

relating to them in the account books.   No signature of any

witness is identified and marked in the account books.   In other

words,  none of the  witnesses have  deposed about  any relevant

entry found in the account books with reference to their respective

gold/silver articles. All these issues discussed above, coupled with

the fact that the investigation officer has put forth an artificial and

got­up story in the  matter of identification of the ornaments,

creates grave suspicion with regard to the recovery of the

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ornaments, as well as their identification by the different pledgors.

Hence, learned Amicus Curiae may be justified in contending, as

held by the High Court, that the aspect of recovery is a got­up

story, only to suit the purposes of the prosecution.  

24. The witnesses for the recoveries which were effected at the

instance of the accused are Ashish Jain, PW26 and one Sanjeev

Jain.  Both of them are close relatives of the deceased.  Sanjeev

Jain has not been examined. Similarly, one Bahadur Yadav was

also not examined, who was a servant of the deceased Premchand

who had allegedly assisted the police by giving information about

the pledgors to locate them to be brought for identification of the

recovered articles.   The non­examination of these two important

witnesses in light of the recoveries adversely affects the

prosecution case.  

25. Another circumstance which has been contended to point to

the guilt of the accused is the recovery of blood­stained weapons

at the instance of the accused. A pointed suja and a chisel were

recovered from the houses of Accused Nos. 2 and 1, respectively,

at their instance. However,  the prosecution has not established

that these are the weapons which were used for the commission of

the crime. The medical evidence indicates that the injuries that

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were found on the bodies of the deceased persons could not have

been caused with the weapons seized, and the likelihood of the

seized weapons causing the present injuries are very slim, as all

the injuries, except one, were lacerations caused by a hard and

blunt object.  

The blood­stained clothes of the accused persons were also

recovered from the houses of the accused at their instance.

However, the veracity of the said recovery is doubtful in light of

the fact that the said recovery was made two days after the arrest

of the accused and the recovery of the stolen articles  from the

houses of the accused, which the investigating officer had

thoroughly searched previously. From Accused No. 3, Shyam

Sunder,  clothes were recovered hanging  from a hook  inside his

one­room house,  which had also been searched previously  and

from  where ornaments had also been seized before. All these

apparent infirmities create nothing but doubts in our minds

regarding the guilt of the accused.  

26. All the blood­stained items (including the weapons, clothes of

the  deceased  and the flooring  and tiles  of the spot  where the

bodies were found) were sent to the FSL for examination, however

the reports do not, in any way, help the case of the prosecution.

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The blood stains were found to be of human blood, however, only

the stains on the clothes of Accused No. 2 and Accused No. 3 were

found to be of the blood group ‘O’. Identification of the rest of the

stains was opined to be inconclusive. Although it is argued that

the blood group of the deceased persons is  ‘O’, there is nothing

conclusive to prove the same.  Therefore, no reliance can be placed

on the recovery of the blood­stained weapons or  clothes of the

accused.

27. Another  incriminating factor as argued by the counsel  for

the  complainant is that the fingerprints  of  Accused No.  1 were

found upon the tea tumblers found at the scene of the crime. We

do not agree with the conclusion of the  High Court that the

fingerprint samples of the accused (used for comparison with the

fingerprints on the tumblers) were illegally obtained, being in

contravention of the Identification of Prisoners Act, 1920,

inasmuch as they were obtained without a  magisterial order.

Importantly,  Section 4 refers to the  power of  a  police  officer to

direct taking of measurements, including fingerprints:

“4. Taking of measurements, etc., of non­convicted persons.—Any person who has been arrested in connection with an offence punishable  with rigorous imprisonment for a term of one year or upwards shall,

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if so required by a police officer, allow his measurements to be taken in the prescribed manner.”  

Section 5 of this Act provides for the taking of such samples upon

an order of a Magistrate, if the Magistrate is satisfied as to its

expediency:

“5.  Power  of  Magistrate to order a  person to be measured or photographed.—If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898 (5 of 1898)† it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and  place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer:  

Provided  that  no  order  shall  be  made directing any person to be photographed except by a Magistrate of the First Class:  

Provided further, that no order shall be  made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.”  

However,  as affirmed recently by  this Court  in  Sonvir  v.  State

(NCT) of Delhi, (2018) 8 SCC 24, Section 5 is not mandatory but is

directory, and affirms the bona fides of the sample­taking and

eliminates the possibility of fabrication of evidence.   The Court

also relied on various judgments on the point, including

Shankaria v. State of Rajasthan, (1978) 3 SCC 435, a three­Judge

Bench  decision of this  Court to reach this conclusion.  While

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discussing the decision of this Court in  Mohd. Aman v. State of

Rajasthan, (1997) 10 SCC 44, the Court observed at paragraphs

60­62 as follows:

“60. This Court observed that the prosecution has failed to establish that the seized articles were not or could not be tampered with before it reached the Bureau for examination. Further the following was stated in para 8: (Mohd. Aman case [Mohd. Aman v. State of Rajasthan, (1997) 10 SCC 44 : 1997 SCC (Cri) 777] , SCC p. 49) “8. … Apart from the above missing link and the suspicious circumstances surrounding the same, there is another circumstance  which also casts a serious mistrust as to genuineness of the evidence. Even though the specimen fingerprints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take fingerprints of the  accused but to  dispel  any  suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate.”

(emphasis supplied) 61. The above observation although clearly mentions that under Section 4 police officer is competent to take fingerprints of the accused but to  dispel  as to its  bona  fide  or to  eliminate the fabrication of evidence it was eminently desirable that they were taken before or under the order of the Magistrate. 62. The observation cannot be read to mean that this Court held that under Section 4 police officers are not entitled to take fingerprints  until the  order is taken from the Magistrate. The observations were made that

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it is desirable to take the fingerprints before or under the order of the Magistrate to dispel any suspicion…”  

(emphasis supplied)

Even otherwise, pursuant to S. 8 of the Identification of Prisoners

Act, rules have been framed by the Madhya Pradesh government

for the purpose of carrying into effect the provisions of the said

Act. The relevant rules for the matter on hand are Rules 3, 4 and

5, which are reproduced herein:

“3. Taking of photographs or measurements. ­ Allow his  photograph or  measurements to  be  taken under Section 3 or Section 4, shall allow them to be taken under the directions of a police officer.

4. Places at which measurements and photographs can be taken. ­ (1)  Measurements  and  photographs may be taken­ (a) in Jail, if the person whose photograph, or measurements are to be taken, is in Jail; (b) at a police station or at any other place at which the police officer may direct the taking of the measurements or photographs, if the person  whose photograph or  measurements are to be taken is in police custody. (2) If the person whose photograph or measurements are to be taken has been released from jail before his measurements  or  photograph have  been  taken or is not in police custody, he shall on receipt of an order in writing from an officer in  charge  of  a  Police  Station attend at such place as may be specified in such order, on the  date  and  at the time  stated therein, for the

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purpose  of  having  his  measurements  or  photograph taken.

5. Measurements how to be taken. ­ (1) Measurements of the whole or of any part of the body may be taken. (2) The measurements of a woman shall be taken by another woman with strict regard to decency.”

A bare reading of these rules makes it amply clear that a police

officer is permitted to take the photographs and measurements of

the accused. Fingerprints can be taken under the directions of the

police officer.   As held by this Court in  Sonvir  (supra), although

Section 4 mentions that the  police  officer is  competent  to  take

measurements of the accused, but to dispel doubts as to its bona

fides and to rule out the fabrication of evidence, it is eminently

desirable that they  were taken  before  or  under the order  of a

Magistrate. However, the aforesaid observations cannot be held to

mean that this Court observed that under Section 4, police officers

are not entitled to take fingerprints until the order is taken from a

Magistrate. If  certain suspicious circumstances do arise from a

particular case relating to lifting of fingerprints, in order to dispel

or  ward off  such suspicious  circumstances, it  would  be in the

interest of justice to get orders from the Magistrate. Thus there

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cannot be any hard and fast rule that in every case, there should

be a magisterial order for lifting the fingerprints of the accused.

Thus, it cannot  be  held that the fingerprint  evidence  was

illegally obtained merely due to the absence of a magisterial order

authorizing the same.

At the same time,  we find that in the current facts and

circumstances, the absence of a magisterial order casts doubts on

the credibility of the fingerprint evidence, especially with respect to

the packing and sealing of the tumblers on which the fingerprints

were allegedly found, given that the attesting witnesses were not

independent witnesses, being the family members of the deceased.

Thus, we cannot rule out the possibility of tampering and post­

facto addition of fingerprints, and concur with the High Court in

discarding the fingerprint evidence.

28. It is noteworthy to mention that the DIG of Police had visited

the scene of the crime shortly after finding the bodies, which is

evident from the deposition of witnesses such as PW1. The DIG,

upon seeing three tea tumblers and some electrical equipment at

the  scene of the  crime, inferred that  the crime may have been

committed by three persons who were electricians. This inference

drawn by  a  high­ranking  officer in the  police is likely to  have

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impeded the course of investigation and created prejudice against

the accused persons. The whole investigation and the prosecution

case seem to be concocted around this inference made by the DIG,

and such a circumstance does not help the case of the

prosecution.  

29. In light of the aforementioned discussion and reappraisal of

evidence by this Court, we do not find any glaring infirmity in the

acquittal granted by the High Court. On the other hand, we find it

well­reasoned, and therefore accept the view of the High Court.

The appellants have failed to establish that the High Court has

erred in its conclusion. Unless any blatant illegality or substantial

error in the order of acquittal is proved by the appellants, and as

long as the conclusion of acquittal is a possible view based on the

circumstances and material on record, this Court is not bound to

interfere with the same. As a reasonable suspicion or doubt

persists in our minds regarding the guilt of the accused based on

the case of the prosecution, the scales of criminal justice tilt in

favour of acquittal of the accused. In such a scenario, the

acquittal of the accused persons is confirmed.  

30. At this juncture, we would like to extend our appreciation to

the learned counsel and especially for the able assistance of Mr.

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V.N. Sinha, Senior Counsel appointed as the Amicus Curiae.   

31. Therefore, Criminal Appeal Nos. 1980­1981 of 2008 are

dismissed, and the judgment and order of acquittal of the High

Court is maintained.

…………………………………….….J. [N.V. RAMANA]

………………………………………..J. [MOHAN M. SHANTANAGOUDAR]

New Delhi;  January 14, 2019.

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