HIMACHAL PRADESH ADMINISTRATION Vs. OM PRAKASH

JUDGEMENT

(1.) This Appeal is by Special leave against the Judgment of the Himachal Bench of the High Court of Delhi acquitting the accused who had been sentenced to death for an offence of murder under S. 302 of the Indian Penal Code. The accused Respondent was a Manager at the Kotkhai Branch of the Himachal Pradesh State Co-operative Bank of which Sunder Lal Chaturvedi the deceased was the General Manager. It appears that during the period the accused was working in that Bank there was a fire in the Kotkhai Brach in which the records of the Bank were burnt and a sum of Rs. 10,000/- was found missing. The deceased had suspended the accused from the ser vice and subsequently he was dismissed. In or about 1964, the deceased retired from the Bank and in 1965 started a Private Limited Company under the name of Himprasth Financiers with the Head Office at Nagina Singh Building which was situated in the Mall at Simla of which he was the Managing Director. He used to also live in the same building in one of the rooms of the office and have his meals in the Mansarover Hotel. The other Directors of this company were Gurucharan Singh, Puran Chand Sood and Kailash Devi wife of I. C. Gupta, P.W. 2, who was at one time also Manager in the Himachal Pradesh State Co-operative Bank. After the accused was dismissed from the Bank he had applied to the deceased for a job and was appointed as an Accountant in the Finance Company but later when his request for increase in his pay was not sanctioned, he sent in his resignation by a letter dated 31-12-66 Exh. P. 8 and it was accepted on 3-1-67 by a resolution of the Board of Directors Exh. P. 43. On the night of 30th January 1967 the deceased had his dinner at the Hotel and when he came out after taking his food it was alleged that he was met by the accused. This was witnessed by Romesh Chand P. W. 7 the Proprietor of the Hotal Who saw them both going towards the Mall. Thereafter at the betel shop which is near Nagina Singh Building, Lal Chand P.W.9 who was purchasing cigarettes at that shop saw them together and going towards the Nagina Singh Building. It was the last time he was seen alive. On the 31st January 1967 at about 9.30 a.m. I.C. Gupta P.W.2 came to visit the deceased and found that the main door was bolted from inside.He then peeped through the glass of the window panes through the adjoining room and saw that the deceased was lying in a pool of blood. He immediately telephoned to the Police. In response to this call the Station House Officer of the Saddar Police Station, Inder Raj Malik, P. W. 28 came to the building broke open the room through the kitchen door and saw that the back door of the bath room was open. At that time there were present P. W. 2, Amar Chand P.W.8, Baldev Krishan P.W.13 and others. The deceased had on him four incised wounds one on the neck and 3 on the hands. On inspection of the room he found on the nearby table a key Ex. 4 stained with blood and under the table there was a biscuit colour Coat button Ex. 1. Inside the shelf of an Almirah there was a water flask which appeared to have on its neck 3 finger imperessions. On the glass pane of the door leading to the kitchen were also found two finger marks. The curtain near the Kitchen door showed that someone had wiped his blood stained hands on it. The key and the button were seized and a panchnama was made. There were also found two bunches of the keys underneath the pillow of the deceased. Des Raj, P. W. 6, the Police Photographer took photographs. not only of the various objects in the room but also the finger marks on the flask and the window panes after the same were dusted with some grey powder. Thereafter the Investigating Officer P. W. 28 requested P. W. 2, P. W. 8 and P.W. 13 to ascertain if any of the things belonging to the deceased were missing. These three persons informed him after inspection that two loan registers, one general ledger, one cash book and vouchers from April 1966 to Decmber 1966 were missing. They further informed him that one blanket of the deceased, one teapoy cover and one canvas bag was missing. An inquest on the dead body was held and the blood found was also seized. Thereafter P. W. 28 went to Mansarover Hotal and recorded the statement of P. W. 7. On 1-2-67 at about 11.30 a.m P. W. 28 accompanied by the Assitant Sub Inspector and Constables met P. W. 2, P. W. 8 and boarded the jeep of P. W. 2 driven by Roshan Lal and went towards the house of Om Prakash. On the way P. W. 2 saw Kala Ram, P. W. 5, who was waiting for a bus and asked him to get into the jeep. Thereafter they went to the house of the accused situated at Anandale and there P. W. 28 went inside the house and saw the accused in one of his rooms and brought him outside. After interrogating him he arrested him and pursuant to a statement made by him seized from him one sweater , one coat, one blanket which was hidden inside the nivar of his cot lying inside his room. The sweater and the coat were stated by the accused to be his. The accused also gave them the pair of boots and socks which he was wearing and informed them that he had concealed on blood stained dagger under a stone slab below the maidan of Burnt Market and over the bakeries which was by the side of a pipe and offered to have it recovered. He further stated that he had Kept the five registers in a canvas beg which he had hidden below a stone at Krishna Nagar on the bank of Ganda Nala and that he had thrown 8 or 9 bundles of the vouchers tied in a tea-poy cloth and his blood stained pants in the Ganda Nala and would get them recovered. The Investigeting Officer reduced the statements to writing in the presence of the Panchas and took their signatures. This Panchanama is Ex. P. 6. The coat and sweater and the blanket inside the nivar of his cot were handed over by the accused to the police. These were found to contain blood and were seized through a Panchanama. The accused then took them to the market and on the way met by Bhag Singh P. W. 12 and in the presence of all these persons he removed a piece of stone which was near a pipe and brought out a blood stained digger from under it and gave it to P. W. 28. He then took them to the Tekri of one Ganga Singh P. W. 11, in the Lower Bazer who sells deggers and there P. W. 28 recorded his statement that on the day of the incident the accused had purchased the dagger recovered from under the stone which was identified by P. W. 11, as the one sold to him. On the next day namely 2-2-67 P. W. 28, got a paln of the rooms and the office where the deceased was working and living prepared and from there accompanied by P.W. 2, P.W. 13 went to Krishna Nagar taking with them on the way Manohar Lal P.W. 14, from Krishna Nagar to Ganda Nala whcih was flowing in the Khud. From near there the accused pointed out a stone slab from where a cnavas beg which containd five registers said to be missing from the residence of the deceased were recovered and then the accused went into the Ganda Nala brought out a tea-poy cloth whcih contained vouchers and also recovered a blood stained pant which was lying under the water. The button and the coat were sent to the forensic laboratory at Chandigarh for examination. The flask and the glass panes were sent to the Finger Examiner at Phillor and the button to the Forensic Laboratory which gave a report that it was similar to the button on the coat from which it was missing. The Chemical Examiner and Serologist found human blood on the key, the dagger, blanket, coat, sweater and pant the shose and socks. The blood grouping could only be found on the pajama and shirt of the deceased which is of 'O' group while no blood grouping was possible in respect of the other articles referred to. Vide Ex. P. 60 and Ex. p. 48. The finger print expert found on the flask and the glass pane reported as per Ex. P. 59 that they are the same as those of the accused and have more then 12 points of similarity i.e matching ridge characteristic details.

(2.) The High Court grouped the circumstances relied against the accused under 4 broad beeds namely. (i) that there was a motive for committing the murder;

(3.) If the circumstantial evidence as relied upon by the prosecution is credible and acceptable the offience with which the accused is charged can be held to be established beyond reasonable doubt. The High Court however did not accept these circumstances as having been established by any independent and reliable evidence. In so far as motive suggested by the prosecution is concerned it was of the view that while no doubt the accused was suspended by an order of the deceased on 21-6-63 that suspension must have been as a consequence of the action taken by the authorities of the Bank with the approval of the Board of Directors and this does not indicate that he could have any grievance against him; that the accused had no grievance against the deceased is also shown by the fact that the deceased had given him employment in the Finance Company. The second circumstance against the accused that he was last seen in the company of the deceased on 30-1-67 at 9.30 p.m was also held not to incriminate him for the reason that even if Lal Chand P.W. 9's statement was true, it only goes to show that the accused was Seen going with the deceased towards the Nagina Singh Building but that does not mean that they had gone into that building togehter but on the other hand there was a possiblity of the accused taking leave of the deceased and going away to his house without entering into the Nagina Singh Building With respect to the third circumstance relating to the seizure and recovery of articles and their admissibility under Sec. 27 of the Evidence Act, it was observed that the evidence adduced by the prosecution for establishing these circumstances reveals a number of irregularities and is suspicious firstly because the prosecuting officer took with him all the withnesses who were neither independent nor impartial and even the witness. P.W.5 Kala Ram cannot be considered to be independent or impartial as he was not a stranger but was known to the Enquiry Officer. A reading Kala Ram's evidence gives the impression that is a person willing to be an agent of the police. It also appeared to the High Court that the action of P. W. 28 in bringing the accused out of the room when he and the other withnesses went to his house gives rise to the suspicion that it might have been done deliberately to clear the way for planting the articles in the cot which was in the room and fourthly the statement Ex. 6. said to have been made by the accused amounted to a confession by the accused and if as the enquiry officer P. W 28 claimed that the statement was voluntray instead of recording it himself he could have produced the accused before a Magistrate for recording the same. In view of this the High Court was not satisfied that the statements were freely and voluntarily made by the accused and accordingly neither the portions of those statemants whcih related to the discovery of incriminating facts nor the admissibility under Sec. 27 of these Memos Exs. P6 and P.6A and P.7 which were signed by P. W. 2, P. W. 5, P. W.8 and P.W. 28 both on 1-2-67 as well as on 2-2-67 could be relied upon. Even the handing over of the shoes and socks it was observed cannot be treated as havning been discovered because the accused was wearing them at the time when he handed them over to the police, and also that it was difficult to believe that the accused will have the coat, sweater and blanket which are said to have blood stains on them recovered because he could have discarded them in the same way as he is said to have done with his pants. Moreover the coat and the sweater were not shown to belong to the accused by independent and reliable evidence. For these reasons the alleged discoveries or the recoveries of the coat, the sweater, the blanket, shoes and socks were rejected. Even with respect to the discovery of the dagger the High Court thought that Amar Chand P.W. 8 was not an independent withess, that Bhag Singh P.W.12 who was just a worker at the bakery claimed to be present casually did not inspire confidence, nor in the absence of independent witnesses who could have been easily procured could the other evidence be relied upen. The identification of the dagger by Ganga Singh P. W. 11 before the Magistrate was also not accepted because there was nothing to show that the dagger was the one which was purchased by the accused nor is it possible to distinguish the dagger in question from the other 3 daggers with which it was mixed up. Similarly the evidence relating to the recovery of the account books and vouchers was disbelived. The thumb impressions on the flask and the glass panes were rijected on the ground that no particulars were set out by the Director of the Finger Prints Bureau except the stereotyped statement that there was a similarity of more than 12 points. On this aspect the High Court observed as follows: