Delhi High Court
Mohd. Yunus vs State on 5 April, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 3rd March, 2010
Judgment Delivered On: 5th April, 2010
+ CRL.APPEAL 537/2006
MOHD. YUNUS ..... Appellant
Through: Mr.Sumeet Verma, Advocate
versus
STATE ..... Respondent
Through: Ms.Richa Kapoor, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the
Digest? Yes
PRADEEP NANDRAJOG, J.
1. Dr.S.K.Vishwakarma (hereinafter referred to as the
"Deceased") was a Professor in University College of Medical
Sciences, GTB Hospital and was heading Indian Council
Medical Research Project undertaken by the said hospital.
2. On 13.04.2000 the deceased lodged a complaint Ex.PW-
10/A with PS Dilshad Garden stating therein that after forging
his signatures on a cheque, on 29.02.2000 an unknown person
had fraudulently withdrawn a sum of Rs.40,000/- from the
savings account maintained by him with Canara Bank, GTB
Extension Counter, New Delhi. Based thereon FIR No.62/2000,
Ex.PW-2/A, for the offence of cheating was registered.
3. On 06.05.2000, SI Inderjeet PW-10 obtained the forged
cheque Ex.PW-1/A dated 29.02.2000 from Ashok Shelly PW-1,
Manager, Canara Bank, and seized the same vide memo
Ex.PW-1/B. On 10.08.2000 SI Inderjeet met the deceased and
obtained his specimen signatures and seized the same vide
memo Ex.PW-10/C. On 05.10.2000 SI M.C.Pandey PW-5 and
Const.Kishan Sahay PW-6, obtained the specimen signature
card Ex.P-2 of the deceased in respect of account maintained
by the deceased in Canara Bank from the officials of Canara
Bank and seized the same vide memo Ex.PW-5/C.
4. No headway could be made in the investigation till the
fateful day i.e. 4.7.2001 came into being.
5. On 04.07.2001, at about 2.15 P.M. Dr.Shardha Jain PW-
30, employed as a Research Associate in GTB Hospital and
working under the supervision of the deceased, went to the
cabin of the deceased situated in ward No.25 of GTB Hospital
and saw the deceased lying unconscious on a chair with blood
oozing from his right ear. Dr.Shardha Jain immediately
apprised two nurses Nirmala PW-1 and Jagtar Kaur PW-15, of
the aforesaid fact. Dr.Sanjay Kohli PW-5, reached the cabin of
the deceased. He examined the deceased and prepared the
MLC Ex.PW-5/A of the deceased. Thereafter the deceased was
shifted to the Intensive Care Unit of GTB Hospital where he
died.
6. Const.Devender Kumar PW-25, duty constable at GTB
Hospital, passed on the information of Dr.S.K.Vishwakarma
being grievously injured to PS Dilshad Garden where the duty
constable noted the same vide DD No.12A Ex.PW-25/A.
7. Copy of DD Entry Ex.PW-25/A was handed over to SI
Manoj Kumar PW-27 who accompanied by Const.Faruq Ahmad
PW-9 went to GTB Hospital where the doctors treating the
deceased informed him that the deceased had died. The
doctors on duty conducted the X-ray and CT scan of the skull
of the deceased but could not give any conclusive opinion
regarding the cause of death of the deceased. As the cause of
death of the deceased was not clear, SI Manoj Kumar chose to
wait for the result of the post-mortem of the deceased before
proceeding further in the matter.
8. The dead body was seized and sent to the mortuary of
the hospital, where on 05.07.2001 at about 11.50 A.M. Dr.S.K.
Verma PW-13 conducted the post-mortem and prepared the
post-mortem report Ex.PW-13/A recording thereon that a
lacerated firearm entry wound was found on the head of the
deceased; that cause of death of the deceased was shock
which resulted due to aforesaid head injury; that the said
injury was produced by projectile of a firearm and was
sufficient to cause death in the ordinary course of nature and
that two small fragments of bullet were found in the skull of
the deceased.
9. After conducting the post-mortem, Dr.S.K.Verma handed
over the two fragments of bullet found in the skull of the
deceased to Const.Faruq Ahmad PW-9, who in turn handed
over the same to SI Manoj Kumar, vide memo Ex.PW-9/A.
10. On the receipt of the post-mortem report Ex.PW-13/A
which clearly pointed towards the fact that the deceased was
shot dead by somebody, SI Manoj Kumar PW-27 made an
endorsement Ex.PW-27/H on the DD entry Ex.PW-25/A, and got
registered FIR No.162/2001, Ex.PW-28/A for the offence of
murder.
11. After the registration of the FIR, the investigation of FIR
No.162/2001 was taken over by Inspector Shiv Dayal PW-31.
12. On 05.07.2001 Inspector Shiv Dayal recorded the
statement of Shalini PW-11, the daughter of the deceased,
wherein she stated that the appellant used to work as a driver
with her father i.e. the deceased. When she reached GTB
Hospital on learning about the incident in question, she found
complaints Ex.PW-3/A, Ex.PW-3/B and Ex.PW-31/C. She further
learnt that the appellant had got typed the aforesaid
complaints at the asking of the deceased. On one occasion the
deceased told her that someone had fraudulently withdrawn
huge amount of cash from his bank account. She suspects that
the appellant is involved in the murder of the deceased and
that he had fraudulently withdrawn money from the bank
account of the deceased.
13. Inspector Shiv Dayal PW-31, seized the three complaints
Ex.PW-3/A, Ex.PW-3/B and Ex.PW-31/C from Shalini vide memo
Ex.PW-31/B. It may be noted here that the complaints Ex.PW-
3/B and Ex.PW-31/C were addressed to the SHO P.S. Dilshad
Garden and the complaint Ex.PW-3/A was addressed to the
Senior Manager of Canara Bank and that the contents of the
aforesaid complaints are verbatim the same. The complaints
record that amounts of Rs.2,60,000/- and Rs.90,000/- have
been fraudulently withdrawn from the bank account of the
deceased by means of cheques Nos.16641 and 16442 dated
14.06.2001 and 16.06.2001 respectively. It may also be noted
that the complaints do not bear the signatures of the
deceased.
14. Thereafter Inspector Shiv Dayal contacted Vijay Kumar
Narula PW-4 an officer of Canara Bank where the deceased
had an account and seized 9 cheques and 9 authority letters
vide memo Ex.PW-4/A. The 9 cheques and the authority letters
purport to be executed by the deceased authorizing the
appellant to receive money under the cheques. The details of
the cheques as noted in the memo Ex.PW-4/A are as under:-
S. Number Amount Date of Exhibit Exhibit Mark
of of Cheque Mark of of
No.
Cheque Cheque Cheque Corresponding
(in Authority
Rupees) Letter
1. 750855 60,000 13.01.2001 PW-4/B PW-4/C
2. 750851 40,000 03.03.2001 PW-4/D PW-4/D
3. 16641 2,60,000 14.06.2001 PW-4/E PW-4/F
4. 16642 90,000 16.06.2001 PW-4/G PW-4/H
5. 19071 10,000 19.06.2001 PW-4/J PW-4/I
6. 789977 5,000 08.06.2001 PW-4/M PW-4/L
7. 750849 20,000 01.03.2001 PW-4/O PW-4/N
8. 768609 2,000 09.08.2000 PW-4/Q PW-4/P
9. 750858 20,000 23.03.2001 PW-4/S PW-4/R
15. It is apparent that the appellant became the suspect in
both FIRs. On 06.07.2001 Inspector Shiv Dayal PW-31 and SI
Manoj Kumar PW-27 arrested the appellant. On being
interrogated by Inspector Shiv Dayal in the presence of SI
Manoj Kumar and two public persons namely Ram Babu
Sharma PW-7 and Devender Sharma PW-8, the appellant made
a disclosure statement Ex.PW-7/A wherein he admitted his
guilt. He further disclosed that he can get recovered a sum of
Rs.20,000 - 25,000/-fraudulently withdrawn by him from the
account of the deceased as also a motorcycle, a Maruti van, a
camera, binoculars, three gold rings and two gold chains
purchased by him from the money fraudulently withdrawn by
him from the account of the deceased. He also stated that he
can get recovered the revolver used by him for murdering the
deceased.
16. Pursuant thereto, the appellant led the aforesaid police
officers and public persons to his residence and got recovered
a sum of Rs.25,000/- a camera, binoculars, three gold rings
and two gold chains which were seized vide memo Ex.PW-7/B.
Thereafter the appellant got recovered a motorcycle and a
Maruti Van parked outside his residence which were seized
vide memos Ex.PW-7/C and Ex.PW-7/D respectively. The said
motorcycle was made case property in FIR No.62/2000, for the
reason the appellant stated to have purchased the same from
the amount of the cheque Ex.PW-1/A, which cheque forms the
subject-matter of FIR No.62/2000. After sometime, the
appellant got recovered a revolver lying hidden under bushes
which was seized vide memo Ex.PW-7/E.
17. On 08.07.2001 Inspector Shiv Dayal obtained the
specimen signatures and handwriting of the appellant when he
was in police custody as also the specimen writing of Bhagwan
Das and seized the same vide memos Ex.PW-22/B and Ex.PW-
22/A respectively. Inspector Shiv Dayal handed over one of the
papers containing the specimen signatures of the appellant to
the investigating officer of FIR No.62/2000 vide memo Ex.PW-
11/A.
18. The revolver recovered at the instance of the appellant,
the cheques and authority letters seized vide memo Ex.PW-
4/A, the fragments of the bullet found in the body of the
deceased and specimen signatures and handwritings of the
appellant was sent to the Forensic Science Laboratory.
19. The FSL report Ex.PW-31/H records that the revolver
recovered at the instance of the appellant is designed to fire a
standard .32" cartridge; that the said revolver was found in a
working order and that the no opinion could be given
regarding fragments of bullet found in the body of the
deceased due to insufficient data.
20. The FSL report Ex.PW-31/G records that the suspect
signatures of the deceased contained on the cheques Ex.PW-
4/B, Ex.PW-4/D, Ex.PW-4/E and Ex.PW-4/G and the authority
letters Ex.PW-4/C, Ex.PW-4/D, Ex.PW-4/F and Ex.PW-4/H were
compared with the "admitted signatures" of the deceased
contained in the cheques Ex.PW-4/J, Ex.PW-4/M, Ex.PW-4/O,
Ex.PW-4/Q and Ex.PW-4/S and the authority letters Ex.PW-4/I,
Ex.PW-4/L, Ex.PW-4/N, Ex.PW-4/P and Ex.PW-4/R and that the
signatures on the cheques Ex.PW-4/B, Ex.PW-4/D, Ex.PW-4/E
and Ex.PW-4/G and the authority letters Ex.PW-4/C, Ex.PW-4/D,
Ex.PW-4/F and Ex.PW-4/H are not those of the deceased. The
FSL report Ex.PW-31/G further records that some portion of the
writings contained in the cheques Ex.PW-4/B, Ex.PW-4/D,
Ex.PW-4/E and Ex.PW-4/G and the authority letters Ex.PW-4/C,
Ex.PW-4/D, Ex.PW-4/F and Ex.PW-4/H is that of the appellant;
that some portion of the writings contained in the cheques
Ex.PW-4/B, Ex.PW-4/D and Ex.PW-4/G and the authority letters
Ex.PW-4/C, Ex.PW-4/D, Ex.PW-4/F and Ex.PW-4/H is that of
Bhagwan Das and that it has not been possible to fix the
authorship of the signatures contained in the cheques Ex.PW-
4/B, Ex.PW-4/D, Ex.PW-4/E and Ex.PW-4/G and the authority
letters Ex.PW-4/C, Ex.PW-4/D, Ex.PW-4/F and Ex.PW-4/H.
21. In respect of FIR No.62/2000, the cheque Ex.PW-1/A, the
specimen signatures of the appellant, the specimen signatures
of the deceased and the specimen signature card of the
deceased was sent to the FSL. Vide FSL report Ex.A1 it was
opined that the cheque Ex.PW-1/A bears the signatures of the
appellant.
22. Armed with the aforesaid materials, the police filed
charge sheet(s) in both the FIRs namely FIR No.62/2000 and
FIR No.162/2001. The appellant was made an accused in both
the FIRs.
23. In respect of FIR No.62/2000, charges under Sections
420, 468 and 471 IPC were framed against the appellant for
having cheated the appellant; having forged the cheque
Ex.PW-1/A and having used the cheque Ex.PW-1/A as a
genuine document.
24. In respect of FIR No.162/2001, charges under Sections
302, 420, 468 and 471 IPC and Section 25 Arms Act were
framed against the appellant for having murdered the
deceased; having cheated the deceased; having forged the
cheques Ex.PW-4/B, Ex.PW-4/D, Ex.PW-4/E and Ex.PW-4/G;
having used the cheques Ex.PW-4/B, Ex.PW-4/D, Ex.PW-4/E
and Ex.PW-4/G as genuine documents and having possessed
the firearm in contravention of Section 5 of Arms Act.
25. In respect of trial pertaining to FIR No.162/2001, the
prosecution examined 11 witnesses.
26. Devender Sharma PW-3 and Ram Babu Sharma PW-4,
public persons, deposed that the motor cycle bearing No. DL-
4S-M-9610 was got recovered by the appellant in their
presence. Sunil Kumar PW-8, deposed that he is engaged in
the business of sale and purchase of automobiles and that the
delivery receipt Ex.PW-8/A issued by him, which receipt
records that the motorcycle bearing No. DL-4S-M-9610 was
delivered to the appellant, was issued by him.
27. SI Inderjeet PW-10, deposed that the investigation in
respect of FIR No.62/2000 registered against the appellant was
conducted by him. On being cross-examined about the
investigation conducted by him in FIR No.62/2000 regarding
the role of the appellant, he stated that (Quote): 'I had met the
complainant Dr.S.K.Vishwakarma and he had asked me to
make inquiries from his driver also. I had thereon met the
driver of the complainant i.e. Accused. At that time the
complainant had not suspected the accused for the cheating
and forgery.....I had made inquiries from the accused in this
case.'
28. In respect of trial pertaining to FIR No.162/2001, the
prosecution examined 31 witnesses.
29. Nirmala J.Singh PW-1, deposed that on 04.07.2001 she
was on duty as a nurse in ward No.25 of GTB Hospital. At
about 2.15 P.M. Dr.Shraddha Jain came to her and told her that
something untoward had happened to the deceased upon
which she apprised the nurse-incharge Jagtar Kaur of the
aforesaid facts. Thereafter she, Dr.Shraddha Jain and Jagtar
Kaur went to the cabin of the deceased where she saw that the
deceased was lying unconscious on a chair and that blood was
oozing out of his right ear. After few minutes of their arrival in
the cabin of the deceased, the appellant who was the driver of
the deceased also came there and that the appellant was
carrying a tiffin in his hand.
30. On being questioned about the presence of public in the
ward in question, she stated that (Quote): 'It is correct that
patient and attendant were also available in the wards....'
31. Kavinder Kumar PW-3, deposed that he was working a
typist in N.V. Computers, GTB Enclave, Delhi in July 2001. In
the afternoon of 04.07.2001 the appellant who was the driver
of the deceased came to N.V. Computers and got typed the
complaints Ex.PW-3/A and Ex.PW-3/B from him.
32. Vijay Kumar Narula PW-4, deposed that he was working
as Special Assistant in Canara Bank, GTB Enclave, Delhi in the
year 2001. He knew the deceased as he was maintaining a
savings bank account in Canara Bank. Usually, the appellant
who was the driver of the deceased used to come to the bank
to deposit cheques and withdraw money etc on behalf of the
deceased. On two occasions the appellant had withdrawn
Rs.2,60,000/- and Rs.90,000/- from the account of the
deceased.
33. Ram Babu Sharma PW-7 and Devender Sharma PW-8,
public persons deposed that one camera, two gold chains,
three gold rings, one maruti van and cash in sum of
Rs.25,000/- was got recovered by the appellant from his
residence in their presence. They further deposed that the
appellant got recovered a revolver lying hidden under bushes
in his presence.
34. Shalini PW-11, the daughter of the deceased, deposed
that the appellant was working as a driver with her family
since the year 1998. On 04.07.2001 when she went to GTB
hospital on learning about the incident in question she had the
complaint Ex.PW-3/B in her hand. On 2/3.07.2001 when she
had gone to her parental house the deceased told her that a
huge amount has been fraudulently withdrawn from his bank
account and that he would lodge a complaint with the police
and the bank authorities in said regard. She suspected that the
appellant had fraudulently withdrawn the money from the
bank account of the deceased and that he had committed the
murder of the deceased for the expenditure used to be
incurred by the appellant were far greater than his salary.
35. Aan Singh Bisht PW-12, deposed that he works as a clerk
in Canara Bank. The deceased never came to the bank to
operate his bank account and that the appellant who was the
driver of the deceased used to operate the bank account of the
deceased. The appellant had operated the bank account of the
deceased in his presence. On 14.06.2001 the appellant had
withdrawn a sum of Rs.2,60,000/- from the account of the
deceased. He was working as cashier on 14.06.2001 and that
he had made the payment of sum of Rs.2,60,000/- to the
appellant.
36. Jagtar Kaur PW-15, deposed that in July 2001 she was
working as nurse-incharge in Ward No.25 of GTB Hospital. On
one day in July 2001 at about 2.15 P.M. two nurses namely
Moli and Nirmala and Dr.Shraddha Jain came to her and
informed her that something untoward had happened to the
deceased. Thereafter they all went to the cabin of the
deceased where they saw that the deceased was lying
unconscious on his chair and that blood was oozing out from
his right ear. After few minutes of their arrival in the cabin of
the deceased, the appellant who used to come to the hospital
with the deceased also came there and that the appellant was
carrying a tiffin in his hand.
37. On being questioned about the presence of the public
near the cabin of the deceased, she stated that (Quote): 'No
public used to go towards the room of the doctor. There was
some distance between the stairs and the room of the doctor.
It is correct that the toilet and bathroom fall in front of the
staircase. The room of the doctor was at a distance of about
20 paces from the stairs. The room of the doctor was similarly
at a distance of about 15/20 paces from the
toilet/bathroom....It is correct that the stairs are used by the
public. Attendants and patients also used the said staircase.
There is a passage from the other side for entry to the wards
also.'
38. Bhagwan Das PW-16, deposed that the appellant was his
neighbour. The cheques Ex.PW-4/B and Ex.PW-4/D were filled
by him at the asking of the appellant. The authority letters
Ex.PW-4/C, Ex.PW-4/D, Ex.PW-4/F and Ex.PW-4/H were written
by him at the asking of the appellant. He denied that the
cheques Ex.PW-4/E and Ex.PW-4/G were filled by him. The
appellant used to tell him that he is asking him to fill/write
cheques/authority letters as the deceased does not have the
time to do so.
39. Arun Duggal PW-20, deposed that he works as a clerk in
Canara Bank. Usually, the appellant who was the driver of the
deceased used to come to the bank for withdrawing money on
behalf of the deceased. On 16.06.2001 the appellant had
withdrawn a sum of Rs.90,000/- from the account of the
deceased. He was working as cashier on 16.06.2001 and that
he had made the payment of sum of Rs.90,000/- to the
appellant.
40. Kuleen Prabhakar PW-21, an employee of University
College of Medical Sciences, produced the documents Ex.PW-
21/A, Ex.PW-21/B and Ex.PW-21/C and deposed that the same
were issued by the said college. The said documents show that
the appellant was working as lab attendant in ICMR project
headed by the deceased.
41. SI Kumar Santosh PW-22, deposed that SHO of police
station of Dilshad Garden had obtained the specimen
signatures and handwriting of the appellant and specimen
signature of Bhagwan Das in his presence. On being
questioned about the specimen signatures and handwriting of
the appellant, he stated that (Quote): 'IO did not obtain
permission from area MM to obtain the specimen of the
accused in my presence.'
42. Mohd. Kushnoor PW-26, deposed that he was employed
as an orderly in GTB Hospital. On several occasions he had
withdrawn cash from the bank account of the deceased. The
appellant who was the driver of the deceased used to
withdraw money from the bank account of the deceased in his
absence. The deceased had told him that he doubted the
appellant in respect of fraudulent withdrawal of money from
his bank account. When he told the appellant about the
aforesaid conversation between him and the deceased the
appellant told him that the deceased is speaking unnecessarily
as he is suffering from hypertension.
43. SI Manoj Kumar PW-27, deposed that the endorsement
Ex.PW-27/H was prepared by him. On being questioned about
the specimen signatures and handwriting of the appellant, he
stated that (Quote): „No permission was taken from the court
to take specimen handwriting and sign. of accused.'
44. Ashok Kumar PW-29, deposed that he is engaged in the
business of sale and purchase of cars. On 16.06.2001 he had
sold Maruti van bearing No.DL-4C-H-9873 to the appellant for a
consideration of Rs.1,80,000/-.
45. Shardha Jain PW-30, deposed that she was working as
Research Associate in ICMR project headed by the deceased.
On 04.07.2001 she was present with the deceased in his cabin
from 11.30 P.M. to 01.00 P.M. At about 01.00 P.M. she left from
the cabin of the deceased and went to her own cabin. After
having lunch she went to the toilet located outside her cabin.
When she was returning to her cabin from the toilet she saw
the appellant coming out of the cabin of the deceased. The
appellant was carrying tiffin and some files in his hands at that
time. Thereafter she went to her cabin. After sometime she
suspected that someone had bolted the door of her cabin from
outside. When she checked the door her doubt was confirmed.
She tried to open the door of her cabin but to no vain. She
climbed on the sofa kept in her cabin and tried to raise alarm
through the window of her room. After about half an hour she
saw a lady and a gentleman in the corridor of the floor below
to the floor where her cabin was located. On hearing her voice
the aforesaid persons came there and opened the door of her
cabin. Thereafter she went to the room of the deceased where
she saw that the deceased was lying in an unconscious
condition on a chair and blood was oozing out of the right ear
of the deceased. She immediately apprised three nurses
namely Nirmla, Moli and Jagtar Kaur of the aforesaid facts. The
deceased was immediately shifted to Intensive Care Unit of the
hospital. At the time when the deceased was being shifted to
ICU the appellant also came in the cabin of the deceased and
helped in shifting the deceased to ICU. The appellant was
carrying tiffin in his hands at that time. At the time when she
saw the appellant coming out of the cabin of the deceased she
did not notice any other person in the corridor. At the time
when she went to the room of the deceased after the door of
her cabin was opened she did not see any person outside the
cabin of the deceased or in the corridor.
46. On being questioned about the presence of public in the
wards in question, she stated that (Quote): 'The peoples in the
gallery used to walk freely as there was no restriction for using
the same on the persons. It is also correct that about 100
patients used to be admitted in the same ward. It is also
correct that the attendants with the patients used to stay in
the hospital freely.'
47. Inspector Shiv Dayal PW-31, deposed that the
investigation pertaining to FIR No.162/2001 was conducted by
him.
48. In his examination under Section 313 Cr.P.C. save and
except admitting the factum of his employment with GTB
Hospital, the appellant denied everything and pleaded false
implication.
49. In defence, the appellant examined Noor Mohammad
DW-1, the father of the wife of the brother of the appellant.
The witness deposed that on 29.12.2000 he had given a sum
of Rs.1,25,000/- as loan to the appellant as the appellant
wanted to purchase a Maruti Van. Out of the said amount of
Rs.1,25,000/-, Rs.1,17,000/- was withdrawn by him from his
bank account as recorded in the pass book Ex.DW-1/A issued
to him by the bank.
50. Though trial pertaining to the two FIRs was conducted
separately, but at the fag end, both were clubbed for the
reason the prosecution realized a commonality of evidence in
the two FIRs. Thus, both FIRs came to be decided by a
common judgment.
51. Vide judgment and order dated 28.04.2006 the learned
Trial Court has convicted the appellant of all the charges
framed against him in both the FIRs. It has been held by the
learned Trial Court that the fact that the signature of the
appellant were found on the cheque Ex.PW-1/A and that his
writings were contained in the cheques Ex.PW-4/B, Ex.PW-4/D,
Ex.PW-4/E and Ex.PW-4/G, establishes that the appellant had
forged the cheques Ex.PW-1/A, Ex.PW-4/B, Ex.PW-4/D, Ex.PW-
4/E and Ex.PW-4/G and fraudulently withdrawn the money
from the bank account of the deceased. It has further been
held by the Trial Court that the fact that the appellant had
forged the cheques Ex.PW-1/A, Ex.PW-4/B, Ex.PW-4/D, Ex.PW-
4/E and Ex.PW-4/G establishes that the appellant had a motive
to murder the deceased for the deceased was planning to
lodge a complaint with the police in regard to said cheques.
Testimony of Dr.Shardha Jain has been used as evidence of the
appellant being last seen in the company of the deceased soon
before the deceased was found grievously injured in his cabin
in the hospital. On the proof of motive and last seen, the
appellant has been convicted for the offence of having
murdered the deceased.
52. From the narratives stated above, the case set up by the
prosecution can be summed up as under: - The appellant was
employed as a driver with the deceased and that the deceased
reposed utmost faith in the appellant and used to authorize
him to withdraw money from his bank account on his behalf.
However, the appellant abused the trust reposed in him by the
deceased by forging the signatures of the deceased on certain
cheques and fraudulently withdrawn money from the bank
account of the deceased. When the factum of the fraudulent
withdrawal of money from the bank account of the deceased
came to the knowledge of the deceased, he decided to lodge a
complaint with the police in said regard. On the day of the
incident, the deceased used the services of the appellant to
get typed the complaints which the deceased intended to
lodge with the bank and the police and fearing that the game
was up, to wipe away a vital witness to the acts of forgery and
cheating by him, the appellant murdered the deceased.
53. Though it has not been proved that the appellant was
employed as a driver by the deceased, but it stands proved
that the appellant was employed as a Laboratory Attendant in
the ICMR Project headed by the deceased. The same has been
proved through the testimony of Kuleen Prabhakar PW-21.
Through the testimony of various other witnesses hereinabove
noted it stands proved that the appellant used to carry out
personal works of the deceased and that the appellant enjoyed
the trust and confidence of the deceased and that the
appellant used to take the cheques drawn on self by the
deceased and used to encash the same under the
authorization of the deceased.
54. Has the prosecution successfully proved that the
appellant forged the cheques Ex.PW-1/A, Ex.PW-4/B, Ex.PW-
4/D, Ex.PW-4/E and Ex.PW-4/G?
55. A close look at the evidence adduced by the prosecution
shows that the prosecution had attempted to establish that the
cheques Ex.PW-1/A, Ex.PW-4/B, Ex.PW-4/D, Ex.PW-4/E and
Ex.PW-4/G were forged by the appellant by proving either of
the following four facts:-
I The signatures of the appellant were found on the
cheque Ex.PW-1/A and that the writing on the cheques Ex.PW-
4/B, Ex.PW-4/D, Ex.PW-4/E and Ex.PW-4/G were in the hand of
the appellant.
II Bhagwan Dass filled the cheques Ex.PW-4/B, Ex.PW-4/D
and Ex.PW-4/G and prepared the authority letters Ex.PW-4/C,
Ex.PW-4/D, Ex.PW-4/F and Ex.PW-4/H at the instance of the
appellant.
III The appellant collected the amount of the cheques
Ex.PW-4/E and Ex.PW-4/G from the bank.
IV The appellant got recovered a motorcycle, a maruti van,
a camera, binoculars, three gold rings and two gold chains
purchased by him from the money fraudulently withdrawn by
him from the account of the deceased.
56. The prosecution has sought to prove that signatures on
the cheque Ex.PW-1/A and the writings on the cheques Ex.PW-
4/B, Ex.PW-4/D, Ex.PW-4/E and Ex.PW-4/G were in the hand of
the appellant by means of the report Ex.PW-31/G.
57. The testimony of SI Santosh Kumar PW-22, SI Manoj
Kumar PW-27, Inspector Shiv Dayal PW-31, contents whereof
have been noted in foregoing paras, makes it abundantly clear
that the specimen signatures and writings of the appellant
were obtained by Inspector Shiv Dayal when the appellant was
in custody. The identification of the appellant as required by
the Identification of Prisoner‟s Act 1920 was not got done. Nor
was permission obtained from the court of competent
jurisdiction to obtain the specimen signatures and writings of
the appellant.
58. The learned Trial Judge has held that in view of the
decision reported as 1961 Cri. LJ 856 State of Bombay Vs.
Kathi Kalu Oghad & Ors. the report Ex.PW-31/G was admissible
in evidence and was properly proved. Decisions cited which
took the view that unless orders were obtained from the Court
of Competent Jurisdiction followed by a proper identification of
the prisoner as required by Section 5 of the Identification of
Prisoners Act 1920, if the alleged specimen writings and
signatures were obtained in contravention of said procedure of
law, reports based thereon were inadmissible in evidence,
have been held by the learned Trial Judge to be contrary to the
ratio of law laid down in Kathi Kalu Oghad‟s case (supra).
59. Unfortunately, the learned Trial Judge has ignored a very
basic principle of the law of evidence. Admissibility of
evidence is distinct from the proof of a fact. Relevance and
admissibility of evidence relates to Section 5 to 55 of the
Evidence Act and some provisions in part III of the Evidence
Act. Proof of fact is dealt with in part II of the Evidence Act.
That a piece of evidence is admissible is entirely different as to
how said evidence has to be led and a fact proved.
60. In the decision dated 5.3.2009 disposing of Crl. Appeal
No. 682/2008 'Santosh @Bhure v. State' and Crl. Appeal No.
316.2008 'Neeraj v. State', noting the decision of the
Constitution Bench of the Supreme Court in Kathi Kalu Oghad‟s
case as also the decisions of Supreme Court reported as
(1980) 2 SCR 1067 State of U.P. v. Rambabu Mishra and (1994)
3 SCR 1061 Sukhwinder Singh and Ors. v. State of Punjab; a
Division Bench of this Court, of which, one of us, namely
Pradeep Nandrajog, J. was a member, held as under:
"18. Unfortunately, for the prosecution, the charge
against Neeraj has to fail for the simple reason
Neeraj's specimen handwriting was obtained by the
police when he was in their custody. No permission
was taken from the Court concerned to obtain his
specimen handwriting.
19. Learned Counsel for the State urges that a
Constitution Bench of 11 Judges of the Supreme
Court, in the decision reported as 1961CriLJ856
State of Bombay v. Kathi Kalu Oghad and Ors. has
upheld the constitutional validity of compelling an
accused to give specimen handwritings. It has been
held that the same does not contravene Article
20(3) of the Constitution of India and thus the fact
that the police obtained the specimen handwriting
of Neeraj when he was in their custody does not
invalidate the said act. Learned Counsel was at
pains to point out that the Constitution Bench of the
Supreme Court was considering three references
pertaining to three views taken by the High Court of
Bombay, Punjab and West Bengal pertaining to
compelling an accused to give his specimen
handwriting, fingerprints and specimen signatures
respectively and that in the latter two cases the
palm and finger print impressions as also the
specimen signatures were obtained with the
permission of the magistrate concerned but in the
first case pertaining to the Bombay High Court the
specimen handwritings were taken when the
accused was in police custody. Thus, learned
Counsel urged that the Constitution Bench upheld
the action of taking specimen handwriting by the
police when the accused was in police custody.
20. It may be noted that the Constitution Bench of
the Supreme Court was dealing with the issue
whether to compel an accused to give his blood
sample, palm and fingerprints impressions,
signatures and handwriting etc. would or would not
be violative of Article 20(3) of the Constitution of
India which made it unconstitutional for a person to
be a witness against himself. The Constitution
Bench held that to be a witness means to give
evidence. It was held that giving handwriting
samples or fingerprints or palm impressions did not
tantamount to giving evidence and that when a
handwriting sample or a fingerprint or a palm
impression was obtained by the police it did not
amount to compelling an accused to be a witness
against himself.
21. In the decision reported reference to the
decision of the Constitution Bench in Kathi Kalu
Oghad's case (supra) in para 7 it was observed as
under:
7. Section 73 of the Evidence Act was considered by
us in State (Delhi Administration) v. Pali Ram
1979CriLJ17 where we held that a Court holding an
enquiry under the Criminal Procedure Code was
entitled under Section 73 of the Evidence Act to
direct an accused person appearing before it to give
his specimen handwriting to enable the Court by
which he may be tried to compare it with disputed
writings. The present question whether such a
direction, under Section 73 of the Evidence Act, can
be given when the matter is still under investigation
and there is no proceeding before the Court was
expressly left open. The question was also not
considered in State of Bombay v. Kathi Kalu Oghad
1961CriLJ856, where the question which was
actually decided was that no testimonial compulsion
under Article 20(3) of the Constitution was involved
in a direction to give specimen signature and
handwriting for the purpose of comparison.
22. In para 3 to 6 and para 8 of the decision in
Rambabu Mishra's case (supra) it was observed as
under:
3. Section 73 of the Evidence Act is as follows:
73. In order to ascertain whether a signature,
writing or seal is that of the person by whom it
purports to have been written or made, any
signature, writing or seal admitted or proved to the
satisfaction of the Court to have been written or
made by that person may be compared with the
one which is to be proved, although that signature,
writing or seal has not been produced or proved for
any other purpose.
The Court may direct any person present in Court to
write any words or figures for the purpose of
enabling the Court to compare the words or figures
so written with any words or figures alleged to have
been written by such person.
This section applies also, with any necessary
modifications to finger-impressions.
4. The second paragraph of Section 73 enables the
Court to direct any person present in Court to give
specimen writings "for the purpose of enabling the
Court to compare" such writings with writings
alleged to have been written by such person. The
clear implication of the words "for the purpose of
enabling the Court to compare" is that there is
some proceeding before the Court in which or as a
consequence of which it might be necessary for the
Court to compare such writings. The direction is to
be given for the purpose of 'enabling the Court to
compare' and not for the purpose of enabling the
investigating or other agency 'to compare'. If the
case is still under investigation there is no present
proceeding before the Court in which or as a
consequence of which it might be necessary to
compare the writings. The language of Section 73
does not permit a Court to give a direction to the
accused to give specimen writings for anticipated
necessity for comparison in a proceeding which may
later be instituted in the Court. Further Section 73
of the Evidence Act makes no distinction between a
Civil Court and a Criminal Court. Would it be open to
a person to seek the assistance of the Civil Court for
a direction to some other person to give sample
writing under Section 73 of the Evidence Act on the
plea that it would help him to decide whether to
institute a civil suit in which the question would be
whether certain alleged writings are those of the
other person or not? Obviously not. If not, why
should it make any difference if the investigating
agency seeks the assistance of the Court under
Section 73 of the Evidence Act on the plea that a
case might be instituted before the Court where it
would be necessary to compare the writings?
5. We may also refer here to Section 5 of the
Identification of Prisoners Act, 1920, which provides:
5. If a Magistrate is satisfied that, for the purposes
of any investigation or proceeding under the CrPC,
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.
Section 2(a) of the Act defines "measurements" as
including "finger impressions and foot print
impressions.
6. There are two things to be noticed here. First,
signature and writing are excluded from the range
of Section 5 of the Identification of Prisoners Act
and, second, 'finger impressions' are included in
both Section 73 of the Evidence Act and Section 5 of
the Identification of Prisoners Act. A possible view is
that it was thought that Section 73 of the Evidence
Act would not take in the stage of investigation and
so Section 5 of the Identification of Prisoners Act
made special provision for that stage and even
while making such provision, signature and writings
were deliberately excluded. As we said, this is a
possible view but not one on which we desire to rest
our conclusion. Our conclusion rests on the
language of Section 73 of the Evidence Act.
xxx xxx
8. The view expressed by us in the earlier
paragraphs, on the construction of Section 73,
Evidence Act was the view taken by the Madras
High Court in T. Subbiah v. S.K.D. Ramaswamy
Nadar AIR 1970 Mad. 85, the Calcutta High Court in
Farid Ahmed v. the State AIR1960Cal32 (Mitter J., at
page 32). and Priti Ranjan Ghosh and Ors. v. The
State (1973) 77 CWN 865, the High Court of Punjab
and Haryana in Dharamvir Singh v. State, the High
Court of Madhya Pradesh in Brij Bhushan
Raghunandan Prasad v. The State : AIR1957MP106 ,
the Orissa High Court in Srikant Rout v. State of
Orissa 1972 (2) CWR 1332 and the Allahabad High
Court in the judgment under appeal. A contrary
view was taken by the Patna High Court in Gulzar
Khan and Ors. v. State AIR1962Pat255 and the High
Court of Andhra Pradesh in B. Rami Reddy and Ors.
v. State of Andhra Pradesh. We do not agree with
the latter view. We accordingly dismiss the appeal
and while doing so we would suggest that suitable
legislation may be made on the analogy of Section
5 of the Identification of Prisoners Act and provide
for the investiture of Magistrates with the power to
issue directions to any person, including an accused
person, to give specimen signatures and writings.
23. In the decision reported as [1994]3SCR1061
Sukhvinder Singh and Ors. v. State of Punjab, noting
that the specimen writing of Sukhvinder Singh was
obtained by the police when he was in police
custody, notwithstanding the fact that Sukhvinder
Singh had admitted in his statement under Section
313 Cr.P.C. that he gave the specimen handwriting
it was held that the opinion of the handwriting
expert had to be excluded while considering the
evidence against Sukhvinder Singh. We note that
the said evidence brought on record inculpatory
evidence against Sukhvinder Singh in respect of
ransom letters Ex.P-A and Ex.P-C alleged by the
prosecution to be in the handwriting of Sukhvinder
Singh.
24. Thus, excluding the opinion of the handwriting
expert pertaining to the letter recovered by the
police from the left pocket of the deceased, we are
left with only one piece of evidence against Neeraj.
The same is the recovery of a knife at his instance."
61. We may note that same view has been taken by the
Supreme Court in the decision reported as 2003 Cri. LJ 5054
State of Haryana Vs. Jagbir Singh & Anr., in which decision the
earlier decisions of the Supreme Court in Ram Babu Mishra‟s
case (supra) and Sukhvinder Singh‟s case (supra) have been
noted.
62. Thus, the FSL report Ex.PW-31/G has to be excluded from
the arena of admissible evidence in the present case, for the
reason, no orders were obtained from the competent court to
obtain the specimen writings of the appellants nor were the
provisions of the Identification of Prisoner's Act 1920 complied
with.
63. The necessary corollary which results from the above
conclusion is that the prosecution has failed to establish that
the signatures on the cheque Ex.PW-1/A and the writings on
the cheques Ex.PW-4/B, Ex.PW-4/D, Ex.PW-4/E and Ex.PW-4/G
were in the hand of the appellant.
64. The next two facts sought to be proved by the
prosecution was that Bhagwan Dass had filled the cheques
Ex.PW-4/B, Ex.PW-4/D and Ex.PW-4/G and had prepared the
authority letters Ex.PW-4/C, Ex.PW-4/D, Ex.PW-4/F and Ex.PW-
4/H at the instance of the appellant and/or that the appellant
collected the amount under the cheques Ex.PW-4/E and Ex.PW-
4/G from the bank.
65. The acts of the appellant of getting filled the cheques
Ex.PW-4/B, Ex.PW-4/D and Ex.PW-4/G and having got prepared
the authority letters Ex.PW-4/C, Ex.PW-4/D, Ex.PW-4/F and
Ex.PW-4/H from Bhagwan Das and collecting amount under
cheque Ex.PW-4/E and Ex.PW-4/G from the bank would be
incriminating against the appellant only if the prosecution
establishes that the cheques Ex.PW-4/B, Ex.PW-4/D and Ex.PW-
4/G were forged documents.
66. Has the prosecution been able to do so?
67. As already noted herein above, 9 cheques and 9
authority letters were seized by Inspector Shiv Dayal from the
bank and that all the 9 cheques and 9 authority letters were
sent to the FSL. As per the information supplied by Inspector
Shiv Dayal to FSL, as recorded in the FSL report Ex.PW-31/G,
the cheques Ex.PW-4/B, Ex.PW-4/D, Ex.PW-4/E and Ex.PW-4/G
and the authority letters Ex.PW-4/C, Ex.PW-4/D, Ex.PW-4/F
were the documents in dispute and that Ex.PW-4/H and the
cheques Ex.PW-4/J, Ex.PW-4/M, Ex.PW-4/O, Ex.PW-4/Q and
Ex.PW-4/S and the authority letters Ex.PW-4/I, Ex.PW-4/L,
Ex.PW-4/N, Ex.PW-4/P and Ex.PW-4/R contained the admitted
signatures of the deceased.
68. Any recording made by a police officer on any document
prepared by him during the investigation based on the
statements made to him by the witnesses would be
inadmissible in view of provisions of Section 162 Cr.P.C. as it
will be no more than a statement made to the police during
investigation. (See the decisions of Supreme Court reported as
Tori Singh v State of UP AIR 1962 SC 399 and Jagdish Narain v
State of UP AIR 1966 SC 3136)
69. In the instant case, Inspector Shiv Dayal PW-31, could
have had no personal knowledge about the fact that the
signatures contained in the cheques Ex.PW-4/J, Ex.PW-4/M,
Ex.PW-4/O, Ex.PW-4/Q and Ex.PW-4/S and the authority letters
Ex.PW-4/I, Ex.PW-4/L, Ex.PW-4/N, Ex.PW-4/P and Ex.PW-4/R
were the signatures of the deceased. It is plainly obvious that
the aforesaid information given by Inspector Shiv Dayal to the
FSL was based upon the statements made to him by some
family member or close friend of the deceased in said regard.
70. It is apparent that everybody has proceeded on the
assumption that the cheques Ex.PW-4/J, Ex.PW-4/M, Ex.PW-
4/O, Ex.PW-4/Q and Ex.PW-4/S and the authority letters Ex.PW-
4/I, Ex.PW-4/L, Ex.PW-4/N, Ex.PW-4/P and Ex.PW-4/R bore the
signatures of the deceased, without realizing that there was no
proof of said fact. The communication of the IO to the FSL
Laboratory was treated as proof of said fact. It is apparent
that the prosecution has conducted itself in a most casual and
callous manner.
71. It was urged that the complaints Ex.PW-3/A, Ex.PW-3/B
and Ex.PW-31/C prove that the signatures on the cheques
Ex.PW-4/E and Ex.PW-4/G and the corresponding authority
letters Ex.PW-4/F and Ex.PW-4/H were forged.
72. It may be noted at the outset that the complaints Ex.PW-
3/A, Ex.PW-3/B and Ex.PW-31/C do not bear any signatures
thereon. It is to be further noted that the daughter of the
deceased i.e. Shalini PW-11 handed over the complaints to the
investigating officer without throwing any light as to how she
came to possess the said reports. Under the circumstances
the testimony of Kavinder Kumar PW-3 who claimed that he
typed the said 3 complaints at the asking of the appellant on
behalf of the deceased becomes suspect evidence. We
reiterate that the manner in which the three complaints have
surfaced is most uninspiring.
73. No witness has been examined by the prosecution to
prove that the signatures on the cheques Ex.PW-4/J, Ex.PW-
4/M, Ex.PW-4/O, Ex.PW-4/Q and Ex.PW-4/S and the authority
letters Ex.PW-4/I, Ex.PW-4/L, Ex.PW-4/N, Ex.PW-4/P and Ex.PW-
4/R are in the hand of the deceased. No material has been
placed on record by the prosecution to show that the amount
under the cheques Ex.PW-4/B, Ex.PW-4/D, Ex.PW-4/E and
Ex.PW-4/G was not received by the deceased.
74. Of course, through the testimony of SI Inderjit PW-10,
pertaining to FIR No.62/2000, we have evidence on record that
with respect to cheque Ex.PW-1/A the deceased had made a
complaint Ex.PW-10/A in which he had informed the police that
he had not drawn the said cheque and that somebody had
forged his signatures to withdraw money under the cheque.
But, the fact of the matter remains that the report Ex.A-1 of
the handwriting expert suffers from the same taint as the
report Ex.PW-31/G. It is noteworthy that qua this cheque, no
witness of the bank has deposed that the appellant withdrew
the money under the cheque. Thus, notwithstanding the
complaint Ex.PW-10/A which simply establishes that the
cheque Ex.PW-1/A was misused, we have no link evidence that
it was the appellant who misused the same.
75. Though Bhagwan Das PW-16 has deposed that the
cheques Ex.PW-4/B and Ex.PW-4/D were filled by him at the
asking of the appellant and that the authority letters Ex.PW-
4/C, Ex.PW-4/D, Ex.PW-4/F and Ex.PW-4/H, but we find from the
record that Bhagwan Das is a fairly suspect witness. The
investigating officer has thrown no light as to wherefrom he
discovered Bhagwan Das whose statement under Section 161
Cr.P.C. has been recorded on 5.7.2001. The name of Bhagwan
Das was disclosed to the IO for the first time after the
appellant was apprehended on 6.7.2001 and in his disclosure
statement, the appellant disclosed that Bhagwan Das had filled
the said two cheques, besides two others, as also had scribed
the authority letters. If this be so, wherefrom could the IO,
who till 6.7.2001 knew nothing about Bhagwan Das, could
record his statement under Section 161 Cr.P.C. on 5.7.2001. It
is also interesting to note that on being cross-examined,
Bhagwan Das admitted that he was deposing at the instance
of the police.
76. Now, Mohd.Kushnoor PW-26, as deposed to by him, also
used to withdraw cash from the account of the deceased by
means of self cheques drawn by the deceased. It is apparent
that Mohd.Kushnoor was also a confidant of the deceased and
used to do and perform the same work for the deceased as the
prosecution alleges against the appellant. Thus, it became all
the more imperative for the investigation to follow the
procedures of the law while obtaining the specimen
handwritings and signatures of the appellant, for the reason it
could well be that Mohd.Kushnoor was the culprit. We are of
the opinion that in such a situation it becomes most relevant
to ensure that the purity of the investigation is maintained.
77. The sum and substance of the above discussion is that
the prosecution has failed to prove that any cheque was
forged by the appellant.
78. The last fact sought to be proved by the prosecution was
that the appellant had got recovered a motorcycle, a Maruti
van, a camera, binoculars, three gold rings and two gold
chains purchased by him from the money fraudulently
withdrawn by him from the account of the deceased.
79. It is settled legal that mere recovery of an object at the
instance of the accused is a relevant fact only when it is
established by other evidence that the object recovered is
connected with the accused and the offence with which he is
charged. To put it pithly, the connection between the object
recovered, the accused and the offence with which the
accused is charged must always be established by "evidence
alinude".
80. In the instant case, there is no evidence to show that the
motorcycle, Maruti van, camera, binoculars, three gold rings
and two gold chains recovered at the instance of the appellant
were purchased by him from the amount withdrawn under any
cheque or from the account of the deceased.
81. In that view of the matter, nothing much turns on the fact
that a motorcycle, Maruti van, camera, binoculars, three gold
rings and two gold chains were recovered at the instance of
the appellant. At best, the only inference which can be drawn
from the factum of the recovery made at the instance of the
appellant is that the expenditure used to be incurred by the
appellant were far greater than his means which implies that
the appellant was indulging in some hanky-panky business.
But, however grave the suspicion may be, the same cannot
take place of "proof". Besides, we cannot ignore the
testimony of DW-1 and the entries in the passbook Ex.DW-1/A
which show considerable amount withdrawn by DW-1. There is
nothing to disprove the claim of the DW-1 that he lent said
money to the appellant when the appellant purchased a Maruti
Van.
82. We are left with the testimony of Dr.Shardha Jain who
claims that she saw the appellant come out of the room of the
deceased soon before somebody locked the door of her room
and soon thereafter she found the deceased in a seriously
injured condition in his cabin.
83. Dr.Shardha Jain PW-30, deposed that at about 01.00 A.M.
she left the cabin of the deceased and went to her room. After
sometime she went to the toilet. When she was returning from
the toilet she saw the appellant coming out of the room of the
deceased. "After sometime" she suspected that someone had
bolted the door of her cabin from outside. Significantly, the
time gap between Dr.Shardha Jain seeing the appellant leaving
the room of the deceased and her feeling that door of her
cabin was bolted from outside, has not been deposed to by
Shardha Jain. She deposed that when she suspected that
somebody had bolted her door from outside, she checked the
door, and her doubt was confirmed. She deposed that after
about 30-45 minutes a lady and a gentleman opened the door
of her cabin upon which she went to the cabin of the deceased
where she saw that the deceased was lying unconscious on a
chair.
84. From the testimony of Nirmala J.Singh PW-1, Jagtar Kaur
PW-15 and Dr.Shardha Jain PW-30, it is apparent that the ward
where the cabin of the deceased was situated could be easily
accessed by anyone. In such circumstances, the possibility
that someone other than the appellant bolted the door of
Dr.Shardha Jain and thereafter committed the murder of the
deceased cannot be ruled out.
85. The conduct of the appellant around the time of the
murder of the deceased also has to be kept in view. The
witnesses of the prosecution have themselves proved that the
appellant rushed to the cabin of the deceased when it was
detected that the deceased had been grievously injured and
helped in removing the deceased to the ICU. The normal
conduct of a murdered is to flee and not hang around.
86. It is settled law that in a case of circumstantial evidence
it has to be kept in view that the circumstances, taken
collectively, should have a determinative tendency unerringly
pointing towards the guilt of the accused and ruling out his
innocence.
87. It is apparent that the prosecution has failed to achieve
the said standard of proof.
88. Neither has the motive being proved; it has not been
proved that the appellant had been forging the signatures of
the deceased on any cheque and thereafter had
misappropriated the money. Only fact proved is that various
leafs from the cheque book issued to the deceased were used
to withdraw money. It has been proved that the appellant had
been taking the said cheques to the bank. Unfortunately for
the prosecution, it has not been proved that the signatures on
the said cheques were not those of the deceased and that they
were those of the appellant. Similarly, the alleged complaints
purportedly got prepared by the deceased, being proof that
somebody was misusing his cheque book, have also not been
proved.
89. Before parting we express our anguish at the manner in
which the prosecution has sought to prove its case. The
investigating officer has just not bothered to keep into account
the requirement of the procedures of law to obtain permission
from a competent Court to obtain the sample writing of an
accused. The prosecution ignored that statements made
during investigation to the investigating officer that certain
documents bear the signatures of the deceased was no proof
of the fact that signatures on said documents were those of
the deceased. Said fact had to be proved by evidence as per
the Evidence Act 1872. Had the prosecution been careful, it
could have proved that the cheques Ex.PW-4/B, Ex.PW-4/D,
Ex.PW-4/E and Ex.PW-4/G were signed by the appellant. It is
also unfortunate that there is no evidence led that the
signatures on the cheque Ex.PW-1/A were forged by the
appellant. Had the prosecution proved said fact, a very strong
motive for the crime would have emerged. It is apparent that
a crime goes unpunished because of the lackadaisical manner
in which the investigating officer conducted the investigation
and sought to prove the case.
90. We are left with no alternative but to allow the appeal.
The impugned judgment and order dated 28.4.2006 is set
aside. The appellant is acquitted of all the charges framed
against him.
91. Copy of this order is directed to be sent to the
Superintendent Central Jail Tihar with a direction to set free
the appellant if not required in custody in some other case.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
APRIL 05, 2010
mm
