Delhi High Court
Sapan Haldar & Anr. vs The State on 11 August, 2011
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. Appeal No.804/2001
% Date of Decision: 11.08.2011
Sapan Haldar & Anr. ...... Petitioners
Through Mr.Y.S.Chauhan and Mr.Madhav Singh,
Advocates.
Versus
The State ...... Respondent
Through Mr.Lovkesh Sawhney, APP for the State.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR.JUSTICE SURESH KAIT
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? YES
3. Whether the judgment should be YES
reported in the Digest?
ANIL KUMAR, J.
*
1. The appellants have challenged the judgement dated 2nd May,
2001 in Sessions Case No. 92/1999 titled as „State vs. Sapan Haldar &
Ors.‟ under sections 365, 364A, 506 of the Indian Penal Code, PS
Badarpur, convicting the appellants under section 364A and 365 read
with section 120 B of IPC and sentencing the appellants persons Sapan
Haldar and Shefali Haldar to imprisonment for life and a fine of Rs.
3,000/- each, in default of which to further undergo rigourous
imprisonment for three months each by order dated 4th May, 2001.
2. The case of the prosecution in brief is that on 6th March, 1998 at
about 7:15 a.m., Subashish s/o Sh. Ashish Chatterjee and his two
sisters, had come down from their house, flat no. E-52, Sarita Vihar, as
they were to leave for their school, DPS Vasant Kunj, in their private
car. The driver of the car, namely Santosh, was sitting in the car,
waiting for them. The sisters of Subashish were sitting behind him,
while he was sitting besides the driver.
3. Suddenly four men with muffled faces entered the car forcefully.
Two persons put a revolver on the temple of Santosh and one boy
dragged Subashish out of the car and took him into a Maruti car
bearing no. DL 3CC 6161. The fourth person was already sitting by the
steering wheel of the Maruti car. Thus the child was kidnapped by these
unknown persons. Before escaping in the car, the kidnappers had
allegedly left behind a letter, written in Hindi, at the place from where
the child was kidnapped. The note conveyed the following threat:
"Need not worry, your child is safe with us. He will not
suffer even a scratch. But if you dare to inform the police
you on your own will be responsible for the death of your
child. If you want your child back safe and sound then you
have to accept my terms, which will be told to you on the
phone. If you dare to do anything undesirable such as
taping the telephone or taking the assistance of police you
will definitely be awarded the prize and that will be in the
form of dead body of your son, which you will find lying on
the side of some road. Police can only give you the corpse
but not our address. If you want to get your son sound,
safe and alive, that if you agree to accept our each and
every terms & condition then tie a green coloured cloth on
the grill of your terrace. You will receive our phone after 24
hours."
4. A complaint was lodged with the police by Mr. Ashish Chaterjee,
father of the kidnapped child, vide Ex.PW2/A. The note left by the
kidnappers and a postcard, Ex 13/22 allegedly recieved from the
kidnappers by the family of the kidnapped boy, were also handed over
to the police. Thereafter a police team headed by SI Rajbir Singh
gathered at Sarita Vihar, to trace out the child. The police received the
information that the car having the child in it had gone towards Village
Madan Pur Khadar. After which the police officials searched Parmar
colony in search of the kidnapped child.
5. The police then received the information that the alleged car used
by the kidnappers had met with a serious accident. A broken down
electric pole was also found, which was on account of the said accident.
The car was subsequently recovered at a Kucha Road ahead of Narula
Farm. The number plate on the front of the car bore the registration No.
DL 3C 661, while the number plate on the rear of the car bore the
registration No. DL 3C 6261. However, no one was found inside the car.
One broken injection of Diazepam was found in a polythene bag in the
rear seat of the car, along with one green cloth. The cloth as well as the
broken injection were wrapped in a cloth and sealed with the seal of
„RS‟. The driver of the car, Santosh was also present at the time and he
identified the car as the one in which the kidnapped child was taken
and thus the car was seized by the police officials.
6. The police party then extended their search to village Meetha Pur
for further investigation. One Baldev Singh met the police and informed
them that one lady and one boy had taken the child in an auto
rickshaw driven by his tenant Tammana. At the time these persons had
claimed that the child was sick. Tamana was subsequently joined in the
search and he led the police team to a place in Village Meetha Pur.
There one lady named Rita, told the police, that accused Shefali and her
son co-accused, Sapan had come to her house along with a child who
was covered with a sheet. Allegedly accused/appellant Shefali had told
her that the child was sick and hence she had asked for some water.
After 10 minutes the accused persons left saying that they were taking
the child to the hospital. Thereafter Rita also joined in the investigation.
7. Rita took the police team to the house of appellant Shefali in
Parmal Colony. The door of the house was found to be closed from
inside and since there was a delay in opening the door, the police
officials forcefully pushed the door open. As per the case of the
prosecution, appellant Shefali was found inside the room along with the
kidnapped child sitting on a wooden Takhat. The name of the child was
Subashish and he was about 10 years old. Thereafter the police waited
there, for the arrival of appellant Sapan Haldar as Shefali had told them
that he had gone to buy some milk for the child and that he would be
coming back soon. Accused, Sapan Haldar returned home after 20 mins
and he was identified by Tammana and Rita and was thereafter arrested
by the police. On the search of accused Sapan Haldar, a country made
pistol was found in the left side pocket of his pant. Two live cartridges
were also recovered from the right side pocket of his pant and one
cartridge was found in the pistol itself. Three lined papers were also
recovered from the side pocket of the shirt of accused Sapan Haldar, of
which one was written and the remaining two were blank. Allegedly it
contained a demand for Rs. 25 lacs as ransom. These papers were also
seized vide memo Ex.PW 13/8. The child was recovered by the police
around evening time, vide memo Ex P.W 13/1, and was handed over to
his parents at about 10 p.m. Also a green colour sweater, Ex P2 and a
belt with the words School of Vasant Kunj written on it, Ex.P1 belonging
to the kidnapped child was seized and one number plate on which black
paint had been applied on the registration number, Ex PW13/5 were
produced by the accused Sapan Halder from his house in Parmal
Colony, were also seized. The accused Sapan Haldar also produced one
injection of Diazapam and some other injections from his clinic in
Madanpur Khadar Extention which were allegedly used on the child to
make him unconscious.
8. The case of the prosecution is that the appellants were party to
the criminal conspiracy to kidnap the child Subashish for ransom. This
is also the case of the prosecution that the house from where the child
was recovered belonged to the appellants Shefali and Sapan Haldar and
the child was found there sitting with Shefali.
9. Pursuant to his arrest, accused Sapan Haldar made a disclosure
statement on 6th March 1998, in which he divulged that the conspiracy
to kidnap the child Subashish included persons named, Suraj and
Dharampal and also a Muslim person who he did not name. However
on 14th March, 1998 he divulged the correct names of his accomplices
as Umesh and Ramesh. Subsequently secret information was received
by the police, that accused Umesh, who was wanted in this case was
present near Jeevan Nursing Home. Thus Umesh was identified by
appellant Sapan Haldar, and was arrested by the police at the spot
mentioned above on 17th March, 1998. This is also the case of the
prosecution that an Identity-Card, Ex PW7/1 of the kidnapped child
was recovered from the possession of the accused Umesh on the day of
the arrest. In the evening on the same day, the police party moved in
search of accused Ramesh and at about 6:30 p.m. they were taken to
Govind Puri by accused Sapan Haldar and Umesh. Thereafter accused
Ramesh was found at a tempo stand, near a temple and was
apprehended by the police. He was interrogated and he made a
disclosure statement that a country pistol, one revolver and air gun and
cartridges were concealed by him under the sand of river Yamuna,
slightly ahead of the place where the Maruti car was abandoned.
Accused Ramesh took the police to the place on 18th March, 1998
however nothing could be recovered. On 28th March, 1998 the police
took further police remand of Ramesh and on 29th March 1998, accused
Ramesh who was in police custody took the police to the Yamuna Bank
near Narula Farm, pursuant to which one country made revolver/pistol,
one revolver and four cartridges were recovered at the instance of
accused Ramesh.
10. The specimen handwriting of Sapan Haldar S1 to S6 vide memo
Ex. PW13/20 and that of Umesh S7 to S9 vide memo. Ex PW 13/19
was obtained by the Police. Thereafter the specimen handwritings were
sent to the FSL, Malviya Nagar, for comparison with the threat letter,
ransom note as well as the postcard allegedly received from the
kidnappers. The handwriting expert opined that the writing on the letter
left by the kidnappers at the place of the kidnapping matched with the
sample handwriting of the appellant Sapan Haldar.
11. On 7th March, 1998 the IO had moved an application Ex. PW
17/12 for fixing a date for holding the TIP of accused Sapan Haldar.
Accused Sapan Haldar was produced before the court in a muffled face.
The TIP was fixed for 11th March 1998, however, on 11th March 1998
the court declined to hold TIP on the ground that photographs of the
accused Sapan had appeared in The Hindustan Times on 8th March
1998 and therefore there was no point in holding TIP.
12. On 18th March, 1998 an application, Ex.PW11/1 for holding the
TIP of accused Umesh and Ramesh was filed. The date of 23rd March,
1998 was also fixed for holding the TIP of the accused persons. However
on that date another application was moved Ex. PW 11/2 for fixing
another date as the witnesses had suddenly left for Calcutta. The date
of 27th March 1998 was fixed by the Court for holding TIP of the
accused persons, however, on that day the accused persons, who were
produced in muffled faces, refused to participate in the proceedings.
13. Charges u/s 120-B, 364-A and 506 of IPC were framed against
the accused persons by the learned Judge to which they pleaded not
guilty and claimed trial . A separate charge u/s 25 of the Arms Act was
framed against the accused Ramesh to which he pleaded not guilty and
claimed trial.
14. The prosecution examined 19 witnesses in support of its case and
the accused persons were examined under Section 313 of Cr.P.C,
however no witness had been examined in their defense.
15. The trial court examined the evidence on record and considered
the defense of the accused persons and ultimately concluded on the
guilt of the appellants. However, the trial court was of the view that
there wasn‟t sufficient evidence on record to inculpate the guilt of
accused, Umesh and hence he was acquitted, while the Trial court
found enough evidence on the record to convict accused Ramesh under
Section 25 of the Arms Act.
16. It is against the order of conviction and their sentence that the
appellants, Shefali and Sapan Haldar have preferred this appeal.
17. Learned counsel for the appellants has contended that the star
witness as per the prosecution is Tamanna, PW4 who deposed that
appellant Shefali alongwith one man had come to him on the 6th of
March 1998 with a boy of about 10 years and had hired his auto to be
taken to a hospital, however on the way to the hospital they had
stopped the auto and taken his scooter to Meetha Pur. Thereafter they
had asked Tamanna, PW-4 to stop the auto outside a house and
instructed him to knock on the door. The witness even identified
accused Shefali in the Court. However the learned counsel contended
that no reliance can be placed on this witness since he also deposed
that the police had come to his house on the next day at about 7:00
a.m. which is diametrically opposite to the story of the prosecution,
which is that the police had gone to the house of PW4 on the same day
of the incident. It is also pointed out that while PW4 stated that the
door of the house from where the child was recovered was locked from
the outside, the police officials had claimed that the door was locked
from the inside which was subsequently broken and opened by the
police. The learned counsel asserted that such a major contradiction
goes to the very root of the matter and hence should not be relied on
and therefore the benefit of this inconsistency should be given to the
appellants.
18. Learned counsel further contended that as per the deposition of
PW-2, the mother of the kidnapped child, four men had come and that
all of them were in muffled faces. Thus it was asserted that the witness
could not have known who the four persons were, who had kidnapped
her son and in any case no woman was present amongst them at that
time. It is further argued that even the number plate of the car in which
the child was allegedly kidnapped was given to PW-2 by the driver,
Santosh, PW-8 and she hadn‟t noted the number plate on her own,
hence the trial court gravely erred in taking this into consideration, as
PW-8 himself deposed that he had not given the number of the car to
the police as DL- 3C-6161. The learned counsel further substantiated
his submission by placing reliance on the deposition of PW-3, Sh.
Ashish Chaterjee, father of the kidnapped child, who also stated that he
wasn‟t aware of the identity of the persons who had taken his child as
they were in muffled faces. I It was thus submitted that there is
absolutely no direct evidence that links the appellants to the offence
committed, except for the circumstantial evidence that has many links
missing in it and hence is not enough to inculpate the appellants.
19. The learned counsel has also attempted to highlight the
improbabilities in the deposition of PW-4, Tamanna who had deposed
that appellant Shefali, who was accompanied by a man and a child of
about 10 years, had hired his auto for taking the child to the hospital.
However instead of going to the hospital, the appellant had stopped the
auto and took the scooter of PW-4 to a house. Thereafter, PW-4 was
asked to knock on the door of the house and he had even assisted the
appellant Shefali in lifting the child from the scooter. The learned
counsel contended that if two persons were indeed present with the
child at the time, then why was PW-4 asked to knock on the door of the
house and also why was PW-4 asked to lift the child, as the child could
have been easily lifted by the other two persons. According to the
counsel, the house in which the child was taken to initially as deposed
by PW-4, has not been identified by the prosecution and neither does
PW-4 remember the number of the house nor the occupants of the
same. Hence according to the counsel a very important link has not
been established and thus the entire base of the prosecution‟s
allegations has not been established.
20. It is also contended that it has come in the deposition of PW4 that
another lady was present in the house at the time the child was
allegedly recovered from the house of the appellant Shefali and
apparently that lady was the daughter-in-law of the appellant. However
nowhere has any statement of this lady been recorded nor has the lady
been examined. Thus it is contended that there are serious lacunas in
the story put up by the prosecution and the chain is not complete and
major links are missing.
21. It was also contended that as per the deposition of PW4
Tamanna, he has categorically stated he had seen the accused Shefali
on the day of the incident and since that day he had only seen her in
the court. According to the learned counsel appellant Shefali should
have been duly identified by PW4 by means of TIP and the lack of it, is a
serious lapse on the part of the prosecution and the same cannot be
held sufficient to inculpate the guilt of the appellant. It is further
pointed out that Sapan Haldar and Shefali had never refused TIP and
therefore an adverse inference for the same is not possible against the
appellants.
22. The learned counsel further contended that the sister of the child
that was kidnapped, Ms. Sananda Chatterjee PW5 had deposed that her
brother had been kidnapped in the car brought by the four kidnappers,
which was a white Maturi 800, which is diametrically opposite to the
deposition of PW-8 Santosh the driver, who had deposed that there were
three kidnappers and that the child was kidnapped in an ambassador.
He had also deposed categorically that he had not given the number of
the car as DL 3C 6161 nor had he stated that the car was a Maruti. He
had also testified that he had narrated the events to the police, however
his statement was not recorded in writing before him and that his
signatures were obtained on plain papers. He had further testified that
he had not given any letter to PW2 as deposed by her in court. As per
the learned counsel these contradictions are too grave and the Trial
court was wrong to have not taken them into consideration. According
to the learned counsel, even though PW-8 had deposed that he could
identify the driver of the car in which the child was kidnapped, however
he didn‟t identify either of the appellants as being the driver of the car
in which the child was kidnapped. Even the suggestion as to the fact
that he had resiled from his earlier statement made before the police
was denied by him. The learned counsel submits that on all counts the
prosecution has failed to bring any conclusive evidence on record to
inculpate the guilt of the appellants.
23. The learned counsel further discredited the deposition of PW6,
the owner of the alleged car in which the child was allegedly kidnapped
by the appellants and who had made a complaint at PS Kalkaji about
his Maruti car no. DL 1CB 1729 being stolen on 4th March 1998.
According to the learned counsel, the prosecution had propounded that
at the time the car was seized it was having two number plates i.e. a
number plate DL 3C 6261 in the front while the number plate DL 3C
661 in the rear, however Sh. Chander Bhan PW6 had deposed that
there was no number plate on the car when it was delivered to him.
Thus it could not be established that it was the same car bearing the
two no. plates which was seized by the police and which allegedly was
used by the appellants to kidnap the child. PW-6 had further deposed
that the left window of the car was broken at the time of delivery,
however no other damage was found on the car. Thus the learned
counsel contended that it is extremely odd that when as alleged by the
prosecution through the deposition of PW-17, SI Rajbir Singh, the car
had hit an electric pole and was found in an overturned position, then
how could the car have not been further damaged. It is contended that
such inconsistencies cannot be viewed lightly and that the same ought
to entitle the appellant the benefit of doubt. It was further asserted that
in addition the appellants had not been convicted for the offence of theft
of the car.
24. Learned counsel further contended that even though the
prosecution had alleged that Tamanna and Rita both had led them to
the appellants and subsequently a search was conducted, and certain
recoveries were made, however neither Tamanna nor Rita had deposed
about these recoveries. Thus there is every likelihood of the alleged
recoveries having been planted by the prosecution. Also while PW-13,
ASI Dharam Vir, had deposed that the child was recovered from A-59,
Shiv Puri, Meetha Pur Extension, the prosecution alleges that the child
was recovered from Parmal Colony, Madanpur Khadar. Learned
counsel also asserted that there is absolutely no evidence of common
intension, nor were any demands for ransom made by the appellants
u/s 364 A of IPC, nor was any fire arm recovered from the appellants.
25. The learned counsel for the petitioner has relied on Mushir Khan
@ Badshah Khan v. State of M.P, 2010 (3) JCC 1648; 2010 (3) JCC
2067, Shankar & Ors v. State of NCT of Delhi; 2009(1) JCC 482, Prem
Kumar v. State of Rajasthan; 2009 (1) JCC 91, Ravinder Singh v.
Government of NCT of Delhi; 2008 (3) JCC 1806, Syed Peda Aowlia v.
Public Prosecutor of Andhra Pradesh; 2008 (1) JCC 542, Sambhaji
Hindu Rao Deshmukh & Ors v. State of Maharashtra; 2008 (1) JCC
554, Balu Bakthavatchalu v. State of Tamil Nadu; 2001 Crl.Law
Journal 669; Netra Pal v. State; 2009 (3) JCC 2192, Chotey Khan v.
State & decision dated 14th May, 2009 in Crl.Appeal No.513/2001
Awdesh v. State; State of Punjab v. Sucha Singh & Ors, 2003 (3) SCC
153 in support of his pleas and contentions, especially that if a
prosecution witness has turned hostile and in the cross examination if
the witness has deposed against the accused and in favour of the
accused then the deposition in favour of the accused has to be accepted
and that merely writing a letter by the accused and keeping it in his
pocket would not tantamount to demand to pay ransom in the absence
of its communication to the family of the kidnapped child. The learned
counsel relied on Awdesh (Supra) to contend that if the specimen
handwriting of the appellant were obtained by the investigation officer
when the accused were in custody and the identification as required
under the Identification of Prisoners Act, 1920 was not done nor orders
were obtained from the Court of competent jurisdiction, then the
specimen handwriting obtained for the expert has to be excluded while
considering the evidence.
26. In State of Punjab v. Sucha Singh & Ors (Supra) 24 injuries were
inflicted on the body of the son, however, the father allegedly remained
a mute spectator. In such circumstances the presence of father was
disbelieved. Another witness who was allegedly present at the place of
occurrence and saw the occurrence who had, however, taken a shifting
stand, had been held to be an unreliable witness and not credit worthy
and no reliance was placed on the testimony of such a witness to
establish his presence at the place of occurrence which would have
formed the basis of conviction. The conduct of the father who remained
a mere spectator to the innumerable wounds inflicted on his son was
also disbelieved. Relying on Musheer Khan @ Bad shah Khan & Anr. v.
State of M.P.(supra), the learned counsel for the appellants has
contended that in case of circumstantial evidence, every link in the
chain of evidence must be proved beyond reasonable doubt and such a
chain must exclude any inference except the guilt of the accused. While
appreciating the circumstantial evidence when there is a conflict
between the presumption of innocence and any other presumption then
the former must prevail. It is also contended that in order to justify
inferences of guilt, the inculpatory facts must be incompatible with the
innocence of the accused and it should be incapable of explanation
upon any other reasonable hypothesis except his guilt. In the
circumstances, it is contended that while construing the testimony of
PW-9, Rita caution must be exercised since she had been declared
hostile, after she deposed that she does not know accused person in the
examination-in-chief. While on the other hand she made the statements
that it is correct that on 6th March, 1998, accused Shephali and her son
Sapan had come to her house along with a child who was covered with
a sheet by them and that it is also correct that they had told her that
the child brought by them was sick and demanded water from her and
after 10 minutes they went back on the pretext that they had to take
child to the hospital and police came to her house. As per the learned
counsel these statements should not be accepted against the
appellants, since the said witness in further cross-examination when
asked to reconcile the diametrically opposite depositions made by her,
had again deposed that she could not identify whether the accused
Shephali and her son Sapan present in the court were same persons or
not. According to the learned counsel for the appellants since two
contradictory depositions have been made by the said witness, the
deposition which establishes the innocence of the accused must be
accepted and not the portion of the deposition which inculpates the
alleged guilt of the appellants.
27. Referring to Shankar & Anr. v State (N.C.T) of Delhi (supra)
decided by a Division Bench of High Court of Delhi, it has been
contended on behalf of the appellants that before the Court bases
conviction on the testimony of an eye witness, it must be satisfied that
he is a truthful witness so that implicit reliance can be placed on his
testimony. In order to form basis of conviction, the testimony of the eye
witness should be such that it inspires confidence and leaves no
reasonable doubt about his presence at the scene of occurrence. If the
behaviour of the person claiming to be an eye witness is contrary to the
course in which a similarly situated person would normally behave and
there is no satisfactory explanation for such an abnormal conduct, it
will not be safe to base the conviction solely on the basis of his
testimony, since his very creditability stands impeached and becomes
suspect on account of such behavior.
28. In Prem Kumar v. State of Rajasthan (supra), the Supreme Court
had dealt with the principles governing and regulating the hearing of
the appeal against an order of acquittal holding that before reversing
the finding of acquittal, the High Court has to keep in view the fact that
presumption of innocence is still available in favour of the accused and
that the same stands fortified and strengthened by the order of
acquittal passed in his favour by the trial court and the High Court
should not substitute its own view with the view of the trial court as the
trial court had the advantage of looking at the demeanor of witnesses
and observing their conduct in the Court specially in the witness box.
29. The learned counsel for the appellants relied on on Syed Peda
Aowlia (supra) in support of his contention that a portion of the
testimony of a hostile witness supporting the case of the prosecution
has to be rejected. It was held that a miscarriage of justice which may
arise from acquittal of the guilty is no less than the conviction of an
innocent, it was further held that in a case where admissible evidence is
ignored, a duty is cast upon the appellate court to reappreciate the
evidence where the accused has been acquitted for the purpose of
ascertaining as to whether any of the accused really committed any
offence or not.
30. Similarly, in Sambhaji Hindurao Deshmukh (supra), it was held
that while appreciating the evidence, if two views are reasonably
possible from the evidence on record, one which favors the accused and
the other which goes against the accused, the view favoring the accused
is to be preferred and adopted. It was further held that the very fact
that two views are possible makes it clear that the prosecution has not
proved the guilt of accused beyond reasonable doubt and consequently,
the accused is entitled to the benefit of doubt.
31. In Netra Pal (supra), a Division Bench of this Court had held that
mere writing of a letter by the accused which is not communicated to
the concerned person seeking ransom and keeping such letter in his
pocket would not tantamount to a demand to pay a ransom in the
absence of communication of the same and an offence under Section
364A of the Indian Penal Code will not be made out in the facts and
circumstances. In this case only one letter which was exhibited as Ex.P-
1 was recovered from the possession of the accused incorporating a
demand to pay a ransom which admittedly was not delivered to the
family of the kidnapped person. There was no allegation of
communicating the demand of ransom in any other manner. In these
circumstances, it was held that a letter incorporating the demand for
ransom which was found in the pocket of accused which was not
communicated to the family of the kidnapped child would not constitute
demand, to pay ransom, as contemplated under Section 364A of the
Indian Penal Code.
32. Relying on another judgment of the Division Bench in the matter
of Chote Khan (supra) it is contended that where ransom calls are made
on telephone with no threat of any kind, or simplicitor calls for ransom
are made which eventually lead to recovery of the child, in total absence
of evidence in regard to any threat to cause death or hurt to the
kidnapped child and also lack of evidence in regard to the accused
conducting themselves in a way that could raise a reasonable
apprehension that the child would be put to death or hurt; the ransom
demand simplicitor could not bring the offence within the ambit of
Section 364A of Indian Penal Code. In the circumstances, the Division
Bench had set aside the conviction and sentence for offence punishable
under Section 364A and 365 of the Indian Penal Code and had
maintained the conviction only under Section 363 of Indian Penal Code.
33. Per contra, the learned Additional Public Prosecutor, Mr.Sawhney
has contended that sample handwritings of the appellant cannot be
rejected on account of alleged non compliance of the provisions of the
Identification of Prisoners Act, 1921. The contention of the learned
counsel is that Section 4 of the said Act contemplates a situation where
the accused gives the sample handwriting willingly whereas the sample
handwriting of an accused can be obtained under Sections 5 & 6 of the
said Act, even if he is not desirous to give the sample handwriting
willingly. He further contended that since the consequences of not
following the procedure have not been given in the said act, therefore,
the sample handwriting and the disputed letters which are Exhibit Q-1
and Q-2, the ransom letters in the handwriting of the appellant no.1,
cannot be excluded on the ground that the sample handwritings were
not obtained in compliance with the provisions of the said Act. He
further asserted that the term "prescribed procedure" in Section 4 does
not imply a permission from the Courts/Magistrate but instead implies
the procedure to be followed by the police while taking the
measurements of a non convicted person as established under the rules
of Section 8 of the Act.
34. According to the learned counsel, the appellant never objected to
taking of sample handwriting and since the sample handwriting was
given willingly and the plea that the sample handwriting was taken
under coercion was not taken earlier nor was any such suggestion given
to the witnesses in the cross examination, and has been taken for the
first time in the supplementary statement of appellant under section
313 of Cr.P.C, it cannot be allowed to be taken now, at such a belated
stage. The learned counsel further contended that the hand writing
samples of the appellant Sapan Haldar was taken in the proper and
prescribed manner and with his consent. The handwriting was taken in
a fast mode, medium mode and slow mode and then sent for
comparison.
35. Relying on Puran Mal v. Director of Investigation (Inspection),
(1974) 1 SCC 345, learned Additional Public Prosecutor contended that
in India relevant evidence cannot be excluded merely on the ground
that it is obtained by illegal search or seizure or contrary to the
provisions of certain Act where the consequence of not complying with
the provisions are not provided. "Where the test of admissibility of
evidence lies in relevancy, unless there is an express or necessarily
implied prohibition in the Constitution or other law, evidence obtained
as a result of illegal search or seizure is not liable to be shut out."
36. The learned counsel for the State has also relied on State (NCT of
Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 to contend that non
compliance or inadequate compliance with the provisions of an
enactment does not per se affect the admissibility unless the
consequences of non compliance or inadequate compliance have been
spelt out specifically. Relying on the Telegraphic Act which specifically
prescribes rejection of the evidence obtained by taping without
permission, it is contended that the Identification of Prisoners Act, 1921
does not prescribe or provides any such consequences. In the
circumstances, according to the submission of learned Additional Public
Prosecutor the factum of sample handwriting of Sapan Haldar cannot
be ignored and consequently exhibit Q-1 and Q-2 which have been
established to be in the handwriting of Sapan Haldar by the
handwriting expert PW-19, Sh.Harsh, Senior Scientific Officer is also
entitled to be considered.
37. Refuting the plea of the appellants that the material witnesses
have not identified them, it is submitted by the learned Additional
Public Prosecutor that the threat was extended to the father of the
child, PW-1 who had been kidnapped about which he has deposed
categorically in his statement on 27th June, 2000 where he had deposed
that he was threatened to bear the consequence in case he appeared in
the Court. The stand of the witnesses including the father, mother and
the child reflects the consequent softening. According to him if all the
testimonies are taken and considered, it is apparent that the essential
facts regarding the accused/appellants have been deposed by the
witnesses. It is contended that the kidnapped child as PW-1 has
deposed in his unimpeachable testimony that he was kidnapped and
taken away in a Maruti 800 car. He has also deposed about an injection
being given to him in his hip after being kidnapped in the car where
after he did not remember as to what had happened to him. He has,
however, deposed about the involvement of four persons and one
woman though he has denied that his belt and sweater were not with
him, however the case of the prosecution is that belt and sweater of the
kidnapped child Subhashish were recovered by the police from the
appellant Sapn Haldar.
38. The learned Additional Public Prosecutor has contended that the
driver of the car PW-8, Santosh Jha had deposed incorrectly in respect
of certain matters either on account of collusion with the appellants or
on account of fear of threat by the appellants who had also threatened
the father of the kidnapped child. He has also referred to a suggestion
given to him that he has deposed falsely deliberately in order to save the
accused persons. According to him though he has deposed that the car
in which the child was kidnapped was an Ambassador, however, the car
was a Maruti 800, stands substantiated by the fact that at the very first
instance the number of the car and the make of the car was given by
the father of the kidnapped child and it was incorporated in the
complaint as well. Even the kidnapped child categorically deposed that
he was kidnapped in the Maruti 800 car and, therefore, the testimony of
PW-8, Sh.Santosh Jha deposing that the car was Ambassador will not
dilute the case of the prosecution regarding kidnapping of the child
Subhashish by the appellants in a Maruti 800 car. The learned Public
Prosecutor has also relied on the testimony of Tamanna, scooter driver
who as PW-4 categorically identified accused Shefali as the woman who
had come with a child to him and had represented that she had hired
him to take the child to the hospital, stating that he was her son,
however, on the way instead of going to hospital he was taken towards
Meetapur. Since the incident of kidnapping is of 6th March, 1998
whereas the statement of the scooter driver was recorded on 1st
September, 2000, therefore, on account of the time gap, if the driver
had deposed that the child was recovered in the morning whereas it
stands established that the child was recovered on 6th March, 1998
itself, the testimony of the scooter driver will not be weakened so far as
the other facts deposed by the said scooter driver stood corroborated
and established.
39. According to the counsel the link is further strengthened as it is
on the basis of the information of PW-9 Rita that the child was
recovered from the house of appellant Shefali. Further even appellant
Sapan Haldar was apprehended from the same place. Pursuant to his
arrest the recoveries were affected at his instance which were the
injections used to keep the child in a drugged state, the ransom note
from his shirt pocket and the fake number plates. In any case the said
appellant has been unable to explain the possession of the number
plate 191/ DL 1 CB 1729, which is the original number plate of the car,
in which the child was kidnapped and belongs to PW6, the owner of the
car, which was stolen on 4th March 1998 from outside his house i.e. two
days prior to the incident of kidnap. The learned counsel further
asserted that even under Section 313 when the identification of
appellant Shefali by Tamanna was put to her, no explanation for the
same was given by her and that even during the recording of evidence of
Tamanna he was not cross-examined by the defense on this aspect.
40. Learned counsel also asserted that as per Section 7 and 8 of the
Indian Evidence Act, 1872, facts which are the occasion, cause or effect,
immediate or otherwise, of relevant facts, or facts in issue, or which
constitute the state of things under which they happened, or which
afforded an opportunity for their occurrence or transaction, are relevant
and any fact is relevant which shows or constitutes a motive or
preparation for any fact in issue or relevant fact. Thus the recovery of
the second letter pursuant to the first, all forms a link and is relevant
under the facts and circumstances and can be taken into consideration.
And in the proximity of the letters received, the telephone calls made to
the family are all proof of the intention to demand ransom for the
kidnapped child.
41. With regard to the aspect of not holding the test identification
parade of the appellant Shefali, it is submitted that the child PW-1 was
with the appellant Shefali for considerable time and had been recovered
from her custody, therefore, the test identification parade would not
have been of much consequence. The learned counsel has also
explained the reason for not conducting TIP as against appellant Sapan
Haldar. As on 7th March, 1998 the IO had moved an application Ex. PW
17/12 for fixing a date for holding the TIP of appellant Sapan Haldar
and appellant Sapan Haldar was even produced before the court,
muffled face and the TIP was fixed for 11th March 1998, however, on
11th March 1998 the court declined to hold TIP on the ground that,
photographs of the accused Sapan had appeared in The Hindustan
Times on 8th March 1998 and therefore there was no point in holding
TIP. In the circumstance the case of the prosecution against the
appellant is not weakened on account of not conducting the test
identification parade.
42. Learned counsel vehemently asserted that the aspect of
conspiracy has to be drawn from the facts and circumstances of the
case. The recovery of the sweater and belt from the appellants, the
threats received by the father of the child kidnapped, the recovery of the
car in which the child was kidnapped and which was stolen two days
prior to the incident from the house of PW6, the arrest of the appellants
on the information of PW9 and PW4, the recoveries at the instance of
the appellant and finally the FSL report conclusively recording the
match of the ransom note with the specimen handwriting of appellant,
Sapan Haldar all lead to the undeniable inference that the offence of
kidnapping the child was carried out by the appellants.
43. This Court has heard the learned counsel for the parties in detail
and has also perused the record of the trial Court including the
testimonies of the witnesses and the documents established on record.
This is a settled law that in reversing the finding of conviction, the High
Court has to keep in view the fact that the presumption of innocence is
still available in favor of the accused. If on fresh scrutiny and
reappraisal of the evidence and perusal of the material on record, the
Court is of the opinion that another view is possible or which can be
reasonably taken, then the view which favors the accused should be
adopted. However the view taken by the Trial Court which had an
advantage of looking at the demeanor of the witnesses and observing
their conduct in the Court is not to be substituted ordinarily by another
view, unless another view if substantially and reasonably is possible in
the opinion of the High Court. Reliance for this can be placed on AIR
2009 SC 1242, Prem Kanwar v. State of Rajasthan; 2008 (3) JCC 1806,
Syed Peda Aowlia v. the Public Prosecutor, High Court of A.P,
Hyderabad; Bhagwan Singh and Ors v. State of Madhya Pradesh, 2002
(2) Supreme 567; AIR 1973 SC 2622 Shivaji Sababrao Babade & Anr v.
State of Maharashtra; Ramesh Babu Lal Doshi v. State of Gujarat,
(1996) 4 Supreme 167; Jaswant Singh v. State of Haryana, 2000 (1)
JCC (SC) 140. The Courts have held that the golden thread which runs
through the web of administration of justice in criminal cases is that if
two views are possible on the evidence adduced in the case, one
pointing to the guilt of the accused and the other to his innocence, the
view which is favorable to the accused should be adopted because the
paramount consideration of the Court is to ensure that miscarriage of
justice is not done. A miscarriage of justice which may arise from
acquittal of the guilty is no less than from the conviction of an innocent
person. The High Court has the power to reconsider the whole issue,
reappraise the evidence and come to its own conclusion and findings in
place of the findings recorded by the trial Court, if the findings are
against the evidence on record or unsustainable or perverse. However,
before reversing the finding of acquittal the High Court must consider
each ground on which the order of conviction is based and should also
record its own reasons for accepting those grounds.
44. In the instant case the evidence produced by the prosecution is
circumstantial. The principles on which the circumstantial evidence is
to be evaluated have been stated and reiterated by the Supreme Court
in numerous judgments. We may notice here the observations made by
the Apex Court, in the case of Hanumant Govind Nargundkar v. State of
M.P.: 1952 SCR 1091 on the manner in which circumstantial evidence
needs to be evaluated. In the aforesaid judgment, Mahajan, J. speaking
for the Court stated the principle which reads thus:
" It is well to remember that in cases where the
evidence is of a circumstantial nature, the circumstances
from which the conclusion of guilt is to be drawn should in
the first instance be fully established, and all the facts so
established should be consistent only with the hypothesis
of the guilt of the accused. Again, the circumstances should
be of a conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one proposed
to be proved. In other words, there must be a chain of
evidence so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of
the accused and it must be such as to show that within all
human probability the act must have been done by the
accused.
The aforesaid proposition of law was restated in the
case of Naseem Ahmed v. Delhi Admn : (1974) 3 SCC 668,
by Chandrachud J. as follows:
This is a case of circumstantial evidence and it is
therefore necessary to find whether the circumstances on
which prosecution relies are capable of supporting the sole
inference that the Appellant is guilty of the crime of which
he is charged. The circumstances, in the first place, have to
be established by the prosecution by clear and cogent
evidence and those circumstances must not be consistent
with the innocence of the accused. For determining whether
the circumstances established on the evidence raise but
one inference consistent with the guilt of the accused,
regard must be had to the totality of the circumstances.
Individual circumstances considered in isolation and
divorced from the context of the over-all picture emerging
from a consideration of the diverse circumstances and their
conjoint effect may by themselves appear innocuous. It is
only when the various circumstances are considered
conjointly that it becomes possible to understand and
appreciate their true effect.
45. In a case in which the evidence is of a circumstantial nature, the
facts and circumstances from which conclusion of guilt is sought to be
drawn by the prosecution must be fully established beyond all
reasonable doubt and the facts and circumstances so established
should not only be consistent with the guilt of the accused, but they
must be entirely incompatible with the innocence of the accused and
must exclude every reasonable hypothesis consistent with his
innocence. It has been observed that while appreciating circumstantial
evidence the Court must adopt a very cautious approach and should
record a conviction only if all the links in the chain are complete,
pointing to the guilt of the accused and every hypothesis of innocence is
capable of being negatived on evidence. Great care must be taken in
evaluating circumstantial evidence and if the evidence relied on is
reasonably capable of two inferences, the one in favor of the accused
must be accepted. The circumstance relied upon must be found to have
been fully established and the cumulative effect of all the facts so
established must be consistent only with the hypothesis of guilt. But
this is not to say that the prosecution must meet any and every
hypothesis put forward by the accused however farfetched and fanciful
it might be. Nor does it mean that prosecution evidence must be
rejected on the slightest doubt because the law permits rejection if the
doubt is reasonable and not otherwise. It has also been held that onus
is on the prosecution to prove that the chain is complete and the
infirmity or lacuna in prosecution cannot be cured by false defense or
plea. The conditions precedent before conviction could be based on
circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established. The circumstances
concerned `must' or `should' and not `may be' established;
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive
nature and tendency;
(4) they should exclude every possible hypothesis
except the one to be proved; and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and
must show that in all human probability the act must
have been done by the accused.
46. One of the strong links in proving the guilt of the appellant Sapan
Haldar is the FSL report matching the specimen handwriting of the
appellant with the threat letter Q1 found at the spot of kidnapping and
the ransom note, Q2 recovered from the appellant. According to the
learned counsel for the appellant specimen handwriting taken from the
appellant is not admissible on account of non compliance of the
provisions of Identification of Prisoner's Act, 1920, whereas according to
the Learned Public Prosecutor the specimen handwriting taken are
admissible and cannot be ignored. Both the counsels have relied on
various judgments which are as under:
47. The judgments relied on by the learned counsel for the appellants
in the tabular form are as under which include the judgments of co-
ordinate benches of this Court:
S.No. Title Matter in Judgments Relied On
Issue
1. Harpal Singh v. Specimen 1. Crl. Appeal No. 682/2008
State : Crl. Handwriting 'Santosh @ Bhure v. State'
Appeal No.
362/2008 2. Crl. Appeal No. 316.2008
'Neeraj v. State'
Wherein the following
Supreme Court Judgments
were relied upon:
(a) State of Bombay v. Kathi
Kalu Oghad and Ors:
1961CriLJ856
(b) State of U.P. v. Rambabu
Mishra: [1980]2SCR1067
(c) Sukhwinder Singh and
Ors. v. State of Punjab:
[1994]3SCR1061
2. Raj Kumar @ Sample Supreme Court Judgments
Raju Vs. The Fingerprints relied on:
State (G.N.C.T. of (1) State of U.P. v. Ram Babu
Delhi): Crl. A. No. Mishra, AIR 1980 SC 791
979/2005 (2) Sukhvinder Singh v. State
of Punjab, 1994 (5) SCC 152
3. Mehmood Ali Vs. Sample Supreme Court‟s Judgments
State: Crl. Appeal Fingerprints relied on:
No. 326/2007 (1) State of U.P. v. Ram Babu
Mishra, AIR 80 SC 791
(2) Sukhvinder Singh and
Ors. v. State of Punjab, 1994
(5) SCC 152 and
(3) State of Haryana v. Jagbir
Singh, AIR 2003 SC 4377
4. Ashok Kumar @ Sample Judgment relied on:
Govind Vs. State Fingerprint (1) Crl. Appeal No. 682/2008
[Alongwith Crl.A. 'Santosh @Bhure v. State'
Nos. 275, 397, Wherein the following
398, 410 and Supreme Court Judgments
601/2007]: were relied upon:
2010CriLJ2329, (a) State of Bombay v. Kathi
159(2009)DLT383 Kalu Oghad and Ors:
1961Cri. L.J. 856
(b) State of U.P. v. Rambabu
Mishra: [1980] 2 SCR 1067
(c) Sukhwinder Singh and
Ors. v. State of Punjab;
[1994] 3 SCR 1061
5. Ganpat Singh Sample Supreme Court‟s Judgement
and Narpat Singh Finger relied on:
v. State of prints (1) Mohd. Aman v. State of
Rajasthan : RLW Rajasthan: 1997 Cri.L.J.
2007 (1) Raj 523 3567
(Rajasthan High
Court)
6. M.S. Syed Anwar Sample No Supreme Court Judgment
and Etc. v. Finger Print, relied on: Just a reference
Commissioner of Foot prints made to the provisions of
Police, Bangalore and Identification of Prisoners
City and Another: Photographs Act
1992 CriLJ 1606
48. In Harpal Singh Vs State; Crl. Appeal No. 362/2008 one of the
issue was about admissibility of specimen handwriting taken from the
accused. In this case permission was not taken from the Court of
Competent Jurisdiction and Section 5 of the Identification of Prisoners
Act 1920 was not complied with. In the circumstances the issue was
whether the FSL report comparing the specimen handwriting of the
accused taken by the Inspector during custody and the suicide note
recovered from the spot of occurrence, allegedly authored by the
appellant could be relied upon by the learned Trial Judge. The Trial
Judge in this case was of the opinion that even though no permission
was taken by the Inspector from the Court before obtaining the
specimen handwriting of the appellant the same in no way dented the
opinion contained in the FSL report, which stated that the suicide note
Ex.P1 to Ex.P4 is in the handwriting of the appellant in view of the
dictum of law laid down by Supreme Court in the decision reported as
State of Haryana vs. Jagbir Singh AIR 2003 SC 4377 that pendency of
some proceedings in the court is a sine qua non before a court can give
direction to an accused to give his specimen handwriting under Section
73 of the Evidence Act and that such a direction can be given by the
court only for enabling the Court to compare the handwriting of the
accused and not for the purpose of the investigating or any other
agency to compare the same and the fact that the appellant did not
raise any dispute in the trial that the suicide note was not in his
handwriting or that the police did not obtain his specimen handwriting
and the fact that the suicide note Ex.P1 to Ex.P4 was written by the
appellant established beyond any doubt that the appellant had
murdered his wife and son. Another Bench of this Court, however, took
a different view relying on 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 Supreme Court reported as 1961 Cri.L.J. 856, State of Bombay v.
Kathi Kalu Oghad and Ors. 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;
holding that the FSL report had to be excluded from the arena of
admissible evidence for the reason that no orders were obtained by the
competent court to obtain the specimen writings of the appellants nor
were the provisions of the Identification of Prisoner's Act 1920 were
complied with.
49. In Raj Kumar @ Raju Vs The State (G.N.C.T. of Delhi): Crl. A. No.
979/2005, another bench of this Court, also relying on Ram Babu
Misra (supra) and Sukhvinder Singh (supra) had held that where the
provisions of the Identification of Prisoner's Act, 1920 are violated,
specimen samples pertaining to the fingerprints, handwriting etc. of an
accused and the incriminating evidence stipulated in the reports
relatable thereto will be inadmissible in evidence and hence has to be
excluded while considering the circumstantial evidence against the
appellant. Similarly in Mehmood Ali Vs State; Crl. Appeal No. 326/2007
relying on Ram Babu Misra (supra), Sukhvinder Singh (supra) and
Jagbir Singh (supra) it was held by a Division Bench of this Court that
the chance finger prints have to be compared with the sample finger
prints after obtaining permission from the Court of competent
jurisdiction and after the proper identification of the prisoner as per the
requirement of Section 5 of the Identification of Prisoners Act 1920. If
this is not done, then the incriminating evidence of the chance finger
print lifted from the scene of crime cannot be compared with the sample
finger prints which will be inadmissible. Yet another bench of this Court
in Ashok Kumar @ Govind Vs State; 2010 Cri L. J. 2329 relying on
Kathi Kalu Oghad (supra) Ram Babu Misra (supra) and Sukhvinder
Singh (supra) had held that since no permission was obtained from the
Court as required under the Identification of Prisoner's Act, 1920, it has
to be excluded while considering the incriminating evidence.
50. A bench of Rajasthan High Court in Ganpat Singh Vs State of
Rajasthan; RLW 2007 (1) Raj 523 relying on Mohd Aman Vs State of
Rajasthan 1997 Crl.L.J 3567 had also held that since finger prints were
not taken before or under the order of the Magistrate, it was unsafe to
accept the evidence led on this regard.
51. The precendents relied on by the Learned Additional Public
Prosecutor in the tabular form holding that the finger prints taken
under section 4 of the Identification of Prisoners Act, 1920 would be
admissible are as under:
S.No. Title Matter in Judgments Relied On
Issue
1. State of Madhya Photographs No Judgments relied on
Pradesh v.
Devender: (2009) 14
SCC 80
2. Manikam v. State: Sample Supreme Court
(2009) 5 CTC 316 Finger Judgments relied on:
Prints (1) Ravanan v. State,
(1994) 1 LW (Crl.) 58
(2) State of T.N. v. T.
Thulasingam, 1994 Supp
(2) SCC 405
3. Mohd. Aman, Babu Sample No judgments relied on
Khan and Another Finger print
v. State of and Foot
Rajasthan: AIR print
1997 SC 2960
52. In State of Madhya Pradesh Vs Devender, (2009) 14 SCC 80 a
bench of three judges of Supreme Court had held that on perusing the
Sections 3, 4, and 5 of the Identification of Prisoner's Act, the Court is
of view that Section 4 deals with taking of measurements, etc. of non-
convicted persons and that it is taken if the police officer so requires it
and it has to be done in the prescribed manner. So far as Section 5 is
concerned, it deals with the power of the Magistrate to direct any
person for measurement or photographs to be taken if he is satisfied
that for the purpose of any investigation or proceedings under the Code
the same is necessary. It was further held that in case of conflict of
directions given by the Court and the provisions of an Act, the
Regulations and the Code, the statute itself prevails. In Mohd Aman,
Babu Khan & Anr. Vs. State of Rajasthan AIR 1997 SC 2960, a bench of
two judges of Supreme Court had held that under Section 4 of the
Identification of Prisoners Act, 1940 police is competent to take
finger prints of the accused and such evidence will not be
inadmissible. In Manikam Vs State, 2009) 5 CTC 316 it was also held
that there is no law which prohibits the investigating officer from lifting
the fingerprint of the accused for comparison during the course of
investigation of the case. In fact, the provisions found under S. 5 of the
Identification of Prisoners Act, 1920 and S. 311-A Cr. P.C. speak only
about the powers of the Judicial Magistrate, when he is approached by
the investigating officer concerned for a suitable direction to the
accused to co-operate by giving his finger-print or signature or sample
handwriting as the case may be. It is to be noted that those
provisions do not put an embargo on the investigating officers
from acting on their own for taking the fingerprint, signature or
handwriting of the accused during the course of investigation. The
Supreme Court has not specifically laid down that the investigating
officer should mandatorily invoke the provisions under section 5 of the
identification of Prisoner's Act, 1920.
53. While appreciating circumstantial evidence, the Court has to
adopt a very cautious approach and should record a conviction only if
all the links in the chain are complete and pointing to the guilt of the
accused. In the present facts and circumstances one of the important
links is the specimen handwriting of the appellant, Sapan Haldar which
matches with the handwriting in the letter found at the place of
kidnapping, Q1 and the ransom note found in the pocket of the
appellant, Q2. Whether or not the specimen handwriting is covered as a
„measurement‟ under the Identifications of Prisoner's Act, 1920 and
even if it is, whether the specimen handwriting taken under section 4 of
Identification of Prisoners Act, 1920 will be admissible or not is a
relevant question in this case. In case the specimen handwriting is not
admissible as has been contended by the counsel for the appellant, a
very pertinent link will be snapped as the other evidence is only
regarding recoveries of articles pursuant to the disclosure statements of
the appellants.
54. The learned counsel for the appellant has relied mainly, on the
judgments of other benches of this Court which have relied on Kathi
Kalu Oghad (supra) Ram Babu Misra (supra),Sukhvinder Singh (supra)
and Jagbir Singh (supra). In State of Uttar Pradesh v. Ram Babu Misra,
AIR 1980 SC 791 the Supreme Court had held that Section 73 of the
Evidence Act does not enable the Magistrate to give directions to the
accused to give his specimen writings when the case is still under
investigation because Section 73 contemplates pendency of some
proceedings before a Court. It does not permit the Court, whether civil
or criminal 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. Relying on Barindra Kumar Ghose v.
Emperor, ILR (1910) 37 Cal.467 the Supreme Court in Pushpadevi
M.Jetia v. M.L.Wadhawan, (1987) 3 SCC 367 in paragraph 20 at page
388 had held that if evidence is relevant, the Court is not concerned
with the method by which it was obtained. In Barindra Kumar Ghose
(Supra) the contention that the Court must exclude relevant evidence
on the ground that it was obtained by illegal search or seizure was
repelled. Referring to page 500 of the report it was noticed:-
"Mr.Das has attacked the searches and has urged that,
even if there was jurisdiction to direct the issue of search
warrants, as I hold there was, still the provisions of the
Criminal Procedure Code have been completely disregarded.
On this assumption he has contended that the evidence
discovered by the searches is not admissible, but to this
view I cannot accede. For, without in any way
countenancing disregard of the provisions prescribed by the
Code, I hold that what would otherwise be relevant does not
become irrelevant because it was discovered in the course
of a search in which those provisions were disregarded."
55. Perusal of State of Bombay v. Kathi Kali Ughad, AIR 1961 SC
1808 reveals that the Supreme Court had held that by giving specimen
writing, the accused person does not furnish evidence against himself
and, therefore, when an accused person is compelled to give a specimen
writing or impression of his finger, palm or foot, it may be such that he
has been compelled to be a witness, however, it cannot be held that he
had been compelled to be a witness against himself. In the
circumstances, the Supreme Court had held that merely taking a
specimen writing does not mean to be giving a statement so as to be hit
by Section 162 of the Criminal Procedure Code.
56. What also emerges from the perusal of Sukhvinder case (supra) is
that it is also distinguishable and does not hold that if the specimen
handwriting is taken from a non convicted persons during custody,
then the specimen handwriting would be inadmissible. The specimen
writings in the instant case of appellant Sukhdev Paul were taken
under the directions of Shri. Garg, Tehsildar -Executive Magistrate,
PW13. No enquiry and trial in this case were pending in the Court of the
Tehsildar-Executive Magistrate. Rather the enquiry and trial in this
case was pending under TADA before the Designated Court only. In
these circumstances the Court was of the view that the direction given
by the Tehsildar -Executive Magistrate to the accused to give his
specimen writings was clearly unwarranted and not contemplated or
envisaged by Section 73 of the Evidence Act despite admission by the
accused in his statement under section 313 of the Cr.P.C. In this case
there was also inherent ambiguity as to the matter of the letters
reaching the hands of the police officials, as the prosecution‟s
explanation for the same was diametrically opposite to the explanation
of the mother of the deceased.
57. A division Bench of this Court in Satyawan Vs State
MANU/DE/1044/2009 had ignored the part of the report of
handwriting expert wherein he had opined that the specimen writings
S-1 to S-8 of an accused Satish matched the writing on the ransom
note on the ground that the investigation officer had taken specimen
writing in violation of the provisions of the Identification of Prisoners
Act, 1920 and also on the ground of being contrary to the law that
specimen writing for purposes of expert opinion can be directed to be
taken under orders of the Court, where the trial is pending, relying on
State of UP. Vs Ram Babu Misra, (supra) and Sukhwinder Singh & ors
Vs State of Punjab, (supra). In this case the investigating officer took
the specimen sample of the accused while he was in custody.
58. In Harpal Singh vs State, MANU/DE/1091/2010, the IO had
obtained the specimen handwriting Ex.PX-1 to Ex.PX-4 of the accused
and sent the same along with Ex.P-1 to Ex.P-4 recovered from the
house of the accused to the Forensic Science Laboratory for comparison
of the handwriting. Before taking the specimen sample of handwriting
he had not taken permission of the Court. Vide FSL report Ex.PW-24/A
it was opined that the writing Ex.P-1 to Ex.P-4 is in the same hand of
the person who had written Ex.PX-1 to Ex. PX-4. During trial no
suggestion was given to the witnesses in the cross examination that the
specimen handwritings were not the handwritings of the accused. The
Court however, excluded the opinion of the handwriting expert
pertaining to the letter recovered by the police. While excluding the
opinion of handwriting expert, the Court had relied on para 7 of the
Kathi Kalu Oghad's (supra) and paras 3 to 6 and para 8 of Ram Babu
Misra (supra). Paras 18 to 23 of Harpal Singh (supra) are 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 1961 Cri.L.J. 856 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 1979 Cri.L.J. 17
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 1961 Cri.L.J. 856, 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 Cr.PC,
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
MANU/MP/0050/1957 : AIR 1957 MP 106, 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 MANU/BH/0069/1962 :
AIR 1962 Pat 255 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 MANU/SC/0783/1994 :
[1994] 3 SCR 1061 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.
59. Though the Division Bench had relied on Ram Babu Mishra
(supra) for excluding the specimen writings, however, in Ram Babu
Mishra it was rather held that section 73 does not permit the Court,
whether Civil or Criminal to give direction to the accused to give
specimen writing for anticipated necessity for comparison in a
proceedings which may later be instituted. The Court had further
observed that signatures and writings are excluded from the range of
Section 5 of the Identification of Prisoners Act. It was further observed
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. But in
Satyawan (supra) the investigating officer took specimen writings
samples while in custody. Similarly in Sukhvinder Singh (supra) relied
on by the Division Bench the Apex Court was of the view that under
Section 73 of Evidence Act it is the court which has to make
comparison and it may either confirm opinion by comparing the
disputed and admitted writings or seek the assistance of an expert to
put before the Court all the material together with reasons which
induce the expert to come to the conclusion that the disputed and the
admitted writings are that of one and the same, and so that the court
may confirm its own opinion on its own assessment of the report of the
expert based on the data furnished by the expert. It was further held
that since directions under Section 73 of the Evidence Act can be
given for the purpose of enabling the Court to compare and not for
the purpose of enabling the investigating or prosecuting agency to
obtain and produce as evidence in the case the specimen writings
for their comparison with the disputed writings, the accused could
be compelled to give his specimen signatures during the course of
investigation. The Court was of the view that recourse to Section 73 of
Evidence Act can be had only when the inquiry or trial is pending before
the Court and the Court wanted the writing for the purpose of enabling
it to compare the same. It was also held that the court, which can issue
such a direction, would either be the court holding inquiry under the
Code of Criminal Procedure or the court trying the accused.
60. Rather in State represented by Inspector Police and ors v.
N.M.T.Joy Immaculate, (2004) 5 SCC 729 it was held that the
admissibility of evidence or a piece of evidence has to be judged having
regard to the provisions of the Evidence Act. The Evidence Act or the
Code of Criminal Procedure or for that matter any other law in India
does not exclude relevant evidence on the ground that it was obtained
under an illegal search or seizure. In the circumstances, the directions
of the High Court that the confession and alleged recovery have no
evidentiary value was held to be clearly illegal and had been set aside.
The Supreme Court had held that the effect of the confession and also
the recovery of the incriminating articles at the instance of the accused
have to be examined strictly in accordance with the provisions of the
Evidence Act.
61. In (1997) 10 SCC 44, Mohd.Aman and Anr v. State of Rajasthan,
the Supreme Court had held that under Section 4 of Identification
of Prisoners Act, 1920 the police was competent to take specimen
finger prints of the accused. It was further held that, however, to
dispel any suspicion or to eliminate the possibility of fabrication of
evidence such specimen finger prints should have been taken before or
under the order of a Magistrate. In para 8 of the judgment the Supreme
Court had held as under:-
"....... 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 bonafides 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. The other related infirmity from which the
prosecution case suffers is that the brass jug, production of
which would have been the best evidence in proof of the
claim of its seizure and subsequent examination by the
Bureau, was not produced and exhibited during trial-for
reasons best known to the prosecution and unknown to the
Court. For the foregoing discussion we are unable to
sustain the convictions of Mohd.Aman."
62. The Supreme Court again in Pooran Mal v. The Director of
Inspection (Investigation), New Delhi and Ors., (1974) 1 SCC 345 had
held that neither by invoking the spirit of our Constitution nor by a
strained construction of any of the fundamental rights it can be held
that the evidence obtained on an illegal search can be excluded. It was
further held that so far as India is concerned its law of evidence is
modeled on the rule of evidence which prevail in English law, and
Courts in India and in England have consistently refused to exclude
relevant evidence merely on the ground that it is obtained by illegal
search or seizure.
63. In Shankaria v. State of Rajasthan, (1978) 3 SCC 435 construing
the provisions of Section 4 & 5 of Identification of Prisoners Act, 1920 it
was held by the Supreme Court that police is competent under Section
4 of the said Act to take specimen fingerprints of the accused. In this
case the fingerprints of the accused were taken before the
Superintendent of Police Sh.K.P.Srivastava and it was held that it
was not necessary for them to obtain an order from the Magistrate
for obtaining such fingerprints. The relevant para 84 at page 458 is as
under:-
"84: The contention appears to be misconceived because
in the State of Rajasthan, the police were competent under
Section 4 of the Identification of Prisoners Act, to take the
specimen finger-prints of the accused, and this they did, in
the instant case, before the Superintendent of Police,
Sh.K.P.Srivastava. It was not necessary for them to obtain
an order from the Magistrate for obtaining such specimen
finger-prints."
64. In State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 a
plea was raised on behalf of the accused that the tape recorded
conversation obtained by interception could not be utilized by the
prosecution to incriminate them. The plea was opposed by the
prosecution contending that the illegality or irregularity does not affect
its admissibility in evidence as there was no specific embargo against
the admissibility in the Telegraph Act or in the rules. The Supreme
Court had held at page 717 in paragraph 154 that the non compliance
or inadequate compliance with the provisions of the Telegraph Act does
not per se affect the admissibility. The Supreme Court had placed
reliance on R.M.Malkani v. State of Maharashtra, (1973) 1 SCC 471
where it was clarified that a contemporaneous tape record of a relevant
conversation is a relevant fact and is admissible as res gestae under
Section 7 of the Evidence Act. Reliance was also placed on Karuma v.
Reginam, (1955) 1 All. ER 239 where the judicial committee had held
that if evidence is admissible it matters not how it was obtained. It was,
however, further held that the judge has the discretion to disallow
evidence in a criminal case, if the strict rules of admissibility would
operate unfairly against the accused.
65. From the above discussion it is apparent that the Division Bench
in Harpal (supra) and other matters did not take into consideration the
ratio laid down by the Supreme Court in Mohd. Aman & Anr. Vs State
of Rajasthan(supra) categorically holding that under section 4 of the
Identification of Prisioners Act, 1920, the police is competent to take
measurements of the accused and similarly in Shankaria Vs State of
Rajasthan, (1978) 3 SCC 435 the provision of section 4 & 5 of the
Identification of Prisioner;s act, 1920 were considered and it was held
that the police is competent under section 4 of the said act to take the
measurements of the accused. In Ram Babu Misra (supra) the finger
prints and signatures were not treated at par and it was rather
observed that the specimen signatures and writing are excluded from
the range of section 5 of the Identity of Prisoners Act, 1920. It was
further observed that section 73 of the Evidence Act would not apply at
the stage of investigation and so section 5 of the Identification of
Prisoner's Act, 1920 has made special provisions for that stage and
even while making such provision, signatures and handwriting were
deliberately excluded. Sukhvinder Singh (supra) referred to in Harpal
Singh (supra) has also not considered the ramification of section 4 of
the Identification of Prisoners' Act, 1920 nor has taken into
consideration Mohd Aman (supra) and Shankaria (supra) categorically
dealing with the scope of section 4 of the Identification of Prisoner's Act,
1920.
66. What emerges from the above discussion is that section 73 of the
Indian Evidence Act 1872 enables the Court to direct the taking of
specimen handwritings, in matters pending before it. The direction is
therefore, given by the Court for the purpose of enabling the Court to
compare and not for the purpose of enabling the investigating or a
prosecuting agency to obtain and produce as evidence in the case, the
specimen handwritings for their ultimate comparison with the letter and
the ransome note in question(Q1 & Q2). Thus it certainly does not bar
the police officials to take specimen handwriting for the purposes of
investigation. As noted by the Constitution Bench of Supreme Court in
Kathi Kalu Oghad (supra) such evidence does not stand barred by
Article 20(3) of the Indian Constitution, as it is not deemed as being "a
witness against oneself", and it does not amount to testimonial
compulsion. Rambabu Mishra (supra) also clearly lays down that
specimen handwritings and signatures, do not come within the purview
of the Identification of Prisoners Act.1920. It was further observed 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. Thus
under the said Act, obtaining sample handwriting or signatures is not
barred under any provisions of the said act and any sample
handwriting or signatures taken by the police or investigating agency,
unless specifically barred under any other legislation, cannot be
excluded being not contrary to any provision of the said Act. In any case
even if it is assumed that specimen handwriting comes within the ambit
of "measurements" in the Identification of Prisoners Act, 1920, it was
held categorically that police officials are undoubtedly empowered to
take measurements, etc under S. 4 of the Identification of Prisoners Act,
and S.4 of the Act is independent of Sec. 5, in its application.
67. In the circumstances, it is inevitable to infer that the Supreme
Court has not held in Kathi Kalu Oghad (supra); Rambabu Mishra
(supra) and Sukhvinder (supra) that the sample handwriting obtained
by the police officials is not admissible and has to be excluded. Any
view to the contrary appears to be not in consonance with these
judgments of Supreme Court.
68. Thus I am of the view that the specimen handwritings which were
taken from the appellant, Sapan Haldar is not covered the provisions of
the Identification of Prisoners Act, 1920, and therefore since it is not
specifically bared under any law, it will be admissible in evidence and
cannot be made inadmissible on the ground that permission under
section 5 of the said Act was not taken from the concerned Magistrate.
In any case, I am of the opinion that section 4 and section 5 are
independent of each other.
69. Another Bench of this Court in Crl.A. No. 1005 of 2008 titled as
Bupender Singh Vs The State (Govt. of NCT of Delhi) by order dated 6th
April, 2011 had held sample finger prints which were taken in that case
under section 4 of the Identification of Prisoners Act, 1920 will be
admissible in evidence and cannot be made inadmissible on the ground
that permission under section 5 of the said Act had not been taken from
the concerned Magistrate. The Bench which decided Crl.A. No. 1005 of
2008 by order dated 6th April, 2011, however referred the question
"Whether the sample finger prints taken from the accused during
investigation under section 4 of the Identification of Prisoners Act,
1920 will be admissible or not?" to the larger Bench.
70. The sample handwritings and signatures are not covered under
the Identification of Prisoners Act, 1920 as had been held by the
Supreme Court. If a measurement which is covered under the
provisions of Identification of Prisoner‟s Act, 1920 is not inadmissible if
it is taken under section 4 of the said act without the permission of the
concerned Magistrate, a fortiori, sample handwritings and signatures
which are not covered under the said Act will not be inadmissible on the
ground that they were taken without the permission of the concerned
Magistrate under section 5 of the said Act. Since other Benches of this
Court as detailed hereinabove have held differently holding that such
specimen handwritings and signatures will be inadmissible, it will be
appropriate to have the decision of a larger Bench on this Issue.
71. The other issues raised in this appeal, therefore, should be
decided after the decision of this issue by a larger Bench " Whether the
sample handwritings and signatures taken from the accused during
investigation without the permission of the Magistrate would be
admissible or not and would be covered under the provisions of the
Identification of Prisoners Act, 1920."
August 11, 2011 ANIL KUMAR, J.
Vk/k/rs
SURESH KAIT J.
1. The appellants have challenged the judgment dated 02.05.2001
passed by the Trial Judge, whereby the appellants were held guilty
under section 364A and 365 read with section 120 B of Indian Penal
Code, and order dated 04.05.2001 sentencing the appellants to
imprisonment for life and a fine of Rs. 3,000/- each, in default of which
to further undergo rigourous imprisonment for three months each.
2. The case of the prosecution in brief is that on 06.03.1998 at
about 7:15 a.m., Subashish s/o Sh. Ashish Chatterjee and his two
sisters, had come down from their house, flat no. E-52, Sarita Vihar, as
they were to leave for their school in their private car to DPS Vasant
Kunj. The driver, namely Santosh was sitting on the driver‟s seat of the
car and waiting for them. The sisters of Subashish were sitting at the
rear end of the car, while he was sitting besides the driver. Suddenly,
four men with muffled faces entered into the car forcefully. Two persons
put a revolver on the temple of Santosh and one person dragged
Subashish out of the car and took him into a Maruti car bearing no.DL
3CC 6161. The fourth person was already sitting at the steering wheel
of the Maruti car. Thus, the child was kidnapped by these unknown
persons. Before escaping in the car, the kidnappers had allegedly left
behind a letter, written in Hindi, at the place from where the child was
kidnapped. The note reads as follows:-
"Need not worry, your child is safe with us. He will not
suffer even a scratch. But if you dare to inform the
police you on your own will be responsible for the
death of your child. If you want your child back safe
and sound then you have to accept my terms, which
will be told to you on the phone. If you dare to do
anything undesirable such as taping the telephone or
taking the assistance of police you will definitely be
awarded the prize and that will be in the form of dead
body of your son, which you will find lying on the side
of some road. Police can only give you the corpse but
not our address. If you want to get your son sound,
safe and alive, that if you agree to accept our each
and every terms & condition then tie a green coloured
cloth on the grill of your terrace. You will receive our
phone after 24 hours."
3. A complaint was lodged with the police by Mr. Ashish Chaterjee,
father of the kidnapped child, vide Ex.PW2/A. The note left behind by
the kidnappers and a postcard, Ex 13/22 allegedly received, from the
kidnappers, by the family of the kidnapped boy, were also handed over
to the police. Thereafter, a police team headed by SI Rajbir Singh
gathered at Sarita Vihar, to trace out the child. The police received the
information that the car having the child in it had gone towards Village
Madan Pur Khadar. After which the police officials searched Parmar
colony in search of the kidnapped child. The police then received the
information that the alleged car used by the kidnappers had met with a
serious accident. A broken down electric pole was also found, which
was on account of the said accident. The car was subsequently
recovered at a Kucha Road ahead of Narula Farm. The number plate on
the front of the car bore the registration No.DL 3C 661, while the
number plate on the rear of the car bore the registration No. DL 3C
6261. However, no one was found inside the car. All what was recovered
from the car was one broken injection of Diazepam which was found in
a polythene bag in the rear seat of the car, along with one green cloth.
The cloth, as well as, the broken injection were wrapped in a cloth and
sealed with the seal of „RS‟. The driver of the car, Santosh was also
present at the time and he identified the car as the one in which the
kidnapped child was taken. Thus, the car was seized by the police
officials.The police party then extended their search to village Meetha
Pur for further investigation. One Baldev Singh met the police and
informed them that one lady and one boy had taken the child in an
auto rickshaw driven by his tenant Tammana. At the time these
persons had claimed that the child was sick. Tamana subsequently
joined in the search and he led the police team to a place in Village
Meetha Pur. There, one lady named Rita, told the police, that accused
Shefali and her son co-accused, Sapan Haldar had come to her house
along with a child who was covered with a sheet. Allegedly
accused/appellant Shefali had told her that the child was sick and
hence she had asked for some water. After 10 minutes, the accused
persons left saying that they were taking the child to the hospital.
Thereafter, Rita also joined in the investigation.
4. Rita took the police team to the house of appellant Shefali in
Parmal Colony. The door of the house was found to be closed from
inside. Since, there was delay in opening the door, the police officials
forcefully pushed the door open.
5. As per the case of the prosecution, appellant Shefali was found
inside the room along with the kidnapped child sitting on a wooden
Takhat. The name of the child was Subashish, who was about ten years
old. Thereafter, the police waited there, for the arrival of appellant
Sapan Haldar as Shefali had told them that he had gone to buy some
milk for the child and that he would be coming back soon. Accused,
Sapan Haldar returned home after 20 minutes, and was identified by
Tammana and Rita. Thereafter, he was arrested by the police.
6. On the search of accused Sapan Haldar, a country made pistol
was found in the left side pocket of his pant. Two live cartridges were
also recovered from the right side pocket of his pant and one cartridge
was found in the pistol itself. Three lined papers were also recovered
from the side pocket of the shirt of accused Sapan Haldar, of which one
was written and the remaining two were blank. Allegedly, it contained a
demand for Rs.25 lacs as ransom. These papers were seized vide memo
Ex.PW 13/8. The child was recovered by the police around evening
time, vide memo Ex. PW 13/1, and was handed over to his parents at
about 10 PM. A green colour sweater, was seized Ex. P2 and a belt with
the words Delhi Public School, Vasant Kunj written on it, Ex.P1
belonging to the kidnapped child and one number plate on which black
paint had been applied on the registration number, Ex. PW13/5 which
were produced by the accused Sapan Halder from his house in Parmal
Colony, were also seized. The accused Sapan Haldar also produced one
injection of Diazapam and some other injections from his clinic in
Madanpur Khadar Extention, which, were allegedly used on the child to
make him unconscious.
7. The case of the prosecution is that the appellants were party to
the criminal conspiracy to kidnap the child Subashish for ransom. This
is also the case of the prosecution that the house from where the child
was recovered belonged to the appellants Shefali and Sapan Haldar.
8. Pursuant to his arrest, accused Sapan Haldar made a disclosure
statement on 06.03.1998, in which he divulged that the conspiracy was
hatched to kidnap the child Subashish, also included persons namely,
Suraj, Dharampal and a Muslim person, who he did not name.
However, on 14.03.1998 he divulged the correct names of his
accomplices as Umesh and Ramesh.
9. Subsequently, secret information was received by the police, that
accused Umesh, who was wanted in this case was present near Jeevan
Nursing Home. Thus, Umesh was identified by appellant Sapan Haldar
and was arrested by the police at the spot mentioned above, on
17.03.1998.
10. This is also the case of the prosecution that an Identity card Ex
PW7/1 of the kidnapped child was recovered from the possession of the
accused Umesh on the day of the arrest. In the evening of the same day,
the police party moved in search of accused Ramesh. At about 6:30 PM
they were taken to Govind Puri by accused Sapan Haldar and Umesh.
Thereafter, accused Ramesh was found at a tempo stand, near a temple
and was apprehended by the police. He was interrogated whereby he
made a disclosure statement that a country pistol, one revolver and air
gun and cartridges were concealed by him under the sand of River
Yamuna, slightly ahead of the place where the Maruti car was
abandoned. Accused Ramesh took the police to the place on
18.03.1998, however, nothing could be recovered.
11. On 28.03.1998, the police further took police remand of Ramesh
and on 29.03.1998, accused Ramesh, while in police custody took the
police to the bank of River Yamuna near Narula Farm. Pursuant to
which one country made revolver/pistol, one revolver and four
cartridges were recovered at the instance of accused Ramesh.
12. The specimen handwriting of Sapan Haldar S1 to S6 vide memo
Ex. PW13/20 and that of Umesh S7 to S9 vide memo. Ex PW 13/19
was obtained by the Police. Thereafter, the specimen handwritings were
sent to the FSL, Malviya Nagar, for comparison with the threat letter,
ransom note as well as the postcard allegedly received from the
kidnappers. The handwriting expert opined that the writing on the letter
left by the kidnappers at the place of the kidnapping matched with the
sample handwriting of the appellant Sapan Haldar.
13. On 07.03.1998, the IO had moved an application Ex. PW 17/12
for fixing a date for holding the Test Identification Parade (TIP) of
accused Sapan Haldar. Accused Sapan Haldar was produced before the
court in a muffled face. The TIP was fixed for 11.03.1998, however, on
the said date the court declined to hold the TIP on the ground that the
photographs of the accused Sapan Haldar had appeared in The
Hindustan Times on 8th March 1998, therefore, there was no point in
holding Test Identification Parade.
14. On 18.03.1998, again an application, Ex.PW11/1 for holding the
TIP of accused Umesh and Ramesh was filed. The date of 23.03.1998
was also fixed for holding the test identification parade of the accused
persons. However on that said date another application was moved by
Ex. PW 11/2 for fixing another date as the witnesses had suddenly left
for Calcutta. Thereafter the date of 27.03.1998 was fixed by the Court
for holding TIP of the accused persons, however, on that day the
accused persons who were produced in muffled faces, refused to
participate in the proceedings.
15. Charges under Sections 120-B, 364-A and 506 of the Indian
Penal Code were framed against the appellants by the learned Sessions
Judge to which they pleaded not guilty and claimed trial . A separate
charge under Section 25 of the Arms Act was framed against the
accused Ramesh to which he pleaded not guilty and claimed trial.
16. The prosecution examined 19 witnesses in support of its case and
the accused persons were examined under Section 313 of the Code of
Criminal Procedure however no witness had been examined in their
defense.
17. The trial court examined the evidence on record and considered
the defense of the accused persons and ultimately concluded on the
guilt of the appellants. However, the trial court was of the view that
there was no sufficient evidence on record to inculpate the guilt of
accused Umesh and hence he was acquitted, while the Trial court found
enough evidence on record to convict accused Ramesh under Section
25 of the Arms Act.
18. The instant appeal is against the order of conviction and
sentence imposed on the accused persons being filed by appellants,
Shefali and Sapan Haldar.
19. Learned counsel for the appellants has contended that the star
witness, as per the prosecution, is Tammanna, PW4 who deposed that
appellant Shefali along with one man had come to him on 06.03.1998
with a boy of about 10 years and had hired his auto to be taken to a
hospital, however, on the way to the hospital they had stopped the auto
and taken his scooter to Meetha Pur. Thereafter, they asked
Tammanna, PW-4 to stop the auto outside a house and instructed him
to knock on the door. This witness has identified accused Shefali in the
Court.
20. However, the learned counsel contended that no reliance can be
placed on this witness since he also deposed that the police had come
to his house on the next day at about 7:00 AM which is diametrically
opposite to the story of the prosecution; which is that the police had
gone to the house of PW4 on the same day of the alleged incident. It is
also pointed out that whereas PW4 had stated that the door of the
house, from where the child was recovered, was locked from the
outside, the police officials had claimed that the door was locked from
the inside which was subsequently broken by the police.
21. The learned counsel asserted that such a major contradiction
goes to the very root of the matter and hence should not be relied on
and therefore the benefit of this inconsistency should be given to the
appellants.
22. Learned counsel further contended that, as per the deposition of
PW-2, the mother of the kidnapped child, four men had come and all of
them were in muffled faces. Thus it is asserted that the witness could
not have known who the four persons were, and also no woman was
present at that time. It is further argued that even the number plate of
the car in which the child was allegedly kidnapped was given to PW-2
by the driver Santosh, PW-8 and that she had not noted the number
plate on her own, hence the trial court gravely erred in taking this into
consideration, as PW-8 himself deposed that he had not given the
number of the car to the police as DL-3C-6161.
23. The learned counsel further substantiated his submission by
placing reliance on the deposition of PW-3, Sh. Ashish Chaterjee, father
of the kidnapped child, who also stated that he was not aware of the
identity of the persons who had taken his child as they were in muffled
faces. It was thus submitted that there is absolutely no direct evidence
that links the appellants to the offence committed, except for the
circumstantial evidence which itself has many links missing and hence
is not enough to inculpate the appellants.
24. The learned counsel has also attempted to highlight the
improbabilities in the deposition of PW-4, Tammanna who had deposed
that appellant Shefali, who was accompanied by a man and a child of
about 10 years had hired his auto for taking the child to the hospital.
However, instead of going to the hospital, the appellant had stopped the
auto and took the scooter of PW-4 to a house. Thereafter, PW-4 was
asked to knock on the door of the house and he had even assisted the
appellant Shefali in lifting the child from the scooter. The learned
counsel contended that if two persons were indeed present with the
child at the time, then why was PW-4 asked to knock on the door of the
house and also why was PW-4 asked to lift the child, as the child could
have been easily lifted by the other two persons. According to the
counsel, the house in which the child was initially taken to, has not
been identified by the prosecution and neither does PW-4 remember the
number of the house nor the occupants of the same. Hence, a very
important link which is the foundation of the prosecution‟s allegations
has not been established.
25. It is also contended that in the deposition of PW4 another lady
was also present in the house at the time the child was allegedly
recovered from the house of the appellant Shefali and apparently that
lady was the daughter-in-law of the appellant. However, neither the
statement of this lady had been recorded nor had she been examined.
Thus, it is contended that there are serious lacunas in the story put up
by the prosecution and chain is not complete, since the major links are
missing. It was also contended that as per the deposition of PW4
Tammanna, he has categorically stated that he had seen accused
Shefali on the day of the incident and since that day he had only seen
her in the court.
26. According to the learned counsel appellant Shefali should have
been duly identified by PW4 by means of TIP and the absence of it, in
the facts and circumstances, is a serious lapse on the part of the
prosecution and the same cannot be held sufficient to inculpate the
guilt of the appellant. It is further pointed out that Sapan Haldar and
Shefali had never refused TIP and therefore an adverse inference for the
same is not possible against the appellants.
27. The learned counsel further contended that the sister of the
kidnapped child, PW-5 Ms.Sananda Chatterjee had deposed that her
brother had been kidnapped in a Maruti 800 car brought by the four
kidnappers, which is diametrically opposite to the deposition of PW-8
Santosh the driver, who had deposed that there were three kidnappers
and that the child was kidnapped in an ambassador. He had also
deposed categorically that he had not given the number of the car as DL
3C 6161 nor had he stated that the car was a Maruti. He had also
testified that he had narrated the events to the police, however his
statement was not recorded in writing before him and that his
signatures were obtained on plain papers. He had further testified that
he had not given any letter to PW2 as deposed by her in court.
28. As per the learned counsel, these contradictions are too grave and
the Trial court was wrong to have not taken them into consideration.
According to the learned counsel, even though PW-8 had deposed that
he could identify the driver of the car in which the child was kidnapped,
however, he did not identify either of the appellants as being the driver
of the car in which the child was kidnapped. Even the suggestion as to
the fact that he had resiled from his earlier statement made before the
police was denied by him. The learned counsel submits that on all
counts the prosecution has failed to bring any conclusive evidence on
record to inculpate the guilt of the appellants.
29. The learned counsel further discredited the deposition of PW6,
the owner of the alleged car which was stolen and in which the child
was allegedly kidnapped by the appellants and who had made a
complaint at Police Station Kalkaji regarding his Maruti car bearing
No.DL 1CB 1729 being stolen on 04.03.1998. According to the learned
counsel, the prosecution had propounded that, at the time the car was
seized it was having two number plates i.e. a number plate bearing
No.DL 3C 6261 in the front while the number plate bearing No.DL 3C
661 in the rear, however PW-6Sh.Chander Bhan had deposed that
there was no number plate on the car when it was delivered to him.
Thus it could not be established that it was the same car bearing the
two separate number plates which was seized by the police and which
was allegedly used by the appellants to kidnap the child. PW-6 had
further deposed that the left window of the car was broken at the time
of delivery, however no other damage was found on the car. Thus, the
learned counsel contended that it is extremely odd that when as alleged
by the prosecution through the deposition of PW-17 SI Rajbir Singh, the
car had hit an electric pole and was found in an overturned position;
then how could it be possible for the car to have not been further
damaged. It is contended that such inconsistencies cannot be viewed
lightly and that the same ought to entitle the appellant the benefit of
doubt. It was further asserted that in addition, the appellants had not
been convicted for the offence of theft of the car.
30. Learned counsel further contended that even though the
prosecution had alleged that Tammanna and Rita both had led them to
the appellants and subsequently a search was conducted, and certain
recoveries were made, however neither Tammanna nor Rita had
deposed about these recoveries. Thus, there is a likelihood of the alleged
recoveries been planted by the prosecution. Also while PW-13, ASI
Dharam Vir, had deposed that the child was recovered from A-59, Shiv
Puri, Meetha Pur Extension, the prosecution alleges that the child was
recovered from Parmal Colony, Madanpur Khadar. Learned counsel also
urged that there is absolutely no evidence of common intension, nor
were any demands for ransom made by the appellants u/s 364 A of
Indian Penal Code, nor was there any recovery of fire arm from the
appellants.
31. The learned counsel for the petitioner has relied on the following
citations:-
(i) Mushir Khan @ Badshah Khan v. State of M.P, 2010 (3) JCC
1648;
(ii) Shankar & Ors v. State of NCT of Delhi, 2010 (3) JCC 2067;
(iii) Prem Kumar v. State of Rajasthan, 2009(1) JCC 482;
(iv) Ravinder Singh v. Government of NCT of Delhi, 2009 (1) JCC 91;
(v) Syed Peda Aowlia v. Public Prosecutor of Andhra Pradesh, 2008
(3) JCC 1806;
(vi) Sambhaji Hindu Rao Deshmukh & Ors v. State of Maharashtra,
2008 (1) JCC 542;
(vii) Balu Bakthavatchalu v. State of Tamil Nadu, 2008 (1) JCC 554 :
2001 Crl.Law Journal 669;
(viii) Netra Pal v. State; 2009 (3) JCC 2192;
(ix) Chotey Khan v. State & decision dated 14.05.2009 in Crl.Appeal
No.513/2001; and
(x) Awdesh v. State; State of Punjab v. Sucha Singh & Ors, 2003 (3)
SCC 153.
32. It is further contended by the learned counsel in support of his
pleas and contentions that, if a prosecution witness has turned hostile
and in the cross-examination the witness has deposed against the
accused and in favour of the accused then the deposition in favour of
the accused has to be accepted and that a mere writing of a letter by
the accused and keeping the same in his pocket would not tantamount
to demand of ransom in the absence of its communication to the family
of the kidnapped child.
33. The learned counsel also relied on Awdesh v. State (Supra) to
contend that if the specimen handwriting of the appellant were obtained
by the IO when the accused were in custody and the identification as
required under the Identification of Prisoners Act, 1920 was not done
nor any orders were obtained from the Court of competent jurisdiction,
then the specimen handwriting obtained for the expert has to be
excluded while considering the evidence.
34. In State of Punjab v. Sucha Singh & Ors (Supra) 24 injuries were
inflicted on the body of the son, however, the father allegedly remained
a mute spectator. In such circumstances the presence of father was
disbelieved. Another witness who was allegedly present at the place of
occurrence and saw the occurrence who had, however, taken a shifting
stand, had been held to be an unreliable witness and not credit worthy.
No reliance was placed on the testimony of such a witness to establish
his presence at the place of occurrence which would have formed the
basis of conviction. The conduct of the father who remained a mere
spectator to the innumerable wounds inflicted on his son was also
disbelieved.
35. While, relying on Musheer Khan @ Badshah Khan & Anr. v. State
of M.P.(supra), the learned counsel for the appellants has contended
that in case of circumstantial evidence, every link in the chain of
evidence must be proved beyond reasonable doubt and such a chain
must exclude any inference except the guilt of the accused. While
appreciating the circumstantial evidence, when, there is a conflict
between the presumption of innocence and any other presumption then
the former must prevail.
36. It is also contended that in order to justify inferences of guilt, the
inculpatory facts must be incompatible with the innocence of the
accused and it should be incapable of explanation upon any other
reasonable hypothesis except his guilt.
37. In the circumstances, it is contended that while construing the
testimony of PW-9 Rita caution must be , since she had been declared
hostile after she deposed that she does not know the accused person in
her examination-in-chief. While on the other hand she also made the
statement that it is correct that on 06.03.1998, accused Shefali Haldar
and her son Sapan had come to her house along with a child who was
covered with a sheet and that they had told her that the child brought
by them was sick and demanded water from her and that after 10
minutes, they went back on the pretext that they had to take the child
to the hospital, when police came to her house. As per the learned
cuncel this should not be accepted against the appellants since the said
witness during her cross-examination when was asked to reconcile the
diametrically opposite depositions made by her, had again deposed that
she could not identify whether the accused Shefali and her son Sapan
Haldar present in the court were the same persons or not.
38. According to the learned counsel for the appellants since two
contradictory depositions have been made by the said witness, the
deposition which establishes the innocence of the appellants must be
accepted and not the portion of the deposition which inculpates the
alleged guilt of the appellants.
39. Referring to Shankar & Anr. v State (N.C.T) of Delhi (supra) decided
by a Division Bench of this Court, it has been contended on behalf of
the appellants that before the Court bases conviction on the testimony
of an eye witness, it must be satisfied that he is a truthful witness so
that implicit reliance can be placed on his testimony. In order to form
the basis of conviction, the testimony of the eye witness should be such
that it inspires confidence and leaves no reasonable doubt about the
accused‟s presence at the scene of occurrence. If the behaviour of the
person claiming to be an eye witness is contrary to the course in which
a similarly situated person would normally behave and there is no
satisfactory explanation for such an abnormal conduct, it will not be
safe to base the conviction solely on the basis of his testimony, since his
very creditability stands impeached and becomes suspect on account of
such behavior.
40. In Prem Kumar v. State of Rajasthan (supra), the Supreme Court
dealt with the principles governing and regulating the hearing of the
appeal against an order of acquittal holding that before reversing the
finding of acquittal, the High Court has to keep in view the fact that
presumption of innocence is still available in favour of the accused and
is strengthened by the order of acquittal passed in his favour by the
trial court, and the High Court should not substitute its own view with
the view of the trial court as the trial court had the advantage of looking
at the demeanor of the witnesses and observing their conduct in the
Court specially in the witness box.
41. The learned counsel for the appellants relied on Syed Peda Aowlia
(supra) in support of his contention that a portion of the testimony of a
hostile witness supporting the case of the prosecution has to be
rejected. It was held that a miscarriage of justice which may arise from
acquittal of the guilty is no less than the conviction of an innocent, it
was further held that in a case where admissible evidence is ignored, a
duty is cast upon the appellate court to reappreciate the evidence where
the accused has been acquitted for the purpose of ascertaining as to
whether any of the accused really committed any offence or not.
42. Similarly, in Sambhaji Hindurao Deshmukh (supra), it was held
that while appreciating the evidence, if two views are reasonably
possible from the evidence on record, the view favoring the accused is to
be preferred and adopted. It was further held that the very fact that two
views are possible makes it clear that the prosecution has not proved
the guilt of the accused beyond reasonable doubt and consequently, the
accused is entitled to the benefit of doubt.
43. In Netra Pal (supra), a Division Bench of this Court had held that
mere writing of a letter by the accused which is not communicated to
the concerned person seeking ransom and keeping such letter in his
pocket would not tantamount to a demand to pay a ransom in the
absence of communication of the same and an offence under Section
364A of the Indian Penal Code will not be made out in the facts and
circumstances. In this case, only one letter which was exhibited as
Ex.P-1 was recovered from the possession of the accused incorporating
a demand to pay a ransom which admittedly was not delivered to the
family of the kidnapped person. There was no allegation of
communicating the demand of ransom in any other manner. In these
circumstances, it was held that a letter incorporating the demand for
ransom which was found in the pocket of accused, which was not
communicated to the family of the kidnapped child would not constitute
demand of ransom, as contemplated under Section 364A of the Indian
Penal Code.
44. Relying on another judgment of the Division Bench in the matter
of Chote Khan (supra) it is contended that where ransom calls are made
on telephone with no threat of any kind, or simplicitor calls for ransom
which eventually led to recovery of the child, in total absence of
evidence in regard to any threat to cause death or hurt to the
kidnapped child and also lack of evidence in regard to the accused
conducting themselves in a way that could raise a reasonable
apprehension that the child would be harmed or be killed; the ransom
demand simplicitor alone could not bring the offence within the ambit
of Section 364A of Indian Penal Code. In the circumstances, the
Division Bench had set aside the conviction and sentence for offence
punishable under Section 364A and 365 of the Indian Penal Code and
had maintained the conviction only under Section 363 of Indian Penal
Code.
45. Per contra, the learned Additional Public Prosecutor, Mr.Sawhney
has contended that sample handwritings of the appellant cannot be
rejected on account of alleged non compliance of the provisions of the
Identification of the Prisoner's Act, 1921. The contention of the learned
counsel is that Section 4 of the said Act contemplates a situation where
the accused gives the sample handwriting willingly, whereas, the
sample handwriting of an accused can be obtained under Sections 5 &
6 of the said Act, even if he is not desirous to give the sample
handwriting willingly. He further contended that since the
consequences of not following the procedure have not been given in the
said act, therefore, the sample handwriting and the disputed letters
which are Exhibit Q-1 and Q-2, the ransom letters in the handwriting of
the appellant No.1, cannot be excluded on the ground that the sample
handwritings were not obtained in compliance with the provisions of the
said Act.
46. He further asserted that the term "prescribed procedure" in
Section 4 does not imply a permission from the Courts/Magistrate but
instead implies the procedure to be followed by the police while taking
the measurements of a non-convicted person as established under the
rules of Section 8 of the Act.
47. According to the learned counsel, the appellant never objected to
taking of his sample handwriting and since the sample handwriting was
given willingly and the plea that the same was taken under coercion,
was not taken earlier nor was any such suggestion given to the
witnesses in the cross examination, and it has been taken for the first
time in the supplementary statement of appellant under section 313 of
Code of Criminal Procedure, therefore, it cannot be allowed to be taken
now, at such a belated stage. The learned counsel further contended
that the hand writing samples of the appellant Sapan Haldar was taken
in the proper and prescribed manner and with his consent. The
handwriting was taken in a fast-mode, medium-mode and slow-mode
and then sent for comparison.
48. Relying on Puran Mal v. Director of Investigation (Inspection),
(1974) 1 SCC 345, learned APP contended that in India relevant
evidence cannot be excluded merely on the ground that it is obtained by
illegal search or seizure or contrary to the provisions of certain Act,
where, the consequence of not complying with the provisions are not
provided.
"Where the test of admissibility of evidence lies in relevancy,
unless there is an express or necessarily implied prohibition in the
Constitution or other law, evidence obtained as a result of illegal search
or seizure is not liable to be shut out."
49. The learned counsel for the State has also relied on State (NCT of
Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 and contended that non
compliance or inadequate compliance with the provisions of an
enactment does not per se affect the admissibility unless the
consequences of non compliance or inadequate compliance have been
spelt out specifically.
50. Relying on the Telegraphic Act which specifically prescribes
rejection of the evidence obtained by taping without permission, it is
contended that the Identification of Prisoners Act, 1921 does not
prescribe or provide any such consequences.
51. In the circumstances, according to the submission of the learned
APP, the factum of sample handwriting of Sapan Haldar cannot be
ignored and consequently Exhibit Q-1 and Q-2 which have been
established to be in the handwriting of Sapan Haldar by the
handwriting expert PW-19 Sh.Harsh, Senior Scientific Officer is entitled
to be considered.
52. Refuting the plea of the appellants that the material witnesses
have not identified them, it is submitted by the learned APP that the
threat was extended to the father of the child PW-1, who had been
kidnapped about which he had deposed categorically in his statement
on 27.06.2000 where he had stated that he was threatened to bear the
consequence in case he appeared in the Court. The stand of the
witnesses including the father‟s, mother‟s and the child‟s itself reflects
the consequent softening. According to him if all the testimonies are
taken and considered, it is apparent that the essential facts regarding
the accused/appellants have been deposed by the witnesses.
53. It is contended that the kidnapped child PW-1 Subhashish has
deposed in his unimpeachable testimony that he was kidnapped and
taken away in a Maruti 800 car. He has also deposed about an injection
being given to him in his hip after being kidnapped in the car where
after he did not remember as to what had happened to him. He has
however, deposed about the involvement of four persons and one
woman though he has denied that his belt and sweater were not with
him, however the case of the prosecution is that the belt and sweater of
the kidnapped child were recovered by the police from the appellant
Sapan Haldar.
54. The learned APP has contended that the driver of the car PW-8
Santosh Jha had deposed incorrectly in respect of certain matters
either on account of collusion with the appellants or on account of fear
of threat by the appellants who had also threatened the father of the
kidnapped child. He has also referred to a suggestion given to him that
he has deposed falsely deliberately in order to save the accused
persons.
55. According to him though he had deposed that the car in which
the child was kidnapped was an Ambassador, however, the car was a
Maruti 800 stands substantiated by the fact that at the very first
instance the number of the car and the make of the car was given by
the father of the kidnapped child and it was incorporated in the
complaint as well. Even PW1 categorically deposed that he was
kidnapped in the Maruti 800 car, therefore, the testimony of PW-8
Sh.Santosh Jha deposing that the car was an Ambassador will not
dilute the case of the prosecution regarding kidnapping of the child PW-
1 Subhashish by the appellants in a Maruti 800 car.
56. The learned Public Prosecutor has also relied on the testimony of
Tammanna, scooter driver PW-4 who has categorically identified
accused Shefali as the woman who had come with a child to him and
had represented that she had hired him to take the child to the
hospital, stating that he was her son, however, on the way instead of
going to hospital he was taken towards Meetapur. Since the incident of
kidnapping is of 06.03.1998, whereas the statement of the scooter
driver was recorded on 01.09.2000. Therefore, on account of the time
gap, if the driver had deposed that the child was recovered in the
morning, whereas, it stands established that the child was recovered on
06.03.1998 itself, the testimony of PW-4 will not be weakened so far as
the other facts deposed stood corroborated and established.
57. According to the counsel, the link is further strengthened as it is
on the basis of the information of PW-9 Rita that the child was
recovered from the house of appellant Shefali. Further even appellant
Sapan Haldar was apprehended from the same place. Pursuant to his
arrest the recoveries were affected at his instance, which were the
injections used to keep the child in an unconscious state, the ransom
note from his shirt pocket and the fake number plates. In any case, the
said appellant has been unable to explain the possession of the number
plate DL 1 CB 1729, which is the original number plate of the car, in
which the child was kidnapped and belongs to PW6 and was stolen on
04.03.1998 from outside his residence i.e. two days prior to the
incidence.
58. The learned counsel further asserted that, even under Section
313 when the identification of appellant Shefali by Tammanna was put
to her, no explanation for the same was given by her. Even during the
recording of evidence of Tammanna, he was not cross-examined by the
defense on this aspect.
59. Learned counsel also asserted that as per Section 7 and 8 of the
Indian Evidence Act, 1872, facts which are the occasion, cause or effect,
immediate or otherwise, of relevant facts, or facts in issue, or which
constitute the state of things under which they happened, or which
afforded an opportunity for their occurrence or transaction, are relevant
and any fact is relevant which shows or constitutes a motive or
preparation for any fact in issue or relevant fact. Thus, the recovery of
the second letter pursuant to the first, forms a link and is relevant
under the facts and circumstances and can be taken into consideration.
And in the proximity of the letters received, the telephone calls made to
the family are all proof of the intention to demand ransom for the
kidnapped child.
60. With regard to the aspect of not holding the TIP of appellant
Shefali, it is submitted that the child PW-1 was with the appellant
Shefali for considerable time and had been recovered from her custody,
therefore, a TIP would have been of not much consequence. The learned
counsel has also explained the reason for not conducting TIP as against
appellant Sapan Haldar, as on 07.03.1998 the IO had moved an
application Ex. PW 17/12 for fixing a date for holding the TIP of
appellant Sapan Haldar and he was produced before the court, muffled
face and the TIP was fixed for 11.03.1998. However, on 11.03.1998 the
court declined to hold the TIP on the ground that the photographs of
the accused Sapan Haldar had appeared in The Hindustan Times on
08.03.1998 and therefore there was no point in holding TIP. In the
circumstances, it is contended that the case of the prosecution against
the appellants is not weakened on account of not conducting the TIP.
61. Learned counsel vehemently asserted that the aspect of
conspiracy has to be drawn from the facts and circumstances of the
case. The recovery of the sweater and belt from the appellants, the
threats received by the father of PW-1, the recovery of the car in which
the child was kidnapped, which was found to be stolen two days prior
to the incident from the house of PW6, the arrest of the appellants on
the information of PW9 and PW4, the recoveries at the instance of the
appellant and finally the FSL report conclusively recording the match of
the ransom note with the specimen handwriting of appellant Sapan
Haldar; all lead to the undeniable inference that the offence of
kidnapping the child was carried out by the appellants.
62. This Court has heard the learned counsel for the parties in detail
and has also perused the record of the trial Court including the
testimonies of the witnesses and the documents established on record.
This is a settled law that in reversing the finding of conviction, the High
Court has to keep in view the fact that the presumption of innocence is
still available in favor of the accused. If on fresh scrutiny and
reappraisal of the evidence and perusal of the material on record, the
Court is of the opinion that another view is possible or which can be
reasonably taken, then the view which favors the accused should be
adopted. However, the view taken by the Trial Court which had an
advantage of looking at the demeanor of the witnesses and observing
their conduct in the Court is not to be substituted ordinarily by another
view, unless another view if substantially and reasonably is possible in
the opinion of the High Court.
63. Reliance for this can be placed on AIR 2009 SC 1242, Prem
Kanwar v. State of Rajasthan; 2008 (3) JCC 1806, Syed Peda Aowlia v.
the Public Prosecutor, High Court of A.P, Hyderabad; Bhagwan Singh and
Ors v. State of Madhya Pradesh, 2002 (2) Supreme 567; AIR 1973 SC
2622 Shivaji Sababrao Babade & Anr v. State of Maharashtra; Ramesh
Babu Lal Doshi v. State of Gujarat, (1996) 4 Supreme 167; Jaswant
Singh v. State of Haryana, 2000 (1) JCC (SC) 140.
64. The Courts have held that, the golden thread which runs through
the web of administration of justice in criminal cases is that if two views
are possible on the evidence adduced in the case, one pointing to the
guilt of the accused and the other to his innocence, the view which is
favorable to the accused should be adopted, because the paramount
consideration of the Court is to ensure that miscarriage of justice is not
done. A miscarriage of justice which may arise from acquittal of the
guilty is no less than from the conviction of an innocent person. The
High Court has the power to reconsider the whole issue, reappraise the
evidence and come to its own conclusion and findings in place of the
findings recorded by the Trial Court, if the findings are against the
evidence on record or unsustainable or perverse. However, before
reversing the finding of acquittal, the High Court must consider each
ground on which the order of conviction is based and should also
record its own reasons for accepting those grounds.
65. In a case in which the evidence is of a circumstantial nature, the
facts and circumstances from which conclusion of guilt is sought to be
drawn by the prosecution must be fully established beyond all
reasonable doubt and the facts and circumstances so established
should not only be consistent with the guilt of the accused, but they
must be entirely incompatible with the innocence of the accused and
must exclude every reasonable hypothesis consistent with his
innocence. It has been observed that while appreciating circumstantial
evidence the Court must adopt a very cautious approach and should
record a conviction only if all the links in the chain are complete;
pointing to the guilt of the accused and every hypothesis of innocence is
capable of being negatived on evidence. Great care must be taken in
evaluating circumstantial evidence and if the evidence relied on is
reasonably capable of two inferences, the one in favor of the accused
must be accepted. The circumstance relied upon must be found to have
been fully established and the cumulative effect of all the facts so
established must be consistent only with the hypothesis of guilt. But
this is not to say that the prosecution must meet any and every
hypothesis put forward by the accused, however, farfetched and fanciful
it might be. Nor does it mean that prosecution evidence must be
rejected on the slightest doubt because the law permits rejection, if the
doubt is reasonable and not otherwise. It has also been held that onus
is on the prosecution to prove that the chain is complete and the
infirmity or lacuna in prosecution cannot be cured by false defence or
plea. The conditions precedent before conviction could be based on
circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established. The circumstances
concerned `must' or `should' and not `may be' established;
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive
nature and tendency;
(4) they should exclude every possible hypothesis
except the one to be proved; and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and
must show that in all human probability the act must
have been done by the accused.
66. One of the strong links in proving the guilt of the appellant Sapan
Haldar is the FSL report matching the specimen handwriting of the
appellant with the threat letter Q1 found at the spot of kidnapping and
the ransom note, Q2 recovered from the appellant.
67. According to the learned counsel for the appellant specimen
handwriting taken from the appellant is not admissible on account of
non compliance of the provisions of Identification of Prisoner's Act,
1920, whereas, according to the Learned Addl. Public Prosecutor the
specimen handwriting taken are admissible and cannot be ignored.
Both the counsels have relied on various judgments which are as
under:
68. The judgments relied on by the learned counsel for the appellants
in the tabular form are as under which include the judgments of co-
ordinate benches of this Court:
S.No. Title Matter in Judgments Relied On
Issue
1. Harpal Singh v. Specimen 1. Crl. Appeal No. 682/2008
State : Crl. Handwriting 'Santosh @ Bhure v. State'
Appeal No.
362/2008 2. Crl. Appeal No. 316.2008
'Neeraj v. State'
Wherein the following
Supreme Court Judgments
were relied upon:
(a) State of Bombay v. Kathi
Kalu Oghad and Ors:
1961CriLJ856
(b) State of U.P. v. Rambabu
Mishra: [1980]2SCR1067
(c) Sukhwinder Singh and
Ors. v. State of Punjab:
[1994]3SCR1061
2. Raj Kumar @ Sample Supreme Court Judgments
Raju Vs. The Fingerprints relied on:
State (G.N.C.T. of (1) State of U.P. v. Ram Babu
Delhi): Crl. A. No. Mishra, AIR 1980 SC 791
979/2005 (2) Sukhvinder Singh v. State
of Punjab, 1994 (5) SCC 152
3. Mehmood Ali Vs. Sample Supreme Court‟s Judgments
State: Crl. Appeal Fingerprints relied on:
No. 326/2007 (1) State of U.P. v. Ram Babu
Mishra, AIR 80 SC 791
(2) Sukhvinder Singh and
Ors. v. State of Punjab, 1994
(5) SCC 152 and
(3) State of Haryana v. Jagbir
Singh, AIR 2003 SC 4377
4. Ashok Kumar @ Sample Judgment relied on:
Govind Vs. State Fingerprint (1) Crl. Appeal No. 682/2008
[Alongwith Crl.A. 'Santosh @Bhure v. State'
Nos. 275, 397, Wherein the following
398, 410 and Supreme Court Judgments
601/2007]: were relied upon:
2010CriLJ2329, (a) State of Bombay v. Kathi
159(2009)DLT383 Kalu Oghad and Ors:
1961Cri. L.J. 856
(b) State of U.P. v. Rambabu
Mishra: [1980] 2 SCR 1067
(c) Sukhwinder Singh and
Ors. v. State of Punjab;
[1994] 3 SCR 1061
5. Ganpat Singh Sample Supreme Court‟s Judgement
and Narpat Singh Finger relied on:
v. State of prints (1) Mohd. Aman v. State of
Rajasthan : RLW Rajasthan: 1997 Cri.L.J.
2007 (1) Raj 523 3567
(Rajasthan High
Court)
6. M.S. Syed Anwar Sample No Supreme Court Judgment
and Etc. v. Finger Print, relied on: Just a reference
Commissioner of Foot prints made to the provisions of
Police, Bangalore and Identification of Prisoners
City and Another: Photographs Act
1992 CriLJ 1606
69. In Harpal Singh Vs State; Crl. Appeal No. 362/2008 one of the
issues was about admissibility of specimen handwriting taken from the
accused. In this case permission was not taken from the Court of
Competent Jurisdiction and Section 5 of the Identification of Prisoners
Act 1920 was not complied with.
70. In the circumstances the issue was whether the FSL report
comparing the specimen handwriting of the accused taken by the
Inspector during custody and the suicide note recovered from the spot
of occurrence, allegedly authored by the appellant could be relied upon
by the learned Trial Judge.
71. The Trial Judge in this case was of the opinion that even though
no permission was taken by the Inspector from the Court, before
obtaining the specimen handwriting of the appellant, the same in no
way dented the opinion contained in the FSL report, which stated that
the suicide note Ex.P1 to Ex.P4 is in the handwriting of the appellant.
72. In view of the dictum of law laid down by Supreme Court in the
decision reported as State of Haryana vs. Jagbir Singh AIR 2003 SC
4377 that pendency of some proceedings in the court is a sine qua non
before a court can give direction to an accused to give his specimen
handwriting under Section 73 of the Evidence Act and such a direction
can be given by the court only for enabling the Court to compare the
handwriting of the accused and not for the purpose of the investigating
or any other agency to compare the same and the fact that the
appellant did not raise any dispute in the trial that the suicide note was
not in his handwriting or that the police did not obtain his specimen
handwriting and the fact that the suicide note Ex.P1 to Ex.P4 was
written by the appellant established beyond any doubt that the
appellant had murdered his wife and son.
73. Another Bench of this Court, however, took a different view
relying on 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
Supreme Court reported as 1961 Cri.L.J. 856, State of Bombay v. Kathi
Kalu Oghad and Ors. 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; holding that
the FSL report had to be excluded from the arena of admissible
evidence for the reason that no orders were obtained by 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.
74. In Raj Kumar @ Raju Vs The State (G.N.C.T. of Delhi): Crl. A. No.
979/2005, another bench of this Court, also relying on Ram Babu
Misra (supra) and Sukhvinder Singh (supra) had held that where the
provisions of the Identification of Prisoner's Act, 1920 are violated,
specimen samples pertaining to the fingerprints, handwriting etc. of an
accused and the incriminating evidence stipulated in the reports
relatable thereto will be inadmissible in evidence and hence has to be
excluded while considering the circumstantial evidence against the
appellant. Similarly in Mehmood Ali Vs State; Crl. Appeal No.326/2007
relying on Ram Babu Misra (supra), Sukhvinder Singh (supra) and
Jagbir Singh (supra) it was held by a Division Bench of this Court that
the chance finger prints have to be compared with the sample finger
prints after obtaining permission from the Court of competent
jurisdiction and after the proper identification of the prisoner as per the
requirement of Section 5 of the Identification of Prisoners Act 1920. If
this is not done, then the incriminating evidence of the chance finger
print lifted from the scene of crime cannot be compared with the sample
finger prints which will be inadmissible. Yet another bench of this Court
in Ashok Kumar @ Govind Vs State; 2010 Cri L. J. 2329 relying on
Kathi Kalu Oghad (supra) Ram Babu Misra (supra) and Sukhvinder
Singh (supra) had held that since no permission was obtained from the
Court as required under the Identification of Prisoner's Act, 1920, it has
to be excluded while considering the incriminating evidence.
75. A Bench of Rajasthan High Court in Ganpat Singh Vs State of
Rajasthan; RLW 2007 (1) Raj 523 relying on Mohd Aman Vs State of
Rajasthan 1997 Crl.L.J 3567 had also held that since finger prints were
not taken before or under the order of the Magistrate, it was unsafe to
accept the evidence led on this regard.
76. The precedents relied on by the Learned Additional Public
Prosecutor in the tabular form holding that the finger prints taken
under section 4 of the Identification of Prisoners Act, 1920 would be
admissible are as under:
S.No. Title Matter in Judgments Relied On
Issue
1. State of Madhya Photographs No Judgments relied on
Pradesh v.
Devender: (2009) 14
SCC 80
2. Manikam v. State: Sample Supreme Court
(2009) 5 CTC 316 Finger Judgments relied on:
Prints (1) Ravanan v. State,
(1994) 1 LW (Crl.) 58
(2) State of T.N. v. T.
Thulasingam, 1994 Supp
(2) SCC 405
3. Mohd. Aman, Babu Sample No judgments relied on
Khan and Another Finger print
v. State of and Foot
Rajasthan: AIR print
1997 SC 2960
77. In State of Madhya Pradesh Vs Devender, (2009) 14 SCC 80 a
bench of three judges of Supreme Court had held that on perusing the
Sections 3, 4, and 5 of the Identification of Prisoner's Act, the Court is
of the view that Section 4 deals with taking of measurements, etc. of
non-convicted persons and that it is taken if the police officer so
requires it and it has to be done in the prescribed manner. So far as
Section 5 is concerned, it deals with the power of the Magistrate to
direct any person for measurement or photographs to be taken if he is
satisfied that for the purpose of any investigation or proceedings under
the Code the same is necessary. It was further held that in case of
conflict of directions given by the Court and the provisions of an Act,
the Regulations and the Code, the statute itself prevails.
78. In Mohd Aman, Babu Khan & Anr. Vs. State of Rajasthan AIR
1997 SC 2960, a bench of two judges of Supreme Court had held that
under Section 4 of the Identification of Prisoners Act, 1940 police
is competent to take finger prints of the accused and such
evidence will not be inadmissible. In Manikam Vs State, (2009) 5 CTC
316 it was also held that there is no law which prohibits the
investigating officer from lifting the fingerprint of the accused for
comparison during the course of investigation of the case. In fact, the
provisions found under S. 5 of the Identification of Prisoners Act, 1920
and S. 311-A Cr. P.C. speak only about the powers of the Judicial
Magistrate, when he is approached by the investigating officer
concerned for a suitable direction to the accused to co-operate by giving
his finger-print or signature or sample handwriting as the case may be.
It is to be noted that those provisions do not put an embargo on
the investigating officers from acting on their own for taking the
fingerprint, signature or handwriting of the accused during the
course of investigation. The Supreme Court has not specifically laid
down that the investigating officer should mandatorily invoke the
provisions under section 5 of the Identification of Prisoners Act, 1920.
79. While appreciating circumstantial evidence, the Court has to
adopt a very cautious approach and should record a conviction only if
all the links in the chain are complete and pointing to the guilt of the
accused. In the present facts and circumstances one of the important
links is the specimen handwriting of the appellant, Sapan Haldar which
matches with the handwriting in the letter found at the place of
kidnapping, Q1 and the ransom note found in the pocket of the
appellant, Q2. Whether or not the specimen handwriting is covered as a
„measurement‟ under the Identifications of Prisoner's Act, 1920 and
even if it is, whether the specimen handwriting taken under section 4 of
Identification of Prisoners Act, 1920 will be admissible or not is a
relevant question in this case. In case the specimen handwriting is not
admissible as has been contended by the counsel for the appellant, a
very pertinent link will be snapped as the other evidence is only
regarding recoveries of articles pursuant to the disclosure statements of
the appellants.
80. The learned counsel for the appellant has relied mainly, on the
judgments of other benches of this Court which have relied on Kathi
Kalu Oghad (supra) Ram Babu Misra (supra),Sukhvinder Singh (supra)
and Jagbir Singh (supra). In State of Uttar Pradesh v. Ram Babu Misra,
AIR 1980 SC 791 the Supreme Court had held that Section 73 of the
Evidence Act does not enable the Magistrate to give directions to the
accused to give his specimen writings when the case is still under
investigation because Section 73 contemplates pendency of some
proceedings before a Court. It does not permit the Court, whether civil
or criminal 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. Relying on Barindra Kumar Ghose v.
Emperor, ILR (1910) 37 Cal.467 the Supreme Court in Pushpadevi
M.Jetia v. M.L.Wadhawan, (1987) 3 SCC 367 in paragraph 20 at page
388 had held that if evidence is relevant, the Court is not concerned
with the method by which it was obtained. In Barindra Kumar Ghose
(Supra) the contention that the Court must exclude relevant evidence on
the ground that it was obtained by illegal search or seizure was
repelled. Referring to page 500 of the report it was noticed:-
"Mr.Das has attacked the searches and has urged
that, even if there was jurisdiction to direct the issue
of search warrants, as I hold there was, still the
provisions of the Criminal Procedure Code have been
completely disregarded. On this assumption he has
contended that the evidence discovered by the
searches is not admissible, but to this view I cannot
accede. For, without in any way countenancing
disregard of the provisions prescribed by the Code, I
hold that what would otherwise be relevant does not
become irrelevant because it was discovered in the
course of a search in which those provisions were
disregarded."
81. Perusal of State of Bombay v. Kathi Kali Ughad, AIR 1961 SC 1808
reveals that the Supreme Court had held that by giving specimen
writing, the accused person does not furnish evidence against himself
and, therefore, when an accused person is compelled to give a specimen
writing or impression of his finger, palm or foot, it may be such that he
has been compelled to be a witness, however, it cannot be held that he
had been compelled to be a witness against himself. In the
circumstances, the Supreme Court had held that merely taking a
specimen writing does not mean to be giving a statement so as to be hit
by Section 162 of the Criminal Procedure Code.
82. What also emerges from the perusal of Sukhvinder case (supra) is
that it is also distinguishable and does not hold that if the specimen
handwriting is taken from a non convicted persons during custody,
then the specimen handwriting would be inadmissible. The specimen
writings in the instant case of appellant Sukhdev Paul were taken
under the directions of Shri. Garg, Tehsildar -Executive Magistrate,
PW13. No enquiry and trial in this case were pending in the Court of the
Tehsildar-Executive Magistrate. Rather the enquiry and trial in this
case was pending under TADA before the Designated Court only. In
these circumstances the Court was of the view that the direction given
by the Tehsildar -Executive Magistrate to the accused to give his
specimen writings was clearly unwarranted and not contemplated or
envisaged by Section 73 of the Evidence Act despite admission by the
accused in his statement under section 313 of the Cr.P.C. In this case
there was also inherent ambiguity as to the matter of the letters
reaching the hands of the police officials, as the prosecution‟s
explanation for the same was diametrically opposite to the explanation
of the mother of the deceased.
83. A division Bench of this Court in Satyawan Vs State
MANU/DE/1044/2009 had ignored the part of the report of handwriting
expert wherein he had opined that the specimen writings S-1 to S-8 of
an accused Satish matched the writing on the ransom note on the
ground that the investigation officer had taken specimen writing in
violation of the provisions of the Identification of Prisoners Act, 1920
and also on the ground of being contrary to the law that specimen
writing for purposes of expert opinion can be directed to be taken under
orders of the Court, where the trial is pending, relying on State of UP Vs
Ram Babu Misra, (supra) and Sukhwinder Singh & ors Vs State of
Punjab, (supra). In this case the investigating officer took the specimen
sample of the accused while he was in custody.
84. In Harpal Singh vs State, MANU/DE/1091/2010, the IO had
obtained the specimen handwriting Ex.PX-1 to Ex.PX-4 of the accused
and sent the same along with Ex.P-1 to Ex.P-4 recovered from the
house of the accused to the Forensic Science Laboratory for comparison
of the handwriting. Before taking the specimen sample of handwriting
he had not taken permission of the Court. Vide FSL report Ex.PW-24/A
it was opined that the writing Ex.P-1 to Ex.P-4 is in the same hand of
the person who had written Ex.PX-1 to Ex. PX-4. During trial no
suggestion was given to the witnesses in the cross examination that the
specimen handwritings were not the handwritings of the accused. The
Court however, excluded the opinion of the handwriting expert
pertaining to the letter recovered by the police. While excluding the
opinion of handwriting expert, the Court had relied on para 7 of the
Kathi Kalu Oghad's (supra) and paras 3 to 6 and para 8 of Ram Babu
Misra (supra). Paras 18 to 23 of Harpal Singh (supra) are 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 1961 Cri.L.J. 856
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 1979
Cri.L.J. 17 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 1961 Cri.L.J. 856, 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 Cr.PC,
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.
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
MANU/MP/0050/1957 : AIR 1957 MP 106, 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 MANU/BH/0069/1962 : AIR 1962 Pat 255 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
MANU/SC/0783/1994 : [1994] 3 SCR 1061
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.
85. As was also, in the case of Mohd. Aman, Babu Khan & another Vs.
State of Rajasthan AIR 1997 SC 2960 held in para No.8 which is
reproduced as follows:-
"8. After careful perusal of the evidence
adduced in proof of the above circumstance we
notice a glaring missing link, in 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.
Though evidence was led to prove that after seizure
the articles were packaged and. then sealed, no
evidence was led to indicate what was the mark
given in the seals and whether the Bureau received
the packages with the marked seals intact. Indeed,
even the contemporaneous letters exchanged
between them (Ext. P.59 and P.60) do not throw
any light on this aspect of the matter. Rather, other
circumstances appearing on record make the
prosecution case doubtful in this regard: first, the
articles were kept in the police station for five days
without any justifiable reason, secondly the
Investigating Officer (P.W. 20) admitted that the
seal, mark of which was put on the articles, was
with him since the time of seizure and lastly his
letter (Ext. P.39) forwarding the seized articles to
the Bureau contains admittedly, an overwriting as
regards the date of its writing/dispatch and no
satisfactory explanation is forthcoming for the
same. Apart from the above missing link and the
suspicious circumstances surrounding the same,
there is another circumstance which also cast a
serious mistrust as to genuineness of the evidence.
Even though the specimen finger prints 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 finger prints of the
accused but to dispel any suspicion as to its
bonafides 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. The other related infirmity from which
the prosecution case suffers is that the brass jug,
production of which would have been the best
evidence in proof of the claim of its seizure and
subsequent examination by the Bureau, was not
produced and exhibited during trial - for reasons
best known to the prosecution and unknown to the
Court. For the foregoing discussion we are unable
to sustain the convictions of Mohd. Aman."
86. Additionally, the present issue has already been decided by this
Court on 14.05.2009 in the case of Avdesh Vs. State, Criminal Appeal
No.513/2001 along with Criminal Appeal Nos.300/2002 and 301/2002,
wherein para No.10, thereof it was held as under:-
"10. It is not in dispute that the specimen writings
of the appellants were obtained by the investigation
officer when the appellants were in custody. Their
identification as required by the Identification of
Prisoner's Act 1920 was not got done. Nor were
orders obtained by the Court of competent
jurisdiction to obtain the sample handwritings of
the accused."
87. After carefully studying the law on this issue, as has been
discussed above, the Division Bench of this Court came to the following
conclusion in para No.12 of the judgment of Avdesh (Supra) which is
as follows:-
"12. Thus, the report Ex.PW-14/A of the
handwriting expert has to be excluded while
considering the evidence, for the reason, no orders
were obtained by 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."
88. The other decision of this Court, where I, (Suresh Kait, J) was
one of the members of the Bench, in Criminal Appeal No.362/2008
titled as Harpal Singh Vs. State decided on 25.05.2010, six arguments
had been advanced by the Ld.Senior Counsel for the appellant and one
of them was that no permission was taken from the Court of competent
jurisdiction and Section 5 of the Identification of the Prisoners‟ Act
1920 was not complied with, hence, the FSL report Ex.PW24/A could
not be relied upon by the Ld.Trial Judge. In this case the testimony of
Inspector Jagdish Meena PW-22, made it abundantly clear that the
specimen writings of the appellant were obtained by Inspector Jagdish
Meena when the appellant was in custody. Since the specimen
handwriting of the appellant was obtained without the prior permission
of the competent Court as required u/s 5 of the Identification of
Prisoners Act 1920, it was held that it is inadmissible in evidence. The
relevant para no. 48 of the said judgment is as follows:-
"Thus, the FSL report Ex.PW-24/A has to be
excluded from the arena of admissible evidence in
the present case, for the reason, no orders were
obtained by 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."
89. My learned brother Shri Anil Kumar, J, is of the opinion that
signatures are not covered under the provisions of the Identification of
Prisoners Act, 1920 and, therefore, since it is not specifically barred
under law, it ought to be admissible in evidence and cannot be made
inadmissible on the ground that permission under Section 5 of the said
Act was not taken from the concerned Magistrate. He has further
observed that if a measurement which is covered under the provisions
of the Identification of Prisoners Act, 1920 is not admissible and if it is
taken under section 4 of the said Act without the permission of the
concerned Magistrate, a fortiori, sample handwritings and signatures
which are not covered under the said Act will not be inadmissible
without the permission of the concerned Magistrate under Section 5 of
the said Act.
90. Keeping in view the above discussion and the judgment of Harpal
Singh (supra), I am of the view that sample handwritings and
signatures obtained by the police authorities without complying with
the provisions u/s 5 of Identification of Prisoners Act 1920, are
inadmissible.
91. Additionally, it is pertinent to mention that Section 311-A has
been inserted in the Code of Criminal Procedure by an amendment of
2005 (w.e.f.23.06.2006) whereby taking specimen signatures or
handwritings are also included within the powers of the Magistrate, for
the purposes of investigation. The amendment has been effected in
pursuance of the many judicial verdicts given by the various High
Courts and the Supreme Court of India.
92. I have the privilege of considering the judgment of my learned
brother Shri Anil Kumar, J. however, I had held in Criminal Appeal
No.362/2008 decided on 25.05.2010, titled as Harpal Singh Vs. State
with another learned brother Sh.Pradeep Nandrajog, J that the sample
handwriting obtained by the police when the accused was in custody,
was not admissible as no permission was taken from the court
concerned, to obtain his specimen handwriting nor were the provisions
of Identification of Prisoners Act 1920, complied with.
93. Additionally, my learned brother Shri Anil Kumar, J, has relied on
another Bench judgment in Criminal Appeal No.1005/2008 titled as
Bhupinder Singh Vs. State (Govt of NCT of Delhi) vide order dated
06.04.2011 wherein a similar issue has been ordered to be referred to
the larger bench. Therefore, I too hold that the question as raised by my
learned brother Shri Anil Kumar, J be referred to the larger bench in
the facts and circumstances of the instant case.
SURESH KAIT, J
August 11th 2011
RS/J/Mk
