Delhi High Court
Jaipal vs State on 5 July, 2011
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Hearing: 19th May, 2011
Date of Decision: 5th July, 2011
+ CRL.A. No.137/1998
JAIPAL ... APPELLANT
Through: Mr. Sameer Chandra, Amicus Curiae.
Versus
STATE ... RESPONDENT
Through: Mr. Jaideep Malik, APP for the State.
AND
+ CRL.A. No.181/1998
RAJENDER ... APPELLANT
Through: Mr. Sameer Chandra, Amicus Curiae.
Versus
STATE ... RESPONDENT
Through: Mr. Jaideep Malik, APP for the State.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE G.P.MITTAL
1. Whether reporters of local papers may be
allowed to see the Order? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Order should be reported
in the Digest? Yes
JUDGMENT
G.P. MITTAL, J.
1. These two Appeals preferred by the Appellants Jaipal and Rajender arise out of a
judgment dated 22.07.1997 and order on sentence dated 23.07.1997 passed by the
learned Additional Sessions Judge (ASJ) in Session Case No.86/1996 whereby
the Appellants were held guilty and convicted for the offence punishable under
Section 302,201 and 384 IPC read with Section 34 IPC. The Appellants were
sentenced to undergo rigorous imprisonment (RI) for life and to pay a fine of `
1000/- each and in default of payment of fine to undergo RI for one month each
for the offence punishable under Section 302/34 IPC. The Appellants were
sentenced to undergo RI for 5 years each and to pay fine of ` 500/- each and in
default of payment of fine to further undergo RI for 15 days for the offence
punishable under Section 201/34 IPC. The Appellants were further sentenced to
undergo RI for 2 years and to pay a fine of ` 250/- each and in default of payment
of fine to further undergo RI for 15 days each for the offence punishable under
Section 384/34 IPC. The sentences were to run concurrently. By this very
judgment co-accused Om Prakash was acquitted giving him benefit of doubt.
2. Feeling aggrieved, the Appellants have challenged the judgment and order of
conviction and sentence.
3. The Appellant Rajender was complainant Tota Ram's brother-in-law; The
Appellant Jai Pal was his friend. The co-accused Om Prakash (already acquitted)
was also Tota Ram's brother-in-law. The Appellant Rajender took Rajesh (son of
Tota Ram the complainant) for a ride on his bicycle. Rajesh did not return home
till 9:00 P.M. Worried by this, the complainant went to Rajender to inquire about
Rajesh. Rajender informed Tota Ram that he had left Rajesh at Khadewali
Masjid, Gautam Vihar after handing him a one rupee note.
4. On the same day at about 11:00 p.m. Rajender reached Tota Ram's house and
handed over a two pages letter (the ransom note Ex.PW-12/A). Rajender informed
Tota Ram that a man on a bicycle dropped the letter on his cot asking him to
deliver it to him (Tota Ram). Tota Ram went through the contents of the letter,
which contained a demand of a ransom of ` 70,000/- for Rajesh's return. Tota
Ram inquired about the description of the person who delivered the said letter.
Rajender could not give the description, citing darkness as the reason.
5. On hearing this, Tota Ram was frightened. Being a washer man by profession he
could not arrange for the money. He informed others about the letter. He
suspected Rajender as the kidnapper of his son. He went to the Police Station
Bhajanpura, handed over the ransom letter and made a statement Ex.PW-3/A to SI
Jai Kishan (first IO). SI Jai Kishan made his endorsement, for registration of the
FIR. SI Jai Kishan made search for Rajesh on 01.06.1990 but he could not be
traced.
6. On 02.06.1990 Om Prakash is alleged to have made an extra judicial confession
to one Abid Ali about the kidnapping of Rajesh for ransom by Rajender in
collusion with Om Prakash and Jaipal. Abid Ali (PW-1) went to Police Post
Gamri Extension and informed SI Jai Kishan about the same. SI Jai Kishan
recorded his statement. He (the SI) along with other Police Officials went to
village Behta, Loni, Ghaziabad. After interrogation, the Appellant Rajender was
arrested. He made a disclosure statement Ex. PW-1/G. The Appellant Jai Pal
also reached Rajender's house; he too was arrested. He (Jai Pal) made a
disclosure statement Ex. PW-11/D stating that he could get Rajesh's dead body
recovered from the sugarcane fields in village Khanpur Ghari. SI Jai Kishan left
for village Khanpur Gari and reached PS Jhinjhana at about 11:30 P.M. and met
SO Brijesh Kumar. He took HC Omkar Singh and Constable Jaibir from PS
Jhinjhana and left for village Khanpur Ghari at about 12:00 midnight. The
Appellant Jai Pal led them to the sugarcane fields where the dead body of Rajesh
was lying, covered with sugarcane leaves. The dead body was identified by Tota
Ram and was seized by memo Ex. PW-3/C.
7. On 04.06.1990 autopsy on the dead body was performed by PW-6 Dr. L. T.
Ramani. PW-6 found no external injury mark on the body. He opined the cause
of death due to asphyxia on account of suffocation.
8. After completion of the investigation a report under Section 173 Cr.P.C. was filed
in the Court.
9. The Appellants' pleaded not guilty to the charge for the offence punishable under
Section 302/201/384 read with Section 34 IPC. In order to establish its case, the
prosecution examined 15 witnesses.
10. PW-2 Nem Wati, PW-3 Tota Ram, PW-4 Ved Parkash, PW-5 Suresh Kumar,
PW-6 Dr. L.T. Ramani, PW-7 Rudra Prakash, PW-11 HC Om Pal Singe, PW-12
Inspector Jai Kishan and PW-14 Inspector Ishwar Singh are material witnesses.
11. PW-2 Nem Wati is the mother of deceased Rajesh. She is a witness to the
deceased being last seen alive in the company of Appellant Rajender. She
deposed that five years ago at about 12:00 noon Appellant Rajender took his son
Rajesh for a ride on his bicycle. Rajesh did not return home. They made enquiries
from Rajender about Rajesh. Appellant Rajender informed PW-2 that Rajesh was
dropped near Khadewali Masjid after giving him one rupee (note). In cross-
examination, the witness deposed that Rajender informed PW-2 that he was
taking Rajesh with him for a bicycle ride. She denied the suggestion that she had
deposed falsely.
12. PW-3 Tota Ram is Rajesh's father. He deposed that about five years ago at about
12:00 noon his son Rajesh was taken by Rajender (his brother-in-law) for a ride
on his bicycle. He was not present in the house at that time. Rajesh did not return
home till 9:00 P.M. He, therefore, went to Rajender who informed him that he
had left Rajesh at Khadewali Masjid, Gautam Vihar, after handing him one rupee.
This witness testified that at about 11:00 P.M. Rajender went to his house and
handed him over a two page letter and represented that the said letter had been
given to him by a man on a cycle while he was sitting on a cot outside his house.
PW-3 inquired about the description of the man who delivered the letter. The
Appellant showed his ignorance saying that he could not notice the description of
that person due to darkness.
13. PW-3 stated that there was a demand of ransom of ` 70,000/- with a threat to kill
Rajesh, if the demand were not met. He testified that the place of making the
payment was also described in the ransom letter. He deposed that he was a poor
person engaged in ironing the clothes and, therefore, could not arrange for the
money. He showed this letter to other persons and suspected Rajesh to be behind
the kidnapping. He, therefore, approached the police and lodged a complaint Ex.
PW-3/A. He handed over the ransom note Ex.PW-12/A to the IO which was
seized by memo Ex.PW-3/B. He deposed about the arrest of Appellants Rajender
and Jaipal and recovery of Rajesh's dead body at the instance of Appellant Jaipal.
14. PW-4 Ved Prakash stated that the specimen handwriting of Appellant Jaipal on
four sheets Ex.PW-4/A to PW-4/D was taken in his presence. PW-5 Suresh
Kumar was also a witness to the taking of Appellant Jaipal's sample handwriting.
He did not support the prosecution version and denied the suggestion that he was
won over by Appellant Jai Pal.
15. PW-7 Rudra Prakash is a witness to the recovery of Rajesh's dead body from his
sugarcane fields. He deposed that in June, 1990 the dead body of a child aged
about 8/10 years was recovered from his fields. He signed the seizure memo (of
dead body) Ex.PW-3/C. He testified that the memo was also signed by the father
of the deceased child. Subsequently, the Delhi Police visited the spot in his
absence and prepared a site plan. Since the witness did not support his statement
recorded under Section 161 Cr.P.C., the prosecution was permitted to cross-
examine him. In cross-examination, the witness deposed that his village's
population was about four thousand and the distance between his house and the
village abadi was about 300 metres. He deposed that he had about 3,000 bighas
of land. He showed his ignorance if Jaipal was one of the residents of his village.
He denied the suggestion that on 03.06.1990 Jaipal pointed out the place in his
fields where the dead body was lying.
16. PW-11 HC Om Pal Singh is another witness to the arrest of Appellants Rajender
and Jaipal and recovery of the dead body pursuant to the disclosure statement
Ex.PW-11/D by the Appellant Jaipal from village Ghari.
17. PW-12 Inspector Jai Kishan is the first IO. Complainant Tota Ram met him in the
Police Station on 01.06.1990 at 5:00 P.M. He deposed that Tota Ram had
produced a two page letter Ex.PW-12/A and made a statement Ex.PW-3/A on the
basis of which the FIR was registered. He deposed about a statement by PW-1
Abid Ali that one Om Prakash brother-in-law of Tota Ram had made an extra
judicial confession regarding his involvement and that of Rajender and Jaipal in
Rajesh's kidnapping. He deposed about the arrest of the Appellant and the police
party reaching village Jhinjana and subsequent recovery of Rajesh's dead body in
pursuance of the disclosure statement Ex.PW-11/D made by Appellant Jaipal.
18. PW-14 Inspector Ishwar Singh is the second IO. He deposed about collecting the
Handwriting Expert's report Ex.PW-14/A and filing of the challan in the Court.
19. On closure of the prosecution evidence, the Appellants were examined under
Section 313 Cr.P.C. to afford them an opportunity to explain the incriminating
evidence. The Appellants denied the prosecution's allegations regarding Rajesh's
kidnapping, delivery of the ransom note by Appellant Rajender to PW-3 Tota
Ram, kidnapping of Rajesh by Appellant Rajender, and making of any disclosure
statement by them and recovery of Rajesh's dead body by Jaipal in pursuance of
the disclosure statement Ex.PW-11/D. They pleaded false implication.
20. By the impugned judgment, the Trial Court believed the last seen evidence,
delivery of the ransom note Ex.PW-12/A by Appellant Rajender (in the
handwriting to Appellant Jaipal) to PW-3 and recovery of Rajesh's dead body at
the Appellant Jaipal's instance. Thus, the Trial Court convicted and sentenced the
Appellants for the offence punishable under Sections 384/302/201 read with
Section 34 IPC as stated earlier.
21. We have heard Mr. Sameer Chandra, learned Amicus Curiae for the Appellants,
Mr. Jaideep Malik, learned Additional Public Prosecution (APP) for the State and
have perused the record.
22. The prosecution case squarely rests on circumstantial evidence. The
circumstances relied upon by the prosecution are:-
(A) Deceased being last seen alive in the company of the Appellant Rajender;
(B) Delivery of ransom note Ex.PW-12/A in the handwriting of Appellant
Jaipal to PW-3 Tota Ram on 31.05.1990 at 11:00 P.M. by Rajender; and
(C) Disclosure statement Ex.PW-11/D made by Appellant Jaipal and recovery
of Rajesh's dead body at Jaipal's behest.
23. The law is well settled that where the prosecution case rests on circumstantial
evidence, the circumstances from which the conclusion of guilt are to be drawn
must, in the first instance be fully established; the circumstances should be of
conclusive nature; the circumstances taken together must unerringly point to the
guilt of an accused; the circumstances proved on record must be incompatible
with the innocence of an accused and form the complete chain of circumstances
and it must be proved that in all probabilities the offence was committed by an
accused. (Hanumant Govind Nargundkar & Anr. v. State of Madhya Pradesh, AIR
1952 SC 343 and Sharad Birdhichand Sarda v. State of Maharashtra, (1984)4
SCC116).
24. We shall take up the circumstances relied on by the prosecution one by one.
CIRCUMSTANCE (A) : DECEASED BEING LAST SEEN ALIVE IN
THE COMPANY OF APPELLANT RAJENDER
25. As stated earlier, PW-2 Nem Wati is the solitary witness to prove this
circumstance. PW-2 was categorical that Rajender took Rajesh at about 12:00
noon for a ride on his bicycle. The child did not return and on enquiry by PW-3
Tota Ram, Rajender disclosed that Rajesh was left at Khadewali Masjid after
handing him over one rupee.
26. It is urged by the learned Amicus Curiae for the Appellants that the testimony of
this witness is unreliable in view of the fact that there was a delay of one day and
six hours in lodging the FIR. The testimonies of PW-1 Abid Ali and PW-2 Nem
Wati are contradictory and that the conduct of Appellant's Rajender in helping
PW-3 in Rajesh's search negatives the guilty mind.
27. Section 364 (A) IPC was not on the statute book on the date of commission of the
offence i.e. 31.05.1990. Thus, the FIR for an offence under Section 384 IPC was
recorded by the police. Though, Rajesh was taken away by Rajender on
31.05.1990 at 12:00 noon, yet there was no inkling to PW-2 Nem Wati that her
child would not return. It was only in the late evening when her husband PW-3
Tota Ram returned from his work that she complained about Rajesh having been
taken away by Rajender. It was for this reason that PW-3 immediately
approached the Appellant Rajender, who informed PW-3 that the child was
dropped by him at Khadewali Masjid after giving him a one rupee note. Thus,
PW-2 Nem Wati may have gone to the police at about 5:00 P.M. as disclosed by
PW-3 Tota Ram. No report to the police alleged to have been made by PW-2 has
been produced. As stated earlier, there was no cause for concern till that time and
it was possible that Nem Wati might have been advised to wait for the return of
Rajender along with the child. It was only on the next day when Tota Ram was
unable to arrange the funds and at the same time was worried about the safety of
his child, finding no other option that he approached the police at about 5:00 P.M.
Thus, non production of the report alleged to have been made by PW-2 to the
police at about 5:00 P.M. on 31.05.1990 is not material. In the circumstances, it
cannot be said that there was a delay of one day and six hours in lodging the FIR.
Of course, there was a delay of about 17-18 hours from the time PW-3 came to
know of Rajesh's kidnapping on 31.05.1990 at about 11:00 P.M.
28. The Court cannot be oblivious of the fact that all parents whether rich or poor are
more concerned about the safety of their child than any action being taken against
the culprit. A perusal of PW-3's testimony shows that he was in shock to receive
the ransom letter. PW-3 testified that he was a poor man and, therefore, could not
arrange for the sum of ` 70,000/-. He then brought this fact to the notice of other
persons and approached the police. In our view, the delay of 17-18 hours has
been adequately explained by PW-3 Tota Ram in approaching the police and
making a report regarding the kidnapping and receipt of a ransom note.
29. It is urged that PW-1 Abid Ali before whom co-accused Om Prakash (already
acquitted) allegedly made an extra judicial confession deposed that Om Prakash
told him that he (Om Prakash) had handed over Rajesh to the co-accused (the
Appellants herein). The extra judicial confession has been disbelieved by the
Trial Court. We do not know the exact manner of kidnapping and the conspiracy,
if any, hatched amongst the accused persons. Since the confession made by co-
accused Om Prakash to PW-1 Abid Ali was disbelieved, it cannot be said that
there is a contradiction in the manner of kidnapping. The prosecution has not
been able to produce any evidence of actual kidnapping and relies upon last seen
evidence from which an appropriate inference may be drawn against the
Appellants.
30. It is argued by the learned Amicus Curiae that Rajender's conduct was compatible
with his innocence. Had he kidnapped the child, he would not have accompanied
PW-3 in Rajesh's search upto 11:00 P.M. We do not find any substance in the
contention. Since the Appellant Rajender took the child at 12:00 noon, perhaps
he wanted to remove the needle of suspicion away from him. Thus, Rajender's
conduct in joining PW-3 in Rajesh's search does not absolve him to render an
explanation as to where he left Rajesh after he took the child for a ride on his
bicycle.
31. It is argued by the learned Amicus Curiae that Appellant Rajender knew PW-3's
means and, therefore, it was highly improbable that he in collusion with any other
person would ask for a ransom of ` 70,000/- . It is submitted that if Rajender had
any intention to commit the crime, he would not have taken away the deceased in
presence of his mother PW-2 Nem Wati. This contention also does not hold
much water. Sometimes a kidnapper asks for more than what a victim's relatives
can afford to pay for release of their kith and kin. There may have been some
miscalculation on the part of the culprits. The contention that Rajender knew the
complainant's financial capacity and could not have asked for a ransom of `
70,000/-, in our view, therefore, has to be rejected. Similarly, the contention that
Rajender would not have taken the child in her presence is also without any merit
as he might have thought that his explanation that he dropped Rajesh near the
Masjid would be believed.
32. It is urged by the Appellants' counsel that the explanation of parting company
with Rajesh had come in the prosecution version itself and thus, no value can be
attached to Rajesh being last seen in the Appellant Rajender's company.
33. It is true that according to the prosecution allegation of the Appellant Rajender
held out to PW-3 Tota Ram that he left Rajesh near Khadewali Masjid after
handing him a one rupee note. No suggestion to the contrary was given to PW-3
in his cross-examination. However, when examined under Section 313 Cr.P.C.
the Appellant denied that he took Rajesh from PW-2 on 31.05.1990 at 12:00 noon
on the pretext of giving him a bicycle ride.
34. PW-2 Nem Wati is the deceased's mother. There is no reason for her to lie about
the fact of Rajender taking Rajesh for a ride. It is true that there is no
corroboration of PW-2's testimony; perhaps none was possible in the
circumstances under which Appellant Rajender took the child away. We find
PW-2's testimony to be credible and reliable and hold that on 31.05.1990 at about
12:00 noon Rajender took away Rajesh on the pretext of a bicycle ride and
thereafter the child did not return. The Appellant has not offered any explanation
as to how he parted Rajesh's company. This circumstance is established against
the Appellant Rajender.
CIRCUMSTANCE (B) : DELIVERY OF RANSOM NOTE EX.PW-12/A
IN THE HANDWRITING OF APPELLANT JAIPAL TO PW-3 TOTA
RAM ON 31.05.1990 AT 11:00 P.M.
35. This circumstance can be divided into two parts. (a) Allegation of delivery of a
ransom note Ex.PW-12/A by Appellant Rajender to PW-3 in the late night of
31.05.1990, and (b) the ransom note Ex.PW-12/A in the handwriting of Appellant
Jaipal.
36. As stated earlier, PW-3 testified about the delivery of a ransom note Ex.PW-12/A
by Rajender to him. PW-3 asked for description of the person who delivered the
ransom note. The Appellant was evasive about it and stated that he could not
notice the description as it was dark at that time.
37. It is argued by learned counsel for the Appellants that PW-2 Nem Wati is silent
about the delivery of any ransom letter, although PW-3 mentioned in the FIR that
he told about this letter to his wife. It is pointed out that the statement of PW-3 on
the delivery of ransom letter is contrary. It is argued that initially PW-3 deposed
that "the accused Rajinder gave me a letter of two pages and told me that he had
been given the said letter by a man on cycle when he was sitting outside the house
on a cot. He had further told me that the said man had told him to give the above
letter to me." Later on, during his deposition PW-3 deposed that "the letter of
ransom was received by us at our house and was delivered by Rajinder to me
saying that some person had thrown this ransom letter in our house.
38. The Appellants highlighted the words "giving the letter" or "throwing the letter"
by PW-3 allegedly narrated to him by Appellant Rajender. In our view, the power
of observation and narration of individuals diminishes with the passage of time.
Some people do not take note of minute details. The crux of the matter is the
delivery of the ransom letter by Appellant Rajender to PW-3 and the Appellant's
claim that it was given to him by an unknown person. The statement of PW-3 was
recorded in the year 1996 whereas the incident took place in 1990. The power of
recapitulation/reproduction diminishes with the passage of time, particularly,
when a witness is a rustic washer man like PW-3. In these circumstances, we do
not attach any importance to this so called discrepancy. Moreover, this argument
loses significance as the Appellant Rajender did not admit the delivery of this
letter by him to PW-3.
39. It is argued that PW-3 did not identify the ransom note when he was examined in
the Court. This is also not material as there was a lapse on the part of the APP
who examined an illiterate witness in the Court. This is not a case where the
witness was unable to identify the letter after having been shown it. On the other
hand, the letter was not put to PW-3 at all. Similarly, the argument that there is
no mention in the seizure memo Ex.PW-3/B that the letter was handed over by
PW-3 Tota Ram is not material as the fact is mentioned in the FIR which was
recorded contemporaneously.
40. Now the question for consideration is whether the Appellant Jaipal is the scribe of
this ransom note Ex.PW-12/A. It is argued by learned counsel for the Appellants
that the handwriting expert's report Ex.PW-14/A is not admissible in evidence as
Shri T.R. Nehra was only a Senior Scientific Officer as far as his qualification as
a handwriting expert is concerned. As per Section 293 any document purported to
be a report under the hand of a Government Scientific Expert is per se admissible
in evidence, provided he (Scientific Expert) falls under any of the categories A to
G given in sub-Section 4 to Section 293. A Chemical Examiner or an Assistant
Chemical Examiner is one such designated Govt. Scientific Expert. Shri T.R.
Nehra who is a Scientific Expert in this case is also designated as Assistant
Chemical Examiner to the Government of India and, therefore, his report is per se
admissible in evidence. Of course, the Appellants had a right to summon such an
expert but they did not prefer to avail it. The Appellants, therefore, cannot be
permitted now to say that the report of a handwriting expert required a specific
proof and inadmissible in evidence. The value to be attached to this report shall
be dealt with by us a little later.
41. It is argued on behalf of the Appellants that there is no corroboration to the
handwriting expert's opinion Ex.PW-14/A. The opinion of an expert is fallible as
anyone else and, therefore, unless there was some corroboration to show that the
Appellant Jaipal was the scribe of the ransom note, the Court, on the basis of the
expert opinion could not conclude that Jaipal was the author thereof. It is urged
that PW-5, in whose presence Jaipal's handwriting is alleged to have been taken,
turned hostile and thus, even this is doubtful whether Ex.PW-4/A was Jaipal's
specimen handwriting.
42. The prosecution examined PWs 4 and 5 to prove the specimen handwriting of
Jaipal. PW-5 turned hostile. PW-4 Ved Prakash testified that the Jaipal's
handwriting Ex.PW-4/A to PW-4/D on four sheets was taken in his presence.
Nothing was elicited in the cross-examination of PW-4 to show that Jaipal's
handwriting was not taken in his presence and, therefore, irrespective of PW-5's
turning hostile, we are inclined to believe PW-4 and hold that the Appellant Jaipal
gave his specimen handwriting Ex.PW-4/A to Ex.PW-4/D.
43. It is urged that the police did not have any power to take an accused's handwriting
under Section 73 of the Evidence Act; the Appellants rely on Section 311-A
Criminal Procedure Code (Cr.P.C.) which empowers a Magistrate of the First
Class to order an accused person to give his specimen signatures or handwriting.
It is argued that Section 311-A was incorporated in the statute book only w.e.f.
23.06.2006 and is not retrospective in its application. It will not relate back to an
offence alleged to have been committed in the year 1990 and since Section 73 of
the Evidence Act is not applicable, the police did not have any authority to taken
Appellant's handwriting during investigation.
44. We do not agree with this submission. This is true that under Section 73 of the
Evidence Act, the Court can direct a handwriting sample of any person only
during inquiry or trial to be taken. The law is well settled that obtaining the
handwriting of an accused during investigation is not hit by Article 20 (3) of the
Constitution of India as an accused cannot be said to be a witness against himself,
if he is asked to give his handwriting for the purpose of verification of any
document purported to be in his handwriting. In Selvi v. State of Karnataka,
(2010) 7 SCC 263, a Five Judges Bench of the Supreme Court held that some
forms of testimonial acts lie outside the scope of Article 20 (3). Certain acts like
compulsorily obtaining specimen signatures and handwriting samples are
testimonial in nature, they are not incriminatory by themselves if they are used for
the purpose of identification or corroboration of the facts that are already in
prosecuting agency's knowledge. It was held that obtaining handwriting of an
accused for corroboration of the facts already known is thus not barred under
Article 20 (3).
45. Section 311-A allows the Court to order an accused to give his handwriting
during enquiry or investigation. These powers were not available with the Court
before Section 311-A was brought to the statute book in the year 2006. An
addition of Section 311-A merely empowered the Court to order an accused to
give his handwriting/signatures for the purpose of investigation of his questioned
handwriting/signatures which power was not available to the Court as according
to Section 73, the Court can order for comparison of signatures/handwriting etc.
of any person whose signatures / handwriting is in dispute before the Court. In
this circumstances, it cannot be said that obtaining Appellant Jaipal's handwriting
during investigation was illegal.
46. It is true that except the handwriting Expert's report Ex.PW-4/A there is no
corroboration that the ransom letter Ex.PW-12/A was in the handwriting of
Appellant Jaipal. The question was dealt in detail by the Supreme Court in
Murarilal v. State of M.P., AIR 1980 SC 531. The Court observed that
handwriting expert is not an accomplice and there is no justification for
condemning his opinion evidence. It was held that if the Court is convinced from
the report of an expert that the questioned handwriting was of the accused, there is
no difficulty in relying upon the expert's opinion without any corroboration. We
would like to extract relevant para of the report in Murarilal (supra) hereunder:-
"4. We will first consider the argument, a State arguments often
heard particularly in criminal courts, that the opinion-evidence of
a handwriting expert should not be acted upon without substantial
corroboration. We shall presently point out how the argument
cannot be justified on principle or precedent. We begin with the
observation that the expert is no accomplice. There is no
justification for condemning his opinion-evidence to the same class
of evidence as that of an accomplice and insist upon
corroboration. True, it has occasionally been said on very high
authority that it would be hazardous to base a conviction solely on
the opinion of a handwriting expert. But, the hazard in accepting
the opinion of any expert, handwriting expert or any other kind of
expert, is not because experts, in general, are unreliable witnesses-
the equality of credibility or incredibility being one which an
expert shares with all other witnesses-but because all human
judgment is fallible and an expert may go wrong because of some
defect of observation, some error of premises or honest mistake of
conclusion. The more developed and the more perfect a science,
the less the chance of an incorrect opinion and the converse if the
science is less developed and imperfect. The science of
identification of finger-prints has attained near perfection and the
risk of an incorrect opinion is practically non-existent. On the
other hand, the science of identification of handwriting is not
nearly so perfect and the risk is, therefore, higher. But that is far
cry from doubting the opinion of a handwriting expert as an
invariable rule and insisting upon substantial corroboration in
every case, howsoever the opinion may be backed by the soundest
of reasons. It is hardly fair to an expert to view his opinion with
an initial suspicion and to treat him as an inferior sort of witness.
His opinion has to be tested by the acceptability of the reasons
given by him. An expert deposes and not decides. His duty „is to
furnish the judge with the necessary scientific criteria for testing
the accuracy of his conclusion, so as to enable the judge to form
his own independent judgment by the application of these criteria
to the facts proved in evidence‟. (Vide Lord President Cooper in
Decie v. Edinburgh Magistrate, 1953 SC 34 quoted by Professor
Cross in his Evidence).
6. Expert testimony is made relevant by S.45 of the Evidence Act
and where the court has to form an opinion upon a point as to
identity of handwriting, the opinion of a person „specially skilled‟
„in questions as to identity of handwriting‟ is expressly made a
relevant fact. There is nothing in the Evidence Act, as for example
like Illustration (b) to Section 114 which entitles the Court to
presume that an accomplice is unworthy of credit, unless he is
corroborated in material particulars, which justifies the court in
assuming that a handwriting expert‟s opinion is unworthy of credit
unless corroborated. The Evidence Act itself (S.3) tells us that „a
fact is said to be proved when, after considering the matters before
it, the Court either believes it to exist or considers its existence so
probable that a prudent man ought, under the circumstances of the
particular case, to act upon the supposition that it exists‟. It is
necessary to occasionally remind ourselves of this interpretation
clause in the Evidence Act lest we act on artificial standard of
proof not warranted by the provisions of the Act. Further, under
S.114 of the Evidence Act, the Court may presume the existence of
any fact which it thinks likely to have happened, regard being had
to the common course of natural events, human conduct, and
public and private business, in their relation to facts of the
particular case. It is also to be noticed that S.46 of the Evidence
Act makes facts, not otherwise relevant, relevant if they support or
are inconsistent with the opinion of experts, when such opinions
are relevant. So, corroboration may not invariably be insisted
upon before acting on the opinion of an handwriting expert and
there need be no initial suspicion. But, on the facts of a particular
case, a court may require corroboration of a varying degree.
There can be no hard and fast rule, but nothing will justify the
rejection of the opinion of an expert supported by unchallenged
reasons on the sole ground that it is not corroborated. The
approach of a court while dealing with the opinion of a
handwriting expert, should be to proceed cautiously, probe the
reasons for the opinion, consider all other relevant evidence and
decide finally to accept or reject it.
11. We are firmly of the opinion that there is no rule of law, nor
any rule of prudence which has crystallized into a rule of law, that
opinion evidence of a handwriting expert must never be acted
upon, unless substantially corroborated. But, having due regard to
the imperfect nature of the science of identification of handwriting,
the approach, as we indicated earlier, should be one of caution.
Reasons for the opinion must be carefully proved and examined.
All other relevant evidence must be considered. In appropriate
cases, corroboration may be sought. In cases where the reasons
for the opinion are convincing and there is no reliable evidence
throwing a doubt, the uncorroborated testimony of an handwriting
expert may be accepted. There cannot be any inflexible rule on a
matter which, in the ultimate analysis, is no more than a question
of testimonial weight. We have said so much because this is an
argument frequently met with in subordinate courts and sentences
torn out of context from the judgments of this Court are often
flaunted.
12. The argument that the Court should not venture to compare
writings itself, as it would thereby assume to itself the role of an
expert is entirely without force. Section 73 of the Evidence Act
expressly enables the Court to compare disputed writings with
admitted or proved writings to ascertain whether a writing is that
of the person by whom it purports to have been written. If it is
hazardous to do so, as sometimes said, we are afraid it is one of
the hazards to which judge and litigant must expose themselves
whenever it becomes necessary. There may be cases where both
sides call experts and the voices of science are heard there may be
cases where neither side calls an expert, being ill able to afford
him. In all such cases it becomes the plain duty of the Court to
compare the writings and come to its own conclusion. The duty
cannot be avoided by recourse to the statement that the court is no
expert. Where there are expert opinions, they will aid the Court.
Where there is none, the Court will have to seek guidance from
some authoritative textbook and the Court‟s own experience and
knowledge. But discharge it must, its plain duty, with or without
expert, with or without other evidence. We may mention that
Shashi Kumar v. Subodh Kumar and Fakruddin v. State of Madhya
Pradesh were cases where the Court itself compared the writings."
47. The report in Murarilal (supra) was relied upon in a latest judgment of the
Supreme Court in Ravichandran v. State (2010) 11 SCC 120, wherein it was held
that if the reasons given for the opinion by the expert are convincing and there is
no reliable evidence throwing a doubt, the uncorroborated testimony of a
handwriting expert may be accepted.
48. We have carefully gone though the ransom note Ex.PW-12/A and the specimen
handwriting given on four sheets Ex.PW-4/A to PW-4/D and have also examined
the report Ex.PW-14/A of the expert Shri T.R. Nehra, the Senior Scientific
Officer-cum-Assistant Chemical Examiner to the Government of India. He has
given detailed reasons why he concluded that the questioned handwriting matched
with the specimen handwriting (of Appellant Jaipal). We have carefully perused
the words "SHUROO, BEES, BAZAR, RUPAIE, MAAR, GHAZIABAD,
GHALE, HOSHIARI, TAARIKH" in Ex.PW-12/A and Ex.PW-4/A to Ex.PW-
4/D and are convinced that it has the same style of handwriting. Thus, we have
no hesitation to conclude that the ransom note Ex.PW-12/A is in Appellant
Jaipal's handwriting.
CIRCUMSTANCE (C) : DISCLOSURE STATEMENT EX.PW-11/D MADE
BY APPELLANT JAIPAL AND RECOVERY OF RAJESH'S DEAD BODY
AT JAIPAL'S BEHEST
49. PW-3 Tota Ram, PW-7 Rudra Prakash, PW-11 HC Om Pal Singh and PW-12
Inspector Jai Kishan are the witnesses to the recovery of Rajesh's dead body.
PWs 3, 11 and 12 have fully supported the prosecution version that in pursuance
of the disclosure statement Ex.PW-11/D Rajesh's dead body was got recovered by
Appellant Jaipal from PW-7's sugarcane fields. The visit of Inspector Jai Kishan
along with the police party of Delhi Police to PS Jhinjhana is corroborated by the
testimony of PW-13 HC C.V. Singh of U.P. Police and the DD entry in the Police
Station regarding arrival and departure Ex.PX and Ex.PX/2 respectively. PW-7
who did not support the prosecution version fully but corroborated PWs 3, 11 and
12 regarding recovery of dead body of a child from his sugarcane fields in the
month of June, 1990. PW-7 also deposed about presence of Delhi Police
personnel and the seizure of the dead body by memo Ex.PW-3/C which was
signed by him at Point X. PW-3 clearly deposed that the dead body was
recovered from Rudra Prakash's fields at the instance of Appellant Jaipal. It is,
therefore, apparent that PW-7 did not support the prosecution version regarding
presence of Jaipal as he was won over by the Appellants.
50. In view of the testimony of PW-3 which is fully corroborated by PWs 11 and 12
and partially corroborated by PW-7, it is established that the Rajesh's dead body
was recovered at the instance of Appellant Jaipal. It is urged on Appellants'
behalf that the recovery of the dead body should not be believed as there is
discrepancy in PW-3's testimony vis-a-vis the official witness about the manner
of Jaipal's arrest. It is true that PW-3 deposed that the Appellant Rajender took
them to the house of Jaipal, whereas PWs 11 and 12 have stated that Jaipal
reached the Appellant Rajender's house on his own. As observed by us earlier, the
incident took place in the year 1990 whereas the testimony of PW-3 was recorded
in the year 1996. PW-3 is a villager, a washer man by profession and could have
mixed up certain things with the lapse of time. We, therefore, believe the
prosecution version that Appellant Jaipal was arrested at Rajender's house after
his (Rajender's) arrest. This part of the disclosure statement Ex.PW-13/D
regarding his knowledge as to the dead body becomes relevant.
51. It is urged by the learned counsel for the Appellants that the dead body was
recovered from the sugarcane fields which was accessible to the public at large
and the Appellant Jaipal cannot be saddled with the liability of exclusive
knowledge. It is true that the dead body was recovered from an open field. But, it
has emerged from evidence that the dead body was covered by sugarcane leaves.
The cross-examination of PW-7 discloses that the sugarcane fields measured 3000
bighas and it was at a distance of about 300 yards from the abadi. In view of
these circumstances, it cannot be said that the villagers were aware of the
presence of the dead body or that it was not a discovery in pursuance of the
Appellant Jaipal's disclosure statement Ex.PW-11/D.
52. In State of Maharashtra v. Suresh, (2000) 1 SCC 471, it was held that when a
dead body is recovered at the instance of an accused there can be three
possibilities. Firstly, that it was concealed by the accused himself. Second, that
he would have seen somebody else concealing it and, third, that he would have
been told by another person that it was concealed there. The Appellant has not
given any explanation how he came to know about the presence of the dead body
in PW-7's sugarcane fields and, therefore, has to explain Rajesh's death.
53. It is argued by the Appellants' counsel that the prosecution failed to produce any
evidence that the death was homicidal. In the circumstances, Appellant Jaipal
cannot be held responsible for Rajesh's death. The learned counsel has taken us
through the testimony of PW-6 Dr. L.T. Ramani and the postmortem report
Ex.PW-6/A to emphasis that "hyoid bone and thyroid cartilage were intact". Dr.
L.T. Ramani opined "the death in this case was due to asphyxia which apparently
looked due to suffocation". Admittedly, there was no obvious external injury
mark on the deceased's body. It has been urged on behalf of the Appellants that
since death is not proved to be homicidal, Appellant Jaipal cannot be held guilty
of the offence punishable under Section 302 IPC.
54. We have held earlier that the Appellant Jaipal was aware of the presence of the
dead body in the sugarcane fields and has to account for Rajesh's death unless he
gives any explanation how he came to know of the dead body. It is true that cause
of death given by Dr. L.R. Ramani to be asphyxia due to suffocation. There is no
specific finding of strangulation by the doctor because of absence of the fracture
of hyoid bone and thyroid cartilage. A similar question came up for consideration
before the Supreme Court in Ponnusamy v. State of Tamil Nadu, (2008) 5 SCC
587, the Supreme Court referred to Taylor‟s Principles and Practice of Medical
Jurisprudence, 13th Edition and Journal of Forensic Sciences, Volume 41 and
opined that fracture of hyoid bone is not necessary in the case of strangulation.
An inference of strangulation was drawn in the absence of any explanation from
the accused even though there was no apparent mark on the dead body. We
would like to extract paras 23 and 24 of the report hereunder:-
23. It is true that the autopsy surgeon, PW-17, did not find any
fracture on the hyoid bone. Existence of such a fracture leads to a
conclusive proof of strangulation but absence thereof does not
prove contra. In Taylor's Principles and Practice of Medical
Jurisprudence, 13th Edition, pp. 307-308, it is stated:
"The hyoid bone is 'U' shaped and composed of five parts:
the body, two greater and two lesser horns. It is relatively
protected, lying at the root of the tongue where the body is
difficult to feel. The greater horn, which can be felt more
easily, lies behind the front part of the strip-muscles
(sternomastoid), 3 cm below the angle of the lower jaw and
1.5 cm from the midline. The bone ossifies from six centres,
a pair for the body and one for each horn. The greater
horns are, in early life, connected to the body by cartilage
but after middle life they are usually united by bone. The
lesser horns are situated close to the junction of the greater
horns in the body. They are connected to the body of the
bone by fibrous tissue and occasionally to the greater
horns by synovial joints which usually persist throughout
life but occasionally become ankylosed".
Our own findings suggest that although the hardening of the bone
is related to age there can be considerable variation and elderly
people sometimes show only slight ossification.
From the above consideration of the anatomy it will be
appreciated that while injuries to the body are unlikely, a grip high
up on the neck may readily produce fractures of the greater horns.
Sometimes it would appear that the local pressure from the thumb
causes a fracture on one side only.
While the amount of force in manual strangulation would often
appear to be greatly in excess of that required to cause death, the
application of such force, as evidenced by extensive external and
soft tissue injuries, make it unusual to find fractures of the hyoid
bone in a person under the age of 40 years.
As stated, even in older people in which ossification is incomplete,
considerable violence may leave this bone intact. This view is
confirmed by Green. He gives interesting figures: in 34 cases of
manual strangulation the hyoid was fractured in 12 (35%) as
compared with the classic paper of Gonzales who reported four
fractures in 24 cases. The figures in strangulation by ligature show
that the percentage of hyoid fractures was 13. Our own figures are
similar to those of Green."
24. In 'Journal of Forensic Sciences' Vol.41 under the title -
Fracture of the Hyoid Bone in Strangulation: Comparison of
Fractured and Unfractured Hyoids from Victims of Strangulation,
it is stated:
"The hyoid is the U-shaped bone of the neck that is
fractured in one-third of all homicides by strangulation. On
this basis, postmortem detection of hyoid fracture is
relevant to the diagnosis of strangulation. However, since
many cases lack a hyoid fracture, the absence of this
finding does not exclude strangulation as a cause of death.
The reasons why some hyoids fracture and others do not
may relate to the nature and magnitude of force applied to
the neck, age of the victim, nature of the instrument
(ligature or hands) used to strangle, and intrinsic anatomic
features of the hyoid bone. We compared the case profiles
and xeroradiographic appearance of the hyoids of 20
victims of homicidal strangulation with and without hyoid
fracture (n = 10, each). The fractured hyoids occurred in
older victims of strangulation (39+14 years) when
compared to the victims with unfractured hyoids (30 +10
years). The age dependency of hyoid fracture correlated
with the degree of ossification or fusion of the hyoid
synchondroses. The hyoid was fused in older victims of
strangulation (41+12 years) whereas the unfused hyoids
were found in the younger victims (28+10 years). In
addition, the hyoid bone was ossified or fused in 70% of all
fractured hyoids, but, only 30% of the unfractured hyoids
were fused. The shape of the hyoid bone was also found to
differentiate fractured and unfractured hyoids. Fractured
hyoids were longer in the anterior-posterior plane and
were more steeply sloping when compared with
unfractured hyoids. These data indicate that hyoids of
strangulation victims, with and without fracture, are
distinguished by various indices of shape and rigidity. On
this basis, it may be possible to explain why some victims of
strangulation do not have fractured hyoid bones."
55. In view of Ponnusamy (supra) we have no doubt that in the absence of any
specific mark of injury on the dead body when the death was found by Dr. L.T.
Ramani due to asphyxia on account of suffocation it was only on account of
strangulation.
56. In view of the above said discussion, we are of the view that an inference of
common intention to kidnap Rajesh for ransom can be drawn against both the
Appellants. However, it would be difficult to say that Appellant Rajender shared
the common intention to commit Rajesh's murder.
57. Section 364 (A) IPC was not on the statute book at the time of commission of the
offence. Unfortunately, a charge under Section 363 was also not framed by the
Trial Court. It would not be appropriate to remand the case for framing fresh
charge against the Appellants after a lapse of more than 20 years.
58. The result is that the Appeal is partly allowed as against Appellant Rajender. His
conviction and sentence for the offence punishable under Section 384 read with
section 34 IPC is maintained, whereas his conviction for the offence punishable
under Section 302/201/34 IPC is set aside.
59. The Appellant Rajender was sentenced to undergo RI for two years and to pay
fine of ` 250/- or in default of payment of fine to further undergo RI for 15 days
for the offence punishable under Section 384/34 IPC which he has already
undergone. His Personal Bond and Surety Bond are therefore discharged.
60. As far as the Appellant Jaipal is concerned, no interference is required in the Trial
Court order. His conviction and sentence is altered from section 302/34 to one
under Section 302 IPC. The conviction and sentence under Section 201/34 is
altered to under Section 201 IPC. His conviction under Section 384/34 IPC is
affirmed. The Appellant Jaipal shall surrender to serve the remainder of sentence
on or before 31.07.2011 before the Trial Court. The Trial Court records shall be
sent back forthwith by the Registry to ensure compliance with the directions.
61. The Appeals are disposed of in above terms.
(G.P. MITTAL)
JUDGE
(S. RAVINDRA BHAT)
JUDGE
JULY 05, 2011/vk
