Mahabir vs State of Haryana

S.C. Malte, J.

The appellants/accused were convicted of the charge under Section 460 I.P.C. and were sentenced to suffer imprisonment for life and fine Rs. 2000/ each, in default R.I. for six months. Briefly stated, the prosecution case is as follows :

The incident in this case took place during night between 21st/22nd of March, 1993. Complainant Amit Kumar and other family members were sleeping in the house. During that night four persons entered in the house. They were armed with knives. At the point of knife, they demanded from Sarji the key of the cupboard. When she raised hue and cry, one of the two persons started throttling her. Thereupon, she told that keys were lying under her pillow. Thereafter, the thieves took out the keys, but these keys did not fit in the cupboard. Thereupon, these thieves caught hold of Guddi, aged about 15 years, who was sleeping in other room, and demanded the keys. She expressed her ignorance about the keys. The accused then searched for the keys, got the keys and opened the cupboard and looted various valuable articles. Meanwhile, the said Guddi and the complainant Amit Kumar were tied with rope so as to prevent their movement. In the morning, the mother of Amit Kumar called Amit Kumar and then learnt about the incident. They then found that Surgi had been put to death due to the throttling by one of those persons. The telephonic message regarding the commission of the offence of murder and looting had been communicated to the police station, City Narwana. On the following morning on 22.3.1993 the report of the complainant Amit Kumar was recorded by the police on the basis of that FIR was registered at about 8.30 A.M. on 22.3.1993.

After investigation, challan against the accused was submitted. The case was committed to the Court of Sessions. After completion of evidence, accused were questioned under Section 313 of Cr.P.C. The accused denied the prosecution case. The accused Dilbag and Mahavir claimed that they were arrested by the police on 22.3.1993 and were brought to the police station where they were served with food and in that process finger prints were obtained on a bottle of liquor which later on were planted at the scene of offence before the arrival of the finger print experts team. It was further contended that on 23.3.1993 they both were shown to the prosecution witnesses.

The trial Court took into consideration the evidence regarding the finger prints collected from the articles found at the spot, which tallied with the sample of the finger prints of the accused. He also took into consideration the extra judicial confession and the recovery of articles at the instance of the accused.

The trial Court on the basis of these pieces of evidence convicted the accused, as mentioned above.

Counsel for the accusedappellant submitted that there was no test identification parade and accused could not be identified. Regarding the finger prints which were said to have been obtained on the articles found at the spot, it was submitted that these pieces of evidence were manipulated. Regarding the recovery of articles at the instance of the accused it was submitted that these articles were not recovered at the instance of accused as claimed by the prosecution. Further, there is no satisfactory evidence that these articles were the stolen property. Regarding extra judicial confession, it was submitted hardly that can be believed.

Counsel for the State, on the other hand, supported the judgment of the trial Court itself.

The first aspect that deserves consideration is the chance finger prints of the culprits which were found on the articles which, the prosecution claims, have been attached from the scene of the offence. PW6 Ajit Kumar states that on 23.3.1993 he had been to the scene of offence, and there he collected chance finger prints on two bottles found at the scene of offence. He claims to have developed those chance prints with the help of powder, and later on took photographs of it. It is surprising that no efforts were made by the prosecution to get proof of photographs by showing those photographs to this witness. In the context of this it may be noted that in the First Information Report given by eye witnessAmit Kumar, there is not even whisper that the culprits left behind the liquor bottles after consuming liquor. In this respect, for the first time in the course of deposition he made an improvement by introducing the story that after the robbery in the house, these culprits smoked bidi, consumed liquor, switched on T.V. but switched off as there was no programme. He further adds that the culprits then took meals there, and played playing cards. They further asked Guddi to join them to play with them. He further claimed that they had evil design for Guddi on seeing the card of queen, and called Guddi "Rup Ki Rani". The culprits were said to have been enquiring from Guddi the time, and on knowing that it was about 2.30 A.M., they decided to leave. All this story, besides sounding unnatural, does not find place in the First Information Report. It is difficult to accept that the culprits, after committing robbery, will stay in the same house for such a considerable long span and indulge in eating and drinking and make merry as indicated by these witnesses. On the other hand, the normal nature conduct of the culprits in such situation would be to leave the place as early as possible. Thus, the prosecution claim that chance finger prints found on the two liquor bottles at the spot, sounds unbelievable. Further, the claim by the prosecution that the butts of smoked bidi were also found, and were later on examined by the F.S.L. also stands unbelievable. In the context of this it may be noted that PW5 Hans Raj Aggarwal who is Assistant Director of F.S.L., Madhuban, had also visited the scene of offence on 23.3.1993. In his deposition he has given the description of the articles found at the spot. Pertinent to note that in the description of the articles given by him he has not mentioned the existence of these two bottles at the spot, while PW6 Ajit Kumar claims to have found these at the spot. PW5 Hans Raj Aggarwal has noted some other articles such as burnt butts of the biri and the pieces of broken glass, but does not whisper about the existence of these two bottles. In the context of that, accused Mahavir and Dilbag claimed that on 22.3.1993 they were taken by the police in the custody and were served with food, and drinks and in that process their finger prints were taken on some liquor bottles. The record, however, shows that these two accused were arrested on 21.4.1993. The question is how and when accused were arrested. In that respect, the prosecution has led evidence of PW18 Phool Singh who claims that about two years five months prior to his deposition on 29.9.1995, while he was sitting in his house, these two accused Mahavir and Dilbag came there at about 11 A.M. He claims that both these accused then made a clean breast of the offence and thus confessed the whole story before him. He claims that thereupon he took both these accused and produced them before the police. The evidence of this witness in so far as it relates to the arrest of accused Mahavir and Dilbag, sound very strange. He is not the person in whom the accused had faith or trust. It is difficult to believe that these two accused would go to such a person simply to make a confession and to enable him to take them to the police. It, therefore, becomes very doubtful as to whether these accused were arrested in the manner in which PW18 Phool Singh has stated. In these circumstances the claim by the prosecution that chance finger prints were on the bottles found at the spot, appears doubtful. It becomes more doubtful when one considers that PW5 Hans Raj Aggarwal belonging Finger Print Bureau did not notice these bottles when he visited the spot on 23.3.1993.

In our opinion, therefore, the evidence of the finger prints on the articles recovered from the spot is rendered doubtful. Further, it may be mentioned that the evidence of PW4 Prem Chand Huda who is Director of Finger Print Bureau, is also not quite satisfactorily got recorded. The various finger prints which he had compared, have not been properly got tallied in order to give a clear position as to which were the chance finger prints collected from the articles at the spot, and which were the finger prints obtained from the accused for comparison. It was necessary to take the evidence properly so as to indicate in a precise manner what identification mark he has given to a particular finger print. Thus, we find that the evidence regarding the finger prints of the accused in this case is not quite satisfactory.

Prosecution has also led the evidence of PW18 Phool Singh to establish extra judicial confession by accused Mahavir and Dilbag. His evidence has already been considered by us in the earlier part of this judgment, and so far as it relates to extra judicial confession, it is very difficult to accept that these two accused would go to this witness simply to confess, and to enable him to present them to the police. PW18 Phool Singh is not a man in whom these accused have explicit faith. There is nothing to indicate that the accused out of remorse confessed before Phool Singh. These pieces of evidence regarding extra judicial confession deserves to be discarded outright.

This brings us to consider that evidence regarding the recovery of articles. The ornaments which were allegedly recovered at the instance of these various accused, were sought to be identified before PW22Inder Singh Ranjan, Tehsildar. The identification of articles in this case is not done by mixing them with similar articles. In our opinion, therefore, the identification of the articles in such a case, hardly deserves any credence. The witnesses have also not clarified the reason why they claimed the identification of these articles. In our opinion, the recovery of such articles, therefore, hardly helps the prosecution case.

In the result, the accused deserve the benefit of doubt. The appeal is allowed. The conviction and sentence is set aside. Fine, if paid, should be refunded to them. They be set at liberty if not required in any other case.