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CASE NO.: Appeal (crl.) 1184 1998

PETITIONER: GURA SINGH

       Vs.

RESPONDENT: THE STATE OF RAJASTHAN

DATE OF JUDGMENT:       06/12/2000

BENCH: K.T.Thomas, R.P.Sethi

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     SETHI,J.

     In  an otherwise quite and small village under  Police Station  Karanpur,  District  Sriganganagar  (Rajasthan)  an unusual  spine  chilling  occurrence took place in  the  wee hours  of  7th July, 1976 resulting in the commission of  an offence  of  patricide.   The killer is  the  appellant  and victim  his  unfortunate father.  Such a heinous  crime  was committed  on  a  trifle  issue  which  commenced  with  the altercation between the father and the son.  Father reminded the  appellant of his wasteful expenditure which was not  to the  liking  of the son who pulled down the deceased on  the ground  and smashed his skull with a Kassi (Dagger).  On the next  morning the appellant went to Jarnail Singh (PW2)  and confessed  about the commission of the crime and the  manner in  which the injuries were caused resulting in the death of the  deceased Bhajan Singh.  In the company of Jarnail Singh (PW2), the appellant approached Billor Singh (PW5), Niranjan Singh  (PW6) and Joginder Singh (PW7) making before them the extra  judicial confession and requesting them to help  him. Jarnail Singh (PW2) and Billor Singh (PW5) thereafter called Amar   Singh,  Panch.   Jarnail   Singh  lodged  the   First Information  Report  (Exhibit P-2) at 12.30 p.m.  at  Police Station,  Karanpur  which was at a distance of 8  kilometers from the place of occurrence.  The appellant was arrested on the  same  day.  He made the disclosure  statement  (Exhibit P21)  consequent  to  which  Kassi, the  weapon  of  offence (Exhibit  P19),  was  recovered.   Again  on  12.7.1976  the appellant  made another disclosure statement in  consequence of  which a Chadar (sheet) (Exhibit P-12) stained with blood was  recovered  vide  (Exhibit  P-22).   The  appellant  was committed to the Court of Sessions on 10.2.1977 for standing his  trial  under  Section 302 IPC.  After  the  prosecution produced  12  witnesses, the trial court vide  its  judgment dated  9.8.1978 held the appellant guilty and convicted  him under  Section  302 IPC.  On the facts and circumstances  of the  case the appellant was awarded life imprisonment.   The appeal  filed  by the appellant against the judgment of  the trial  court  was dismissed by a Division Bench of the  High

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Court  vide  the judgment impugned in this  appeal.   Before appreciating  the  contentions  raised  on  behalf  of   the appellant  by  his  counsel, it is useful to note  down  the conspectus  under  which the offence was committed.   It  is also  necessary  to note the relationship of  the  witnesses with  the  deceased  and the appellant.  Bhajan  Singh,  the unfortunate  victim  of  the  crime   had  two  wives.   The appellant  is  the son from the second wife Ms.Har Kaur  who was  previously married to one Kapur Singh.  Joginder  Singh (PW7)  is the son and Niranjan Singh (PW6) is the son-in-law from  the first wife of the victim.  Bhajan Singh,  deceased had a brother, namely, Rood Singh whose son is Jarnail Singh (PW2).   Bhajan  Singh,  deceased was in possession  of  105 Bighas  of land at Badopal (Rajasthan) where he used to live with  the  appellant.   Joginder Singh (PW7) was  living  in Punjab  where  he  looked after 40 acres of the  other  land belonging  to Bhajan Singh and his family.  Some altercation is  stated to have taken place between Bhajan Singh and  the appellant   some  days  before   the  occurrence   regarding expenditure  incurred by the accused in the marriage of  his sister-in-law  and installation of a hand pump.  On the  day of  occurrence which led to the killing of the deceased, the conversation commenced on the same issue which was not taken of  kindly by the appellant who inflicted the Kassi blow  at 01  a.m.   on 7th July, 1976 resulting in the death  of  the deceased.   Admittedly,  there  is  no  direct  evidence  of eye-witnesses.   The  case of the prosecution  is  primarily based  upon  the extra judicial confession of the  appellant coupled  with the discovery of new facts leading to recovery of  weapon  of  offence and  other  incriminating  articles. Prosecution  has also relied upon the existence of a  motive which  infuriated the deceased to commit the crime.  It  is, however,  undisputed  that  the death of  Bhajan  Singh  was homicidal  and  the  manner  in   which  the  injuries  were inflicted  on  the  vital  parts  of  his  body  shows   the commission  of crime of murder within the meaning of Section 300  IPC  not falling under any of the exceptions  specified therein.   Mr.Doongar  Singh,  the   learned  Advocate   who appeared  for  the appellant submitted  that  extra-judicial confession  allegedly  made  by the appellant has  not  been proved  by  the  prosecution beyond all  reasonable  doubts. According  to him the appellant has wrongly been roped  into the  charge  of  murder  of his father  by  the  prosecution witnesses  with oblique motive of usurping the property left by the deceased.  It is contended that as the main witnesses have  turned  hostile,  the   conviction  based  upon  their testimony  is not justified.  It is settled position of  law that  extra-judicial  confession, if true and voluntary,  it can  be relied upon by the court to convict the accused  for the  commission  of  the crime  alleged.   Despite  inherent weakness  of  extra  judicial  confession   as  an  item  of evidence,  it  cannot  be  ignored   when  shown  that  such confession  was  made before a person who has no  reason  to state  falsely  and to whom it is made in the  circumstances which  tend  to  support  the statement.   Relying  upon  an earlier  judgment  in  Rao Shiv Bahadur Singh v.   State  of Vindhya  Pradesh [1954 SCR 1098], this Court again in Maghar Singh  v.  State of Punjab [AIR 1975 SC 1320] held that  the evidence  in  the form of extra-judicial confession made  by the  accused  to witnesses cannot be always termed to  be  a tainted  evidence.   Corroboration  of   such  evidence   is required  only  by  way of abundant caution.  If  the  court believes  the witness before whom the confession is made and is  satisfied  that the confession was true and  voluntarily made,  then  the conviction can be founded on such  evidence

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alone.   In  Narayan Singh v.  State of M.P.  [AIR  1985  SC 1678]  this Court cautioned that it is not open to the court trying  the  criminal  case to start with  presumption  that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when  the  confession  is made and the  credibility  of  the witnesses  who speak for such a confession.  The  retraction of  extra-judicial confession which is a usual phenomenon in criminal  cases  would by itself not weaken the case of  the prosecution  based upon such a confession.  In Kishore Chand v.   State of H.P.  [AIR 1990 SC 2140] this Court held  that an  unambiguous  extra  judicial confession  possesses  high probative  value  force as it emanates from the  person  who committed  the crime and is admissible in evidence  provided it  is  free from suspicion and suggestion of  any  falsity. However, before relying on the alleged confession, the court has  to  be  satisfied that it is voluntary and is  not  the result  of  inducement,  threat or promise  envisaged  under Section  24  of  the Evidence Act or was  brought  about  in suspicious  circumstances to circumvent Sections 25 and  26. The  Court  is  required  to   look  into  the   surrounding circumstances  to find out as to whether such confession  is not  inspired by any improper or collateral consideration or circumvention  of  law suggesting that it may not  be  true. All  relevant  circumstances such as the person to whom  the confession  is  made, the time and place of making  it,  the circumstances  in which it was made have to be  scrutinised. To  the same effect is the judgment in Baldev Raj v.   State of  Haryana  [AIR  1991  SC 37].   After  referring  to  the judgment  in  Piara Singh v.  State of Punjab [AIR  1977  SC 2274]  this  Court in Madan Gopal Kakkad v.  Naval  Dubey  & Anr.[JT  1992  (3)  SC  270] held that  the  extra  judicial confession  which  is not obtained by coercion,  promise  of favour  or  false  hope  and is  plenary  in  character  and voluntary  in  nature can be made the basis  for  conviction even  without  corroboration.   In   the  instant  case  the extra-judicial  confession  made by the appellant  has  been sought  to be proved by the testimony of PWs 2, 5, 6 and  7. As  noticed earlier, all the aforesaid witnesses are closely related  to  the  appellant  in   whom,  under  the   normal circumstances,   he  would  have   confided   hoping   help, protection  and being safeguarded.  The confession has  been made instantaneously immediately after the occurrence and is not alleged to have been procured under any undue influence, coercion  or  pressure.   Though the  appellant  expected  a favour  from  the witnesses, yet none of them is  stated  to have  promised  to  favour him in case he  made  a  truthful statement  regarding  the  occurrence.  Except  the  alleged usurption  of property of the deceased by PWs 6 and 7, there is  no other suggestion which could tend to show that  their evidence  is tainted and that the extra judicial  confession was  not  voluntarily made by the appellant.  Assailing  the finding of the High Court, the learned counsel appearing for the  appellant has submitted that since PWs 2, 5 and 7  have been  declared hostile and PW6 is an interested witness, the extra judicial confession attributed to the appellant cannot be  held  to have been by the prosecution as a fact.  It  is true  that PW5 has been declared hostile and no reliance can be placed upon his testimony for the purposes of deciding as to  whether  the  appellant  had  made  the  extra  judicial confession or not.  Similarly, the statement of PW7 Joginder Singh  to the extent it refers to the appellant having  made extra  judicial  confession is inadmissible in  evidence  as admittedly  by  the time this witness reached the  place  of occurrence,  the  appellant had been arrested by the  police

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and any confession made by him thereafter is inadmissible in evidence.   It  is  in  evidence   that  the  appellant  was admittedly  arrested  before the arrival of  Joginder  Singh (PW7)  in the village.  However, there is reliable  evidence of Niranjan Singh (PW6 ) which has been believed by both the courts below and we have not been persuaded to disagree with the  aforesaid  findings.  We are also not impressed by  the argument  that  PW6  had made the  statement  allegedly  for depriving  the  appellant from succession to the  estate  of Bhajan  Singh,  deceased.   The  time, the  manner  and  the attending circumstances clearly prove that the appellant had made  a  voluntary  extra judicial  confession  before  this witness without any fear, favour or coercion.  The testimony of  PW2  has  been  assailed on the ground that  as  he  was allegedly  declared  hostile  by the Public  Prosecutor,  no reliance  can  be  placed  upon   his  testimony.   We  have scrutinised  the statement of PW2 and find that he had fully supported   the   case  of   prosecution  in  all   material particulars.   In his examination-in-chief the witness after vividly  explaining  the manner in which the extra  judicial confession  was made, stated that after walking on foot  for about  4  kilometers he, in the company of  others,  reached Police  Station Karanpur at about 12.00 noon and lodged  the report but the Police Station did not register a case on the pretext  that  it  was a family matter and that  the  report would  be  registered  only after making an enquiry  in  the village.   Finding such a statement to be resiling from  the earlier   testimony,  the  Public   Prosecutor  sought   the permission  of the court to declare the witness hostile  and "cross-examine him on the ground that he had not stated that Exhibit  P-2  was not registered at once".  The trial  court obliged   the  Public  Prosecutor  by  permitting   him   to cross-examine  to that extent.  The cross-examination by the Public  Prosecutor is restricted to the lodging of the First Information Report and not with respect to the factum of his deposition  in  so  far  as  it relates  to  the  making  of extra-judicial  confession  by the appellant.   The  defence also  appears  to be conscious of the fact that  the  Public Prosecutor  had  sought the permission to cross-examine  the witness  to a limited extent.  The witness was subjected  to lengthy  and detailed cross-examination with respect to  the making  of extra judicial confession by the appellant.   The trial  as  well  as the High Court rightly relied  upon  his testimony  to  hold that the appellant had voluntarily  made the  extra  judicial  confession to the  aforesaid  witness. There  appears  to be misconception regarding the effect  on the  testimony  of  a  witness declared hostile.   It  is  a misconceived  notion  that  merely   because  a  witness  is declared  hostile his entire evidence should be excluded  or rendered  unworthy of consideration.  This Court in  Bhagwan Singh  v.   State  of Haryana [AIR 1976 SC  202]  held  that merely  because  the  Court gave permission  to  the  Public Prosecutor  to cross- examine his own witness describing him as  hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal  bar  to  base conviction upon the testimony  of  such witness.   In  Rabindra Kumar Dey v.  State of  Orissa  [AIR 1977  SC  170] it was observed that by giving permission  to cross-examine  nothing adverse to the credit of the  witness is  decided and the witness does not become unreliable  only by  his  declaration as hostile.  Merely on this ground  his whole testimony cannot be excluded from consideration.  In a criminal trial where a prosecution witness is cross-examined and  contradicted  with the leave of the Court by the  party calling  him  for  evidence cannot, as a matter  of  general

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rule, be treated as washed off the record altogether.  It is for  the court of fact to consider in each case whether as a result  of  such  cross-examination  and  contradiction  the witness  stands  discredited  or can still  be  believed  in regard  to any part of his testimony.  In appropriate  cases the  court  can  rely  upon the part of  testimony  of  such witness  if  that  part  of the deposition is  found  to  be creditworthy.    The   terms     "hostile",   "adverse"   or "unfavourable"  witnesses  are alien to the Indian  Evidence Act.   The  terms  "hostile   witness",  "adverse  witness", "unfavourable witness", "unwilling witness" are all terms of English Law.  The rule of not permitting a party calling the witness to cross examine are relaxed under the common law by evolving  the  terms  "hostile   witness  and   unfavourable witness".   Under  the  common  law  a  hostile  witness  is described as one who is not desirous of telling the truth at the  instance  of the party calling him and  a  unfavourable witness  is one called by a party to prove a particular fact in  issue  or relevant to the issue who fails to prove  such fact,  or  proves the opposite test.  In India the right  to cross-examine  the  witnesses  by the party calling  him  is governed by the provisions of the Indian Evidence Act, 1872. Section 142 requires that leading questions cannot be put to the  witness  in examination-in-chief or in re-  examination except  with  the permission of the court.  The  court  can, however, permit leading question as to the matters which are introductory  or  undisputed or which have, in its  opinion, already  been  sufficiently proved.  Section 154  authorises the court in its discretion to permit the person who calls a witness  to  put any question to him which might be  put  in cross-examination  by  the adverse party.  The  courts  are, therefore,   under  a  legal   obligation  to  exercise  the discretion  vesting in them in a judicious manner by  proper application  of  mind  and  keeping in  view  the  attending circumstances.  Permission for cross-examination in terms of Section  154  of the Evidence Act cannot and should  not  be granted at the mere asking of the party calling the witness. Extensively  dealing  with the terms "hostile,  adverse  and unfavourable  witnesses" and the object of the provisions of the   Evidence  Act  this  Court  in  Sat  Paul  v.    Delhi Administration  [AIR 1976 SC 294] held:  "To steer clear  of the  controversy  over  the meaning of the  terms  ’hostile’ witness, ’adverse’ witness, ’unfavourable’ witness which had given  rise  to  considerable  difficulty  and  conflict  of opinion  in England, the authors of the Indian Evidence Act, 1872  seem to have advisedly avoided the use of any of those terms  so  that,  in  India,  the  grant  of  permission  to cross-examine  his own witness by a party is not conditional on  the  witness  being  declared  ’adverse’  or  ’hostile’. Whether  it be the grant of permission under Sec.142 to  put leading  questions,  or the leave under Section 154  to  ask questions  which  might be put in cross- examination by  the adverse  party,  the Indian Evidence Act leaves  the  matter entirely   to  the  discretion  of   the  court   (see   the observfations  of Sir Lawrence Jenkins in Baikuntha Nath  v. Prasannamoyi), AIR 1922 PC 409.  The discretion conferred by Section  154  on the court is unqualified and  untrammelled, and  is apart from any question of ’hostility’.  It is to be liberally  exercised whenever the court from the witnesses’s demeanour,  temper,  attitude,  bearing, or  the  tenor  and tendency  of his answers, or from a perusal of his  previous inconsistent  statement, or otherwise, thinks that the grant of  such permission is expedient to extract the truth and to do justice.  The grant of such permission does not amount to an  adjudication  by  the court as to the  veracity  of  the

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witness.   Therefore, in the order granting such permission, it  is preferable to avoid the use of such expressions, such as   ’declared   hostile’,   ’declared  unfavourable’,   the significance  of which is still not free from the historical cobwebs  which,  in their wake bring a misleading legacy  of confusion,  and conflict that had so long vexed the  English Courts.

     It  is  important  to note that  the  English  statute differs  materially  from  the law contained in  the  Indian Evidence   Act   in   regard    to   cross-examination   and contradiction  of  his  own witness by a party.   Under  the English  Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady  antecedents  or previous conviction.  In India,  this can  be  done  with the consent of the  court  under  S.155. Under  the English Act of 1865, a party calling the witness, can  ’cross-examine’ and contradict a witness in respect  of his  previous inconsistent statements with the leave of  the court,  only  when  the court considers the  witness  to  be ’adverse’.   As already noticed, no such condition has  been laid  down in Ss.154 and 155 of the Indian Act and the grant of  such leave has been left completely to the discretion of the  court,  the  exercise of which is not  fettered  by  or dependent  upon  the  ’hostility’ or  ’adverseness’  of  the witness.   In  this respect, the Indian Evidence Act  is  in advance  of  the  English Law.  The  Criminal  Law  Revision Committee  of England in its 11th Report, made recently, has recommended  the adoption of a modernised version of S.3  of the  Criminal Procedure Act, 1865, allowing contradiction of both  unfavourable  and hostile witnesses by other  evidence without  leave of the court.  The Report is, however,  still in  favour  of  retention of the prohibition  on  a  party’s impeaching his own witness by evidence of bad character.

     The  danger of importing, without due discernment, the principles  enunciated  in ancient English  decisions,  for, interpreting  and applying the Indian Evidence Act has  been pointed  out  in several authoritative  pronouncements.   In Prafulla  Kumar  Sarkar v.  Emperor, ILR 58 Cal 1404 =  (AIR 1931  Cal.   401)(FB)an  eminent Chief Justice,  Sir  George Rankin  cautioned, that ’when we are invited to hark back to dicta  delivered by English Judges, however, eminent, in the first  half of the nineteenth century, it is necessary to be careful  lest  principles  be introduced  which  the  Indian Legislature  did  not see fit to enact’.  It was  emphasised that these departures from English Law ’were taken either to be  improvements in themselves or calculated to work  better under Indian conditions’.

     xxxxx xxx

     From  the above conspectus, it emerges clear that even in  a criminal prosecution when a witness is  cross-examined and  contradicted with the leave of the court, by the  party calling  him,  his evidence cannot, as a matter of  law,  be treated  as washed off the record altogether.  It is for the Judge  of fact to consider in each case whether as a  result of  such  cross-examination and contradiction,  the  witness stand  thoroughly  discredited or can still be  believed  in regard  to a part of his testimony.  If the Judge finds that in  the  process,  the credit of the witness  has  not  been completely shaken, he may, after reading and considering the evidence  of  the witness, as a whole, with due caution  and care,  accept,  in  the light of the other evidence  on  the

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record,  that  part  of his testimony which he finds  to  be creditworthy and act upon it.  If in a given case, the whole of  the  testimony  of the witness is impugned, and  in  the process,   the   witness  stands    squarely   and   totally discrediated,  the  Judge should, as a matter  of  prudence, discard his evidence in toto."

     We  deprecate the manner in which the prayer was  made by the Public Prosecutor and permission granted by the trial court to cross- examine Jarnail Singh (PW2) allegedly on the ground of his being hostile.  On facts we find that the said witness  was wrongly permitted to be cross-examined.  It was only  on a post-event detail that he did not concur with the suggestion  made  by  the Public  Prosecutor.   That  single point,  in our opinion, was too insufficient for the  Public Prosecutor to proclaim that the witness made a volteface and became  totally hostile to the prosecution.  Otherwise  also the  permission  granted and utilised for  cross-examination was  limited to the extent of the time of lodging the  First Information  Report  (Exhibit P-2).  There is no  reason  to disbelieve  PW2 who is closely related to the appellant  and has  no  reason  to falsely implicate particularly  when  no inducement, threat or promise is allegedly given or assured. We  are satisfied that there was sufficient evidence even in the  absence  of testimony of PWs 5 and 7 to hold  that  the appellant  had  made a voluntary extra  judicial  confession before  PWs  2  and  6 without  undue  influence,  pressure, promise  or  inducement.  Such a statement was made  by  the appellant  instantaneously immediately after the  occurrence to  witnesses who are independent and reliable.  We are also satisfied  that the prosecution has proved beyond doubt  the recovery  of  the blood stained Chadar (sheet) belonging  to the appellant and Kassi, the weapon of offence, on the basis of  the voluntary disclosure statements made by him.  Shambu Singh  (PW12)  has deposed that after his arrest  vide  Memo (Exh.P-14),  the  shoes of the appellant stained with  human blood  were  seized and upon his information Kassi  (Exhibit P-21)  (Article  A-1) was recovered from inside  his  house. Recovery  is proved by the testimony of Niranjan Singh (PW6) and  Joginder  Singh  (PW7) besides the IO (PW2).   On  12th July,  1976 the appellant gave information about the  chadar (sheet)  which was recorded as Exhibit P-22 and in  presence of Ram Singh, (PW3) he produced the same which was hidden by him in his house kept in a pitcher (earthen water pot).  The recovery  memo was prepared and signed by Ram Singh (PW  3), Jarnail  Singh  (PW2) and Shambu Singh (PW12).   Chadar  was stained  with  human blood.  Both the trial as well  as  the High  Court rightly held that the prosecution has  succeeded in  proving  the making of the disclosure statements by  the appellant  and consequent recovery of the weapon of  offence and  chadar at his instance.  An hair was found studded with Kassi,  the weapon of offence, recovered at the instance  of the  accused  after making the disclosure  statement.   Hair from  the  skull  and the scalp of the  deceased  were  also seized by the investigating agency.  All the three hair were sent to the Forensic Science Laboratory who upon analysis of morphological  examination found all the hair to be of human head.  Various other articles such as chadar (sheet) turban, pair  of  shoes,  the Kassi were also sent to  the  Forensic Science  Laboratory  for  analysis.   The  Forensic  Science Laboratory  in its report submitted:  "Blood was detected in exhibit  nos.1, 2 (from packet marked ’l’), 3, 4 (from ’2’), 5  (from ’4’), 7 (from ’6’), 8 (from ’7’), 9 (from ’8’)  and 10 (from ’9’).

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     Blood stained cuttings/samples from the exhibits along with  their respective controls wherever available have been forwarded to the serologist for serological examination.

     Samples  from  exhibit no.5(from ’4’) and 6(from  ’5’) have  been  forwarded  to  the  Physics  Division  for  soil examination.

     Exhibit no.10 (from ’9’) has been forwarded As-Such to the serologist for serological examination."

     The Serologist and Chemical Examiner to the Government of  India found Chadar (sheet) and other items to be stained with  human  blood.  However, the origin of blood stains  on items,  pair  of shoes and Kassi could not be determined  on account  of disintegration with the lapse of time.   Learned counsel  for  the appellant submitted that as the origin  of the  blood  could  not  be  determined,  the  appellant  was entitled   to  be  acquitted,  as   according  to  him   the prosecution  has  failed  to connect the  accused  with  the commission of crime.  In support of his contention he relied upon  the  judgment of this Court in Prabhu Babaji Navle  v. State  of Bombay [AIR 1956 SC 51], Raghav Prapanna  Tripathi v.   State  of  Uttar Pradesh [AIR 1963 SC  74],  Shankarlal Gyarasilal  Dixit  v.   State of Maharashtra [1981  (2)  SCR 384],  Kansa Behera v.  State of Orissa [AIR 1987 SC  1507]. The  effect  of the failure of the serologist to detect  the origin  of  blood due to disintegration in the light of  the Judgments  in  Prabhu Babaji and Raghav Prapanna  Tripathi’s cases  was considered by this Court in State of Rajasthan v. Teja  Ram  & Ors.  [1999 (3) SCC 507] wherein it  was  held: "Failure of the Serologist to detect the origin of the blood due to disintegration of the serum in the meanwhile does not mean  that  the blood stuck on the axe would not  have  been human  blood  at all.  Sometimes it happens, either  because the  stain  is  too insufficient or  due  to  haematological changes  and  plasmatic coagulation that a serologist  might fail  to detect the origin of the blood.  Will it then  mean that  the  blood  would  be  of  some  other  origin?   Such guesswork that blood on the other axe would have been animal blood  in unrealistic and far-fetched in the broad  spectrum of  this case.  The effort of the criminal court should  not be  to prowl for imaginative doubts.  Unless the doubt is of a reasonable dimension which a judicially conscientious mind entertains  with some objectivity, no benefit can be claimed by the accused.

     Learned  counsel  for  the accused made an  effort  to sustain the rejection of the abovesaid evidence for which he cited  the  decisions  in Prabhu Babaji Navle v.   State  of Bombay  [AIR  1956  SC 51] and Raghav Prapanna  Tripathi  v. State  of  U.P.   [AIR 1963 SC 74].  In the  former,  Vivian Bose,  J.  has observed that the chemical examiner’s duty is to  indicate the number of bloodstains found by him on  each exhibit  and  the extent of each stain unless they  are  too minute  or too numerous to be described in detail.  It was a case  in which one circumstance projected by the prosecution was just one spot of blood on a dhoti.  Their Lordships felt that  "blood  could equally have spurted on the dhoti  of  a wholly  innocent person passing through in the circumstances described  by  us earlier in the judgment".  In  the  latter decision, this Court observed regarding the certificate of a chemical  examiner  that inasmuch as the bloodstain  is  not

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proved  to  be  of  human origin the  circumstances  has  no evidentiary  value  ’in  the circumstances’  connecting  the accused   with  the  murder.   The   further  part  of   the circumstances  in  that case showed that a shirt was  seized from  a drycleaning establishment and the proprietor of  the said  establishment  had testified that when the  shirt  was given to him for drycleaning, it was not bloodstained.

     We are unable to find out from the aforesaid decisions any legal ratio that in all cases where there was failure of detecting the origin of the blood, the circumstances arising from  recovery  of  the  weapon  would  stand  relegated  to disutility.   The  observations in the aforesaid cases  were made on the fact situation existing therein.  They cannot be imported   to  a  case  where   the  facts  are   materially different."

     In  view  of the authoritative pronouncements of  this Court  in  Teja  Ram’s  case (supra), we  do  not  find  any substance  in the submissions of the learned counsel for the appellant  that  in the absence of the report regarding  the origin  of  the  blood,  the  trial  court  could  not  have convicted the accused.  The Serologist and Chemical Examiner has  found it that the Chadar (sheet) seized in  consequence of  the  disclosure  statement  made by  the  appellant  was stained  with  human blood.  As with the lapse of  time  the classification  of  the  blood could not be  determined,  no bonus  is conferred upon the accused to claim any benefit on the  strength  of  such a belated and stale  argument.   The trial  court  as  well as the High  Court  were,  therefore, justified  in  holding  this circumstance as  proved  beyond doubt  against  the  appellant.   Taking  advantage  of  the non-mentioning  of the dimensions of the stains of the blood on  the  chadar (sheet) and other articles and relying  upon the  observations  made in Kansa Behera v.  State of  Orissa [AIR  1987  SC 1507], the learned counsel for the  appellant has  submitted that such a failure is fatal for the case  of the  prosecution  and  a  missing   link  in  the  chain  of circumstances allegedly proved against him.  This submission is  also of no help to the accused-appellant in the  present case.  In Kansa Behera’s case(supra), the allegations of the prosecution  were that the deceased therein had some dispute with  one  Jitrai Majhi and is brothers.  Jitrai  Majhi  was alleged  to  have  got  the   deceased  killed  through  the instrumentality  of Kansa Behera.  There was no  eye-witness and  the  case  of  the  prosecution  was  based  only  upon circumstantial  evidence.   One of the  circumstance  relied upon  by  the  prosecution  was that  the  dhoti  and  shirt recovered  from the possession of the appellant, when he was arrested,  were  found to be stained with human  blood.   In that  context this Court observed:  "Few small  blood-stains on  the  clothes  of a person may even be of his  own  blood specially  if it is a villager putting on these clothes  and living  in villages.  The evidence about the blood group  is only  conclusive  to  connect   the  blood-stains  with  the deceased.   That evidence is absent and in this view of  the matter,  in our opinion, even this is not a circumstance  on the basis of which any inference could be drawn."

     The  position in the instant case is totally different inasmuch  as the blood stained chadar (sheet) was  recovered after  about  5  days  from the date of the  arrest  of  the appellant  which  he had concealed in a pitcher and kept  in

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his  house.   But for the disclosure statement made  by  the appellant,  the fact of the chadar (sheet) belonging to  him having  blood-stains could not have been discovered.  It  is worth  mentioning  that  before making observations  in  the case,  the Court noted that as regards the recovery of shirt and  dhoti, there was no clear evidence to indicate that the accused  was wearing those clothes at the time of  incident. Otherwise  also the observations made in Kansa Behera’s case were  confined to the facts of that case alone and were  not intended  to  be universally applicable to all  cases.   The extent  of  the  dimensions of the blood-stains  has  to  be determined in the context of the circumstances of each case. It  would  be appreciated if the extent is mentioned in  the seizure  memos but failure to give its details in such  memo would  not entitle the accused to claim the rejection of the prosecution  case  on that ground alone.  Non mentioning  of the  dimensions  of the stains of blood may  perhaps  assume importance  in  cases where the accused pleads a defence  or alleges  the malafides of the prosecution of fabricating the evidence  to  wrongly involve him in the commission  of  the crime.   The  credibility of such a circumstance  cannot  be weakened  only by referring to the non mention of dimensions of blood stains on the clothes particularly when its adverse effect  on  the prosecution case is not pointed  out.   Mere doubt  sought to be created on the non mention of dimensions of  blood  stains by itself is not sufficient as  admittedly the  accused  is entitled to the benefit of only  reasonable doubts.   We  have found, in this case, on facts  that  this circumstance  is  fully proved and does not create a  doubt, much less a reasonable doubt so far as the commission of the crime  by the accused is concerned.  We have no doubt in our mind  that the appellant had made confessional statement  to PWs  2  and 6, made voluntary disclosure statements, led  to the  recovery  of the weapon of offence and  chadar  (sheet) which  was concealed by him in his house, Kassi studded with an hair which was compared with the hair taken from the body of  the deceased and upon analysis was found to be of  human hair  and  his chadar (sheet) was stained with human  blood. The  aforesaid circumstances were sufficient to connect  the accused  with  the  commission  of crime for  which  he  was rightly  held  guilty, convicted and sentenced by the  trial court  which  was confirmed by the High Court.  There is  no merit in the appeal which is accordingly dismissed.