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PETITIONER: HIMACHAL PRADESH ADMINISTRATION

       Vs.

RESPONDENT: SHRI OM PRAKASH

DATE OF JUDGMENT07/12/1971

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN PALEKAR, D.G.

CITATION:  1972 AIR  975            1972 SCR  (2) 765  1972 SCC  (1) 247  CITATOR INFO :  R          1973 SC 863  (15,27)  R          1979 SC 400  (8)  F          1979 SC1284  (4)  R          1986 SC1769  (5)  RF         1989 SC1205  (17)  RF         1991 SC1108  (10)  RF         1991 SC1853  (9)  RF         1992 SC  49  (9)

ACT: Constitution  of  India,  1950,  Art.  136--Criminal  appeal against acquittal--Scope of interference by Supreme Court. Criminal trial--Circumstantial evidence--Approach by Court. Evidence  Act  (1 of 1872), s. 27--Weight of evidence  re  : recovery--Panch  witnesses--If should be different for  each recovery. Criminal    Procedure   Code   (Act   5   of    1898),    s. 510--Admissibility  and  weight of report  of  finger  print expert.

HEADNOTE: The  accused  was charged with murder by stabbing,  and  the evidence against him was circumstantial.  It consisted of  : (a)  evidence of ill-will against the deceased furnishing  a motive (b) evidence that he was last seen in the company  of the deceased, (c) evidence furnished by finger prints,  that he  was present in the room of the deceased at or about  the time  of the murder, (d) evidence that he  was  subsequently found  in  Possession of articles  which  had  incriminating blood strains, and (e) evidence that he had bidden a  dagger with bloodstains thereon, and certain other articles.  which were discovered on information furnished by him. The  trial court convicted him but the High Court set  aside the  conviction  on the ground that the witnesses  were  not independent or impartial. Allowing the appeal to this Court, HELD  : (1) In an appeal against acquittal by special  leave under  Art. 136, this Court has power to interfere with  the findings   of  fact,  no  distinction  being  made   between judgments of acquittal and conviction though in the case  of acquittals,  it  will  not  ordinarily  interfere  with  the appreciation of evidence or findings of fact unless the High

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Court acted perversely or otherwise improperly. [772 B-D] State  of  Madras v.  Vaidyanatha Iyer, [1958]  S.C.R.  580, 587, referred to. (2)  In the case of circumstantial evidence if the links  in the  chain are complete leading to the undoubted  conclusion that the accused alone could have committed the offence then it  can  be accepted.  In appreciating  -such  evidence  the prime  duty  of a court is to ensure that  the  evidence  is legally admissible, that the witnesses are credible and that they have no interest or motive in implicating the  accused, Since it is difficult to expect a scientific or mathematical exactitude while dealing with such evidence corroboration is sought wherever possible.  If there is any reasonable  doubt the  accused is given the benefit of such doubt.  The  doubt should be reasonable and not a remote possibility in  favour of the accused.  That is, the greatest possible care  should be  taken  by the court in convicting an  accused,,  who  is presumed  to  be  innocent  till  the  contrary  is  clearly established, and the burden of so establishing is always  on the prosecution. [772 C-E, G; 773 E-H; 774 C] (3)(a)  While  considering  the  evidence  relating  to  the recovery under S. 27 of the Evidence Act the court will have to exercise that caution and care which is necessary to lend assurance  that  the information furnished  by  the  accused lead in to the discovery of a fact is credible. [776 D] 766 In  the  present  case, the various  panchnamas  of  seizure prepared by the Investigating Officer could not be  assailed on   the  ground  that  the  witnesses  who  witnessed   the recoveries  were  connected with the deceased  or  with  his business,  and that therefore, they were not independent  or impartial witnesses. [775 H; 776 G] (b)  The  evidence relating to recoveries is not similar  to that contemplated under s. 103, Cr.  P.C. It cannot be  laid down  as a matter of law or practice that  where  recoveries had to be effected from different places on the  information furnished by an accused different sets of persons should  be called to witness them. [777 B-C] On  the  contrary, in the present case,  the  witnesses  who worked with the deceased were proper persons to witness  the recoveries  as  they could identify the  things  which  were missing. [777 C-D] (4)  The  report of the Director of the Finger Print  Bureau regarding the finger prints can be used as evidence under s. 510  Cr.   P.C.,  without examining the  person  making  the report,   because  identification  of  finger   prints   has developed  into  an exact science.  As long  as  the  report shows  that the opinion was based on  relevant  observations that opinion can be accepted. [783 A-E] In  the  present  case, the report set out  many  points  of similarity  between the finger prints found in the  room  of the deceased and those of the accused. [783 H] (5)  The information given by the accused that he  purchased a dagger from one of the prosecution witnesses followed  his leading  the police to that witness and pointing him out  is inadmissible   under  s.  27  of  the  Evidence  Act.    The concealment  of a fact which is not known to the  police  is what  is discovered by the information given by  an  accused and  lends  assurance that the information was  true.   What makes the information leading to the discovery of a  witness admissible  is the discovery from him of the thing  sold  to him or hidden or kept with him which the police did not know until  information  was  furnished by the  accused.   But  a witness  cannot be said to have been discovered  if  nothing was  found with or recovered from him. as a  consequence  of

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the information furnished by the accused. [778 F- 779 H; 780 A-C] Emperor  v.  Ramanuya Ayangar, A.I.R. 1935 Mad.  528,  over- ruled. Pulukiuri  Kotayya  &  Ors. v. King  Emperor,  74  I.A.  65, Ramkrishan  Mithaplal  Sharma v. State of Bombay,  [1955]  I S.C.R.  9’03,  Sukhan v. Crown, I.L.R. X  Lah.  283,  Public Protector  v. India China Lingiah & Ors., A.I.R.  1954  Mad. 435 and Re : Vellingiri, A.I.R. 1950 Mad. 613.    referred to. (6)  But that the accused had taken some of the  prosecution witnesses to the witness from whom he bought the dagger  and pointed  him  out,  would be admissible under s.  8  of  the Evidence Act as conduct of the accused. [780 C-D] (7)  Even after excluding some recoveries on the ground that the  evidence  regarding  them  was  not  satisfactory,  the evidence  against  the  accused  consisted  of  evidence  of motive,  recovery  of a button in the room of  the  deceased which  matched  with  the button on the  cuff  of  the  coat recovered  from the accused, the finger prints in the  room, recovery  of  a  blood stained coat and  other  articles  of dress, a blanket, and the dagger, and the  767 fact that the accused and deceased were last seen  together. The evidences cogent and conclusive and should not have been rejected by the High Court. [781 C-E; 786 C-D]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 67  of 1969. Appeal  by special leave from the judgment and  order  dated August  12, 1969 of the Delhi High Court in Criminal  Appeal No. 68 of 1967 and Murder Reference No. 1 of 1967. H. R. Khanna and R. N. Sachthey, for the appellant. Har Pershad and O. N. Mohindroo, for the respondent. The Judgment of the Court was delivered by P.   Jaganmohan  Reddy, J. This Appeal is by  Special  leave against the Judgment of the Himachal Bench of The High Court of  Delhi acquitting the accused who had been  sentenced  to death  for  an offence of murder under Section  302  of  the Indian Penal Code.  The accused Respondent was a Manager  at the Kotkhai Branch of the Himachal Pradesh State Cooperative Bank  of  which Sunder Lal Chaturvedi the deceased  was  the General  Manager.   It appears that during  the  period  the accused  was  working in that Bank there was a fire  in  the Kotkhai  Branch in which the records of the Bank were  burnt and a sum of Rs. 10,000/,A was found missing.  The  deceased had suspended the accused from the service and  subsequently he  was dismissed.  In or about 1964, the  deceased  retired from the Bank and in 1965 started a Private Limited  Company under the name of Himprasth Financiers with the Head  Office at  Nagina Singh Building which was situated in the Mall  at Shimla  of which he was the Managing Director.  He  used  to also  live in the same building in one of the rooms  of  the office  and  have his meals in the  Mansarovar  Hotel.   The other Directors of this Company were Gurucharan Singh, Puran Chand  Sood and Kailasli Devi wife of I. C. Gupta,  P.W.  2, who  was  at one time also Manager in the  Himachal  Pradesh State  Cooperative  Bank.  After the accused  was  dismissed from  the Bank he had applied to the deceased for a job  and was  appointed as an Accountant in the Finance  Company  but later  when  his  request for increase in his  pay  was  not sanctioned, he sent in his resignation by a letter dated 31-

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12-66  Exh.   P.  8  and it was  accepted  on  3-1-67  by  a resolution  of the Board of Directors Exh.  P. 43.   On  the night  of 30th January 1967 the deceased had his  dinner  at the Hotel and when lie came out after taking his food it was alleged that he was met by the accused.  This was  witnessed by  Romesh Chand P.W. 7 the Proprietor of the Hotel who  saw them  both going towards the Mall.  Thereafter at the  betel shop  which is near Nagina Singh Building, Lal Chand P.W.  9 who was purchasing cigarettes at that shop saw them together and going towards the Nagina Singh Building.  It 768   was the last time he was seen alive.  On the 31st  January 67 at about 9.30 a.m. I. C. Gupta P.W. 2, came to visit  the deceased  and  .found  that the main door  was  bolted  from inside.   He  then peeped through the glass  of  the  window panes through the adjoining room and saw that the  deceased was lying in a pool of blood.  He immediately telephoned  to the  Police.   In response to this call  the  Station  House Officer of the Saddar Police Station, Inder Raj Malik,  P.W. 28  came  to the building, broke open the room  through  the kitchen door and saw that the back door of the bath room was open.   At that time there were present P.W. 2.  Amar  chand P.W. 8, Raidev Krishan P.W. 13 and others.  The deceased had on  him  four incised wounds one on the neck and  3  on  the hands.  On  inspection of the room he found  on  the  nearby table  a  key Ex. 4 stained with blood and under  the  table there  was  a biscuit colour Coat button Ex. 1.  Inside  the shelf  of an Almirah there was a water flask which  appeared to have on its neck 3 finger impressions.  On the glass pane of  the  door  leading to the kitchen were  also  found  two finger marks.  The curtain near the kitchen door showed that someone  had wiped his blood stained hands on it.   The  key and the button were seized and a panchnama was made.   There were  also  found  two bunches of the  keys  underneath  the pillow  of  the  deceased.   Des Raj,  P.W.  6,  the  Police Photograph took photographs not only of the various  objects in the room but also of the finer marks on the flask and the window  panes  after  the same were dusted  with  some  prey powder.   Thereafter  the  Investigating,  Officer  P.W.  28 requested P.W. 2, P.W. 8 and P.W. 13 to ascertain if any  of the  things belonging to the deceased were  missing.   These three  persons informed him after inspection list  two  loan registers,  one general ledger, one cash book  and  vouchers from  April ’66 to December ’66 were missing.  They  further informed  him that one blanket of the deceased, one  tea-poy cove,’  and one canvas bag was missing.  An inquest  on  the dead  body  was held and the blood found  was  also  seized. Thereafter-  p.W. 28 went to Mansarover Hotel  and  recorded the statement of P.W. 7. On 1-2-6-/ at about 11.30 a.m. P.W. 28 accompanied by the Assistant Sub-Inspector and Constables met P.W. 2, P.W. 8 and boarded the jeep of P.W. 2 driven  by Roshan Lal and went towards the house of Om Prakash.  On the way  PW. 2 saw Kala Ram, P.W. 5, who was waiting for  a  bus and asked him to get into the jeep.  Thereafter they went to the house of the accused situated at Anandale and there P.W. 28  went inside the house and saw the accused in one of  his rooms  and brought him outside.  After interrogating him  he arrested him and pursuant to a statement made by him  seized from him one sweater, one coat, one blanket which was hidden inside  the  nivar  of his cot lying inside  his  room.  The sweater  and the coat were stated by the accused to be  his. The accused also gave them the pair of boots and socks which he  was wearing and informed them that he had concealed  one blood  769

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stained dagger under a stone slab below the Maidan of  Burnt Market and over the bakeries which was by the side of a pipe and offered to have it recovered.  He further stated that he had  kept the five registers in a canvas bag which  lie  had hidden  below a stone at Krishna Nagar on the bank of  Ganda Nala  and that he had thrown 8 or 9 bundles of the  vouchers tied  in a tea-poy cloth and his blood stained pants in  the Ganda Nala and would get them recovered.  The, Investigating Officer reduced the statements to writing in the presence of the  Panchas and took their signatures.  This  Panchnama  is Ex.   P. 6. The coat and sweater and the blanket  inside  he nivar  of  his cot were handed over by the  accused  to  the police.   These were found to contain blood and were  seized through  a  Panchnama.  The accused then took  them  to  the market and on the way were met by Bhag Singh P.W. 12 and  in the  presence  of all these persons he. removed a  piece  of stone which was near a pipe and brought out a blood  stained dagger  from under it and gave it to P.W. 28.  He then  took them to the Tekri of one Ganga Singh P. W. II, in the  Lower Bazar  who  sells  daggers and there P.W.  28  recorded  his statement  that on the day of the incident the  accused  had purchased  the dagger recovered from under the  stone  which was  identified by P.W. 11, as the one sold to him.  On  the next day namely 2-2-67 P.W. 28, got a plan of the rooms  and the  office  where  the  deceased  was  working  and  living prepared and from there accompanied by P.W. 2, P.W. 13  went to  Krishna  Nagar taking with them on the way  Manohar  Lal P.W. 14, from Krishna Nagar to Ganda Nala which was  flowing in  the  khud.  From near there the accused  pointed  out  a stone  slab  from where a canvas bag  which  contained  five registers  said  to  be missing from the  residence  of  the deceased  were recovered and then the accused went into  the Ganda  Nala  brought  out a tea-poy  cloth  which  contained vouchers  and also recovered a blood stained pant which  was lying under the water.  The button and the coat were sent to the forensic laboratory at Chandigarh for examination.   The flash  and,  the glass panes were sent to the  Finger  Print Examiner   at  Phillor  and  the  button  to  the   Forensic Laboratory  which gavel a report that it was similar to  the button on the coat from which it was missing.  The  Chemical Examiner  and Serologist found human blood on the  key.  the dagger,  blanket,  coat,  sweater and pant,  the  shoes  and socks.  The blood grouping could only be found on the pajama and  shirt  of the deceased which is of ’O’ group  while  no blood grouping was possible in respect of the other articles referred  to.  Vide Ex.  P. 60 and Ex.  P. 48.   The  finger print expert found on the flask and the glass pane  reported as  per  Ex.  P. 59 that they are the same as those  of  the accused  and  have more than 12 points  of  similarity  i.e. matching ridge characteristic details. The High Court grouped the circumstances relied against  the accused Under 4 broad heads namely 770 (i)  that there was a motive for committing the murder; (ii) that  the  deceased  Chaturvedi was seen  last  in  the Company of the accused; (iii)     that  in pursuance of the statement said  to  have been  made  by the accused as per Ex.  P. 6  a  recovery  of blood  stained sweater, coat, blanket. shoes and  socks  and blood stained dagger were made ,as per Ex.  P. 6/A on 1-2-67 (the  date given in the Judgment as 2-2-67 is not  correct), and that on 2-2-67 five registers contained in a bag   and 12 bundles of vouchers were recovered; and (iv) that the finger marks of the accused were found on the flask as  well as on the glass panes at the place where  the

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murder took place. If  the  circumstantial  evidence  as  relied  upon  by  the prosecution  is  credible and acceptable  the  offence  with which  the accused is charged can be held to be  established beyond  reasonable  doubt.  The High Court however  did  not accept these circumstances as having been established by any independent  and  reliable evidence.  In so  far  as  motive suggested  byu  the prosecution is concerned it was  of  the view  that  while no doubt the accused was suspended  by  an order  of the deceased on 21-6-63 that suspension must  have been as a consequence of the action taken by the authorities of the Bank with the approval of the Board of Directors  and this  does  not indicater that he could have  any  grievance against  him; that the accused had no grievance against  the deceased  is also shown by the fact that the deceas  ed  had given  him  employment in the Finance Company.   The  second circumstance against the accused, that lie was last seen  in the Company of the deceased on 30-1-67 at 9.30 p.m. was also held not to incriminate him for the reason that even if  Lal Chand P.W. 9’s statement was true, it only goes to show that the  accused  was seen going with the deceased  towards  the Nagina  Singh Building but that does not mean that they  had gone  into  that Building together, but on  the  other  hand there  was a possibility of the accused taking leave of  the deceased  and going away to his house without entering  into the  Nagina  Singh  Building.  With  respect  to  the  third circumstance  relating  to  the  seizure  and  recovery   of articles  and  their  admissibility under  Sec.  27  of  the Evidence  Act, it was observed that the evidence adduced  by the prosecution for establishing these circumstances reveals a number of irregularities and is suspicious firstly because the prosecuting officer took with him all the witnesses  who were neither independent nor impartial and even the  witness P.W.  5 Kala Ram cannot be considered to be  independent  or impartial  as  he was not a stranger but was  known  to  the Enquiry  Officer.  A reading of Kala Ram’s  ,evidence  gives the  impression that he is a person willing to be an  ;agent of the police.  It also appeared to the High Court that the  771 action  of P.W. 28 in bringing the accused out of  the  room when he and the other witnesses went to his house gives rise to  the suspicion that it might have been done  deliberately to clear the way for planting the articles in the cot  which was  in  the room and fourthly the statement Ex. 6  said  to have  been made by the accused amounted to a  confession  by the  accused and it as the enquiry officer P.W.  28  claimed that  the  statement was voluntary instead of  recording  it himself  he  could  have  produced  the  accused  before   a Magistrate for recording the same.  In view of this the High Court was not satisfied that the statements were freely  and voluntarily made by the accused and accordingly neither  the portions of those statements which related to the  discovery of  incriminating facts nor the admissibility under Sec.  27 of these Memos Ex.  P6 & P. 6A and P. 7 which were signed by P.W. 2, P.W. 5, P.W. 8 and P.W. 28 both on 1-2-67 as well as on  2-2-67 could be relied upon.  Even the handing  over  of the  shoes  and socks it was observed cannot be  treated  as having been discovered because the accused was wearing  them at the time when he handed them over to the police, and also that it was difficult to believe that the accused will  have the  coat, sweater and blanket which are said to have  blood stains  on  them recovered because he could  have  discarded them  in  the same way as he is said to have done  with  his pants.  Moreover the coat and the sweater were not shown  to belong to the accused by independent and reliable  evidence.

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For these reasons the alleged discoveries or the  recoveries of the coat, the sweater, the blanket, shoes and socks  were rejected.  Even with respect to the discovery of the  dagger the  High  Court thought that Amar Chand P.W. 8 was  not  an independent witness, that Bhag Singh P.W. 12 who was just  a worker at the bakery claimed to be present casually did  not inspire  confidence,  nor  in  the  absence  of  independent witnesses  who  could have been easily  procured  could  the other  evidence be relied upon.  The identification  of  the dagger by Ganga Singh P.W. 11 before the Magistrate was also not  accepted  because there was nothing to  show  that  the dagger was the one which was purchased by the accused nor is it  possible to distinguish the dagger in question from  the other  3 daggers with which it was mixed up.  Similarly  the evidence  relating to the recovery of the account books  and vouchers  was  disbelieved.  The thumb  impressions  on  the flask and the glass panes was rejected on the ground that no particulars  were  set  out by the Director  of  the  Finger Prints  Bureau except the stereotyped statement  that  there was a similarity of more than 12 points.  On this aspect the High Court observed as follows               "If the accused also had handled the flask, as               suggested  by  the  prosecution,  his   finger               impressions  also would be on the  flask,  and               there  would be quite a good number of  finger               impressions on the flask.  But curiously  only               three finger impressions, and that too of  the               accused, are                772               said to be present on the flask.  This in  our               Opinion,   is  a  very   suspicious   feature.               Further, the existence of the finger-marks  is               said  to  have been  noticed  even  at   the               earliest  stage of the inquest, and  that  too               not  by any expert but by the any  vestigating               Officer,  I.C.  Gupta, Amar Chand  and  Baldev               Krishan   as  though  they   anticipated   the               presence  of the finger-marks.  There is  thus               no  clear proof that the finger-marks  alleged               to have been found on the flask and the  glass               pane  were those of the accused, and  we  hold               accordingly". In  possession  of articles which bear  incriminating  blood stains  and Court has undoubted power to interfere with  the findings   of  fact,  no  distinction  being  made   between judgments of acquittal and conviction, though in the case of acquittals  it  will  not  ordinarily  interfere  with   the appreciation  cf evidence or on findings of fact unless  the High  Court "acts perversely or otherwise  improperly"  (See State of Madras v. Vaidyanatha lyer) (1).  The case  against the   accused   as  already  stated  depends   entirely   on circumstantial  evidence  the credibility of which  is  very much  in issue.  It is well established that  circumstantial evidence  consists  in various links in a  chain,  which  if complete, leads to the undoubted conclusion that the accused and  accused  alone could have committed  the  offence  with which he is charged.  It is said that this evidence is  much more  dependable than direct evidence provided that no  link in the chain is missing.  While it is possible that each  of these links may not by itself incriminate the accused or  be conclusive against him the linking of all of them may  forge the chain in arriving at that conclusion The evidence that accused had ill will against the  deceased furnishing a motive, that he was last seen in the company of the  deceased,  that  he  was present in  the  room  of  the

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deceased  at or about the time he was murdered, that he  was subsequently  found  in possession of  articles  which  bear incriminating  ’blood  stains  and that he  had  hidden  the dagger with blood stains thereon and certain other articles which  were discovered on the information furnished by  him, all of which if believed leads to the conclusion that he was the murderer.  In appreciating the evidence against the  ac- cused  the prime duty of a court is firstly to  ensure  that the  evidence is legally admissible, that the witnesses  who speak to it are credible and have no interest in implicating him or have ulterior motive. At the very outset an attempt was made on behalf of the  de- fence to suggest that it was P.W. 2 who was the murderer and not  the  accused.  This suggestion was made to him  in  the committal court as also in Sessions Court but it was denied. It  was submitted that P.W. 2 had a motive to do  away  with the deceased because he (1)  [1958] S.C.R. 580, 587.  773 wanted  to appropriate to himself the money and property  of the  deceased.  To this end he was cross-examined  with  the object  of  establishing  that  he  and  the  deceased   had purchased  jointly a land near Chhail and that the  deceased was  in  possession of large sums of money and that  P.W.  2 used to receive all the amounts from the loans. advanced  by the  Finance  Company and to avoid any liability  for  these amounts  the murder was committed with the object of  taking away the accounts and destroying the evidence relating there to.  It was further suggested that because of this motive he and P W,  8  who admitted that he considered P.W. 2  as  his superior and P.W.   13 Bhag Singh who is the  brother-in-law of  P.W.  2  being the wife’s brother,  were  interested  in shifting  the offence to the accused by taking  a  prominent part during the investigation and became the main  witnesses for proving the several incriminating circumstances  against him. While it is not the function cf this Court to determine  who other  than the person who has been charged with the  murder had committed it, the line which the defence adopted was  to establish  that  the  witnesses referred  to  above  had  an interest in implicating the accused or at any rote to create uncertainty and doubt sufficient to give the benefit to  the accused.   It is not beyond the ken of experienced able  and astute lawyers to raise  doubts and uncertainties in respect of  the prosecution evidence either during trial  by  cross- examination  or by the marshalling of that evidence  in  the manner  in which the emphasis is placed thereon.  ’But  what has to be borne in mind is that the penumbra of  uncertainty in  the  evidence  before a Court is generally  due  to  the nature  and  quality  of  that  evidence.   It  may  be  the witnesses  are lying or where they are honest And  truthful, they are not certain.  It  is therefore difficult to  expect a  scientific or mathematical exactitude while dealing  with such evidence or arriving at a true conclusion.  Because  of these difficulties corroboration is sought wherever possible and  the maxim that the accused should be given the  benefit of  doubt becomes pivoital in the prosecution of  offendsers which  in other words means that the prosecution must  prove its  case  against an accused beyond reasonable doubt  by  a sufficiency  of credible evidence.  The benefit of doubt  to which the accused is entitled is reasonable doubt-the  doubt which  rational  thinking men will reasonably,  honesty  and conscientiously entertain and not the doubt of a timid  mind which fightshy-though unwittingly it may be-or is afraid  of the  logical consequence if that benefit was not given.   Or

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as  one  great  Judge  said  it  is  "not  the  doubt  of  a vacillating  mind that has not the moral courage  to  decide but shelters itself in a vain and idle scepticism".  It does not mean that the evidence must be so  strong as to  exclude even  a remote possibility that the accused could  not  have committed the offence.  If that were so the law 774 would  fail  to  protect society as in no case  can  such  a possibility  be excluded.  It- will give room  for  fanciful conjectures   or  untenable  doubts  and  will   result   in deflecting  the  course  of  justice  if  pot  thwarting  it altogether.   It  is  for this reason the  phrase  has  been criticised.  Lord Goddard C.J. in Rex v. Kritz(1) said  that when in explaining to the juries what the prosecution has to ,establish  "a  Judge begins to use the  words  "’reasonable doubt" and to try to explain what is a reasonable doubt  and what is not, be is much more likely to confuse the jury than if  he tells them in plain language "It is the duty  of  the prosecution  to  satisfy- you ,of the prisoner’s  guilt"  ". What  in  effect  this approach amounts  to  is  that  the greatest  possible  care  should be taken by  the  Court  in convicting an accused who is presumed to be innocent til the contrary  is clearly established which burden is  always  in the accusatory system, on the prosecution.  The mere  fact that  there  is only a remote possibility in favour  of  the accused  is itself sufficient to establish the  case  beyond ’reasonable doubt.  This then is approach. The High Court thought, there was force in the suggestion of the  learned  Advocate for, the accused that P.W.  2  had  a clear motive to take away the registers and vouchers of  the Company to make such use of them as would suit him and  also to  murder the deceased.  On the contrary the I evidence  of P.W.; 2 shows that he was a friend of the deceased., He  had been  a Manager in the Himachal: Pradesh  State  Cooperative Bank  when  the  de-, was the  General  Manager.   There  is nothing to show that during that period the deceased and, he were.,on  inimical  terms  or  there  was  any  disagreement between  them of Such a nature as .would imply that he  bore ill  will towards the deceased.  On the ,other hand both  of them  had  jointly purchased a land, and when  the  deceased started  the  Himprasth Finance Company P.W. 2’s wife  was made a Director in that Company blecause P.W. 2  being  an employee in a State Cooperative Bank could not take interest therein.   At the time of the incidept it’  appear.-, that P.W.  2  was  living in Simla and according to  him  he  had ,regard  for the deceased and as he was his General  Manager he ,used to go to him almost daily in the morning and in the evening.   He further says he must have visited him  hundred times  inside  the house, and on the evening  of  the  30th January, 67, the deceased and he went for an evening  stroll as  usual  and at 9.30 p.m. that day he left  him  near  the Nagina Singh Building, after which the deceased went away to take his food towards the Lower Bazar side and he went  away to his house.  P.W. 2 knew of the financial position of the deceased  which was according to the loan ledger entries  of the Himprasth Finance Company  775 Rs.  1157.71  np. as on 31-12-66, that there  was  a  credit amount of Rs. 14,000 as on 29-11-66 Which was not  withdrawn till  then; that certain amounts were also borrowed for  the marriage  of his daughter from Rawal Chand of Sanjouli  whom he  knew  welt and that from the accounts it  appeared  that there  was only Rs. 6.10 np. as cash in hand of the  Company which  may  be in the hands of P.W. 13.  He  further  states that  he  used  to.  be present  in  every  meeting  of  the

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Himprasth Financiers and he used to write: the Minutes Book. There  is  no  suggestion  that  these  Account  Books  were manipulated or that the entries therein were, not made  con- temporaneously  with the transactions which they  evidenced. There is therefore no justification for holding that  either P.W.  2,  or P.W. 8 or P.W. 13 notwithstanding  their  close connection  with  the deceased and  the  Himprasth  ;Finance Company  were inimically disposed towards the deceased  or towards  the accused.  No adverse inference can be drawn  as contended  by the learned Advocate for the accused,  against P.W.  2  that the circumstance point out to  him-  as  being concerned with the murder or against the other two witnesses that  they  were  supporting  P.W.  2  with  the  object  of exculpating  him  from  any  charge  that  may  be  levelled again st  him.   The’  suggestion  that  P.W.  2  Wanted  to appropriate the property of the deceased or do away with the cash  from the loans which were, being paid to him  directly had  no  rationale.  to  support  it,  because  firstly  the deceased  had  one married daughter another  unmarried,  and secondly  that  he had nephews who,in the  absence,  of  the daughters  would have inherited his property.   A  suspicion was  sought to be aroused because P.W. 2 did.not  scene  for the  daughters jut sent for the nephews which was  with  the object of dividing the properties of the deceased in  league with them.  P.W. 2 said that he did not know the address of the  daughters  of deceased and therefore he  sent  for  the nephews,  as  such no sinister motive can be  attributed  to him.  P;W. 28 the Investigating Officer had known that  P.W. 2,  P.W.  8  and  P.W. 13  were  the  only  persons  closely connected he found some  finger prints on the flask and  the window panes, he out of abundant   caution took their finger prints  also  on that very day long before the  accused  was suspected  as  being involved in the murder.   It  was  only after   the  investigating  Officer  examined-P.W.   7   the Proprietor  of Mansarover Hotel at about 8.30 p.m.  on  the day the murder was discovered that he came to know that  the accused had met the deceased outside the Hotel after he  had taken his  meals that night.  The  various  Panchnamas  of seizures  that  the Investigating Officer prepared  in  the- presence  of P.W. 2, P.W. 8 and P.W. 13 cannot  be  assailed merely  on  the  ground that they were  connected  with  the deceased or with Himprasth Finance Company.  The fact that a key and a button 776 was recovered  or that the flask or the window  panes  had finger prints were found in the room where the deceased  was murdered are, unassailable nor has any doubt been raised  to discredit these recoveries.  All that is said by the learned Advocate is that P.W.. 28, being an experienced Investigator had  created evidence and the Account Books, vouchers,  tea- poy cloth, a canvas bag, blanket of the deceased were  shown as  missing  in  order to plant them subs  equently  on  the accused.  But at the time when these seizures were made  the part  played by the accused if any was not known, and if  at all  P.W.  2,  P.W. 8 and P.W. 13 who were  Witness  to  the panchnama  had not been cleared from suspicion.  We are  not unaware that Section 27 of the Evidence Act which makes  the information  given by the accused while in custody  leading, to  the  discovery  of a fact and the  fact  admissible,  is liable to be abused and for that reason great caution has to be  exercised  in resisting any attempt  to  circumvent,  by manipulation or ingenuity of the Investigating Officer,  the protection  afforded by Sec. 25 and Sec. 26 of the  Evidence Act.   While  considering  the  evidence  relating  to   the recovery  we  shall have to exercise that caution  and  care

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which  is necessary to lend assurance that  the  information furnished and, the fact discovered is credible. As  already stated, on 1st February 1967 the coat,  sweater, shoes and socks of the accused and a blanket of the deceased ware recovered in the presence of P.W. 2, P.W. 5, P,W. 8 and P.W. 28.  After this they proceeded to: the place  indicated by  the accused and recovered the blood stained dagger  from under a stone, which was witnessed by them.. P.W. 2 did  not accompany the party as according to him he had to Jo to make arrangements for the funeral of: the deceased On ’the way to the  place  from where the dagger was to be  recovered,  the party  met one Bhag Singh P.W. 12 who also accompanied  then to  the place of recovery and in the presence of Roshan  Lal who  I  was ’not examined) Amar Chand, P.W. 8,  Bhag  Singh, P.W.  12, and P.W. 28, the dagger was recovered and  a  Memo Ex.   P.  28 was prepared and. attested  by  the  ’aforesaid witnesses,.  The High Court rejected the evidence of  ’these recoveries under Ex.  P. 6/A and P. 28 because P.W. 2, P.W. 8,  P.W.  13 and Roshan Lal the driver of P.W. 2,  were  all connected-with   the   deceased  and   are   not   therefore independent  or  impartial witnesses, It  thought  that  the Investigating  Officer  should have called  independent  and impartial  witnesses preferably, and if possible,  from  the locality,  as  it  could  not be said  that  they  were  not available  or  if,,: available would not be  willing  to  be witnessed and that in any base calling of, the same  persons to witness several searches or recoveries, is objectionable, and  would render the search or the recovery  doubtful  and suspect, if not invalid.  777 Further having held this it nonetheless said that there  was no  injunction  against  the same  get  of  witnesses  being present  at  the successive enquiries if  nothing  could  be urged  against them.  In our view the evidence  relating  to recoveries  is not similar to that contemplated  under  Sec. 103  of  the  Criminal Procedure  Code  where  searches  are required  to  be  made  in  the  presence  of  two  or  more inhabitants  of  the  locality  in which  the  place  to  be searched is situate.  In an investigation under Sec. 157 the recoveries could be proved even by the solitary evidence  of the Investigating Officer if his evidence could otherwise be believed.  We cannot as a matter of law or practice lay down that  where  recoveries have to be effected  from  different places on the information furnished by the accused different sets  of  persons should be called in to witness  them.   In this  case  P.W. 2 and P.W. 8 who worked With  the  deceased were  the proper persons to witness the recoveries  as  they could identify some of the things that were missing and also they  could both speak to the information and  the  recovery made in consequence thereof as a continuous process.  At any rate P.W. 2 who is alleged to be the most interested was not present at the time of the recovery of the dagger. P.W. 5,s evidence was not considered to be independent,  be- cause  the High Court thought that he was known- to P.W.  28 from  before.  This by itself in our view will  not  justify the rejection of his evidence.  That apart there is nothing in his evidence to show that P.W. 28 knew him before he came to Simla while he was living in Kaithal.  The witness stated that  the  S.H.O. was never posted at Kaithal but  knew  the Daroga  (SHO) from 2/3 months before that date.  He had  not met P.W. 28 before be arrived at Simla.  It was suggested to him that  Daroga  had come and sat in his shop at the  Mandi but that was   denied.   He however stated that  the  Daroga used to ask his ’hal chal’ sometime and used to wish him and that was all.  Witness   also denied having seen P.W. 2  and

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P.W.  8  before that day and came to know their  names  only when  he went to Anandale.  The brothers of P.W. 5  were  at Kaithal doing business’ but here again there was nothing  to connect the brothers with P.W. 28 and though P.W. 28  admits that  his  own  brothers Roshan Lal and  Malik  Harbans  Lal reside  in Kaithal and one of them has some lands there,  he was  not. on good terms with them and denies that  they  bad any  connection with P.W. 5. From this evidence it is  clear that apart from the fact that P.W. 28 had known P.W. 5 after he  had  come to.  Simla which is not unusual for  a  Police Officer, there is nothing to indicated that P.W. 5 could  be subservient  to  P.W. 2,8.  It is not unknown that  in  some instances where persons are made to witness Panchnamas  they have  resiled  from  them while giving  evidence  in  Court, probably either due to 778 the pressure exerted by the police at that time or they have been  won  over by the defence.  Nothing of that  nature  is appar ent  in  this case and the comment of the  High  Court that  a  reading  of  the  evidence  of  P.W.  5  gives  the impression  that he is a person willing to be pliable  agent of  the police and cannot be regarded as an  independent  or impartial witness has in our view no justification. It is said that P.W. 12 Bhag Singh was just a worker at  the bakery and while he pretends to be present there casually at the   spot  from  where  the  dagger  was  taken  out,   the Investigating  Officer  said  he had  summoned  him  on  the suggestion of the Head Constable; as such his evidence ’does not  inspire  confidence-.’We do not think that  this  is  a sufficient  reason  for discarding the evidence  of  P.W.  5 because when P.W. 28 says he summoned Bhag   Singh   through the constable it does not negative the statement  of    Bhag Singh that he was casually present and could have been called ’by him through the Head Constable.  In our view there is no reason to hold that the evidence of these persons P.W. 2, P.W.  5, P.W. 8 and P.W. 12 can be said to suffer from   any infirmity  or  that they had not witnessed  the  information given  by the accused as per Exhibits P. 6, P. 6/A or P.  28 or  the  recoveries  made by him as a  consequence  of  that information. Thereafter on the information furnished by the accused  that he  had  purchased the weapon from Ganga Singh P.W.  11  and that  be would take them to him, they went to the, thari  of P.W.  11 where the accused pointed him out to them.   It  is contended that the information given by the accused that  he purchased  the dagger from P.W. 11 followed by  his  leading the police to his thari and pointing him out is inadmissible under  Sec.  27 of the Evidence Act.  In our view  there  is force  in  this contention.  A fact  discovered  within  the meaning  of Sec. 27 must refer to a material fact  to  which the  information directly relates.  In order to  render  the information admissible the fact discovered must be  relevant and must have been such that it constitutes the  information through  which  the discovery was made.  What  is  the  fact discovered in this case?  Not the dagger but the dagger  hid under  the  stone  which is not known to  the  police.  (See Pulukuri   Kotayya  &  Ors.  v.  King-Emperor)   (1).    But thereafter can it be said that the information furnished  by the accused that he purchased the dagger from P.W. 11 led to a  fact discovered when the accused took the police  to  the thari of P.W. 11 and pointed him out ? A single Bench of the Madras High Court in Public (1)  74 India Appeals p. 65.  779 Prosecutor  v.  India China Lingiah & Ors. (1),  and  in  re

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Vellingiri  (2),  seems  to have taken  the  view  that  the information  by  an accused leading to the disco-very  of  a witness to whom he had given stolen articles is a  discovery of  a  fact within the meaning of Sec. 27.   In  Emperor  v. Ramanuja  Ayyangar(3),  a Full Bench of three  Judges  by  a majority held that the statement of the accused "I purchased the  mattress from this shop and it was this woman  (another witness) that carried the mattress" as proved by the witness who  visited him with the police was admissible because  the word  ’fact’  is not restricted to something  which  can  be exhibited  as a material object.  This judgment  was  before Pulukuri Kotayya’s case (4) when as far as the Presidency of Madras was concerned the law laid down by the Full Bench  of that  Court, in Re Athappa Goundan prevailed.  It held  that where  the accused’s statement connects the fact  discovered with  the  offence and makes it relevant,  even  though  the statement amounts to a confession of the offence, it must be admitted  because  it  is  that  has  led  directly  to  the discovery.  This view was over-ruled by the Privy Council in Pulukuri  Kotayya’s case(5) and this Court had approved  the Privy  Council  case in Ramkishan Mithanlal  Sharma  v.  The State of Bombay(6). In the Full Bench judgment of seven Judges in Sukhan v.  The Crown  (7  ) , which was approved by the  Privy  Council  in Pulukuri Kotayya’s case(8), Shadi Lal, C.J., as he then  was speaking  for the majority pointed out that  the  expression ’fact’ as defined by Sec. 3 of the Evidence  Act  includes not  only  the physical fact which can be perceived  by  the senses  but also the psychological fact or mental  condition of  which  any  person is conscious and that it  is  in  the former sense that the word used by the Legislature refers to a material and not to a mental fact.  It is clear  therefore that what should be discovered is the material fact and  the information that is admissible is that which has caused that discovery so as to connect the information and the fact with each  other  as the ’cause and  effect’.   That  information which  does not distinctly connect with the fact  discovered or that portion of the information which merely explains the material  thing discovered is not admissible under  Sec.  27 and cannot be proved.  As explained by this Court as well as by  the  Privy  Council, normally Sec. 27  is  brought  into operation  where  a person in police custody  produces  from some  place of concealment some object said to be  connected with the, crime of which the informant is the accused.   The concealment of the fact which is not known to the police  is what  is discovered by the information and  lends  assurance that (1) AIR 1954 Mad. 333.   (2) AIR 1950 Mad 613. (3)AIR 1935 Mad. 528.    (4) 74 1. A. 64. (5) ILR 1937 Mad 695.    (6) [1955] (1) SCR 903., (7)  ILR Vol.  X Lahore 283. 780 the  information  was  true.   No  witness  with  whom  some material  fact,  such  as  the  weapon  of  murder,  stolen’ ’property or other in eliminating article is not hidden sold or kept and which is unknown to the Police can be said to be discovered as a consequence of the information furnished  by the  accused.   These examples however are only  by  way  of illustration  and  are  not  exhaustive.   What  ’Makes  the information   leading  to  the  discovery  of  the   witness admissible  is the discovery from him of the thing  sold  to him or hidden or kept with him which the police did not know until the. information was furnished to them by the accused. A wittiness cannot be said to be discovered if nothing is to be  found  or  recovered from him as a  consequence  of  the

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information  furnished by the accused and  the-  information which  disclosed  the identity of the witness  will  not  be admissible.   But even apart from- the admissibility of  the information   under   Sec.   27,  the   evidence of   the Investigating  Officer and the panchas that the accused  had taken   them  to  P.W.  11  and  pointed  him  out  and   as corroborated  by P.W. 11 himself would be  admissible  under Sec. 8 ’.of the Evidence Act as conduct of the accused. We  then  come to the recovery on the  second  February,  of Pant,  the Account Books and the vouchers.   These  however, cannot  in  our  view be relied upon  because  P.W.  28  had information relating to them which had been furnished by the accused more than 24 hours before and the description  given by  him  was that they could have been discovered.   At  any rate  the  long  delay  does  not  lend  assurance  to   the discovery.  It appears from the application made on the  2nd February to the Magistrate that the accused was arrested  on 1-2-67  and  at  his instance and from  his  possession  one sweater.  one coat and one blanket blood stained, have  been recovered  and in addition one blood stained warm pant,  one duster,  one  bag  containing 5 registers are  still  t0  be ’recovered on the pointing out of the accused but the remand of  the, accused is due to expire at 1 p.m. and  accordingly it  was requested that a further remand for 7 days be  given and  the  a  caused made over to the police  and  orders  be passed.    The  accused  is  alleged  to  have   given   the information  that he had hid them under the stone slab  near Krishna  Nagar  Ganda Nala Which he had thrown away  in  the sewage  and  which  he  said will point  out  and  get  them recovered.   The  recovery itself is under E P.7,  to  which P.W. 2, P.W. 13 and Manohar Lal P.W. 14 who was picked up on the  ’rasta  when  he was summoned  by  the  constables  are witnesses.  According to P.W. 14 the Thandar was going ahead and  went down to the Nala, when the constable summoned  him and he went there.  He further says that the Thanedar sent a constable down.  The accused bad a talk with Thanedar.   The constable took out from below a stone slab five registers in a bag, the accused was standing on a stone.  At ibis  781 stage the prosecutor sought permission to cross-examine  the witness  and  it ’Was given.  In  the  cross-examination  he denied  in signed the Memo at the spot and said that he  had signed’  it at the Thana.  He also said it was incorrect  to suggest that the Memo was read over to him and he signed it. Whether  the  articles recovered were planted at  the  place from  where,  they were alleged to be recovered  or  not  as suggested  by  the  learned Advocate for  the  accused,  the evidence referred to certainly goes against the  prosecution version that the Account Books, vouchers and the pant  were recovered  at  the  instance of  the  accused.   The  Police appears  to have known the place from where  these  articles were alleged to have been recovered and therefore it  cannot be  said ’that they were discovered as a consequence of  the information furnished by the accused. After excluding the recoveries made tinder Ex. 7 namely  the Account  Books etc. the evidence against the  accused  which remains to be considered is, the motive, the recovery of the button, the finger prints on the flask and the window panes, blood  stained coat, sweater, shoes and socks alleged to  be of  the accused, blanket, the dagger and the deceased  being last seen alive in his Company.  As we have already noticed the  High Court had rejected the evidence of motive  but  in our view it failed to consider one aspect which is important namely  that  the accused wanted to be reemployed  with  the Himprasth  Finance  Company and though the  other  Directors

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were  willing,  the deceased was not.  It is true  that  the initial  illwill which he may have had against the  deceased when  he  suspended  him in 1964  may  have  been  forgotten because the deceased subsequently extended his sympathy  and employed  him in his Finance Company.  The accused  was  not satisfied  with the conditions of his service and wanted  an increase  in the pay which the Company was not  prepared  to give causing him to resign.  This itself may have given  him cause  to nurse a grievance against the deceased because  he was  the person who was as incharge of the affairs  of  that Company in which he had a dominant voice but when he  wanted to be reappointed the deceased definitely put his foot  down and  refused to entertain him which would  certainly  create ill  will in him against the be occasion but if he does  not continue to do so or positively obstructs or is against  his being  given  any benefit even on one such occasion  it  may give rise to a sense of grievance against him.  The  springs of  human action and conduct are unfathomable  because  what motivates them is difficult to postulate.  At any rate where personal  interest  is involved, it is too  much  to  expect objectivity  in a person s relationship with others who  are unobliging  or considered to be hostile to him.  There  ’are many with 782 greater cause who may not venture to do away with those that give occasion for it but experience has shown that even with lesser motive persons have committed more dastardly  crimes; that is why in view of these imponderable, motive by  itself is  not sufficient to determine culpability.  It has  to  be judged  with  positive evidence  relating  to  incriminating facts and circumstances proved in a case against an accused. It  is  contended strenuously that there is no  evidence  to establish that the accused was with the deceased at the time when  he was murdered.  This contention seems to have  found favour  with the High Court which has held that  though  the deceased  was last seen alive in the Company of the  accused it  is not sufficient to indicate that he had gone with  the deceased into the Nagina Singh Building and was with him  at the  time  when the murder was committed.  The  evidence  of P.W.  ’7  is positive that he had seen the  accused  in  the company of the deceased after the deceased had his meals  at about  9.30  or  so.  This witness was  the  first  to  give information to P.W. 28 which was at about 8.300 p.m. on 31st January.  The High Court does not disbelieve this  evidence. In  so  far as P.W. 9 is concerned it is said that he  is  a mere casual or chance witness.  Even if the reasons given by the High Court for disbelieving his evidence is accepted  it cannot  negative the fact of the accused being seen  in  the company  of the deceased at about 9.30 or 9.45 p.m. on  30th January  when  he was the last one to have seen  him  alive. That  the  accused  was in the room with.  the  deceased  is established  by the fact that his finger prints were en  the flask and the window panes and that a coat button of his Was found  in the room.  It was however contended on  behalf  of the accused that these finger prints were not blood  stained nor  do  they indicate that the accused was present  at  the time  when  the offence was committed because  the  evidence shows  that  be  was seeking to  get  reemployment  and  the possibility of his. having, visited the deceased earlier  in the  day  or a few days before the offence when  the  finger prints  could  have been found on the flask and  the  window panes  cannot be ruled out.  Secondly it was urged that  the report of the finger print expert as the High Court has held does  not  furnish  the reasons for the  opinion  that  they belonged to the accused.  On the first of these  contentions

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it  may  be observed that there is no evidence that  he  bad been  to see the deceased earlier that day or had  seen  him before that day as would probably these finger prints  being still  present  on the 31st January.   The  evidence  merely points  out  to  the  fact  that  the  accused  was  seeking reemployment  in the Company and the deceased was  unwilling to  give  him  employment.   It is  a  long  way  from  this circumstance to infer that he had been in the room  earlier. The second contention is in our view equally untenable.  The report regarding the Finger Print is that of the  783 Director  of  the Finger Print Bureau which under  Sec.  510 Criminal  Procedure  Code  can be used as  evidence  in  any enquiry  or trial without examining the person who gave  the report  just in the same way as the report of  the  Chemical Examiners  or  of  the  Chief  Inspector  of  Explosives  is evidence.   Under sub. sec. (2), however the Court  may,  if it  t hinks  fit,  and  shall, on  the  application  of  the prosecution  or  the accused, summon and  examine  any  such person as to the subject matter of his report.  The addition of the report of the Director of Finger Prints Bureau and of the  Chief Inspector of Explosives in Sec. 510 was  made  by Sec. 99 of Act 26 of 1955 and unless the Court or the Public Prosecutor   or  the  accused  require  the  summoning   and examining  of  any person as to the subject  matter  of  his report  that  report  can be. acted  upon.   It  is  however submitted  that  while  the report  may  be  admissible  the opinion will have to be justified.  Neither the decision  of a  Single  Judge  of  Andhra  Pradesh  High  Court  in   re. Godaverthy Bheshyakaravcharvulu(1)., nor that of the  Madras High  Court case in re.  Marudai, support  this  contention. The  reason  why the reports of the Director of  the  Finger Print  Bureau is treated as evidence ’Without examining  the persons  giving  the  report  is  that  the  comparison  and identification  of  Finger Prints has now developed  into  a science  and  the results derived therefrom have  reached  a stage  of exactitude.  As long as the report shows that  the opinion was based on observations which lead to a conclusion that opinion can be accepted, but should there be any  doubt it can always be decided by the calling of the person making the  report;  when once the report is  proved;  neither  the prosecution  nor  the accused nor yet the Court  thought  it necessary  to  require the person making the  report  to  be examined.   In  this case, however, the photographs  of  the finger prints were taken on the very day when the flask  and the  glass pane were seized.  After these  material  objects were  sent  to  the  Finger Print  Bureau  they  were  again photographed  and compared with the finger prints  taken  of P.W.  2, P.W. 13 and P.W. 8 and the accused.  In so far  as. the Finger Prints of the accused are concerned though  some- what smudged they were said to be readably clear and in each of the finger impressions found on the flask and the  window pane  there  Were  more than 12 points  of  similarity  i.e. matching  ridge  characteristic details in  their  identical sequence,  without  any  discordances  in  their  comparable portion  and  the corresponding portion of  the  left  thumb impression,  middle  finger impression, left  index  finger, right middle finger of Om Prakash the accused.  It was  also stated that so many points of similarity cannot be found  to occur in the impressions of different thumbs and fingers and they are therefore of one and the same person.  In respect (1) AIR 1960 A.P. 164. (2) AIR 1960 Madras 370. 784 of  a  thumb  impression  compared  with  the  right   thumb

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impression of Om Prakash the expert had found not less  than 10  points of similarity and even with respect to  this  his opinion  was  that SO many points of  similarity  cannot  be found  to occur in the impressions of different  thumbs  and fingers and are therefore identical or are, of one and  the same person.  There appears to be no difficulty in coming to the   conclusion  from  the  report  that  ’the  points   of similarity  are  those which can be accepted as  a  positive finding.   The  absence of these Finger Prints  being  blood stained  is  not indicative of the accused not  being  there before  the murder We have it in evidence that the  curtain near  the door showed that blood stained hands severe  wiped thereon.  That apart the button which was recovered gives  a direct clue to the presence of the accused at the time  when the  offence was committed.  ’it. is seen from Ex.   P.  6/A that the upper button of the 3 small buttons on the cuff  of the  coat  recovered from the accused was  missing  and  the button  recovered  from  the room  where  the  deceased  was murdered  matches the button and supplies the  missing  one. The report of the Forensic expert is that on a comparison of that  button  with the button of the  accused’s  coat  esta- blishes  that  it is the similar one.  For this  reason  the accused had denied that the coat and the sweater belonged to him  and  the learned Advocate on his behalf  has  urged  in support of that-plea that these were not recovered from  the accused  and  the  recovery memos were  all  fake  and  were written  subsequently.  Accused in the statement under  Sec. 342  in  answer  to  question 19, that  he  had  signed  the recovery  Memos dealing with the sweater, coat  and  blanket said  that  it was incorrect.  He further said that  he  was made  to sign three- blank papers in the Thana and  that  he Was filing a copy of the application in this connection made by while he was in the judicial lock up.  Again in answer to question  35 whether he has anything else to say  he  stated categorically  that on the 1st February ’67 he was taken  to the  Thana  at 5 p.M. on the 2nd February  he  was  produced before the Court where a remand was taken and that on 7-2-67 the S.H.O. ’obtained his signatures on three blank papers in respect  of Which ’he had sent an application after  he  was taken to the judicial lock up.  This statement goes  counter to  the facts stated ill the application of remand  made  to the  Magistrate  on 2-2-67-which was earlier  extracted.   A perusal  of  that remand application would show  that  these recoveries  had  already been made on the 1st and  so  there could  be  no question of his signatures been taken  on  the blank  papers  on  the 7th for purposes of  cooking  up  the recovery  Memos  which  according to  the  accused  Were-not recovered  on  the  1st.  The coat.  and  the  sweater  were recovered  from his room while the shoes and socks from  his person  as the was wearing- them, There can be no  doubt  of the ownership being that of the accused.  785 respect  to which similar contentions were raised.  Where  a person  who is not a hardened criminal is burdened with  the guilt of a gruesome crime, is confronted with as-’ tell tale finding the possibility of his making a clean breast of what is  weighing  heavily  on him cannot be ruled  out.   It  is difficult  to generalise as to what a man may or may not  do after  committing  a  ghastly murder nor  can  there  be  an infallible  test to determine the course of human  reaction, conduct  or  behaviour  in a given  situation   which  might manifest  itself in various ways. In case when  the  accused was  confronted  with  the  button  of  his  coat  he   gave information leading to the incriminating discoveries. Whether the knife could have been properly identified by  P.

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W. 11 in the identification held before the Magistrate there can be little doubt, if we believe his evidence, the accused hid  purchased a knife that day, which is similar in  nature to  the one he was selling.  There is no reason why P.W.  II should not be, believed on this aspect.  He says that it was purchased  by the accused at the noon time on the  day  when Mahatma  Gandhi had died on the 30th for Re.  1/-  and  that the  police had; brought the accused to his shop on the  3rd day  after the dagger was purchased.  He further  says  that the accused used to go to him previously for the mending  of his knife and scissors though the witness admits that he had not  purchased  any dagger from him previously.   In  cross- examination he admitted frankly that he was having his thari without  permission  of  the municipality and  that  he  was challenged and fined almost every month though from the last 8  months  the police have not challaned but  the  Municipal Committee  have challaned him.  He also admitted  that  once about  23/24 years ago he was convicted in a theft case  and was sentenced to rigorous imprisonment and his history sheet was  closed  21  or 22 years ago.  At  the  time  of  giving evidence   he  is  about  35  years  and  even   making   an approximation  of the age he must have been 13 or  14  years when  the offence for which he was convicted was  committed. This  admission seemed to have weighed with the  High  Court that  his  antecedents  were such as to  justify  their  not relying upon his evidence.  They also found it difficult  to believe  that  when he had not put any special mark  on  the dagger he could identify it from amongst three similar ones. In  this  connection it may be remembered that P.W.  It  was making the knives which be was selling and it is not unknown that  persons  who  make  knives  or  other  implements  can recognise  them  with some amount of certainty  even  though special identification marks may not be present.  Be that as it  may,  even if the identification is discarded  there  is nothing  to  doubt his statement that he  knew  the  accused before the 30th January 1967 786 and  that about noon on that day he had purchased  a  dagger from  him.- It is not unreasonable to infer that the  dagger which he purchased is the dagger which was recovered on  the information  furnished by the accused himself on the  second day  after  his purchase and that  dagger  ’Contained  human blood.  One other important circumstance against the accused is the blanket that was found in his house which had.  human blood  stains  thereon.  The murder of the deceased  was  in January  in the coldest months in Simla and the  possibility of the accused having taken a blanket to cover himself  also ’fits in with the other evidence adduced by the prosecution. There is in our view no justification for the High Court  in jettisoning  this cogent evidence of a conclusive nature  on mere  conjectures  and.  on  the  omnibus  ground  that  the witnesses were not independent or impartial which as we have shown is without justification.  In our view the evidence in this  case is.- sufficient to justify the conviction of  the accused for an offence of murder.  We, accordingly set aside the  judgment  of acquittal of the High Court,  convict  the accused   under   Sec.  302  and  sentence   him   to   life imprisonment. V.P.S. Appeal allowed. 787