Supreme Court of India
ASHISH JAINversusMAKRAND SINGH AND ORS.
- Citation
- 2019 INSC 47
- Decided
- 14 January 2019
- Disposal
- Dismissed
- Bench
- N V RAMANA
Holding
The Supreme Court upheld the High Court's acquittal, holding that in the absence of blatant illegality or substantial error, a reasonable acquittal must not be interfered with.
Summary
The case involved the murder and robbery of Premchand Jain and his family, for which three accused were initially convicted and sentenced to death. The High Court acquitted the accused, and the matter came before the Supreme Court on appeal by the complainant Ashish Jain and the State of Madhya Pradesh. The Court examined the reliability of the last‑seen witnesses, the voluntariness of confessions that led to the recovery of stolen items, the identification of pledged ornaments, and the admissibility of fingerprint evidence taken without a magisterial order. It found that the confessions were involuntary, the key witnesses were unreliable, the identification process was flawed, and the fingerprint evidence was tainted, creating reasonable doubt. Applying the principle of a double presumption of innocence, the Court held that without a blatant illegality or substantial error, it could not disturb the High Court's acquittal. Consequently, the Supreme Court confirmed the acquittal of the accused.
Issues considered
- Whether the High Court's acquittal of the accused was affected by any blatant illegality or substantial error.
- Whether the confessions obtained from the accused were voluntary and admissible under Article 20(3) of the Constitution and Section 27 of the Evidence Act.
- Whether the identification of the recovered ornaments was conducted in accordance with due procedure.
- Whether fingerprint samples taken without a magisterial order under the Identification of Prisoners Act, 1920 are admissible.
- Whether the last‑seen witness testimonies are reliable enough to sustain a conviction.
Legislation cited
- Arms Act, 1959s. 25(1)(b)(a), s. 27
- Code of Criminal Procedure, 1973s. 161, s. 162, s. 163, s. 164
- Identification of Prisoners Act, 1920s. 4, s. 5, s. 8
- Indian Evidence Act, 1872s. 161, s. 162, s. 163, s. 164, s. 27
- Indian Penal Code, 1860s. 302/34, s. 394/34, s. 449
- Madhya Pradesh Dakaiti and Vyapharan Prabhavit Kshetra Adhiniyam, 1981s. 11, s. 13
Subjects
presumption of innocencedouble presumptionacquittalcircumstantial evidenceinvoluntary confessionArticle 20(3) ConstitutionSection 27 Evidence Actfingerprint evidenceIdentification of Prisoners Actappellate reviewdeath penalty
Judgment
[2019] 1 S.C.R. 345 345
ASHISH JAIN A
v.
MAKRAND SINGH AND ORS.
(Criminal Appeal No. 1980 of 2008)
JANUARY 14, 2019 B
[N. V. RAMANA AND
MOHAN M. SHANTANAGOUDAR, JJ.]
Penal Code, 1860:
ss. 302/34, 394/34 and 449 – ss. 11/13 of Madhya Pradesh
C
Dakaiti and Vyapharan Prabhavit Kshetra Adhiniyam, 1981 and
ss. 25(1)(b)(a) r/w s. 27 of Arms Act, 1959 – Prosecution under –
Of three accused – Prosecution case based on circumstantial
evidence – Two last seen witnesses – Recovery of incriminating
articles on the basis of confessional statements of the accused –
Conviction by trial court imposing death setence – High Court D
acquitted the accused – On appeal, held: Unless any blatant
illegality or substantial error in the order of acquittal is proved,
and as long as the conclusion of acquittal is a possible view, Supreme
Court is not bound to interfere with the same – Acquittal granted by
High Court is well-reasoned – Appellants have failed to prove any
E
substantial error in the order of High Court – The accused are
entitled to be acquitted as a reasonable suspicion or doubt persists
regarding the guilt of the accused – Acquittal order confirmed..
Criminal Law:
Presumption of innocence – Held: Where appellate court F
acquits the accused, there is a double presumption in favour of
accused – Initial presumption of innocence is reinforced by the
acquittal.
Appeal:
Appeal against acquittal order – Interference with – Held: G
In such cases, if the view of the High Court is reasonable and based
on the material on record, Supreme Court should not interfere –
Interference in such cases is permissible only when the order of
High Court is palpably erroneous, constituting miscarriage of justice
H
345
346 SUPREME COURT REPORTS [2019] 1 S.C.R.
A and also when there is misconception of law or erroneous
interpretation of evidence or when the High Court has completely
misdirected itself in reversing the order of trial court.
Evidence:
Confession – Evidentiary value – Held: There is an embargo
B on accepting self-incriminatory evidence – But, if it leads to recovery
of material objects in relation to the crime, it is most often taken to
hold evidentiary value as per circumstances of each case – If such
statement is made under undue pressure and compulsion, the
evidentiary value of such evidence leading to the recovery is nullified
C as it is hit by Art. 20(3) of the Constitution – Constitution of India
– Art. 20(3) – Evidence Act, 1872 – s. 27.
Identification of Prisoners Act, 1920:
ss.4 and 5 – Fingerprint samples - Obtained without
magisterial order – Whether illegal – Held: If suspicious
D circumstances arise, in order to ward off such suspicion, it is in the
interest of justice to get orders from the Magistrate – But that does
not mean that u/s. 4, police officers are not entitled to take
fingerprints until order is taken from Magistrate.
Dismissing the appeals, the Court
E
HELD: 1. In a case wherein the High Court has acquitted
the accused of all the charges, there is a double presumption in
favour of the accused, as the initial presumption of innocence is
further reinforced by an acquittal by the High Court. In such a
case, this Court will keep in mind that the presumption of
F innocence in favour of the accused has been fortified by the order
of acquittal and thus if the view of the High Court is reasonable
and based on the material on record, this Court should not
interfere with the same. Interference is to be made only when
there are compelling and substantial reasons to do so, and if the
ultimate conclusion reached by the High Court is palpably
G
erroneous, constituting a substantial miscarriage of justice.
Moreover, interference can be made if there is a misconception
of law or erroneous appreciation of evidence or the High Court
has completely misdirected itself in reversing the order of
conviction by the Trial Court. [Para 17][358-F-G]
H
ASHISH JAIN v. MAKRAND SINGH 347
State of Rajasthan v. Islam and Ors. (2011) 6 SCC 343 A
: [2011] 6 SCR 988; State of U.P. v. Awdhesh (2008)
16 SCC 238 : [2008] 13 SCR 269; State (Delhi Admin.)
v. Laxman Kumar and Ors. (1985) 4 SCC 476 : [1985]
2 Suppl. SCR 898 – relied on.
2.1 PW12 and PW20 are the last seen witnesses who saw B
the entry and the exit of the accused persons from the crime
scene, respectively. These two witnesses have categorically
stated that they had conveyed this piece of valuable information
to the complainant PW26 right before he filed the first information.
However, there is no whisper of such an important fact anywhere
in the first information, Ex. P5 nor the FIR arising from it, Ex. C
P6. Moreover, PW12 and PW20 have deposed that they were
present at the spot when the bodies were found. However, their
statements were not taken by the police on the same day, rather
they were taken subsequently on the next day. Considering the
fact that the details of the last seen circumstance as deposed by D
PW12 and PW20 are not found in the first information (though
PW26, the informant was informed about the same by PW12 and
PW20 before filing the First Information Report), PW12 and PW20
did not see the accused entering or exiting the house of the
deceased, as is sought to be made out by the prosecution. There
was deliberate delay in recording the statements of these E
important witnesses with regard to the last seen circumstance.
Hence, the statements of PW12 and PW20 were clearly an
afterthought. [Para 18][359-B, C-D, F-H]
2.2 PW20 is a chance witness. Moreover, there are
discrepancies and contradictions in the statement of PW20, F
inasmuch as it is only in his testimony that he asserts for the first
time that he saw the accused coming out of the house of the
deceased, as opposed to walking hurriedly away from the area.
Also, he admitted that he could not remember how many people
came out holding bags, and how many came out empty-handed, G
along with the fact that he did not usually take the route in front
of the house/shop of the deceased to reach his house from his
shop, which shows that he is a chance witness. Keeping in mind
that this witness was related to the deceased, and appears to be
a chance witness with material discrepancies in his account, his
H
348 SUPREME COURT REPORTS [2019] 1 S.C.R.
A evidence as to the last seen circumstance is discarded. [Para
19][360-A-C]
2.3 The first information clearly mentions the name of the
accused as well as their addresses. It is also stated by the
witnesses that they are acquainted with the accused persons. The
B police could have easily arrested the accused. The material on
record shows that the arrests were made only the next morning
between 11:00 a.m. and 11:30 a.m., that too at the houses of the
accused persons, which also, incidentally, shows that the accused
persons were not absconding, which is unnatural conduct on the
part of an offender who knows that he has been observed entering
C the house of the deceased on the day of the offence. Thus, the
delay in the arrest, despite clear knowledge of the whereabouts
of the accused persons, casts a serious shadow of doubt over the
case of the prosecution. [Para 20][360-D-F]
2.4 The confessions that led to the recovery of the
D incriminating material were not voluntary, but caused by
inducement, pressure or coercion. Once a confessional statement
of the accused on facts is found to be involuntary, it is hit by
Article 20(3) of the Constitution, rendering such a confession
inadmissible. There is an embargo on accepting self-incriminatory
E evidence, but if it leads to the recovery of material objects in
relation to a crime, it is most often taken to hold evidentiary
value as per the circumstances of each case. However, if such a
statement is made under undue pressure and compulsion from
the investigating officer, as in the present matter, the evidentiary
value of such a statement leading to the recovery is nullified.
F The recovery of the stolen ornaments, etc. in the instant matter
was made on the basis of involuntary statements, which effectively
negates the incriminating circumstance based on such recovery,
and severely undermines the prosecution case. [Paras 21 and
22][361-A-C; 363-G]
G Selvi v. State of Karnataka (2010) 7 SCC 263 : [2010]
5 SCR 381 – relied on.
2.5 It is evident from the testimony of several of the
examined pledgors, such as PWs 15, 16 and 28, that the
identification procedure was conducted without mixing the
H
ASHISH JAIN v. MAKRAND SINGH 349
recovered jewellery with similar or identical ornaments. A
Additionally, there is nothing on record to show the identity of
the pledgors and to prove that the identified ornaments were
pledged by them to the deceased, except for the account books
maintained by the deceased for his business, but these cannot be
relied upon. This is because these account books were seized by
B
the police from the possession of PW11, who is the son-in-law of
the deceased. Incidentally, he also runs a similar money-lending
business as a pawn broker in another town. No valid reason is
accredited to the recovery of deceased’s alleged account books
from the possession of his son-in-law. Moreover, these account
books were returned to him without any prayer for the same and C
without following any procedure. Later, it was found that there
were additional entries made in the account book after the date
of the incident. Moreover, none of the witnesses have spoken
about the particular entry relating to them in the account books.
No signature of any witness is identified and marked in the
D
account books. None of the witnesses have deposed about any
relevant entry found in the account books with reference to their
respective gold/silver articles. All these issues, coupled with the
fact that the investigation officer has put forth an artificial and
got-up story in the matter of identification of the ornaments,
creates grave suspicion with regard to the recovery of the E
ornaments, as well as their identification by the different pledgors.
[Para 23][364-B-F]
2.6 The non-examination of two important witnesses to
recoeries, in the light of the recoveries adversely affects the
prosecution case. [Para 24][365-A-B] F
2.7 A pointed suja and a chisel were recovered from the
houses of Accused Nos. 2 and 1, respectively, at their instance.
However, the prosecution has not established that these are the
weapons which were used for the commission of the crime. The
medical evidence indicates that the injuries that were found on G
the bodies of the deceased persons could not have been caused
with the weapons seized, and the likelihood of the seized weapons
causing the present injuries are very slim, as all the injuries,
except one, were lacerations caused by a hard and blunt object.
[Para 25][365-C]
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350 SUPREME COURT REPORTS [2019] 1 S.C.R.
A 2.8 The blood-stained clothes of the accused persons were
also recovered from the houses of the accused at their instance.
However, the veracity of the said recovery is doubtful in light of
the fact that the said recovery was made two days after the arrest
of the accused and the recovery of the stolen articles from the
houses of the accused, which the investigating officer had
B
thoroughly searched previously. From Accused No. 3, clothes
were recovered hanging from a hook inside his one-room house,
which had also been searched previously and from where
ornaments had also been seized before. All these apparent
infirmities create nothing but doubts regarding the guilt of the
C accused. [Para 25][365-D-F]
2.9 All the blood-stained items (including the weapons,
clothes of the deceased and the flooring and tiles of the spot
where the bodies were found) were sent to the FSL for
examination, however the reports do not, in any way, help the
D case of the prosecution. Although it is argued that the blood group
of the deceased persons is ‘O’, there is nothing conclusive to
prove the same. Therefore, no reliance can be placed on the
recovery of the blood-stained weapons or clothes of the accused.
[Para 26][365-F-H]
E 2.10 Another incriminating factor is that the fingerprints of
Accused No. 1 were found upon the tea tumblers found at the
scene of the crime. The High Court was not correct in concluding
that the fingerprint samples of the accused (used for comparison
with the fingerprints on the tumblers) were illegally obtained,
being in contravention of the Identification of Prisoners Act, 1920,
F inasmuch as they were obtained without a magisterial order. There
cannot be any hard and fast rule that in every case, there should
be a magisterial order for lifting the fingerprints of the accused.
A bare reading of these rules makes it amply clear that a police
officer is permitted to take the photographs and measurements
G of the accused. Fingerprints can be taken under the directions of
the police officer. If certain suspicious circumstances do arise
from a particular case relating to lifting of fingerprints, in order
to dispel or ward off such suspicious circumstances, it would be
in the interest of justice to get orders from the Magistrate. But
that does not mean that under Section 4, police officers are not
H
ASHISH JAIN v. MAKRAND SINGH 351
entitled to take fingerprints until the order is taken from a A
Magistrate. It cannot be held that the fingerprint evidence was
illegally obtained merely due to the absence of a magisterial order
authorizing the same. [Para 27][366-A-B; 368-F-H; 369-A, B-C]
Sonvir v. State (NCT) of Delhi (2018) 8 SCC 24;
Shankaria v. State of Rajasthan (1978) 3 SCC 435; B
Mohd. Aman v. State of Rajasthan (1997) 10 SCC 44 –
referred to.
2.10 At the same time, in the current facts and
circumstances, the absence of a magisterial order casts doubts
on the credibility of the fingerprint evidence, especially with C
respect to the packing and sealing of the tumblers on which the
fingerprints were allegedly found, given that the attesting
witnesses were not independent witnesses, being the family
members of the deceased. Thus, the possibility of tampering
and post-facto addition of fingerprints cannot be ruled out. [Para
27] [369-C-D] D
2.11 The DIG of Police who had visited the scene of the
crime shortly after finding the bodies, upon seeing three tea
tumblers and some electrical equipment at the scene of the crime,
inferred that the crime may have been committed by three
persons who were electricians. This inference drawn by a high- E
ranking officer in the police is likely to have impeded the course
of investigation and created prejudice against the accused
persons. The whole investigation and the prosecution case seem
to be concocted around this inference made by the DIG, and such
a circumstance does not help the case of the prosecution. [Para F
28][369-E-F]
2.12 There is no glaring infirmity in the acquittal granted
by the High Court. On the other hand, it is well-reasoned. The
appellants have failed to establish that the High Court has erred
in its conclusion. Unless any blatant illegality or substantial error G
in the order of acquittal is proved by the appellants, and as long
as the conclusion of acquittal is a possible view based on the
circumstances and material on record, this Court is not bound to
interfere with the same. As a reasonable suspicion or doubt
persists regarding the guilt of the accused based on the case of
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352 SUPREME COURT REPORTS [2019] 1 S.C.R.
A the prosecution, the scales of criminal justice tilt in favour of
acquittal of the accused. In such a scenario, the acquittal of the
accused persons is confirmed. [Para 29][369-G-H; 370-A]
Case Law Reference
[2011] 6 SCR 988 relied on Para 17
B
[2008] 13 SCR 269 relied on Para 17
[1985] 2 Suppl. SCR 898 relied on Para 17
[2010] 5 SCR 381 relied on Para 21
(2018) 8 SCC 24 referred to Para 27
C
(1978) 3 SCC 435 referred to Para 27
(1997) 10 SCC 44 referred to Para 27
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
D 1980 of 2008.
From the Judgment and Order dated 04.04.2005/21.09.2005/
23.09.2005 of the High Court of Madhya Pradesh, Jabalpur Bench
Gwalior, in Death Reference No. 1 of 2004 and Criminal Appeal No.
312 of 2004.
E
WITH
Criminal Appeal No. 1981 of 2008.
V. N. Sinha, Sr. Adv., Puneet Jain, Abhinav Gupta, Harsh Jain,
Ms. Christi Jain, Ms. Pratibha Jain, Mrs. Swarupama Chaturvedi, B. N.
F Dubey, Mukesh Kumar, Ms. Santanu Singh, Sanjay Verma, Ms. Nidhi,
Advs. for the appearing parties.
The Judgment of the Court was delivered by
MOHAN M. SHANTANAGOUDAR, J. 1. The instant
appealsarise from the judgments of the High Court of Madhya Pradesh,
G Jabalpur, Gwalior Bench, passed in Death Reference No. 01 of 2004
and Criminal Appeal No. 312 of 2004. Vide the impugned judgments, the
High Court acquitted the accused respondentsMakrand Singh, Raj
Bahadur Singh and Shyam Sunder for the offences punishable under
Sections 302 read with 34, 394 read with 34 and 449 of the Indian Penal
H
ASHISH JAIN v. MAKRAND SINGH 353
[MOHAN M. SHANTANAGOUDAR, J.]
Code (in short “the IPC”), and Sections 11 read with 13 of the Madhya A
Pradesh Dakaiti and VyapharanPrabhavitKshetraAdhiniyam (in short
“the MPDVPKA”) and additionally respondentMakrand Singh for
offences under Section 25(1)(b)(a) read with Section 27 of the Arms
Act and Sections 11 and 13 of the MPDVPKA for causing the death of
three people, viz. Premchand Jain, his wife Anandi Devi and unmarried
B
daughter Preeti, and for committing robbery of Rs. 30,000/- in cash and
about Rs. 8,00,000/- worth of gold and silver.
2. The case of the prosecution is reiterated below in brief:
Deceased Premchand Jain was in the occupation of money lending,
and pawning gold and silver ornaments. The incident took place on the C
intervening night of 4th- 5th January 2003, where the aforementioned
accused persons, on the pretext of doing electrical repairs in the house
of the deceased, entered the house and committed the said murder and
robbery. After committing the offence, they locked the house from outside
and fled.
D
3. The appellant in Criminal Appeal No. 1980 of 2008 is the
complainant Ashish Jain (PW26), who is the nephew of the deceased
Premchand. The appellant upon growing suspicious about finding the
house locked from outside on 5.1.2003, asked some relatives about the
whereabouts of the family, but to no avail. Therefore, towards the end
of the day at around 09:45pm, he informed the Police Station about the E
house being suspiciously locked from outside. The police reached the
house, broke open the lock, and found all three residents lying dead on
the third floor of the house. Multiple injuries were also noticed on the
bodies of the deceased, andsome electrical equipment (such as wires
and a screwdriver)was found inside the house. The chest in which the F
deceased Premchand used to keep the pawned gold and silver ornaments
and cash was found broken open with its contents missing.Thus, an
inference was drawn that the accused persons, who are electricians,
and who did regular repair works at the house of the deceased, had
committed the said offence. The first information (DehatiNalishi)Ex.
P5 was lodged by Ashish Jain,who deposed as PW26. This first G
information was registered as the FIR Ex. P6 soon after.
After completing due procedure and upon investigation, the
accused persons were arrested the next morning. The robbed gold and
silver ornaments, cash, blood-stained clothes, and certain electrical tools,
H
354 SUPREME COURT REPORTS [2019] 1 S.C.R.
A i.e. a suja and a chisel, which were said to be the weapons of offence,
were recovered from the possession of the three accused persons at
their instance. The key used to lock the house from outside after the
commission of the crime was also recovered from a field at the instance
of Accused No.1, Makrand Singh. The robbed ornaments were said to
be theornaments which were pledged by different people as a part of
B
the business run by the deceased. The Naib Tehsildar,the Executive
Magistrate, conducted the identification of the robbed ornaments by the
pledgors, who identified the ornaments which belong to them.
4. The Trial Court, upon framing charges and appreciating
evidence, found the accused persons guilty of the said offences, and
C sentenced them to capital punishment.
5. The reference for the death sentenceand an appeal by the
accused persons were filed before the High Court. Both were heard by
a Division Bench; however,the learned judges could not reach a
consensus andhad a difference of opinion. One learned Judge was in
D favour of acquittal of the accused persons and another learned Judge
concurred with the judgment of the Trial Court. Hence, the matter was
heard by the learned Third Judge,and as his findings were in consonance
with acquittal, upon a majority of 2:1, the High Court acquitted the accused
persons from all charges levelled against them.
E 6. To satisfy our conscience, we have reappreciated the entire
evidence. The case mainly revolves around the statements of Ashish
Jain, PW26, who is the complainant,Kailash Chandra, PW12, a last seen
witness, and Vinod Kumar Jain, PW20, another last seen witness, as
well as the recovery made of all the incriminating materials like the
F stolen articles, blood-stained weapons and blood-stained clothes of the
accused at the instance of the accused persons.
7. PW26 has deposed that he is the nephew of the deceased
Premchand and he frequented the house of the deceased, though he
himself lived in a different house. He sometimes used to help the deceased
G Premchand with his business. On the morning of 5th January, he had
planned to visit his uncle but the house was locked from outside. He
presumed that since his deceased aunt, the wife of Premchand, was not
keeping well, their family must have taken her for medical examination.
Thereupon, he enquired from their relatives about Premchand’s
whereabouts, but did not get any response. Night fell, and Ashish Jain,
H
ASHISH JAIN v. MAKRAND SINGH 355
[MOHAN M. SHANTANAGOUDAR, J.]
PW26 along with a few otherslodged a report at the Police Station, City A
Kotwali, Bhind about the suspicious circumstances. The police arrived
at the scene, broke open the lock and found the dead bodies inside the
house with the ornaments and cash stolen from the chest. At the scene
of the crime, PW26 noticed tea tumblers in the kitchen area, and some
electrical equipment lying around the house. He further deposed that
B
Kailash Chandra, PW12, who was a neighboring shopkeeperas well as
a relative, had told him that he had seen the accused persons entering
the house of the deceased at around 6:00-6:30p.m. the previous evening
carrying a bag containing electrical equipment. Vinod Kumar Jain,PW20,
had also informed him that he had seen the accused persons coming out
of the said house between 9:00-9:30p.m. going towards the Dhanwanti C
Bai Dharamshala in a hurried fashion carrying two bags. Based on this
information, the first information was lodged, naming the accused persons
and their addresses, after which the FIR was registered.
8. The first circumstance relied upon by the prosecution is the
“last seen circumstance”. PW12, Kailash Chandra, who runs a shop D
neighbouring the deceased Premchand’s establishment and house, is the
brother of the deceased Premchand. Hecategorically deposed that on
the relevant date at around 6:00-6:30p.m., while he was sitting outside
his shop, he saw Accused No. 1,Makrand Singh, Accused No. 2, Raj
Bahadur Singh and Accused No. 3,Shyam Sunder entering the house of
the deceased carrying a bag containing electrical equipment. He was E
acquainted with Accused Nos. 1 and 2, and therefore enquired about
the purpose of their visit, to which they answered that they had been
called to do some electrical repair work in the house of deceased
Premchand. He had also asked them about the third person, and they
had answered that his name was Shyam Sunder. He further corroborated F
the evidence given by PW26 with regard to finding the dead bodies, and
the broken open chest. He further stated that he mentioned about the
accused persons entering the house to PW26 and others soon after the
discovery of the bodies.
9. Another important witness for the prosecution case is Vinod G
Kumar Jain, PW20, who is a nephew of the deceased Premchand. He
testified that on the 4th of January, 2003 at around 9:00p.m., while he
was returning home from his shop, which is nearby, he saw the three
accused persons coming out of the house of the deceased, and Accused
No. 1,Makrand Singh and Accused No. 2, Raj Bahadur Singh were
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356 SUPREME COURT REPORTS [2019] 1 S.C.R.
A carrying a bag each, walking in a hurried fashion towards the Dhanwanti
Bai Dharamsala.He further supported the version of PW26 about finding
the bodies and learning about the robbery. He also deposed that he had
discussed with the people gathered at the scene of the crime, including
PW26, about him seeing the accused persons exiting the houseof the
deceased on the previous night.
B
10. The Investigating Officer, K.D. Sonakiya deposed as PW35
before the Trial Court. He had been present at the scene of the incident
from the start and completed the investigation.
11. The second incriminating circumstance against the accused
C persons is the recovery of various articlesbased on their statements. All
the accused persons have confessed to committing the crime and have
led to the recovery of the stolen gold and silver ornaments and cash
hidden at various places in their respective houses. A country-made pistol
was also seized at the instance of Accused No. 1 from his possession.
Other incriminating material seized at the instance of the accused persons
D includes the blood-stained clothes of the accused and the blood-stained
weapons suja and chisel at the instance of Accused No.2 and Accused
No.1 respectively. The key to the lock used to lock the house from
outside after the commission of the crime was also seized from a vacant
land beside the house of Accused No. 1 based on his statement.
E Ashish Jain, PW26 is the witness for the recovery of all the
materials relating to the incident.
12. The post-mortem of the three dead bodies was done by a
team of three doctors out of which Dr. Renu Sharma, PW21 and Dr.
U.P.S. Kushwaha, PW22 were examined by the Trial Court. Upon a
F perusal of the Post-Mortem Reports, we find that on the body of the
first deceased Premchand, there were five injuries which were all
lacerated wounds. Upon the body of the second deceased Anandi Devi
also, five lacerated wounds were found. On the body of the third deceased
Preeti, three lacerated wounds, one incised wound and one contusion
G were identified. All the said injuries were ante-mortem in nature and
sufficient to cause the death of a person in the ordinary course of nature.
The cause of death of all the deceased was opined to be shock due to
haemorrhage, with the time of death between 12-24 hours prior to the
post-mortem, i.e. between 12 noon of 4th January and 12 noon of 5th
January. The Doctor PW22 in his cross-examination has deposedthat
H
ASHISH JAIN v. MAKRAND SINGH 357
[MOHAN M. SHANTANAGOUDAR, J.]
one injury wasinflicted by a hard and sharp weapon, and the rest of the A
injuries were inflicted by a hard and blunt weapon on the deceased.
13. The deceased Premchand’s hand was found by the police to
be clutching some hair, which was taken and sent to the Forensic Science
Laboratory along with the seized blood-stained clothes, weapons and
blood recovered from the floor of the scene of the crime. Hair samples B
of Accused Nos. 1 and 2 were also sent along with these samples to the
FSL for examination. The FSL has found that the hair recovered from
the hand of the deceased was similar in nature to both the hair samples
of Accused No. 1 and Accused No. 2 (but the results were inconclusive
nevertheless) and that the blood stains found on the clothing and weapons
were identified ashuman blood. Out of the stains that could be identified, C
the blood was identified asbelonging to group ‘O’.Fingerprint marks were
seized from the tea tumblers found by the police at the scene of the
crime and were also sent for FSL examination. The samples of the
fingerprints of the accused persons were also sent along with it for
identification. The fingerprint expert opinedthat there was similarity D
between a few prints upon the tea tumblersand the fingerprints of Accused
No. 1,Makrand Singh.
14. Learned counsel for the appellant-complainant hasstrongly
opposed the acquittal of the accused persons. He took the court through
the evidence on record, and urged that the recovery ofthe robbed articles
E
itself should be a sufficient ground for a conviction, thoughit is further
supported by other circumstantial evidence. He further argued that the
High Court in its majority opinion erred in giving undue importance to
small shortcomings in the investigation, because of which justice had to
suffer. He also argued that the last seen evidence of PW12 and PW20
along with the evidence of recovery of the stolen ornaments and cash at F
the instance of the accused persons, from their possession, is not to be
ignored. He placed reliance on the recovery of the key used to lock the
house from outside after the commission of the crime, at the instance of
the first accused, and said that the recovery of the same is conclusive
proof of the participation of the accused persons in the said offence. He
G
also argued that finding blood of the group ‘O’ on the clothes of the
accused in light of the recoveries made could only lead to one conclusion,
i.e. the guilt of the accused, since this was also the blood group of the
deceased persons. However, he admitted that the fingerprint examination
report could not be relied upon, and that the hair sample test report was
inconclusive. H
358 SUPREME COURT REPORTS [2019] 1 S.C.R.
A 15. The State of Madhya Pradesh has also filed an appeal against
the acquittal by the High Court. The learned counsel for the State, while
adopting the arguments of the counsel for the complainant in opposing
the acquittal,submitted thatthe circumstantial evidence on record, which
is fully proved, would only lead to the conviction of the accused.
B 16. The Supreme Court Legal Services Committee was directed
by us to engage a counsel for the accused Respondents since none had
appeared for them. An Amicus Curiae was appointed to assist us in
relation to the arguments for the Respondents.He supported the majority
view taken by the High Court in acquitting the accused persons, in entirety.
He argued that there are discrepancies in the evidence relating tothe
C arrests made and the alleged recoveries made by the police at the instance
of the accused. Learned amicus also stated that out of the recovery
witnesses, who are all relatives of the deceased, only PW26 has been
examined. The non-examination of other witnesses, especially one
Bahadur Yadav (the only independent witness), a servant of Premchand,
D who had allegedly assisted the police in the identification of the recovered
ornaments by the mortgagees, was said to be crucial for the prosecution
case. He further argued that no proper procedure was followed for the
identification of the ornamentsby the mortgagees, and the police had
taken active interest in the identification of the ornaments, which was
suspicious. Lastly, he submitted that the last seen circumstance was not
E proved.
17. In a case wherein the High Court has acquitted the accused
of all charges, there is a double presumption in favour of the accused, as
the initial presumption of innocence is further reinforced by an acquittal
by the High Court.In such a case, this Court will keep in mind that the
F presumption of innocence in favour of the accused has been fortified by
the order of acquittal and thus if the view of the High Court is reasonable
and based on the material on record, this Court should not interfere with
the same. Interference is to be made only when there are compelling
and substantial reasons to do so, and if the ultimate conclusion reached
G by the High Court is palpably erroneous, constituting a substantial
miscarriage of justice. Moreover, interference can be made if there is
amisconception of law or erroneous appreciation of evidence or the High
Court has completely misdirected itself in reversing the order of
conviction by the Trial Court. (See State of Rajasthanv.Islam and Ors.,
(2011) 6 SCC 343, State of U.P. v. Awdhesh,(2008) 16 SCC 238, and
H State (Delhi Admin.) v. Laxman Kumar and Ors.,(1985) 4 SCC 476).
ASHISH JAIN v. MAKRAND SINGH 359
[MOHAN M. SHANTANAGOUDAR, J.]
18. As mentioned supra, the present case of circumstantial evidence A
primarily hinges on two main aspects, which is the last seen evidence
and the recovery of stolen property.
PW12 and PW20, as discussed above, are the last seen witnesses
who saw the entry and the exit of the accused persons from the crime
scene, respectively. It has been deposed by the witnesses that soon B
after the bodies were found, they had discussed amongst themselves
about the participation of the accused persons based on the fact that
PW12 saw them enter the house of the deceased at around 06:30p.m.
on the preceding day, and that PW20 saw them coming out of the house
and leaving the area in a hurried manner at around 09:00-09:30p.m. These
two witnesses have categorically stated that they had conveyed this C
piece of valuable information to the complainant PW26 right before he
filed the first information. However, there is no whisper of such an
important fact anywhere in the first information, Ex. P5 nor the FIR
arising from it, Ex. P6. It is only stated in these documents that there
was a suspicion that the accused might have caused the said incident as D
they were seen loitering around the house of deceased Premchand at
around 9:00 p.m. of the night of the incident. PW26 has also stated that
he learnt about the presence of the accused persons from the verbal
dialogue between him and the said witnesses. If PW12 and PW20 had
really seen the accused as deposed, the same would have been reflected
in the FIR, and theabsence of such a crucial piece of information that E
PW26 learnt right before filing the first information casts a dark shadow
of suspicion over the testimony of the last seen witnesses. Moreover,
PW12 and PW20 have deposed that they were present at the spot when
the bodies were found. However, their statements were not taken by
the police on the same day, rather they were taken subsequently on the F
next day. Considering the fact that the details of the last seen
circumstance as deposed by PW12 and PW20 are not found in the first
information (though PW26, the informant was informed about the same
by PW12 and PW20 before filing the First Information Report), we are
of the opinion that PW12 and PW20 did not see the accused entering or
exitingthe house of the deceased, as is sought to be made out by the G
prosecution. Moreover, there was deliberate delay in recording the
statements of these important witnesses with regard to the last seen
circumstance. Hence, the statements of PW12 and PW20 were clearly
an afterthought.
H
360 SUPREME COURT REPORTS [2019] 1 S.C.R.
A 19. The High Court had observed that PW20 is a chance witness,
and we find that it has been held rightly so. Moreover, there are
discrepancies and contradictions in the statement of PW20, inasmuch
asit is only in his testimony that he asserts for the first time that he saw
the accused coming out of the house of the deceased, as opposed to
walking hurriedly away from the area, towards the Dhanwanti Bai
B
Dharamshala. Also, he admitted that he could not remember how many
people came out holding bags, and how many came out empty-handed,
along with the fact that he didnot usually take the route in front of the
house/shop of the deceased to reach his house from his shop, which
shows that he is a chance witness. Keeping in mind that this witness
C was related to the deceased, and appears to be a chance witness with
material discrepancies in his account, we are inclined to discard his
evidence as to the last seen circumstance.
20. The first information given by the complainant PW26 clearly
mentions the name of the accused as well as their addresses. It is also
D stated by the witnesses that they are acquainted with the accused persons
as they are electricians who frequented the house of the deceased for
repair works. Based on the same and corroborated by the statement of
PW26, the police could haveeasily arrested the accused. It was stated
by the Investigating Officer K.D. Sonakiya, PW35, that the police went
in search of the accused in order to arrest them at different locations
E that night itself. However, the material on record shows that the arrests
were made only the next morning between 11:00a.m. and 11:30a.m.,
that too at the houses of the accused persons, which also, incidentally,
shows that the accused persons were not absconding, which is unnatural
conduct on the part of an offender who knows that he has been observed
F entering the house of the deceased on the day of the offence. Be that as
it may, the delay in the arrest, despite clear knowledge of the whereabouts
of the accused persons, casts a serious shadow of doubt over the case
of the prosecution.
21. As regardsthe recovery of incriminating material at the instance
G of the accused,the Investigating Officer K.D. Sonakiya, PW35, has
categorically deposed that all the confessions by the accused persons
were made after interrogation, but the mode of this interrogationdoes
not appear to be of normal character,inasmuch as he himself has deposed
that the accused persons were further grilled and interrogated multiple
timesbefore extracting the confessions which lead to the recovery of
H
ASHISH JAIN v. MAKRAND SINGH 361
[MOHAN M. SHANTANAGOUDAR, J.]
the ornaments, cash, weaponsand key. We find from the totality of facts A
and circumstances that the confessions that led to the recovery of the
incriminating material were not voluntary, but caused by inducement,
pressure or coercion. Once a confessional statement of the accused on
factsis found to be involuntary, it is hit by Article 20(3) of the Constitution,
rendering such a confession inadmissible. There is an embargo on
B
accepting self-incriminatory evidence, but if it leads to the recovery of
material objects in relation to a crime, it is most often taken to hold
evidentiary value as per the circumstances of each case. However, if
such a statement is made under undue pressure and compulsion from
the investigating officer, as in the present matter, the evidentiary value
of such a statement leading to the recovery is nullified. It is noteworthy C
to reproduce the observations of this Court regarding the relationship
between Section 27 of the Evidence Act and Article 20(3) of the
Constitution in Selviv. State of Karnataka, (2010) 7 SCC 263:
“102. As mentioned earlier “the right against self-incrimination”
is now viewed as an essential safeguard in criminal procedure. D
Its underlying rationale broadly corresponds with two objectives—
firstly, that of ensuring reliability of the statements made by an
accused, and secondly, ensuring that such statements are made
voluntarily. It is quite possible that a person suspected or accused
of a crime may have been compelled to testify through methods
involving coercion, threats or inducements during the investigative E
stage. When a person is compelled to testify on his/her own behalf,
there is a higher likelihood of such testimony being false. False
testimony is undesirable since it impedes the integrity of the trial
and the subsequent verdict. Therefore, the purpose of the “rule
against involuntary confessions” is to ensure that the testimony F
considered during trial is reliable. The premise is that involuntary
statements are more likely to mislead the Judge and the prosecutor,
thereby resulting in a miscarriage of justice. Even during the
investigative stage, false statements are likely to cause delays
and obstructions in the investigation efforts.
G
103. The concerns about the “voluntariness” of statements allow
a more comprehensive account of this right. If involuntary
statements were readily given weightage during trial, the
investigators would have a strong incentive to compel such
statements—often through methods involving coercion, threats,
H
362 SUPREME COURT REPORTS [2019] 1 S.C.R.
A inducement or deception. Even if such involuntary statements are
proved to be true, the law should not incentivise the use of
interrogation tactics that violate the dignity and bodily integrity of
the person being examined. In this sense, “the right against self-
incrimination” is a vital safeguard against torture and other “third-
degree methods” that could be used to elicit information. It serves
B
as a check on police behaviour during the course of investigation.
The exclusion of compelled testimony is important otherwise the
investigators will be more inclined to extract information through
such compulsion as a matter of course. The frequent reliance on
such “short cuts” will compromise the diligence required for
C conducting meaningful investigations. During the trial stage, the
onus is on the prosecution to prove the charges levelled against
the defendant and the “right against self-incrimination” is a vital
protection to ensure that the prosecution discharges the said onus.
…
D 133. We have already referred to the language of Section 161
CrPC which protects the accused as well as suspects and
witnesses who are examined during the course of investigation in
a criminal case. It would also be useful to refer to Sections 162,
163 and 164 CrPC which lay down procedural safeguards in
respect of statements made by persons during the course of
E investigation. However, Section 27 of the Evidence Act
incorporates the “theory of confirmation by subsequent facts”
i.e. statements made in custody are admissible to the extent that
they can be proved by the subsequent discovery of facts. It is
quite possible that the content of the custodial statements could
F directly lead to the subsequent discovery of relevant facts rather
than their discovery through independent means. Hence such
statements could also be described as those which “furnish a link
in the chain of evidence” needed for a successful prosecution.
This provision reads as follows:
“27. How much of information received from accused may
G
be proved.—Provided that, when any fact is deposed to as
discovered in consequence of information received from a
person accused of any offence, in the custody of a police officer,
so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby
H discovered, may be proved.”
ASHISH JAIN v. MAKRAND SINGH 363
[MOHAN M. SHANTANAGOUDAR, J.]
134. This provision permits the derivative use of custodial A
statements in the ordinary course of events. In Indian law, there
is no automatic presumption that the custodial statements have
been extracted through compulsion. In short, there is no
requirement of additional diligence akin to the administration
of Miranda [16 L Ed 2d 694 : 384 US 436 (1965)] warnings.
B
However, in circumstances where it is shown that a person
was indeed compelled to make statements while in custody,
relying on such testimony as well as its derivative use will
offend Article 20(3).
135. The relationship between Section 27 of the Evidence Act
and Article 20(3) of the Constitution was clarified in Kathi Kalu C
Oghad [AIR 1961 SC 1808 : (1961) 2 Cri LJ 856 : (1962) 3 SCR
10]. It was observed in the majority opinion by Jagannadhadas, J.,
at SCR pp. 33-34: (AIR pp. 1815-16, para 13)
“13. … The information given by an accused person to a police
officer leading to the discovery of a fact which may or may D
not prove incriminatory has been made admissible in evidence
by that section. If it is not incriminatory of the person giving
the information, the question does not arise. It can arise only
when it is of an incriminatory character so far as the giver of
the information is concerned. If the self-incriminatory E
information has been given by an accused person without any
threat, that will be admissible in evidence and that will not be
hit by the provisions of clause (3) of Article 20 of the Constitution
for the reason that there has been no compulsion. It must,
therefore, be held that the provisions of Section 27 of
the Evidence Act are not within the prohibition aforesaid, F
unless compulsion [has] been used in obtaining the
information.”
(emphasis supplied)
22. We are of the opinion that the recovery of the stolen ornaments, G
etc. in the instant matter was made on the basis of involuntary
statements,which effectively negates the incriminating circumstance
based on such recovery, and severely undermines the prosecution case.
23. Furthermore, the prosecution has examined many
witnesseswho were alleged to be the pledgors of the said ornaments,
H
364 SUPREME COURT REPORTS [2019] 1 S.C.R.
A who identified their ornaments in an identification conducted by the Naib
Tehsildar. This was to prove that the recovered ornaments were in fact
the ornaments which were robbed from the house of the deceased
Premchand and later recovered from the accused persons. We find
substance in the argument of the learned Amicus Curiae that this
identification was not done in accordance with due procedure. It is
B
evident from the testimony of several of the examined pledgors, such as
PWs 15, 16 and 28,thatthe identification procedure was conducted without
mixing the recovered jewellery with similar or identical ornaments.
Additionally, there is nothing on record to show the identity of the pledgors
and to prove that the identified ornamentswere pledged by them to the
C deceased Premchand, except for the account books maintained by the
deceased Premchand for his business, but these cannot be relied upon.
This is because these account books were seized by the police from the
possession of Shailendra Kumar Jain, PW11, who is the son-in-law of
the deceased. Incidentally, he also runs a similar money-lending businessas
a pawn broker in another town. No valid reason is accredited to the
D
recovery of deceased Premchand’salleged account books from the
possession of his son-in-law. Moreover, these account books were
returned to himwithoutany prayer for the same and without following
any procedure. Later, it was found that there were additional entries
made in the account book after the date of the incident. Moreover, none
E of the witnesses have spoken about the particular entry relating to them
in the account books. No signature of any witness is identified and
marked in the account books. In other words, none of the witnesses
have deposed about any relevant entry found in the account books with
reference to their respectivegold/silver articles. All these issues discussed
above, coupled with the fact that the investigation officer has put forth
F
an artificial and got-upstory in the matter of identification of the
ornaments,creates grave suspicion with regard to the recovery of the
ornaments, as well as their identification by the different pledgors. Hence,
learned Amicus Curiae may be justified in contending, as held by the
High Court, that the aspect of recovery is a got-up story, only to suit the
G purposes of the prosecution.
24. The witnesses for the recoveries which were effected at the
instance of the accused are Ashish Jain, PW26 and one Sanjeev Jain.
Both of them are close relatives of the deceased. Sanjeev Jain has not
been examined. Similarly, one Bahadur Yadav was also not examined,
H
ASHISH JAIN v. MAKRAND SINGH 365
[MOHAN M. SHANTANAGOUDAR, J.]
who was a servant of the deceased Premchand who hadallegedly assisted A
the police by giving information about the pledgors to locate them to be
brought for identification of the recovered articles.The non-examination
of these two important witnesses in light of the recoveries adversely
affects the prosecution case.
25. Another circumstance which has been contended to point to B
the guilt of the accused is the recovery of blood-stained weapons at the
instance of the accused. A pointed suja and a chisel were recovered
from the houses of Accused Nos. 2 and 1, respectively, at their instance.
However, the prosecution has not established that these are the weapons
which were used for the commission of the crime. The medical evidence
indicates that the injuries that were found on the bodies of the deceased C
persons could not have been caused with the weapons seized, and the
likelihood of the seized weapons causing the present injuries are very
slim, as all the injuries, except one, were lacerations caused by a hard
and blunt object.
The blood-stained clothes of the accused persons were also D
recovered from the houses of the accused at their instance. However,
the veracity of the said recovery is doubtful in light of the fact that the
said recovery was made two days after the arrest of the accused and
the recovery of the stolen articles from the houses of the accused, which
the investigating officer had thoroughly searched previously. From E
Accused No. 3,Shyam Sunder, clothes were recovered hanging from a
hook inside his one-room house, which had also been searched previously
and from where ornaments had also beenseized before. All these apparent
infirmities create nothing but doubts in our minds regarding the guilt of
the accused.
F
26. All the blood-stained items (including the weapons, clothes of
the deceased and the flooring and tiles of the spot where the bodies
were found) were sent to the FSL for examination, however the reports
do not, in any way, help the case of the prosecution. The blood stains
were found to be of human blood, however, only the stains on the clothes
of Accused No. 2 and Accused No. 3 were found to be of the blood G
group ‘O’. Identification of the rest of the stains was opined to be
inconclusive. Although it is argued that the blood group of the deceased
persons is ‘O’, there is nothing conclusive to prove the same. Therefore,
no reliance can be placed on the recovery of the blood-stained weapons
or clothes of the accused. H
366 SUPREME COURT REPORTS [2019] 1 S.C.R.
A 27. Another incriminating factor as argued by the counsel for the
complainant is that the fingerprints of Accused No. 1 were found upon
the tea tumblers found at the scene of the crime. We do not agree with
the conclusion of the High Court that thefingerprint samples of the
accused (used for comparison with thefingerprints on the tumblers) were
illegally obtained, being incontravention of the Identification of Prisoners
B
Act, 1920, inasmuch as they were obtained without a magisterial order.
Importantly, Section 4 refers to the power of a police officer to direct
taking of measurements, including fingerprints:
“4. Taking of measurements, etc., of non-convicted
persons.—Any person who has been arrested in connection with
C an offence punishable with rigorous imprisonment for a term of
one year or upwards shall, if so required by a police officer, allow
his measurements to be taken in the prescribed manner.”
Section 5 ofthis Act provides for the taking of such samples upon
an order of aMagistrate, if the Magistrate is satisfied as to its expediency:
D “5. Power of Magistrate to order a person to be measured
or photographed.—If a Magistrate is satisfied that, for the
purposes of any investigation or proceeding under the Code of
Criminal Procedure, 1898 (5 of 1898)† it is expedient to direct
any person to allow his measurements or photograph to be taken,
E he may make an order to that effect, and in that case the person
to whom the order relates shall be produced or shall attend at the
time and place specified in the order and shall allow his
measurements or photograph to be taken, as the case may be, by
a police officer:
Provided that no order shall be made directing any person to be
F photographed except by a Magistrate of the First Class:
Provided further, that no order shall be made under this section
unless the person has at some time been arrested in connection
with such investigation or proceeding.”
However,as affirmed recently by this Court in Sonvir v. State
G (NCT) of Delhi,(2018) 8 SCC 24, Section 5 is not mandatorybut is
directory,and affirms the bona fides of the sample-taking and eliminates
the possibility of fabrication of evidence. The Court also relied on various
judgments on the point, includingShankariav. State ofRajasthan, (1978)
3 SCC 435, a three-Judge Bench decision of thisCourt to reach this
H conclusion.While discussing the decision of this Court in Mohd.
ASHISH JAIN v. MAKRAND SINGH 367
[MOHAN M. SHANTANAGOUDAR, J.]
Aman v. State of Rajasthan, (1997) 10 SCC 44, the Court observed at A
paragraphs 60-62 as follows:
“60. This Court observed that the prosecution has failed to
establish that the seized articles were not or could not be tampered
with before it reached the Bureau for examination. Further the
following was stated in para 8: (Mohd. Aman case [Mohd. B
Aman v. State of Rajasthan, (1997) 10 SCC 44 : 1997 SCC (Cri)
777] , SCC p. 49)
“8. … Apart from the above missing link and the suspicious
circumstances surrounding the same, there is another circumstance
which also casts a serious mistrust as to genuineness of the
evidence. Even though the specimen fingerprints of Mohd. Aman C
had to be taken on a number of occasions at the behest of the
Bureau, they were never taken before or under the order of a
Magistrate in accordance with Section 5 of the Identification of
Prisoners Act. It is true that under Section 4 thereof police is
competent to take fingerprints of the accused but to dispel any D
suspicion as to its bona fides or to eliminate the possibility of
fabrication of evidence it was eminently desirable that they were
taken before or under the order of a Magistrate.”
(emphasis supplied)
61. The above observation although clearly mentions that E
under Section 4 police officer is competent to take
fingerprints of the accused but to dispel as to its bona fide
or to eliminate the fabrication of evidence it was eminently
desirable that they were taken before or under the order
of the Magistrate.
F
62. The observation cannot be read to mean that this Court held
that under Section 4 police officers are not entitled to take
fingerprints until the order is taken from the Magistrate. The
observations were made that it is desirable to take the fingerprints
before or under the order of the Magistrate to dispel any
suspicion…” G
(emphasis supplied)
Even otherwise, pursuant to S. 8 of the Identification of Prisoners
Act, rules have been framed by the Madhya Pradesh government for
the purpose of carrying into effect the provisions of the said Act. The
H
368 SUPREME COURT REPORTS [2019] 1 S.C.R.
A relevant rules for the matter on hand are Rules 3, 4 and 5, which are
reproduced herein:
“3. Taking of photographs or measurements. - Allow his
photograph or measurements to be taken under Section 3 or
Section 4, shall allow them to be taken under the directions of a
B police officer.
4. Places at which measurements and photographs can be
taken. - (1) Measurements and photographs may be taken-
(a) in Jail, if the person whose photograph, or measurements are
to be taken, is in Jail;
C
(b) at a police station or at any other place at which the police
officer may direct the taking of the measurements or photographs,
if the person whose photograph or measurements are to be taken
is in police custody.
D (2) If the person whose photograph or measurements are to be
taken has been released from jail before his measurements or
photograph have been taken or is not in police custody, he shall on
receipt of an order in writing from an officer in charge of a Police
Station attend at such place as may be specified in such order, on
the date and at the time stated therein, for the purpose of having
E his measurements or photograph taken.
5. Measurements how to be taken. - (1) Measurements of
the whole or of any part of the body may be taken.
(2) The measurements of a woman shall be taken by another
woman with strict regard to decency.”
F
A bare reading of these rules makes it amply clear that a police
officer is permitted to take the photographs and measurements of the
accused. Fingerprints can be taken under the directions of the police
officer. As held by this Court in Sonvir (supra), although Section 4
mentions that the police officer is competent to take measurements of
G the accused, but to dispel doubts as to its bona fides and to rule out the
fabrication of evidence, it is eminently desirable that they were taken
before or under the order of a Magistrate. However, the aforesaid
observations cannot be held to mean that this Court observed that under
Section 4, police officers are not entitled to take fingerprints until the
H
ASHISH JAIN v. MAKRAND SINGH 369
[MOHAN M. SHANTANAGOUDAR, J.]
order is taken from a Magistrate. If certain suspicious circumstances do A
arise from a particular case relating to lifting of fingerprints, in order to
dispel or ward off such suspicious circumstances, it would be in the
interest of justice to get orders from the Magistrate. Thus there cannot
be any hard and fast rule that in every case, there should be a magisterial
order for lifting the fingerprints of the accused.
B
Thus, it cannot be held that the fingerprint evidence was
illegallyobtained merely due to the absence of a magisterial order
authorizingthe same.
At the same time, we find that in the current facts and
circumstances, the absence of a magisterial order casts doubts on the C
credibility of the fingerprint evidence, especially with respect to the
packing andsealing of the tumblers on which the fingerprints were
allegedly found,given that the attesting witnesses were not independent
witnesses,being the family members of the deceased. Thus, we cannot
rule out thepossibility of tampering and post-facto addition of fingerprints,
andconcur with the High Court in discarding the fingerprint evidence. D
28. It is noteworthy to mention that the DIG of Police had visited
the scene of the crime shortly after finding the bodies, which is evident
from the deposition of witnesses such as PW1. The DIG, upon seeing
three tea tumblers and some electrical equipment at the scene of the
crime, inferred that the crime may have been committed by three persons E
who were electricians. This inference drawn by a high-ranking officer
in the police is likely to have impeded the course of investigation and
created prejudice against the accused persons. The whole investigation
and the prosecution case seem to be concocted around this inference
made by the DIG, and such a circumstance does not help the case of the F
prosecution.
29. In light of the aforementioned discussion and reappraisal of
evidence by this Court, we do not find any glaring infirmityin the acquittal
granted by the High Court. On the other hand, we find it well-reasoned,
and therefore accept the view of the High Court. The appellants have G
failed to establish that the High Court has erred in its conclusion. Unless
any blatant illegality or substantial error in the order of acquittal is proved
by the appellants, and as long as the conclusion of acquittal is a possible
view based on the circumstances and material on record, this Court is
not bound to interfere with the same. As a reasonable suspicion or doubt
H
370 SUPREME COURT REPORTS [2019] 1 S.C.R.
A persists in our minds regarding the guilt of the accused based on the
case of the prosecution, the scales of criminal justice tilt in favour of
acquittal of the accused. In such a scenario, the acquittal of the accused
persons is confirmed.
30. At this juncture, we would like to extend our appreciation to
B the learned counsel and especially for the able assistance of Mr. V.N.
Sinha, Senior Counsel appointed as the Amicus Curiae.
31. Therefore, Criminal Appeal Nos. 1980-1981 of 2008 are
dismissed, and the judgment and order of acquittal of the High Court is
maintained.
C
Kalpana K. Tripathy Appeals dismissed.
D
E
F
G
H
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