Ashok Singh vs State

S.P. Garg, J.—The appellant Ashok Singh impugns the judgment dated 27.04.1998 and order on sentence dated 29.04.1998 of learned Additional Sessions Judge in SC No. 37/1996 by which he was convicted for committing the offence punishable u/s 302 IPC and sentenced to undergo imprisonment for life with a fine of Rs. 2,000/- . The criminal law was set into motion on 22.03.1995 when Daily Diary entry (DD) No. 4A (Ex. PW-14/A) was recorded at PS Kalyanpuri at 08.02 A.M. on getting information from Police Control Room (PCR) about a dead body lying inside a gunny bag in the fields at village Kondli. The investigation was assigned to Insp. N.S. Chauhan who along with SI Chottu Ram, HC Kanwar Pal and Const. Ashok Kumar reached the spot. The body of a male having ligature marks on its neck was found in the bag. Insp. Narender Singh made endorsement on DD No. 4A and sent the rukka through HC Kanwar Pal for lodging First Information Report (FIR). At the spot, he seized various articles including hair found stuck in the deceased''s finger; letter (Ex. PW-8/DX1) found in the pocket of the shirt, gunny bag and the plastic ''niwar patti'' with which the gunny bag was tied. He also conducted inquest proceedings and prepared inquest papers. He recorded the statements of the witnesses conversant with the facts and sent the body for post-mortem. Dr. L.T. Ramani conducted post-mortem of the body on 24.03.1995. The witnesses examined by the Investigating Officer indicted the accused for the crime and the police set out to apprehend him.

On 29.06.1995, on getting secret information about the presence of the accused outside a Bulb Factory, New Seelampur, he was arrested and interrogated. Pursuant to his disclosure statement, he led the police to the rented room in Kondli and got recovered the folding-bed from where the "niwar patti" was cut to tie the gunny bag. During the course of investigation, the Investigating Officer collected specimen hair of the accused and sent to the CFSL for comparison. After completing the investigation, a charge-sheet was submitted against the accused for committing the offence u/s 302/201 IPC. He was duly charged and brought to trial.

In order to substantiate its case, the prosecution examined fifteen witnesses at the trial. The statement of the accused was recorded u/s 313 Cr.P.C. to afford him an opportunity to explain the incriminating circumstance. The accused denied his participation and pleaded false implication.

After appreciating the evidence and considering the rival contentions of the parties, the Trial Court convicted the accused for committing the murder of Ram Parvesh. Aggrieved by the said judgment, the appellant has preferred the present appeal.

We have heard the counsel for the parties and have scrutinised the Trial Court record. The homicidal death of the deceased Ram Parvesh is not under challenge. PW-13 (Dr. L.T. Ramani) proved the post-mortem report examination (Ex. PW-13/A) in which injury No. 1 (ligature mark) was opined to have been caused by some narrow ligature material like wire. PW-13 (Dr. L.T. Ramani) was of the opinion that the death was due to asphysia resulting from strangulation.

At the outset, it may be mentioned that the whole case of the prosecution hinges upon circumstantial evidence. The Trial Court heavily relied upon the circumstance of last seen, motive, recovery of the articles pursuant to accused''s disclosure statement and FSL reports to base its conviction. These circumstances are discussed as :

(A) Last Seen

The investigating agency was unaware at what time Ram Parvesh was killed. The police came into motion only on 22.03.1995 at 08.02 A.M. when it got information of the dead body lying in a gunny bag. No eye witness was found at the spot and the body could not be identified. PW-1 (Satya Narain) and PW-2 (Om Prakash Tiwari), the deceased''s relatives identified it only on 28.03.1995. PW-13 (Dr. L.T. Ramani) who conducted autopsy on 24.03.1995 was of the opinion that the death occurred about three days prior to the commencement of the procedure on 24.03.1995 at about 11.00 A.M. The time frame thus fixed the death at 11.00 A.M. on 21.03.1995. In the cross-examination, he clarified that there was possibility of variation of few hours up to six hours on either side. He indicated that the death in any case occurred prior to 05.00 P.M. on 21.03.1995.

PW-7 (Raghunandan), Shopkeeper, who used to run a kirana shop at village Kondli claimed that he saw Ram Parvesh in the company of the accused and 2 or 3 other persons on 21.03.1995 in the evening when he was passing in front of his shop. He however, did not disclose the exact time when the deceased was seen in the company of the accused. He also did not name the other 2 or 3 persons who were with him at that time. He did not support the prosecution in to and was declared hostile by the State and cross-examined. In the cross-examination by the Ld. APP, he denied that in the statement to the police recorded u/s 161 Cr.P.C. (Ex. PW-7/A), he had disclosed that those two or three associates of the accused were known to him and he had given their names as Dalbir and Gajender of the village Kondli. He further denied the suggestion that he had altercation with Ram Parvesh for non-payment of Rs. 500/- at that time. Apparently, the time of death estimated in the post-mortem report is not in consonance with the time when PW-7 allegedly saw the accused and the deceased together in the evening. Moreover, the accused alone was not with the deceased at that time.

Regarding law on the circumstance of last seen, the observations of Supreme Court in Mohibur Rahman and Another Vs. State of Assam, are relevant :

The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place.

In the case of State of Goa Vs. Sanjay Thakran and Another, the Supreme Court noted general principles with reference to the principles of last seen together in Bodh Raj @ Bodha and Others Vs. State of Jammu and Kashmir, as under:

"The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of

guilt in those cases."

In Ramreddy Rajeshkhanna Reddy and Another Vs. State of Andhra Pradesh, this Court further opined that even in the cases where time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is too small that possibility of any person other than the accused being the author of the crime becomes impossible, the courts should look for some corroboration.

... Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.

The body of deceased Ram Parvesh was found in the early morning of 22.03.1995 and it remained unidentified. It is highly improbable that PW-7 who had allegedly witnessed the deceased in the company of the accused and his associates on the previous day would not come to know about his murder for so many days and would not lodge report to the police. Even his statement u/s 161 Cr.P.C. was recorded by the IO after a considerable delay of more than three months i.e. on 29.06.1995. Neither the IO nor the witness explained the inordinate delay in making the statement (Ex. PW-7/A). His silence for not reporting the incident to the police or close family members of the deceased makes his testimony highly suspicious. He exhibited unnatural conduct.

(B) Motive

In cases based upon circumstantial evidence, motive assumes greater importance. In the instant case, the prosecution failed to prove strong motive of the accused to hatch conspiracy with his associates to eliminate the deceased on his inability to return Rs. 1,000/- borrowed from the accused about six months before as alleged. The prosecution did not collect any clinching evidence to find out if the accused had lent loan of Rs. 1,000/- to the deceased and if so, when and for what purpose. Again there is no material to infer if any, threat to kill was ever extended to the deceased for the non-payment of the said amount. No complaint was ever lodged by the deceased or his family members for the alleged threat. PW-7 (Raghunandan) did not reveal if the accused was in hostile mood when he allegedly saw him in the company of the deceased. The prosecution did not investigate how, when and under what circumstances, the deceased happened to meet the accused on 21.03.1995. If the deceased had a real apprehension due to the alleged threat, he must not have gone to see the accused and his associates alone. PW-8 (Sangeeta Mishra) deceased''s wife admitted that both the accused and the deceased were friends and used to visit each other. For a paltry amount of Rs. 1,000/- , the accused is not imagined to hatch conspiracy with three associates (since Proclaimed Offenders) to murder him. No role whatsoever was attributed to the accused who remained absconded.

In the "State of UP vs. Kishan Pal" (2008) 16 SCC 73, the Supreme Court examined the issue of motive in a case of circumstantial evidence and observed that motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually prompted or excited them to commit the particular crime and thus, motive may be considered as a circumstance which is relevant for assessing the evidence and becomes an issue of importance in a case of circumstantial evidence. Thus, absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused.

(C) Recovery of the Articles

PW-3 (Gian Chand) deposed that accused Ashok Singh was his tenant in the year 1995. At the same time, he also disclosed that the accused used to stay in that house with two other boys. He did not support the prosecution on the circumstance of recovery of the folding bed etc. in his presence from the rented room. The prosecution did not collect cogent evidence to establish since when the accused used to reside in the said rented room or whether he alone used to stay or his associates also stayed there. The accused was arrested on 29.06.1995 from outside a Bulb Factory, New Seelampur, after about more than three months of the occurrence. It is uncertain if he used to visit the rented premises during this intervening period. No investigation was carried out if the room at village Kondli remained locked till the arrest of the accused. PW-3 (Gian Chand) was not expected to allow the room locked without getting any rent for so many months. On 28.03.1995 itself, Sangeeta Mishra and her relatives had identified the deceased''s body and the police was intimated the alleged motive of the accused. The Investigating Officer remained silent why the tenanted room of the accused was not raided that day to find out any incriminating material. The circumstances in which the arrest of the accused has been shown on 29.06.1995 are also suspicious as no public witness was joined at the time of his arrest. In the personal search of the accused, nothing was recovered. No evidence was collected if the accused used to work in the bulb factory and if so, since when. There is no investigation where the deceased used to reside and at which particular place, he used to carry on his business. The contents of the letter (Ex. PW-8/DX1) reveal that he was going to collect substantial amount of Rs. 50,000/- from his in-laws and had suffered losses in the business. The Investigating Officer did not attempt to verify the contents of the letter.

(D) CFSL Reports (Hair Matching)

The Trial Court heavily relied upon the CFSL report (Ex. PW-14/J) whereby from morphological and microscopical characteristics ,hairs in Ex. No. 1 (A few strands of black coloured hairs ''described as some hairs'' vide exhibit No. 4) and Ex. No. 2 (A few strands of black coloured hair described as some hairs vide exhibit No. 5) were found to be ''human'' in nature. Hair in Ex. 1 were also found to be ''similar'' with the hair in Ex. 2 in most of the morphological and microscopical characteristics .

On scanning the evidence, we find that recovery of hair is shrouded in mystery. The witnesses have given inconsistent version about the exact number of hair and the exact place/ body part, from where it were recovered. PW-14 (Insp. Narender Singh) testified that three or four hair pieces were found stuck in deceased''s finger (right hand). Contrary to that, PW-11 (SI Rajvir Singh) deposed that 4 hair pieces were found in right hand fist (of the deceased). He was confronted with the statement (Ex. PW-11/DA) recorded u/s 161 Cr.P.C. where there was no such mention. In the CFSL report (Ex. PW-14/J), it is not certain as to how many hair strands were sent for examination. The CFSL report merely records that it received a sealed cloth parcel containing, ''a few strands'' of black colour hair.

The Investigating Officer, PW-14 (Insp. Narender Singh) seized the specimen hair strands from the head of the accused after his arrest on 29.06.1995 vide seizure memo (Ex. PW-14/H). This seizure memo does not reveal the number of hair strands taken and seized. The Investigating Officer did not seek permission from the concerned Magistrate to collect the hair strands of the accused. These were also not taken in the presence of the Magistrate. No independent public witness was associated at the time of taking the specimen hair. PW-15 (HC Sahid Khan) a witness to the seizure memo (Ex. PW-14/H) did not corroborate the version given by the Investigating Officer and failed to testify if any hair strands of the accused were taken in his presence.

In the case of ''Himagshu Pahari vs. The State'' 1986 Cri.L.J. 622, the Double Bench of Calcutta High Court observed :

Though the learned trial Judge accepted the report of the Senior Scientific Officer, on scrutiny of his evidence, we consider it unsafe to act upon the report. It has been elicited in his cross-examination that he did not measure the diameters of the shafts of the hairs or their length, did not take impression of the cuticles of the hairs, did not note the shapes, appearance and the colours of the hairs or the directions of the pointing out of the hairs. The science of comparison of hairs has not yet reached perfection like the science of comparison of finger prints. Where, therefore, all the tests were not meticulously carried out, it would be unsafe to rely upon the report. We, therefore, leave out of our consideration the report of the Senior Scientific Officer (Ext.15). In our opinion, circumstance No. 14 has not been proved beyond reasonable doubt.

In the case of "Shahbuddin vs. The State (NCT of Delhi)" Crl. A. No. 288/1997 decided on 21.12.2001, the Double Bench of this Court held :

Now turning to the opinion expressed by the CFSL regarding matching of alleged sample hair with that of the hairs recovered from the right hand fist of the deceased, he said report does not conclusively proves that those hairs were of the same origin. The CFSL report is Ex. PW-13/M reads as under :-

The hair in exhibit 1 and 4 were found to be human in origin. Hair of exhibit 1 were found to be similar with the hair of exhibit 4 in most of their morphological and microscopical characteristics .

This report of the CFSL, to our mind, is not conclusive. According to this report hair exhibit 1 was similar with that of exhibit 4. It does not say the hair of Ex. 1 and Ex. 4 were identical. The morphological and microscopical characteristic test is not a sure test for arriving at a conclusion that two hairs belong to one and the same person. To support our view, we are placing reliance on the decision of Kerala High Court in the case of George Chariyan and ors. v. State of Kerala 1989 (3) Crimes 238 . In that case the court observed that the hair analysis has not yet developed into a perfect science. This fact is accepted by all major authors of Medical Jurisprudence. Similar view was expressed in the case of Neeraj Vs. State of M.P., where in similar circumstances CFSL reported that hair were similar. The court observed that there is a distinction between "similarity" and "identity". There can be similarity but the identity can still be different. In the present case result of analysis is that the sample hair and the hair recovered from the hand of the deceased were similar. Experts have not opined that the identity of the hair was the same or that the origin was from the same source. Identity of the hair being not established, it cannot be said that sample hair and hair recovered from the "Muthi" of the deceased were of the same person. Similarity of hair does not conclusively prove that the hair came from the same origin or of the same person. This has been so held in the case of Mantu alias Sunil Kumar Bhuyan v. State 1984 (2) Crimes 815. On the same line is the judgment of Calcutta High Court in the case of Himangshu Pahari v. State 1986 Cri.L.J. 622.

Sampling and analysis of hair samples suffer from many limitations; most notably, standard procedures have not been published for collecting, washing and analysing hair samples. Many questions regarding appropriate sampling and analytical procedures remain unanswered. CFSL report (Ex. PW-14/J) does not elaborate how the expert came to the conclusion that there was ''similarity'' between the questioned hair strands and the specimen hair of the accused. The characterstics like scale-count (number of scales per cm), shaft diameter and its variation from root to tip, medullary index (the ratio of the medulla diameter and the shaft diameter), pigment and shape of the cross-section have not been dealt in the report. It is not certain if the hair strands examined by the expert were full hair with root and tip intact and were representative of the body part/parts concerned. It is also uncertain if adequate number of hair were obtained as questioned hair.

It has been commented in the text book of Medical Jurisprudence and Toxicology, 24Edition 2011 by Modi that :

... Extensive work is yet necessary for universal acceptance of these approaches to the examination of even small pieces of hair. Till then, it can only be said that by laboratory examination, dissimilarity of hair can be more reliably shown than their similarity. The age and sex of the hair cannot be opined with high degree of reliability in all cases. Any opinion given should therefore be worded with due caution indicating the limitations of examination carried out.

(E) Other Accused (Proclaimed Offenders)

The prosecution also suspected involvement of Dalbir S/o Ram Singh, Satpal S/o Babu Ram and Sish Pal S/o Rameshwar Dayal and attributed common intention to them for the commission of the crime. However, during the investigation, no role whatsoever was attributed to them in the incident. The prosecution did not collect any credible evidence to prove that these proclaimed offenders were ever seen in the company of the accused.

(F) Conclusion

It is well settled that when a case rests purely on circumstantial evidence, such evidence must satisfy three tests. Firstly, the circumstances from which an inference of guilt is sought to be proved, must be cogently and firmly established. Secondly, the circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances taken cumulatively ,must form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. In the light of the above discussion, we are of the considered view that the prosecution has failed to satisfy the above tests and thus, the impugned judgment cannot be sustained and is set aside. The appeal is allowed. The Trial Court record be sent back forthwith.