Mahadev Prasad Pant Vs. State of Delhi - Court Judgment

Excerpt:
indian penal code, 1860sections 302, 392 & 397 - conviction for rubbery and murder--circumstantial evidence--disclosure found to be not reliable--conviction of one accused set aside--finger prints of other co-accused taken in violation of identification of prisoners act, 1920 without permission of the court--recovery of stolen property from the accused--held that conviction of co-accused cannot be set aside only on the basis of acquittal of other co-accused--conviction, affirmed. - - state of bihar 2001crilj1259 ,the hon'ble supreme court has been rather categorical in the matter of laying down well established rule of criminal jurisprudence in the matter of proof by circumstantial evidence in the following manner :it is a well-established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that the same is wholly inconsistent with innocence of the accused and is consistent only with his guilt. incidentally, success of the prosecution on the basis of circumstantial evidence will however depend on the availability of a complete chain of events so as not to leave any doubt for the conclusion that the act must have been done by the accused person. circumstances of strong suspicion without, however, any conclusive evidence are not sufficient to justify the conviction and it is on this score that great care must be taken in evaluating the circumstantial evidence. in any event, on the availability of two inferences, the one in favor of the accused must be accepted and the law is well settled on this score, as such we need not dilate much in that regard excepting, however, nothing the observations of this court in the case of state of u. 13. law on circumstantial evidence and its applicability to the appreciation of evidence against the accused is well settled now. if any chain is missing in the circumstance then the prosecution case must fail. it is trite law that when the evidence against an accused person, particularly when he is charged with a grave offence like murder, if it consists of only circumstantial and not direct oral evidence, it must be like a spider's web, leaving no exit for the accused to slip away. 21. since evidence of the prosecution regarding the employment of appellant as a domestic servant by butalias at the relevant time is very weak in nature and none of the family members could specifically state that at the relevant time mahadev prasad pant was seen working in the house by anyone of them so as to help the court to reach to a proper conclusion that appellant was working as a domestic servant with butalias at the relevant time. if these conditions are satisfied that part of the information given by the accused which led to the discoveries is admissible in evidence against the accused as such discoveries comes out of the cover of prohibition and such part of information gets denuded of the wrapper of prohibition and becomes admissible. it was in his cross examination he had identified other articles like coins of copper, silver, silver utensils like kettle, spoons, etc. pw9/a, the seizure memo of the articles recovered from meerut, clearly indicates that five lines in the bottom regarding recovery of safari suit and other clothes including bloodstained pant belonging to the appellant were written later on and not at the time when the documents were prepared. this information may be confessional or a non-exculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. 50. to conclude, we are of the view that prosecution has failed to prove that the appellant was employed as domestic servant with butalias at the relevant time i. he conceded that at the best the appellant can be convicted only under section 411 ipc being in possession of the stolen property belonging to butalias. it is true that prosecution has failed to prove the original fingerprints impression of the accused/appellant. -if a magistrate is satisfied that, for the purposes of any investigation or proceeding under the code of criminal procedure, 1989, it is expedient to direct any person to allow his measurements or photograph to be taken, 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: 59. under this section of the identification of the prisoners act a magistrate if he is satisfied that for the purpose of investigation or proceedings under the code of criminal procedure it is expedient to direct any accused to allow his measurement or photograph to be taken, he can pass an order to that effect. considering the proposition of law as discussed above, the present case stands on a weak footing than that of sukhvinder singh (supra). 64. in mehmood v. 73. a weak attempt was made by the appellant to claim the bangles of deceased mrs. but when there are circumstances clearly indicating the involvement of the appellant in the commission of crime of robbery and murder of mr. butalias having taken place at the same time as proved on the record clearly bring home the guilt of the accused/appellant.aruna suresh, j.1. by this common judgment we shall dispose of criminal appeal no. 337/2002, mahadev prasad pant v. state of delhi and criminal appeal no. 338/2002, sudershan dutta v. state of delhi arising out of the judgment dated 22nd february, 2002 of the learned additional sessions judge, delhi whereby both the appellants were held guilty for committing murder of shri k.m.s. butalia and smt. geeta butalia and were sentenced to undergo imprisonment for life and to pay a fine of rs. 3,000/- each and in default of fine to undergo simple imprisonment for three months each under section 302 of indian penal code (hereinafter referred as ipc) and were also sentenced to undergo rigorous imprisonment for seven years each and to pay a fine of rs. 3,000/- each and in default of fine to undergo simple imprisonment for three months each under section 392 of ipc read with section 397 ipc for robbing the deceased persons of their valuables including jewelry, utensils, electrical items. etc. 2. the factual matrix in this case is that on 1st february, 1995 at about 7.00 / 8.00 p.m. on receipt of information at police station defense colony that lock of house no. d-5, defense colony, delhi was broken, sho malook singh along with inspector sajjan singh and other police officials reached the spot and found the lock of the house broken. inside the house they found dead bodies of mrs. and mr. butalia lying in two different bed rooms and the house was found ransacked. complainant hemalini gupta, niece of deceased geeta butalia made the complaint. 3. in her complaint she disclosed that she had been trying to contact butalias for two days but could not succeed as nobody answered the door bell when she visited the house on 31st january, 1995 and no one answered the phone calls on 1st february, 1995. on that day she had seen one of the cars of butalias parked in the porch and the door locked. on 1st february, 1995 when she visited the house in the evening at about 6.30 p.m. she found both the cars missing and door-lock broken. first information report (hereinafter referred as 'fir') no. 61/1995 under section 460 ipc ex.pw24/a was registered. on 8th february, 1995 butalias domestic servant (appellant mahadev prasad pant) was apprehended at raipur naka, district bhilai, madhya pradesh under suspicious circumstances carrying a suitcase and handbag ex.p-53 and ex.p-54 by inspector d.s. rathore, sho bhilai nagar. police team from delhi headed by inspector malook singh went to bhilai on 9th february, 1995 and arrested appellant mahadev prasad pant. appellant sudershan dutta and co-accused devender singh (given benefit of doubt - acquitted) were arrested on 15th february, 1995. the stolen articles were recovered on the basis of two disclosure statements of appellant mahadev prasad pant and disclosure statement of appellant sudershan dutta from 448, subhashpuri, kankar kheda, meerut owned by appellant sudershan dutta on 12th february, 1995. number of other stolen articles including khukris etc. were recovered from house no. 789, sector 37, faridabad and from there appellant sudershan dutta and co-accused devender were apprehended by the police. recoveries of stolen articles were also made from the first floor of house no. a-1/155, lajpat nagar, delhi owned by appellant sudershan dutta. 4. on the basis of prima facie evidence available on the record, learned additional sessions judge, delhi was pleased to frame following charge under section 396 read with section 302/34 of ipc vide order dated 4th june, 1996 against both the appellants and their co-accused devender singh: charge i, g.p. thareja, addl. sessions judge, new delhi do hereby charge you sudershan dutt, 2, mahadev prasad, 3 davinder singh as under:that in the night intervening of 30/31.1.1995 at p.s. defense colony, within the jurisdiction of p.s. defense colony you along with tahir (col. no. 2) and raju thakur (since expire) had entered into the house of deceased sh. k.m. s. butalia and smt. geeta butalia in order to commit dacoity and had committed dacoity by taking away various jewellary items and riffle belonging to the deceased and had caused death of said sh. k.m.s. butalia and his wife smt. geeta butalia and thereby you committed an offence of dacoity with murder punishable under section 396 of ipc and within my cognizance. secondly, on the said date time and place you all on the said date, time and place in furtherance of the common intention you all committed murder of both of sh. k.m.s. butalia and his wife smt. geeta butalia by asphyxia due to strangulation and smothering thereof you have committed an offence of homicide as offence under section 299 of ipc punishable under section 302/34 of ipc and within my cognizance. and i hereby direct that you all three tried by me for the said offence. asj new delhi4.6.965. the case of the prosecution purely rests upon circumstantial evidence. the relevant witnesses are:(a) hemalini gupta (pw1) the complainant. (b) shri kharak pal singh (pw2) brother-in-law (kudam) of deceased, who happened to reach the spot on receipt of information from the driver of hemalini gupta about the incident on 1st february, 1995 at about 10.00 p.m. (c) shri gurmeet butalia (pw3) son of the deceased persons. (d) dr. alpna sinha, (pw4) who conducted the postmortem on the dead bodies of butalia. (e) ms. mini butalia (pw5), daughter-in-law of the deceased persons. (f) shri jasbir singh vohra (pw7) who is owner and landlord of house no. 789, sector 37, faridabad which was rented out to appellant sudershan dutta and in whose presence appellant sudershan dutta was arrested. he is also a witness to the recoveries. (g) shri mohan singh (pw8) in whose presence sudershan dutta had made disclosure statements and he is also a witness to the recovery of stolen articles/exhibits from attache-case lying on the slab of the kitchen in house no. a-1/155, lajpat nagar, delhi on 19th february, 1995. (h) shri rajiv kaul (pw9) had accompanied the police party to meerut on 12th february, 1995 where in his presence recovery of a gun and various jewelry articles and bloodstained clothes of appellant mahadev prasad pant were recovered at the instance of appellant mahadev prasad pant. (i) shri ajit singh (pw10) the owner of property no. a-1/155, ground floor, lajpat nagar, delhi which he had sold to appellant sudershan dutta on 11th march, 1993 to prove that the property belonged to appellant sudershan dutta. (j) shri chander babu atmanj gopinathan pillai (pw12) a witness to the disclosure statement of appellant mahadev prasad pant made to the police at bhilai when he was apprehended on suspicion. this witness is partly hostile. (k) shri kamal singh rawat (pw17) a witness to the disclosure statement made by appellant mahadev prasad pant on 11th february, 1995. he had accompanied the police party to meerut and witnessed the recovery of gun, jewelry, etc. from the house of appellant sudershan dutta at kankar kheda, meerut. (l) shri s.k. chadha (pw21) the handwriting expert.(m) the statement of police officials who had witnessed the recovery of stolen articles from meerut, faridabad and lajpat nagar, delhi. 6. we shall first deal with criminal appeal no. 337/2002, mahadev prasad pant v. state of delhi. on considering the circumstantial evidence proved on record by the prosecution, the learned trial judge found the accused guilty. the proved circumstances are :(a) appellant mahadev prasad pant was domestic servant of butalias and absconded from the house after the occurrence. he was apprehended at bhilai under suspicious circumstances on 8th february, 1995 carrying a suitcase ex.p-53 and a handbag ex.p-54. (b) the appellant made a disclosure statement ex.pw12/a on 8th february, 1995 to inspector d.s. rathore, sho, bhilai nagar. he was arrested by the delhi police on 11th february, 1995 and another disclosure statement was made by him on 11th february, 1995 at delhi ex.pw17/a which led to the recovery of stolen articles from kankar kheda meerut and arrest of appellant sudershan dutta and co-accused devender. (c) blood of deceased was found on the pant of appellant mahadev prasad pant. 7. learned defense counsel mr. viresh b. saharya, amices curiae for appellant mahadev prasad pant has assailed the above said circumstances on the ground of discrepancies and contradictions in the statement of various prosecution witnesses and irregularities in the investigation. 8. learned amices curiae for the appellant has submitted that there are discrepancies in the evidence of shri chander babu atmanj gopinathan pillai, inspector d.s. rathore regarding the first disclosure statement made by the appellant to inspector d.s. rathore on 8th february, 1995 ex.pw12/a. he has also highlighted the discrepancies appearing in the testimony of mr. rajiv kaul, shri kamal singh rawat and constable praveen kumar. whereas shri kamal singh rawat and constable ram kumar (not examined as a witness) are witnesses to second disclosure statement dated 11th february, 1995 ex.pw17/a made by the appellant. rajiv kaul, kamal singh rawat and constable praveen kumar are witnesses to the recovery of stolen articles seized vide seizure memo ex.pw9/a from house no. 448, kankar kheda, meerut on 12th february, 1995. on the basis of various discrepancies highlighted by him, he has urged that no recovery was effected at the instance of mahadev prasad pant as alleged. 9. learned counsel for the appellant has further pointed out that appellant was not working as a domestic servant at the relevant time of the incident with butalias as is evident from the testimony of gurmeet butalia and daughter-in-law mini butalia and that none of the stolen articles were recovered from the possession of appellant mahadev prasad pant and he has been falsely implicated in this case and he is entitled to benefit of doubt and acquitted. 10. learned additional public prosecutor has refuted the submissions of the learned amices curiae for the appellant. according to him the factum of the appellant being domestic servant is proved and he made two disclosure statements; one at bhilai, madhya pradesh which was recorded by inspector d.s. rathore, sho, bhilai nagar and second at delhi to the delhi police and he led to the recovery of stolen articles on 12th february, 1995 from the house of appellant sudershan dutta at kankar kheda, meerut. the appellant has been identified by the witnesses in the court. these are independent witnesses to the recovery of stolen articles at meerut from the house belonging to appellant sudershan dutta. the contradictions which have been highlighted by the learned defense counsel are natural due to lapse of time. even the bloodstain has been found on the pant of the appellant which on chemical and biological analysis is found to be of human in nature and of group a which matched the blood group found in the other clothes belonging to the deceased persons and seized by the police during investigation. he has highlighted the conduct of appellant and has submitted that after the incident the appellant was found missing from the house of butalias is a circumstance which goes against him. the appellant who hails from nepal and was apprehended in bhilai under suspicious circumstances also indicates that he had absconded to evade his arrest and thereforee he has been rightly convicted in this case. 11. in karihai mishra alias kanhaiya misar v. state of bihar : 2001crilj1259 , the hon'ble supreme court has been rather categorical in the matter of laying down well established rule of criminal jurisprudence in the matter of proof by circumstantial evidence in the following manner : it is a well-established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that the same is wholly inconsistent with innocence of the accused and is consistent only with his guilt. the incriminating circumstances for being used against the accused must be such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. in a case of circumstantial evidence the whole endeavor and effort of the court should be to find out whether the crime was committed by the accused and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the accused. if the circumstances proved against the accused in a case are consistent either with the innocence of the accused or with his guilt, he is entitled to the benefit of doubt.12. similarly, in pawan kumar v. state of haryana manu /sc/0167/2001, while considering the evidentiary value of the circumstantial evidence it was recorded as below: incidentally, success of the prosecution on the basis of circumstantial evidence will however depend on the availability of a complete chain of events so as not to leave any doubt for the conclusion that the act must have been done by the accused person. while, however it is true that there should be no missing links, in the chain of events so far as the prosecution is concerned, but it is not that every one of the links must appear on the surface of the evidence, since some of these links may only be inferred from the proven facts. circumstances of strong suspicion without, however, any conclusive evidence are not sufficient to justify the conviction and it is on this score that great care must be taken in evaluating the circumstantial evidence. in any event, on the availability of two inferences, the one in favor of the accused must be accepted and the law is well settled on this score, as such we need not dilate much in that regard excepting, however, nothing the observations of this court in the case of state of u.p. v. ashok kumar srivastava wherein this court in para 9 of the report observed: 9. this court has, time out of number observed that while appreciating circumstantial evidence the court must adopt a very cautious approach and should record a conviction only if all the links in the chain are complete pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favor of the accused must be accepted. the circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. but this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far-fetched and fanciful it might be. nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise.13. law on circumstantial evidence and its applicability to the appreciation of evidence against the accused is well settled now. the chain of circumstance is to be so linked together that it unmistakably points out the guilt of the accused only. if any chain is missing in the circumstance then the prosecution case must fail. the circumstantial evidence must reach to the irresistible conclusion that at the time of the commission of offence the accused was present there and not only he was present there, he was the author of the crime. in air 1995 jcc (1), jag mohan @ birju v. state and the state v. jag mohan @ birju it was observed by division bench of this court :no doubt, this murder is diabolical in conception and cruel in execution but the real and pivotal issue is whether the totality of the circumstances unerringly establish that the accused is real culprit. we must make it clear that there is no direct evidence on record to connect the accused with the alleged crime and the prosecution case solely hinges on circumstantial evidence. it is trite law that when the evidence against an accused person, particularly when he is charged with a grave offence like murder, if it consists of only circumstantial and not direct oral evidence, it must be like a spider's web, leaving no exit for the accused to slip away. the various links in the chain, when taken in isolation might not connect the accused with the commission of the crime but when taken together, must unmistakably point out the guilt of the accused. (pandala veera reddy v. state of a.p. air 1990 sc 79).14. keeping in mind the above principle of law as enunciated by the hon'ble supreme court and the decisions of this court in prem chand v. the state 2006 viii ad (delhi) 213 and vijay kumar @ bhushan v. state 2007 i ad (delhi) 104, we shall scrutinize scrupulously and examine carefully the circumstances appearing in this case against appellant mahadev prasad pant. 15. as regards circumstance no. 1 and 2 the witnesses examined by the prosecution are kharak pal singh, gurmeet butalia, ms. mini butalia, inspector sajjan singh and head constable dharamvir. 16. pw2 kharak pal singh happened to be a kudam of deceased k.m.s. butalia and smt. geeta butalia. he has testified that in the servant quarter the appellant used to reside. half of the strings of his cot (chaarpai) were found missing. he has not been challenged by the defense in the cross-examination. 17. pw3 gurmeet butalia is the son of the deceased who also identified the appellant. he deposed that appellant was employed with his parents as servant and he had seen him working in the house personally in july 1994 while he was in delhi. in the cross-examination he has stated that before he left for usa, the appellant was the servant in the house about six months back. thus, it is clear that gurmeet butalia did not see the appellant working in the house of butalias since after july, 1994. according to him, the appellant was re-employed in may 1994 or could be in april but he did not know exactly. in that case appellant could not be employed more than six months before he left india in july, 1994. 18. ms. mini butalia pw5 daughter-in-law of the deceased butalias has testified that during the period of the incident i.e. january/february, 1995 her in-laws had a servant named mahadev prasad pant. she had no personal knowledge nor she had seen appellant but according to her she had come to know about the appellant as employee from her mother-in-law on phone. during her cross-examination she admitted that she had left india for america 6/7 months back and at that time some other servant was employed with butalias. it was on 19/20 january on the occasion of death anniversary of her brother-in-law, she was informed by her mother-in-law that she had a servant named mahadev and she would get work done from him. her statement is hearsay and thereforee cannot be considered for any purpose. 19. pw25 inspector sajjan singh was working as additional sho at police station defense colony. he partly investigated the case. he had inspected the servant quarter wherein servant mahadev, the present appellant, used to live and recovered half broken strings of jute from the cot. he has deposed on the basis of information collected from the spot and from the other family members of deceased butalias present there. he had no personal knowledge about the domestic servant who was employed by butalias at the relevant time. as per his admission in the cross-examination inspector sajjan singh was informed by beat constable that mahadev prasad pant was also found missing and it was beat constable dharamvir who had produced the photograph of the present appellant voluntarily and not on the instructions of any superior officer. he did not prepare any memorandum of the receipt of the photograph. 20. pw27 hc dharamvir has stated that appellant was working as domestic servant with butalias and he used to visit their house they being senior citizens where he came to know about this fact. he admitted having communicated this fact to the investigating officer on 1st february, 1995 after the murder of butalias. true that, his statement has not been challenged but then, much reliance can not be placed on his testimony in the light of the evidence of other witnesses as discussed above. there is no evidence to indicate that head constable dharamvir, being beat constable of the area had verified the antecedents of the appellant if he knew that he was working as a domestic servant with butalias. the photograph handed over by hc dharamvir to the investigating officer also has not been placed on record or proved in evidence. 21. since evidence of the prosecution regarding the employment of appellant as a domestic servant by butalias at the relevant time is very weak in nature and none of the family members could specifically state that at the relevant time mahadev prasad pant was seen working in the house by anyone of them so as to help the court to reach to a proper conclusion that appellant was working as a domestic servant with butalias at the relevant time. thereforee, it becomes doubtful if appellant was actually in employment with butalias at the relevant time or he had left the services earlier especially when it has come in the statement of ms. mini butalia that before she went to america some other servant had been employed by her in-laws. in other words the appellant was in service of butalias few months prior to the incident in question. under these circumstances, it can not be said nor it is proved in evidence that appellant had absconded away after smothering butalias to death in conspiracy with his other co-accused persons. 22. appellant was arrested at bhilai on 8th february, 1995 under suspicious circumstances. one suitcase and one handbag was recovered from him but none of the stolen articles or any other incriminating evidence against him could be collected by the police of bhilai from the person of appellant or from his suitcase and handbag. 23. circumstance no. 3 in this case relates to the two disclosure statements first of 8th february, 1995 ex.pw12/a made before inspector d.s. rathore and second disclosure statement made on 11th february, 1995 after his arrest before the delhi police. now it is to be seen how far reliance can be placed on these two disclosure statements and the recovery of stolen articles effected at the instance of the appellant from kankar kheda, meerut owned by co-accused sudershan dutta on 12th february, 1995. admittedly, no recovery was effected by the investigating officer on the basis of first disclosure statement made on 8th february, 1995. 24. prosecution has examined two witnesses to the first disclosure statement made to inspector d.s. rathore. first witness is chander babu and the second witnesses is inspector d.s. rathore. the other independent witness to the disclosure statement satyam could not be examined by the prosecution. nothing has been recovered on the basis of the first disclosure statement allegedly made by the appellant before inspector d.s. rathore. thereforee, this disclosure statement cannot be read against the appellant except to discredit the case of the prosecution. 25. the second disclosure statement ex.pw17/a dated 11th february, 1995 is witnessed by kamal singh rawat and constable ram kumar, police station defense colony. constable ram kumar has not been examined by the prosecution thereforee, the only testimony left to be examined is that of pw17 kamal singh rawat and of course the investigating officer inspector malook singh.26. kamal singh rawat is assistant in delhi bureau of textbooks. he just happened to visit the police station as he happened to be special police officer. in the cross-examination he has admitted that when he reached the police station appellant was under interrogation of inspector malook singh and the statement was recorded by sunil. some part of the statement was already recorded and he had no knowledge as to what had already been recorded before his arrival in the police station. this indicates that he is not a witness to the entire disclosure statement ex.pw17/a. 27. according to the learned defense counsel when the investigating officer did not act on the first disclosure statement and chose to record second disclosure statement, he had to explain why he did not act upon the first disclosure statement made to d.s. rathore at bhilai. prosecution is absolutely silent on this point. it is true that prosecution has not been able to explain as to why the investigation was conducted on the basis of first disclosure statement recorded at bhilai and the second disclosure statement has been recorded after about three days of the first disclosure statement. 28. law relating to confession is laid down in the indian evidence act under section 24 to 30 and also in section 162 and 164 code of criminal procedure (hereinafter referred as cr.p.c.). a confession or admission is evidence against the maker of it unless its admissibility is excluded by some provision of law. however, a confession made to a police officer under any circumstances is inadmissible in evidence against the accused. it covers a voluntary confession made by an accused when he was free and was not in police custody and made before any investigation had begun becomes admissible in evidence against the accused. 29. section 26 of the indian evidence act is an embargo on any confessional statement made by an accused in the custody of a police officer unless it was made in the immediate presence of a magistrate. 30. section 25 of the act absolutely bars the admissibility of confessions or disclosure statements made to a police officer. however, proviso to section 27 of the act partially lifts ban imposed by sections 24, 25 and 26 of the act. 31. section 162 of the cr.p.c. are wide enough to include a confession made to a police officer in the course of investigation. this is generally treated as a disclosure statement made to the police by the accused. 32. under section 164 of the criminal procedure code a magistrate is empowered to record a statement or confession made in the course of investigation subject to safeguards imposed by the section. thus, except as provided by section 27 of the evidence act a confession by an accused to a police officer is absolutely protected under section 25 of the act and if it is made in the course of investigation it is also protected by section 162 cr.p.c. and a confession to any other person made by him while in the custody of the police officer is protected by section 26 unless it is made in the immediate presence of the magistrate. these provisions seem to proceed upon the principle that confessions made by an accused while in police custody to a police officer are not to be trusted and should not be used in evidence against him. 33. the conditions prescribed under section 27 for unwrapping the cover of ban against the admissibility of the statement of the accused to the police are : (1) a fact should have been discovered in consequence of information recovered from the accused. (2) he should have been accused of an offence.(3) he should have been in the custody of the police officer when he supplied the information. (4) the facts so discovered should have been deposed to by the witness. if these conditions are satisfied that part of the information given by the accused which led to the discoveries is admissible in evidence against the accused as such discoveries comes out of the cover of prohibition and such part of information gets denuded of the wrapper of prohibition and becomes admissible. it is relevant that to attract the provision of section 27 of the evidence act prosecution has to establish that the information given by the accused led to the discoveries of some fact which the police had not previously learnt from other sources and that knowledge first derived from the first information given by the accused. 34. coming to the facts of the present case, the investigating officer had knowledge from the alleged disclosure statement recorded by pw17 d.s. rathore and thereforee the knowledge of the fact which led to the recovery in consequence of second disclosure statement can not be said to have been derived for the first time by the investigating officer from information given by the accused. 35. we may also point out in the disclosure statement dated 8th february, 1995 ex.pw12/a the appellant had disclosed that the entire stolen property was kept in the basement (tehkhana) is his house. the car had been taken by co-accused tai @ tahir and the van had been taken away by raja thakur. while in police custody after about four days of his arrest in the second disclosure statement dated 11th february, 1995 appellant is alleged to have said that he could get recovered the stolen property from meerut and other places and could point out the houses of raja thakur, tahir and devender and his pant and shirt which he was wearing at the time of incident were lying in the house of appellant sudershan dutta at meerut which had bloodstains on it and he could get them recovered. both the disclosure statements are inconsistent with each other. 36. according to shri chander babu atmanj gopinathan pillai, who is a witness to the first disclosure statement dated 8th february, 1995, the appellant had only disclosed about his absconding away after murdering the butalias in delhi. in the cross-examination he admitted that he did not read the disclosure statement before signing it and he also stated that except regarding the murder of butalias appellant did not disclose any other thing. if the statement of shri chander babu atmanj gopinathan pillai is to be believed then it becomes doubtful if at all appellant had disclosed to inspector d.s.rathore that he along with his other companion murdered butalias and robbed them all their valuables. this disclosure statement under the circumstances become inadmissible against the appellant. even otherwise, the statement is of no relevance as it has not led to any recovery as envisaged under section 27 of the indian evidence act so as to be read against the appellant as an admission. 37. now it is to be seen whether any recovery of stolen articles has been effected by the prosecution from the house no. 448, subhashpuri, kankar kheda, meerut at the instance of present appellant. 38. pw9 rajeev kaul accompanied the police party and mr. kamal singh rawat on 12th february, 1995 to meerut. constable praveen kumar from meerut police station was also joined in the investigation. he has described the articles recovered at the instance of appellant including one gun from below the belt, gold jewelry from almirah built inside the wall. since he did not fully support the prosecution case, he was allowed to be cross examined by the learned additional public prosecutor. it was in his cross examination he had identified other articles like coins of copper, silver, silver utensils like kettle, spoons, etc. which were allegedly recovered from the said almirah. 39. pw9 rajeev kaul happened to visit the police station in connection with the sale of a fridge required by sub-inspector sunil kumar. he is absolutely silent about the recovery of bloodstained pant belonging to the appellant from the said house. 40. according to rajeev kaul independent witnesses from the neighborhood were also present at the time of seizure of the articles at kankar kheda, meerut but none has been joined in the investigation and recovery of the articles. perusal of ex.pw9/a, the seizure memo of the articles recovered from meerut, clearly indicates that five lines in the bottom regarding recovery of safari suit and other clothes including bloodstained pant belonging to the appellant were written later on and not at the time when the documents were prepared. this fact is admitted by kamal singh rawat, another witness to the recovery. 41. kamal singh rawat is an attesting witness to both the disclosure statements and the recovery effected from the house of sudershan dutta at meerut. as he did not give complete details of the stolen jewelry and other articles which were recovered from the said place. as per his cross-examination the articles were recovered from a 'tizori' which had to be removed after breaking it. he also admitted that portion where the goods were lying was open and was not locked. he could not deny that portion b to b of ex.pw9/a was written later on. though kamal singh rawat is a witness to the recovery but he has not signed the seizure memo ex.pw9/a. thereforee, it becomes doubtful if at all he was a part of the raiding party and was a witness to the recovery of stolen articles and alleged clothes of the appellant at his instance from the house of co-accused sudershan dutta at meerut. 42. pw22 constable praveen kumar is a police constable employed at meerut. he also admitted that the house was unlocked and was open. according to him, the wall was not broken but the tizori was opened by all by applying force. investigating officer has also proved the recovery of stolen articles. 43. the stolen articles as per the seizure memo ex.pw9/a have been identified by shri gurmeet butalia and ms. mini butalia in the test identification proceedings conduced by magistrate shir d.k. sharma (pw29). recovery of the stolen property at the instance of the appellant and not from his custody are disputed by the learned amices curiae for the appellant whereas learned additional public prosecutor has referred to 1956 (sc) 400: air 43 sc 70 june, wasim khan v. state of uttar pradesh and has emphasized that since a part of the stolen case property was recovered from the appellant indicate that he was guilty not only of theft but of more aggravated crime which has been connected with theft and presumption has to be raised against the appellant that since he took part in the robbery, he also participated in the murder of butalias. he has also referred to 1978 scc 142, baiju @ bharosa v. state of madhya pradesh 44. the basic idea embedded in section 27 of the indian evidence act is the doctrine of confirmation by subsequent events. the doctrine is found on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner such a discovery is guarantee that the information supplied by the prisoner is true. this information may be confessional or a non-exculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. such an information can be used as evidence against the accused. when in consequence of an information a fact is discovered it may give rise to two inferences first he himself had concealed the property or subsequently he knew that someone had concealed it. what inference is to be drawn depends upon the facts and circumstances of the case. where information only leads to the inference of the knowledge of the maker that the articles were concealed at a particular place without any involvement or his part in the crime, it may not by itself be sufficient to fix criminality and the remaining link may have to be supplied by the prosecution. but if the information regarding the concealment is also part of the information given by the accused is an additional circumstance to fix responsibility on him in the absence of any acceptable explanationn leading to his innocence. 45. when the accused points out the place where any incriminating material is concealed without stating that it was concealed by himself, it is possible that he himself had concealed it or he had seen someone else concealing it or that he had been told by another person that it was concealed there. but if the accused declines to tell the criminal court about his knowledge then court can raise presumption against him that he had concealed the incriminating material for the simple reason that it is only the accused who can offer explanationn as to how he came to know of such concealment. state of maharashtra v. suresh 1999 (1) crimes 1 is referred to. 46. from perusal of the disclosure statement ex.pw17/a the appellant is categorical when he said that the stolen articles were taken away by sudershan dutta, tahir, raja thakur and vijender @ devender and he was asked to leave delhi. but it was in his presence that the stolen articles were kept in the house of sudershan dutta. the recovery part of the stolen articles at the instance of appellant cannot be said to be recovery effected from him. recovery was effected from the house of sudershan dutta at meerut. recovery effected at the instance of the appellant can only be construed to mean he had the knowledge as to where the stolen property was kept. there is no other incriminating evidence against the appellant to corroborate so as to raise presumption under section 114 of the indian evidence act that he had taken part in the murder and robbery of the articles. 47. in his statement recorded under section 313 cr.p.c. the appellant admitted that he was taken to meerut by police but he had explained that he was made to stand outside and the police went inside and came out with stolen articles and informed him that those articles were recovered by them from inside the house. he did not know from where the police had seized those articles. 48. one bloodstained pant allegedly belonging to the appellant was also recovered at his instance from meerut. in his cross-examination inspector malook singh disclosed that he had externally put the pant on the legs of the accused / appellant and it fitted his size and thereforee he confirmed that it was the pant of the appellant. in his statement under section 313 cr.p.c. the appellant has not been put any question regarding the pant having bloodstains which he was allegedly wearing at the time of commission of offence was got recovered by him or that the said pant belonged to him. this is an incriminating piece of evidence against the appellant which should have been put to him to give him an opportunity to explain or reply if the said pant belonged to him and how the said pant was kept at meerut. 49. it is cardinal principle of law that if the accused is not questioned under section 313 cr.p.c. regarding any piece of incriminating evidence, the said evidence can not be read against him. accused has to be afforded an opportunity to explain the incriminating circumstances appearing against him before he can be held responsible for the same. thereforee, the recovery of pant purported to be belonging to the appellant at his instance is a fact which can not be considered against him by us.50. to conclude, we are of the view that prosecution has failed to prove that the appellant was employed as domestic servant with butalias at the relevant time i.e. on 31st january, 1995 or 1st february, 1995 whereas it has come in the evidence that some other servant was employed by butalias since before gurmeet butalia and mini butalia, son and daughter-in-law of deceased had left for america in july, 1994. recovery of the stolen articles from meerut was made from the possession of the appellant especially when the house at meerut belonged to co-accused/appellant sudershan dutta. two disclosure statements recorded by two different police officers also do not inspire confidence as they are not inconsonance with each other. the disclosure statement which led to the alleged recovery under the circumstances may be relevant but cannot be considered the basis of the conviction of the appellant especially when there are contradictions even to the recovery vide memo ex.pw9/a. recovery effected after about 5/6 days of the arrest of the appellant also creates doubt if at all any articles were recovered at the instance of the appellant. though it is a small contradiction which has come in the statement of gurmeet butalia that he came to know on 6th february, 1995 about the arrest of the appellant through the police and the arrest was made only on 8th february, 1995 at bhilai. therefore, the appellant mahadev prasad pant is entitled to benefit of doubt. 51. in criminal appeal no. 338/2002 co-accused sudershan dutta has assailed the judgment of the trial court on the grounds that the court has taken contrary view regarding the fingerprints lifted from the spot which according to the prosecution were of appellant sudershan dutta and of co-accused devender singh while acquitting devender singh and convicting sudershan dutta on the basis of the said fingerprints. 52. the following circumstances have been proved by the prosecution against accused sudershan dutta:1. one chance finger print was lifted from the place of crime which tallied with the specimen finger print impression of sudershan dutta as per the report ex.pw21/b. 2. number of articles belonging to mr. and mrs. butalia stolen from their house during the course of murder were recovered from three different places, namely, (1) 448, subhashpuri, kankar kheda, meerut, (2) first floor of house no. 789, sector 37, faridabad where accused sudershan dutta was found residing at the time of his arrest and thirdly on the basis of his disclosure statement from his house no. a-1/155, lajpat nagar part-i, new delhi, belonging to appellant sudershan dutta. all these articles were identified by shri gurmeet butalia and ms. mini butalia, son and daughter-in-law of the deceased couple which led to the presumption that he was one of the assailants of mr. and mrs. butalia. 53. learned counsel for the appellant has assailed the judgment of the trial court on the grounds that the court has taken contrary view regarding finger prints lifted from the spot which according to the prosecution were of appellant sudershan dutta and of co-accused devender singh. while acquitting devender singh and convicting sudershan dutta on the basis of the said finger prints, the court went wrong in applying section 4 and 5 of the identification of the prisoners act. it is further highlighted that the original photograph of the finger prints got lost during the trial and the court has relied on the secondary piece of evidence to conclude that finger prints of sudershan dutta were found on a wine bottle allegedly recovered from the spot which the police fabricated to falsely implicate the appellant in this case as the specimen thumb impressions of the appellant were not taken in the presence of the magistrate. admittedly, the questioned thumb impressions and specimen finger prints were received in finger print division on 3rd may, 1995 as per the cross-examination of shri s.k. chadha, senior scientific officer, cfsl new delhi. 54. learned defense counsel for the appellant has assailed the reliance of the trial court on the report ex.pw21/b of shri s.k. chadha, senior scientific officer, cfsl on the ground that specimen fingerprints were not taken in the presence of a magistrate. according to him, it is mandatory for the prosecution to seek permission of a magistrate and obtain specimen fingerprints in the presence of a magistrate. 55. he has further submitted that the statement of the witnesses are full of contradictions and from their testimony it is not proved that the appellant had committed murder of butalias and robbed them of their valuables. he conceded that at the best the appellant can be convicted only under section 411 ipc being in possession of the stolen property belonging to butalias. 56. it is not disputed by the prosecution that specimen thumb impressions of the accused-persons including appellant sudershan dutta were obtained by inspector malook singh on 15th february, 1995 when he was in custody and the same were sent to cfsl. it is true that prosecution has failed to prove the original fingerprints impression of the accused/appellant. but the fact remains from the deposition of gautam rai, senior scientific assistant, cfsl he had taken the photographs of chance prints ex.pw28/1-16 on 1st and 2nd february, 1995 whereas the appellant was arrested on 15th february, 1995 and thereafter his specimen fingerprints were obtained by inspector malook singh. the specimen fingerprints of the accused persons were sent by the investigating officer to cfsl on 15th february, 1995 i.e. immediately after obtaining the specimen fingerprints impressions which were compared with chance fingerprints lifted by gautam rai from the spot. it is also not disputed by the prosecution that the original fingerprints were lost and could not be proved in evidence by the prosecution. the prosecution has also admitted that the specimen fingerprints of the appellant and other co-accused persons were not taken with the orders and in the presence of magistrate. 57. section 4 of the identification of the prisoners act, 1920 enables a police officer to take measurements of any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one years or upwards but this measurement has to be taken in the prescribed manner. section 4 of the act reads as follows: 4. taking of measurements, etc., on non-convicted persons. - any person who has been arrested in connection with 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.58. section 5 of the said act empowers a magistrate to order the person to be measured or photographed. section 5 of the act reads as follows: 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, 1989, it is expedient to direct any person to allow his measurements or photograph to be taken, 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 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. 59. under this section of the identification of the prisoners act a magistrate if he is satisfied that for the purpose of investigation or proceedings under the code of criminal procedure it is expedient to direct any accused to allow his measurement or photograph to be taken, he can pass an order to that effect. thumb impression can be taken by the order of the magistrate and when taken they are admissible in evidence. 60. section 4 and 5 when read together indicate that where photographs, fingerprints, or measurements are taken of a person, the very nature and characteristic of this material renders it intrinsically and inherently impossible for any agency to fabricate them. if any such fabrication is attempted, then the fabrication can be explained by the prisoner by getting himself examined, photographed or personally presenting or offering to allow his finger prints to be taken so that they can be compared in the presence of the court. 61. in the present case the appellant did not offer to allow himself to give his fingerprints for the purposes of comparison with the chance finger prints lifted from the spot by gautam rai, senior scientific assistant, cfsl on 1st and 2nd february, 1995.62. in sukhvinder singh and ors. v. state of punjab : [1994]3scr1061 , handwriting of the appellant were taken under the directions of executive magistrate during the investigation when no inquiry or trial was pending in his court. accused persons did not raise any objection thereto yet the hon'ble supreme court observed that such specimen handwriting of the accused persons could not be made use of during the trial and the report of the handwriting expert, is thus rendered of no consequence at all and could not be used against the accused to connect him with the crime. 63. in the present case the specimen fingerprints of the accused persons were obtained by the prosecution during the investigation without any permission from the court. considering the proposition of law as discussed above, the present case stands on a weak footing than that of sukhvinder singh (supra). 64. in mehmood v. state of u.p. 1976 crl. lj 10, while considering the fact of non-compliance of section 5 of the identification of prisoners act, the hon'ble supreme court observed :furthermore, the specimen fingerprints of the appellant were not taken before or under the order of a magistrate in accordance with section 5 of the identification of prisoners act. this is another suspicious feature of the conduct of investigation. it has not been explained why this magistrate was kept out of the picture.65. learned trial court while acquitting co-accused devender singh observed that thumb impression of accused devender singh were not obtained in the presence of a magistrate and thereforee he could not be convicted for having committed the crime in the absence of any other incriminating evidence against him. he also referred to mahmood v. state of u.p. 1976 crl.lj 10 (supra). while considering the evidentiary value of thumb impression/fingerprints of sudershan dutta in the light of the evidence adduced on the record, the court did not consider the implication of non-compliance of section 4 and 5 of the identification of prisoners act. thereforee, the trial court adopted different yardsticks to assess the evidence against sudershan dutta and in favor of devender singh. 66. in view of the law as discussed above, in the present case there are suspicious circumstances which cause grave doubt as to the genuineness of thumb impression obtained by the investigating officer malook singh in the police station in the absence of a magistrate specially when the original fingerprints of the accused persons were lost and were not available during the trial of the case. reliance was placed on the report ex.pw21/b of mr. s.k. chadha that chance fingerprint lifted from the spot from a bottle was found to be that of sudershan dutta on examination with his specimen fingerprint when the originals could not be proved in evidence. unfortunately, no question was put to the appellant in his examination under section 313 cr.p.c. on this aspect and thereforee much reliance can be placed for basing the conviction of the appellant on the basis of the expert opinion report ex.pw21/b. 67. in rakesh kumar v. state 2004 (1) jcc 110, it was held : 16. when the originals are missing and the alleged photocopies have not been proved to be so nor put to the accused persons in their examination under section 313 cr.p.c., basing any conviction on expert report which is only an opinion evidence, will be legally infirm. 17. moreover, the alleged specimen signatures /handwriting /thumb/finger print impression of appellant chandra shekhar and sri chand were obtained during investigation by the i.o. without prior permission from the court.68. let us examine other evidence adduced on the record by the prosecution against the appellant. on his arrest on 15th february, 1995 from faridabad, the raiding party also recovered some of the robbed articles from the possession of the appellant from there. shri jasbir singh vohra, landlord of the house, and shri mohan singh pw8 are the witnesses to the recovery. on 19th february, 1995 sudershan dutta made a disclosure statement that he had concealed some of the robbed articles in his house at lajpat nagar and at his instance some of the stolen articles belonging to the deceased persons were recovered from the said house. not only this, some documents were also recovered which indicated that sudershan dutta was resident of kankar kheda, meerut from where the alleged recovery of some of the stolen articles was made at the instance of appellant mahadev prasad pant. (we have already discussed the evidentiary value of recovery qua appellant mahadev prasad pant under the circumstances of the case against him). all the three recoveries effected on 12th february, 1995, 15th february, 1995 and 19th february, 1995 of the stolen articles were from the properties belonging to the present appellant as an owner or as a tenant. 69. it is pertinent to mention here that sudershan dutta was residing in faridabad as a tenant with the fake name 'rajiv mathur' reflecting on his conduct and character and indicating that he was concealing his identity and had absconded away to avoid his arrest in this case. 70. the discrepancies which have been highlighted by the learned defense counsel are of no consequences as they are natural variations which are bound to creep in due to lapse of time and human memory. since the prosecution has established that stolen articles were recovered from the possession of the appellant at three different places i.e. meerut, faridabad and lajpat nagar, (delhi) at his instance, the court can presume existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, in exercise of its power.71. under section 114 of the indian evidence act so far as it is relevant for the purposes of the present case is reproduced as follows: the court may presume-(a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account of his possession; (b) ...(c) ...(d) ...(e) ...(f) ...(g) ...(h) ...(i) ...72. in the present case the circumstantial evidence of theft and robbery in the house of butalias and recovery of the stolen articles from the possession of the appellant strongly indicate the involvement of the appellant in the robbery committed in house no. d-5, defense colony, delhi and consequent murder of butalias. 73. a weak attempt was made by the appellant to claim the bangles of deceased mrs. geeta butalia as of his wife but he did not produce any evidence to prove that bangles belonged to his wife. in cases where murder and robbery have been shown to form part of one transaction, recent and un-explained possession of stole property in the absence of circumstances tending to show that the accused was only the receiver of the property would not only be presumptive evidence against the prisoner on the charge of robbery but also on the charge of murder. where murder and robbery have been proved to be integral part of a certain transaction, the presumption that can be drawn from the possession of the property may consistent with all the facts proved in the case, be that the person to whom such possession was traced not only committed the theft thereof but also committed the murder which forms part of the same transaction as theft. of course, it has to be established that before any such presumption can be drawn, the primary thing to be proved is that the accused had no satisfactory explanationn to offer for his possession of the stolen property. 74. in baiju @ bharosa v. state of m.p. 1978 scc (crl) 142, it was observed:the question whether the presumption should be drawn under illustration (a) of section 114 of the evidence act is a matter which depends on the evidence and the circumstances of each case. thus the nature of the stolen articles, the manner of its acquisition by the owner, the nature of the evidence about its identification, the manner in which it was dealt with by the appellant, the place and the circumstance of its recovery, the length of the intervening period, the ability or otherwise of the appellant to explain his possession are factors which have to be taken in to consideration in arriving at a decision.75. the possession of the stolen property by the appellant and its recovery from him is indicative not merely of the offence of robbery but also of more aggravated crime of murder which has been connected with theft. true that, conviction of the appellant could not be based only on the basis of expert opinion. regarding recovery of chance print of the appellant from the spot and taking the specimen fingerprints of the appellant by the investigating officer in the absence of a magistrate can not be made the sole basis of his conviction. but when there are circumstances clearly indicating the involvement of the appellant in the commission of crime of robbery and murder of mr. and mrs. butalias having taken place at the same time as proved on the record clearly bring home the guilt of the accused/appellant. it is possible that appellant was assisted by others in commission of the crime though one of the co-accused had already been acquitted by the trial court by giving him benefit of doubt and prosecution has also not been able to bring home the guilt of appellant mahadev prasad pant beyond any shadow of reasonable doubt, appellant sudershan dutta cannot be acquitted only because two of his co-accused persons have been given benefit of doubt and have been acquitted. 76. consequently, criminal appeal no. 337/2002 is allowed and appellant mahadev prasad pant is given benefit of doubt and is acquitted of the offences charged with. he be set at liberty forthwith if not wanted in any other case. 77. criminal appeal no. 338/2002 of appellant suderhsan dutta being without any merit is hereby dismissed. 78. in view of the sincere efforts put in by learned amices curiae mr. viresh b. saharya, we direct the delhi legal services authority to pay him a fee of rs. 5500/- within six weeks from today.