Mahmood Vs. State of U.P. - Court Judgment

Excerpt:
criminal - circumstantial evidence - sections 34, 302 and 452 of indian penal code, 1860 and section 5 of identification of prisoners act - appeal challenging conviction under sections 452 and 302 read with section 34 - conviction of appellant rests on solitary circumstance that fingerprints of appellant were found on 'gandasa' which was found lying near dead body at scene of occurrence - unless it was firmly proved further that fatal injury to deceased caused with weapon in question it could not be concluded that it was appellant and none other who murdered deceased - definite proof of this link lacked - specimen finger prints of appellant were not taken before or under order of magistrate in accordance with section 5 - solitary piece of evidence on which prosecution have staked their case too shaky, suspicious and fragile to furnish sound foundation for conviction - conviction set aside - appeal allowed. - [k.n. wanchoo, c.j.,; g.k. mitter,; c.a. vaidialingam and; r.s. bachawat, jj.] in the state of madhya pradesh v. v. p. sharma, [1966] 3 s.c.r. 557 this court held that once a declaration under s. 6 of the land acquisition act 1894 was made the notification under s. 4(1) of the act was exhausted and there could be no successive notifications under s. 6 with respect to land in a locality specified in one notification under s. 4(1). relying on the above judgment the present writ petitions were filed in order to challenge successive notifications under s. 6 following a single notification under s. 4(1) in respect of land belonging to them. meanwhile in order to meet the situation created by the judgment in v. p. sharma's case the president of india promulgated the land acquisition (amendment and validation) ordinance (1 of 1967). the ordinance was later followed by the land acquisition (amendment and validation) act 1967. section 2 of this act purported to amend s. 5-a of the principal act by allowing the making of more than one report in respect of land which had been notified under s. 4(1). section 3 purported to amend s. 6 of the principal act by empowering different declarations to be made from time to time in respect of different parcels of land covered by the same notification under s. 4(1) irrespective of whether one report or different reports had been made under s. 5-a sub-s. (2). section 4 of the act purported to validate all acquisitions of land made or purporting to have been made under the principal act before the commencement of the ordinance namely january 10, 1967, notwithstanding that more than one declaration under s. 6 had been made in pursuance of the same notification under s. 4(1), and notwithstanding any judgment, decree or order of any court to the contrary. the amending act also laid down time limits for declarations under s. 6 of the principal act after the notification under s 4(1), had been issued in respect of notifications made after january 20. 1967 the time limit was three years; in respect of notification made before that date the time limit was to be two years after that date. provision was also made for payment of interest on compensation due to persons in respect of whose land declarations under s. 6 had been delayed beyond a specified period; no interest was however, to be paid to those to whom compensation had already been paid. the petitioners by leave of court amended their petitions to attack the validity of the. aforesaid validating act on the following main grounds : (1) by seeking to validate past transactions of a kind which had been declared invalid by this court without retrospectively changing the substantive law under which the past transactions had been effected the legislature was encroaching over the domain of the judicial power vested by the constitution in the judiciary exclusively; (ii) the validating act did not l4sup. c.i.1684 revive the notification under s. 4 which had become exhausted after the first declaration under s. 6 and no acquisition following thereafter could be made without a fresh notification under s. 4; (iii) the validating act violated art. 31(2) of the constitution inasmuch as it purported to authorise acquisitions without fresh notifications under s. 4 thereby allowing compensation to be paid on the basis of the said . notification under s. 4 without allowing for increase in the value of land thereafter; (iv) the validating act violated art. 14 of the constitution in various ways. held: per wanchoo c.j., bachawat & mitter, jj.- (i) the american doctrine of well defined separation of legislative and judicial powers has no application to india and it cannot be said that an indian statute which seeks to validate invalid actions' is bad if the invalidity has already been pronounced upon by a court of law. a.k. gopalan v. state, [1950] s.c.r. 88, referred to. (ii) the absence of a provision in the amending act to give retrospective operation to s. 3 of the act does not affect the validity of s. 4. it was open to parliament to adopt either course e.g. (a) to provide expressly for the retrospective operation of s. 3, or, (b) to lay down that no acquisition purporting to have been made and no action taken before the land acquisition (amendment and validation) ordinance, 1967 shall be deemed to be invalid or even to have become invalid because, inter alia, of the making of more than one declaration under s. 6 of the land acquisition act, notwithstanding any judgment decree or order to the contrary. parliament was competent to validate such actions and transactions, its power in that behalf being only circumscribed by appropriate entries in the lists of the seventh schedule and the fundamental rights set-forth in part iii of the constitution. section 4 of the amending act being within the legislative competence of parliament, the provisions thereof are binding on all courts of law notwithstanding judgments, orders or decrees to the contrary rendered or made in the past. [67 c-f] case-law referred to. (iii) the impugned act does not violate art. 31(2). the act does not in express terms enact any law which directly affects compensation payable in respect of property acquired nor does it lay down any principles different from those which were already in the land acquisition act of 1894. after the amendment of the constitution in 1955 the question of compensation is not justiciable and it is enough if the law provides that a person expropriated must be given compensation for his property or lays down the principles therefor. [67 g-h] the legislature might well have provided in the act of 1894 that it would be open to the appropriate government after issuing a notification under s. 4 to consider objections raised under s. 5 with regard to the different localities from time to time enabling different reports to fie made under s. 5-a with consequent adjustments in s. 6 providing for declarations to be made as and when each report under s. 5a was considered. by the validation of action taken under s. 6 more than once in respect of a single notification under s. 4, the original scheme of acquisition is not altered. the public purpose behind the notification remains the same. it is not as if a different public purpose and acquisition of land for such purpose were being interploated by means of the validating act. only the shortcoming in the act as to want to provision to enable more than one decla- ration under s. 6 are being removed. [68 d-f] the date of valuation under the validation act is that of the issue of notification under s. 4(1), a principle which has held the field since 1923 legislative competence to acquire land under the provisions of the land acquisition act cannot be challenged because of constant appreciation of land values all over the country due to the prevalent abnormal inflation. there must be some time lag between the commencement and conclusion of land acquisition proceedings and in principle there is nothing wrong in accepting the said commencement as the date of valuation. sections 4 and 23 of the land acquisition act are protected by art. 31(5) (a) of the constitution. only ss. 5-a and 6 of the act have been amended. the amendment does not alter the principle of compensation fixed by the act nor contravene art. 31 of the constitution in any way. [69 g-70 b] it cannot be said of the validating act that it was fixing an arbitrary date for the valuation of the property which bore no relation to the acquisition proceedings. the population in indian cities especially in the capital is ever-increasing. the state has to plan the development of cities and it is not possible to take up all schemes in all directions at the same time. the resources of the state may not be sufficient to acquire all the area required by a scheme at the same time. of necessity the area under the proposed acquisition would have to be carved into blocks and the development of one or more blocks at a time could only be taken up in consonance with the resources available. even contiguous blocks could be developed gradually and systematically. in view of such factors it cannot be said that the principle of fixing compensation on the basis of the price prevailing on the date of the notification under s. 4(1) of the land acquisition act was not a relevant principle which satisfied the requirements of art. 31(2).[70 c-71 h] the state of west bengal v. mrs. bela banerjee, [1954] s.c.r. 558, state of madras v. d. namasivaya mudaliar, [1964] 6 s.c.r. 936 and, p.v. mudaliar v. deputy collector, [1965] 1 s.c.r. 614, considered. (iv) the validating act was not violative of art. 14. whenever an amending act is passed there is bound to be some difference in treatment between transactions which have already taken place and those which are to take place in the future. that by itself will not attract the operation of art. 14. again, even with respect to transactions which may be completed in the future, a reasonable classification will not be struck down. [72 c] jalan trading co. v. mazdoor union, [1967] 1 s.c.r. 15, relied on. it is not possible to say that because the legislature thought of improving upon the act of 1894 by prescribing certain limits of time as from 20th january 1967 the difference in treatment in cases covered by the notification before the said date and after the said date denies equal protection of laws because the transactions are not similarly circumstanced. some of the notifications issued under s. 4 must have been made even more than 3 years before 20th january, 1967 and such cases obviously could not be treated in the same manner 'as notifications issued after that date. art. 14 does not strike at differentiation caused by the enactment of a law between transactions governed thereby and those which are not so governed. [73 h-74 b] hatisingh manufacturing co., ltd. v. union of india, [1960] 3 s.c.r. 528. no grievance can be made because interest is denied to persons who have already taken the compensation. even here the classification is not unreasonable and cannot be said to be unrelated to the object of the act. [74 e-f] per shelat and vaidialingam, jj. (dissenting)- by validating the acquisition orders and declarations made on the basis of an exhausted notification under s. 4 the impugned act saves government from having to issue a fresh notification and having to pay compensation calculated on the market value as on the date of such fresh notification and depriving the expropriated owner of the benefit of the appreciated value in the meantime. the real object of s. 4 of the impugned act is thus to save the state from having to compensate for such appreciation under the device of validating all that is done under an exhausted s. 4 notification and thus in reality fixing an anterior date i.e. the date of such a dead s. 4 notification for fixing the compensation. the impugned act thus suffers from a two fold vice : (i) that it purports to validate acquisitions orders and notifications without resuscicating the notification under s. 4 by any legislative provision on the basis of which alone the validated acquisitions, orders and declarations can properly be sustained and (ii) that its provisions are in derogation of art. 31(2) as interpreted by this court by fixing compensation on the basis of value on the date of notifications under s. 4 which had become exhausted and for keeping them alive no legislative provision is to be found in the impugned act. it is therefore not possible to agree with the view that the purpose of s. 4 is to fill the lacuna pointed out in sharma's case nor with the view that it raises a question of adequacy of compensation. the section under the guise of validating the acquisitions, orders and notifications camouflages the real object of enabling acquisitions by paying compensation on the basis of values frozen by notifications under s 4 which by part acquisitions thereunder had lost their efficacy and therefore required the rest of the land to be notified afresh and paying compensation on the date of such fresh notifications. the fact that neither s. 4 nor s. 23 of the principal act are altered does not make any difference. [89 d-h, 85 h] section 4 of the amending act must therefore be struck down as invalid. [90 a] - 9. it is well settled that in a case dependent wholly on circumstantial evidence, the court before recording a conviction on the bais therefore must be firmly satisfied -(a) that the circumstances from which the inference of guilt is to be drawn, have fully established by unimpeachable evidence beyond a shadow of doubt; after hearing the learned counsel on both sides, we are of opinion that in the instant case these conditions have not been satisfied. 12. further, at the test identification parade held, the purpose of mentioning all this is that the investigating officer in the mistaken zeal for the success of his case was prone to resort to 'padding' and suppression of distortion of facts. the missing link could be best supplied by showing that there was blood on this gandasa, and that blood was of human origin. it would be highly unsafe to convict one of a capital charge without any independent corroboration, solely on the bald and dogmatic opinion of such a person, even if such opinion is assumed to be admissible under section 45, evidence act.r.s. sarkaria j.1. this appeal by special leave is directed against a judgment of the high court of allahabad upholding the conviction of the appellant for offences under sections 452 and 302/34, penal code in respect of the murder of a villager, dwarka, 2. the deceased lived all alone in his house in village gurgaon, police station nigohi. the deceased used to lend money to one ram sarup, a distant relation. over this loan, a dispute arose between ramsarup and the deceased. their relations became strained, and ramsarup started nursing a grudge against the deceased. according to the prosecution story, this ramsarup, in collaboration with the appellant, murdered dwarka on the night between the 4th and 5th of january, 1967. 3. on january 4, 1967 at about 6-30 p.m., ramchander p.w. 2, sheodass, p.w. 3, govind and others were sitting by the side of alown (fire place) to warm themselves in front of the house of ramchander at a distance of about 50 paces from the entrance to the house of the deceased. ramsarup and the appellant came there, they stayed at the fireplace fur a few minutes and then went to the entrance of dwarka's house and called dwarka opened the door, and ramsarup and the appellant (who was a stranger to the witnesses) went into the house. 4. on the following morning, one mithulal, p.w. 4, went to the house of the deceased for purchasing gram. on going inside, he found dwarka lying dead with injuries. mithu came out and informed p.w. ramchander and karan about what he had seen. karan further communicated that information to bhagwandeen, p. w. 10, a cousin and neighbour of the deeeased. bhagwandeen then went inside the house of the deceased and saw the scene,. p.ws. 2, 3, 4 and 5 were present near the dead-body of dwarka. these persons apprised bhagwandeen about what they had seen the preceding evening. bhagwandeen then scribed a report and thereafter delivered it in police station nigohi, 7 miles away, at 11.00 a.m. 5. after registering the case, sub-inspecter k.c. bhandari p.w. 11, reached the scene of occurrence. he found the bloodstained gandasa, ext.1, lying near the dead-body. he noticed finger prints on its wooden handle. he, therefore, put this gandasa in a box which was made into a parcel and sealed with his own seal in the presence of gajadar, p.w. 5 and prepared and recorded the statements of the witnesses. 6. the sub-inspector arrested mahmood appellant on 24-3-1965 at 8.15 a.m. mahmood was directed to conceal his face and he did likewise. mahmood was taken to the police station. at 12 10 p.m on the same date he was taken out of the police lock-up and sent in the custody of constable to the district jail, shahjahanpur, 20 miles away by bus. a test identification was held on 5.4.1967 before a magistrate at which p.ws. 2 and 3 identified the appellant. on 15-4-1967, at the request of the investigating officer, proficient mohd. sarvar hussain took the specimen finger impression of the appellant. these impressions alongwith the sealed parcel containing the blood-stained gandasa, were sent to the cid scientific laboratory, lucknow, on 21-4-1967, through constable munish dikshit, p.w. 18. inspector dario singh (p.w.15) of the laboratory examined these impressions. in his opinion the finger impressions found on the handle of the gandasa, ex. 1 tallied with the specimen finger impressions of the appellant. 7. at the trial the prosecution examined p.ws. ramchander and sheodass to show how on the preceding evening they had seen ramsarup and the appellant going into the house of the deceased. the trial court disbelieved the evidence of these witnesses, but found that the presence of the finger prints of the appellant on the handle of the gandasa, ex p-1. was a circumstance which by itself was sufficient to show that the murder had been committed by the appellant and convicted him. mahmood appealed to the high court. the high court affirmed the findings of the trial court and dismissed his appeal. 8. thus the conviction rests on the solitary circumstance viz, that the finger-prints of the appellant were found on the handle of the gandasa, p-1, which was found lying near the dead body at the scene of occurrence. 9. it is well settled that in a case dependent wholly on circumstantial evidence, the court before recording a conviction on the bais therefore must be firmly satisfied -(a) that the circumstances from which the inference of guilt is to be drawn, have fully established by unimpeachable evidence beyond a shadow of doubt; (b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and(c) that the circumstances, taken collectively, are incapable of explanation on any reasonable hypothesis save that of the guilt sought to be proved against him. after hearing the learned counsel on both sides, we are of opinion that in the instant case these conditions have not been satisfied. 10. there are some suspicious circumstances in this case which cast a grave doubt as to the genuineness of this lone piece of evidence. firstly, no less a person than the complainant. bhagwandeed p.w. 1, admitted in cross-examination that when he first saw the gandasa ext. 1, lying near the deadbody at the scene of occurrence its wooden handle was dirty but on 29-1-1968. (when this weapon was shown to the witness in court the wooden part of its handle was clean and the rest dirty. the inference is that somebody might have cleaned the wooden-handle and thereafter got the finger prints of the appellant an it. cleaning would be necessary to obtain distinct and decipherable finger-impressions. secondly, the investigation in this case was not as fair and cautions as it should have been. the version of the appellant was that be had been arrested by the police on the 23rd march, 1967 at about 5 or 5.30 p.m. from a bus and was then kept in the lock-up of police station for the night and on the following day at about noon, the sub-inspector bandaged the appellant's eyes, applied some fluid on his fingers, then made hold some object and forcibly obtained his finger-prints on it. then on 26-4-1967, that is, long before the start of the proceedings in the court of the committing magistrate, the appellant sent two petitions through the jailor addressed to the district magistrate and superintendent of police, saharanpur, complaining how his finger-prints were forcibly taken by the police on some round object. 11. constable hardwari lal, p.w. 9, falsified the version of the investigating officer, pw 11, and confirmed that of the accused about the date of the latter's arrest. in cross-examination, pw 9 admitted that mahmood accused was arrested on 23-3-1967 and thereafter was kept in the police station till 12.10 noon of 24-3-1967, when the witness took him out of the police station for escorting him to the district jail, shahjahanpur. 12. further, at the test identification parade held, the purpose of mentioning all this is that the investigating officer in the mistaken zeal for the success of his case was prone to resort to 'padding' and suppression of distortion of facts. it is in this background of suspicion that this price of circumstantial evidence collected by him had to be evaluated. 13. further, the investigator did not take all the necessary precaution which could be taken to eliminate the possibility of fabrication of this evidence, or to dispel suspicion as to its genuineness. admittedly, he sealed the box with his own seal which thereafter remained with him throughout. he did not take the signatures of the witnesses on the parcel containing the gandasa. he did not after sealing the parcel entrust his seal to the sarpanch or any other respectable of the village. according to the prosecution the finger-prints found on the gandasa could possibly be blood-prints and that the blade of the gandasa was all smeared with human blood. but this gandasa was never sent to the chemical examiner or the serologist. no explanation of the same is forthcoming. this being the case, the contention of mr. r k. garg at the bar, that the gandasa, ex. 1, or smear of the alleged blood on it was not sent to the chemical examiner for fear of the fabrication being detected and exposed, cannot be rejected outright. 14. furthermore, the specimen finger-prints 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. 15. it is to be noted further that the same constable (muneshwar dixit; p.w. 18) collected the specimen finger-prints, presumably from the investigation officer, and the parcel containing the gandasa ex. 1 from the sadar malkhana on the 21st april and delivered it is the scientific section, lucknow on the 22nd april. there was thus a possibility of the investigating officer, having an access to the parcel containing the gandasa on the 21st april. such a possibility has not been positively excluded by the prosecution. 16. secondly, even if it is assumed that the handle of this gandasa bore the finger-prints of the appellants, then also it would not inexorably and unmistakably lead to the conclusion that the appellant, and none-else was the murderer of dwarka, unless it was firmly proved further that the fatal injury to the deceased was caused with this weapon. definite proof of this link was lacking in this case. the missing link could be best supplied by showing that there was blood on this gandasa, and that blood was of human origin. but this was not done. 17. lastly, it may be observe that inspector daryao singh, p.w. 15, has not given any reasons in support of his opinion. nor has it been shown that he has acquired special skill, knowledge and experience in the science of identification of finger-prints. it would be highly unsafe to convict one of a capital charge without any independent corroboration, solely on the bald and dogmatic opinion of such a person, even if such opinion is assumed to be admissible under section 45, evidence act. 18. in the light of the above discussion, we are of the view that the solitary piece of circumstantial evidence on which the prosecution have staked their case, it too shaky, suspicious and fragile to furnish a sound foundation for conviction. 19. these, then, are the reasons which we now give in support of our order dated 22-9-1975 whereby we accepted this appeal, set aside the conviction of the appellant and acquitted him.