Mahmood vs State Of U. P. - 1975 Supreme(SC) 383

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1975 Supreme(SC) 383

SUPREME COURT OF INDIA
R.S. SARKARIA AND A.C. GUPTA JJ.
Mahmood , Appellant
Versus
State of U.P., Respondent.
Criminal Appeal No. 178 of 1971
Decided on 1-10-1975. 70
Advocates appeared
M/s. R.K. Garg, S.C. Agarwal, V.J. Francis and T.M. Ansari, Advocates of M/s. Ramamurthi & Co., for Appellant; Mr. D.P. Uniyan Sr. Advocate, (Mr. O.P. Rana, Advocate with him), for Respondent.

Advocates:
D.P.UMYAL, M.Ansari, O.P.RANA, R.K.GARG, S.C.AGRAWAL, V.J.Francis

Headnote:
Indian Penal Code,1860 – Sections 452 and 302/34 – Appeal Against conviction – Offence of Murder - Appeal by special leave is directed against a judgment of High Court of Allahabad upholding the conviction of appellant for offences – Deceased lived all alone in his house in village Gurgawn, Police Station Nigohi – Deceased used to lend money to one 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 – Deceased lived all alone in his house in village Gurgawn, Police Station Nigohi – 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 –Held, Specimen finger-prints of the appellant were not taken before or under the order of a Magistrate in accordance with 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 – It is to be noted further that the same Constable collected the specimen finger-prints, presumably from the Investigating Officer, and the parcel containing the gandasa, from the Sadar Malkhana, and delivered it at the Scientific Section, Lucknow – There was thus a possibility of the Investigating Officer, having an access to the parcel containing the gandasa – Such a possibility has not been positively excluded by the prosecution – Secondly, even if it is assumed that the handle of this gandasa bore the finger-prints of the appellant, then also it would not inexorably and unmistakably lead to the conclusion that the appellant, and none else was the murderer, 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 – 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 – Lastly, it may be observed that Inspector, 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 fingerprints – It would be highly unsafe to convict one on a capital charge without independent corroboration, solely on the bald and dogmatic opinion such a person, even if such opinion is assumed to be admissible – In the light of the above discussion, court are of the view that the solitary piece of circumstantial evidence on which the prosecution has staked their case, is too shaky, suspicious and fragile to furnish a sound foundation for conviction – Appeal allowed.

JUDGMENT

SARKARIA, J.:— 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 Gurgawn, 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 4 th and 5 th of January, 1967. 71

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 Alowa (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 for a few minutes and then went to the entrance of Dwark 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 deceased. 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, 6 miles away, at 11.00 a.m.

5. After registering the case, Sub-Inspector K.C. Bhandari, P.W. 11, reached the scene of occurrence. He found the blood-stained Gandasa, Ex. 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 present of Gajadhar, P.W. 5 and prepared the memorandum Ex. Ka-3. He then prepared the inquest report 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 along with 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 Dariao 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 fin

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