SANTOSH @ BHURE versus STATE (G.N.C.T.) OF DELHI

Summary

A stabbed body was found in an apartment tenanted by Santosh; a 'suicide letter' said to be in co-accused Neeraj's hand lay in the deceased's pocket, and clothes and a knife were allegedly recovered on disclosures. The High Court acquitted Neeraj, treating the handwriting report as inadmissible because specimens were taken without the court's leave, but upheld Santosh's conviction. The Supreme Court held that before Section 311-A CrPC the investigating agency could lawfully take specimen handwriting without infringing Article 20(3) or Section 73 of the Evidence Act, so the FSL report was admissible; but an uncorroborated expert opinion was an unsafe sole basis for authorship, the disclosures and recoveries were doubtful, and tenancy of an unlocked apartment could not shift the burden under Section 106. Santosh was acquitted and the State's appeal against Neeraj's acquittal dismissed.

Issues

1. Whether specimen handwriting and signatures obtained by the investigating agency from an accused during investigation in 2000, without an order of the court, could be used for expert comparison, having regard to Section 73 of the Evidence Act, the Identification of Prisoners Act, 1920, the later-inserted Section 311-A CrPC and Article 20(3) of the Constitution.
2. Whether a handwriting expert's report under Section 293 CrPC, admissible without examining the expert, can by itself prove authorship of a document absent any internal or external corroboration.
3. Whether the discovery of a dead body in an apartment tenanted by the accused, without proof of his presence, exclusive control, motive or last-seen evidence, shifts the burden to him under Section 106 of the Evidence Act.
4. Whether disclosure statements recorded in identical terms from two accused by a police witness acting on his superior's instructions, and recoveries from a rooftop of the crime building and from open bushes, were proved beyond reasonable doubt, and how much of such statements is admissible under Section 27 of the Evidence Act.
5. Whether delayed surrender and non-explanation by the accused could complete the chain of circumstantial evidence.

Provisions considered

• Section 73, Indian Evidence Act, 1872The power to direct a person to give specimen writing is for the court's own comparison in a pending inquiry or trial; Sukhvinder Singh dealt with that power and does not bar an investigating agency from collecting specimens during investigation when no proceeding is pending. The trial court could itself have compared the writings but did not. (¶¶ 44, 45, 46, 51, 66)
• Section 311-A, Code of Criminal Procedure, 1973Inserted with effect from 23.06.2006 and prospective in operation; before it there was no provision proscribing the investigating agency from obtaining specimen handwriting or signatures, so its absence in 2000 did not render the specimens unusable. (¶¶ 47, 49, 50, 51)
• Article 20(3), Constitution of IndiaFollowing Kathi Kalu Oghad and Selvi, compulsorily obtaining specimen signatures or handwriting for comparison with material already in the investigators' hands is not being compelled to be a witness against oneself. (¶¶ 52, 53, 54, 55, 56, 57, 58)
• Section 5, Identification of Prisoners Act, 1920The requirement of a Magistrate's order for specimens aims to prevent fabrication and is directory, not mandatory; Ram Babu Misra, holding a Magistrate could not direct specimen writing under the 1920 Act, did not decide whether specimens taken by the agency could be used. (¶¶ 48, 49)
• Section 293, Code of Criminal Procedure, 1973The FSL report of a government scientific expert was admissible without examining the expert, more so as the defence never sought to summon the expert; admissibility, however, is distinct from the weight to be given. (¶¶ 59, 60)
• Section 45, Indian Evidence Act, 1872A handwriting expert's opinion is relevant but, given the fallibility of the science, courts as a rule of prudence look for internal or external evidence supporting it and should satisfy themselves by their own observation before acting on it alone. (¶¶ 62, 63, 64, 65, 66, 69)
• Section 106, Indian Evidence Act, 1872Applies only after the prosecution establishes facts from which a reasonable inference of guilt arises; failure to explain cannot supply a missing link, and no presumption arises against a tenant merely because a body is found in his premises. (¶¶ 29, 30, 31, 32, 36, 83, 86)
• Sections 25, 26 and 27, with Section 162 CrPC, Indian Evidence Act, 1872Confessions to police about writing the suicide letter were inadmissible, as the letter was recovered before the disclosures; under Section 27 only the part of a statement distinctly relating to the place of concealment is admissible, not the assertion that the clothes were worn during the murder. (¶¶ 43, 76, 77, 78, 79, 80)
• Section 302 read with Section 34, Indian Penal Code, 1860The charge on which both accused were convicted by the trial court; the chain of circumstances was found incomplete against both. (¶¶ 2, 84, 85, 86)
• Section 313, Code of Criminal Procedure, 1973The circumstances of absconding and the police visit to the native place were never put to the accused in their examination, so no adverse inference could be drawn from them. (¶¶ 70, 85)

Held

• Before Section 311-A was inserted in the CrPC in 2006 there was no provision barring an investigating agency from collecting specimen handwriting and signatures of a suspect or accused for expert comparison; Section 73 of the Evidence Act applies only when an inquiry or trial is pending, and Sukhvinder Singh does not lay down that such specimens cannot be collected during investigation. (¶¶ 46, 47, 50, 51)
• Compelled specimen signatures and handwriting used for identification or corroboration with material already with the investigators are not incriminating by themselves and do not infringe Article 20(3); an FSL report based on such specimens, whose genuineness is not disputed, is admissible under Section 293 CrPC even without examining the expert. (¶¶ 57, 58, 59)
• Admissibility and reliability are different. Though a finding on authorship may rest solely on a handwriting expert's opinion, prudence requires caution; where no witness identified the writing, the trial court did not compare the writings itself, the contents of the letter were unexplained, the investigator never checked whether the deceased wrote it, and leaving a suicide note on a body with five cavity-deep stab wounds defies logic, it was unsafe to hold that Neeraj wrote the letter. (¶¶ 60, 65, 66, 67, 68, 69)
• There is no general presumption of guilt against the owner or tenant of premises where a body is found. Section 106 of the Evidence Act operates only after the prosecution proves facts raising a reasonable inference of guilt; where the apartment was found open, the accused's presence around the time of death and any motive were unproved, and another person had lived there, tenancy alone could not shift the burden. (¶¶ 29, 31, 32, 33, 34, 35, 36, 85, 86)
• Disclosure statements in identical terms attributed to both accused, recorded by a sub-inspector on his superior's instructions who could not say whose statement came first, after an earlier disclosure yielded nothing, raise a serious possibility of fabrication; recoveries of clothes from the rooftop of the very building searched thirteen days earlier and of a bloodless common knife from open bushes, without independent witnesses, were not proved beyond reasonable doubt. (¶¶ 72, 73, 74, 75, 81, 82)
• Under Section 27 of the Evidence Act only so much of the information as distinctly relates to the fact discovered, namely the place of concealment, is admissible; the statement that the recovered trousers were those worn by the accused at the time of the murder is past history and inadmissible, so the blood-group match had no incriminating value. (¶¶ 76, 77, 79, 80)
• Absconding is a weak circumstance: an innocent person wrongly suspected may evade arrest from self-preservation, and here the circumstance was not even put to the accused under Section 313 CrPC, so no adverse inference arose from surrender eleven days after the body was found. (¶ 70)
• False explanation or non-explanation can be an additional circumstance only after the prosecution proves a complete chain; it cannot be used as a link to complete it. The prosecution here did not elevate its case from 'may be true' to 'must be true'. (¶¶ 32, 83, 86)

Result

Appeal of Santosh @ Bhure allowed; his conviction under Section 302 read with Section 34 IPC and life sentence set aside and he is acquitted, to be released forthwith unless wanted in another case, bail bonds discharged if on bail. The State's appeal against the acquittal of Neeraj dismissed.