M. K. Mukherjee, J. - (1.) Charles Gurmukh Sobhraj, the respondent herein, and Ms. Maris Andree Laclare were placed on trial before the Additional Sessions Judge, Varanasi for having entered into a criminal conspiracy, along with one Ajay Chaudhary alias Mohan Lal, to cheat by impersonating themselves as Mr. Nipier Ponant and Mrs. Nicole Ponant at Natraj Hotel, Varanasi and as Mr. and Mrs. Alan Aren Jacobs at Varanasi Hotel, Varanasi, to commit theft of passport, travellers cheques and other articles belonging to one Mr. A. A. Jacobs (the deceaded), to forge signatures of A. A. Jacobs on his travellers cheques and on Guest Registration card in Varanasi Hotel and to use them as genuine documents and to commit the murder of A. A. Jacobs. They were also accused of having committed all the above illegal acts in pursuance of their criminal conspiracy; and Sobhraj was separately charged for commission of these offences on his own. On conclusion of the trial the learned Judge recorded an order of conviction and sentence against both of them for the offence of conspiracy and against Sobhraj alone for the offences punishable under Sections 302, 380, 420 and 467, I.P.C.
(2.) Aggrieved thereby they filed two separate appeals in the Allahabad High Court which were heard together by a Division Bench. Both the learned Judges comprising the Bench held, by their separate judgments, that the prosecution failed to establish its case against Ms. Laclare and, accordingly, allowed her appeal. So far as Sobhraj was concerned the learned Judges were divided in their opinions and hence his appeal was laid before another learned Judge of the Court in accordance with Section 392, Cr. P.C. The learned Judge, before whom the appeal was laid, opined that the appellant (Sobhraj) was entitled to the benefit of reasonable doubt and deserved to be acquitted of the various offences for which he had been charged. Inaccordance with the opinion so expressed the Division Bench allowed the appeal of Sobhraj an set aside the order of conviction and sentence recorded against him by the Additional Sessions Judge, Varanasi. The above order of the High Court is under challenge in this appeal preferred by the State after obtaining special leave.
(3.) Briefly stated, the prosecution case is that on January 3, 1976, three foreigners and one Indian checked in at the reception hall of Natraj Hotel, Varanasi at about 1.20 p.m. One of the foreigners was Jacobs (the deceased), an Israeli National and as subsequently revealed during investigation, the other two foreigners, who had represented themselves as a couple named Mr. Nipier Ponant and Mrs. Nicole Ponant, were Sobhraj, a French National, and Ms. Laclare, a Canadian National. The fourth visitor was an Indian National, who gave out his name as Mohan Lal. After seeing and approving the rooms in the hotel, the Indian National first made an entry in the Arrival and Departure Register of the Hotel (Ext. 1) by putting down his name as Modan Lal and after he had written the word 'I' to indicate that his nationality was Indian Sobhraj told him that he had to stay with Jacobs. Thereupon Mohan Lal deleted the incomplete entry and Sobhraj made an entry in the Register (Ex. 1) for himself as well as for his lady companion in the assumed names of Mr. Nipier Ponant and Mrs. Nicole Ponant. The deceased Jacobs and the Indian National then went to occupy Room No. 33 and Sobhraj and his lady companion Room No. 38', both on the second floor of the Hotel. (b) On the following day (January 4, 1976) at or about 12.30 p.m. Sobhraj and his lady companion checked out of the Natraj Hotel on the pretest that it was very cold and that they would prefer to stay in Clarks Hotel, Varanasi. They then made a lump sump payment towards the joint hotel bills of the two rooms saying that the balance would be paid by the other two visitors. A little later, at or about 1 p.m., both of them checked in at Varanasi Hotel, Varanasi under the assumed names of Mr. and Mrs. Alan Aren Jacobs and they were allotted Room No. 115, Sobhraj made entries in his own hand writing in the Registration Card (Ext. Ka. 17). Sobhraj also encashed a travellers cheque for 100 dollars at Varanasi Hotel by forging the initials of Jacobs. (c) Sometimes in the afternoon of January 5, 1976, Sobhraj expressed his desire to check out of the Varanasi Hotel. Accordingly, the cashier prepared the final bill for their stay at the hotel amounting to Rs. 296.05. Sobhraj then paid the bill through Travellers cheques for 50 and 100 dollars, again forging the initials of Jacobs. After deducting the sum of Rs. 296.05 the hotel employee paid the balance amounting to Rs. 1008.95 to Sobhraj. After leaving Varanasi Hotel Sobhraj and his lady companion again went to Natraj Hotel at 4.15 p.m. and made enquiries at the Reception Counter about their friends Mohan Lal and Jacobs. They were informed by the Manager Shri Narain Chandra Bhattacharya (P. W. 1) that both of them were in their room. Sobhraj and his lady companion then went to Room No. 33. After about 15 minutes Somaru (P. W. 2), waiter of the hotel, responded to a call made by Sobhraj from room No. 33, for a glass of water. When Samaru brought the glass of water Sobhraj handed it over to Jacobs along with a pill, Jacobs swallowed the pill with the help of the water and thereafter Samaru left the room with the empty glass. After about 15 minutes all four of them went down stairs; and then seeing off Sobhraj and his lady companion Mohan Lal and Jacobs returned to their room. (d) Since thereafter Jacobs neither took any meals nor came out of his room. No one else also visited his room. When even on 6th January, 1976, Jacobs did not come out of his room and also did not ask for his meals throughout the day, Shri Bhattacharya (P.W. 1) went to his room and knocked at the door. As there was no response from inside the Manager turned the latch key and opened the door. He found Jacobs lying dead on the bed. Immediately the services of Dr. S. N. Rai was requisitioned who after examining Jacobs, declared him dead. Thereafter Shri Bhattacharya sent a report regarding the death of Jacobs to Chetganj Police Station. (e) Chetganj Police Station, however did not register any case on the basis of that report but commenced Daryaft Hai after making the requisite entry in the general diary book. Inspector Surendra Pratap Rai (P.W. 6) and Sub-Inspector Ram Singh Chauhan (P.W. 9) then went to Natraj Hotel and first got photographs (Ex. 3) of the deceased taken. After completing other formalities, Inspector Surendra Pratap Rao arranged to send the dead body for post mortem examination. Autopsy of the dead body of Jacobs was conducted by Dr. A. K. Banerjee, (P.W. 14) at S.S.P.G. Hospital, Varanasi on January 7, 1976, at 3 p.m. According to the Doctor the deceased did not have any external mark of injury. However, his abdomen was distended and signs of decomposition had set in. There was greenish discolouration of the public region, neck and lower part of the abdomen and the nails were cynosed. Internal examination of the body revealed that membrances of the scalp were congested. Brain was decomposed, and right and left lungs were congested. Right side of the heart was empty. Peritoneum was congested and stomach contained 3 ozs. of greenish yellow pasty material. Small intestines contained digested food in its upper part and gases and minerals. Large intestine was empty and contained mucus and gases, liver was congested, gall bladder was half full and spleen and kidney were deeply congested. The doctor opined that the deceased had died about a day and half back but he could not give any opinion regarding cause of the death. He preserved the viscera of the deceased which was sent to the Chemical Examiner, Forensic Science Laboratory, Lucknow. The Chemical Examiner eventually reported that the viscera contained decomposition products of zinc phosphide poison and parts thereof also contained chlorpromazine in traces. (f) Investigation into Jacob's death was entrusted to Inspector Ram Acharya Chaudhari (P.W. 20) of the Crime Branch of C.I.D., Uttar Pradesh. On July 13, 1976, he came across a news item appearing in "Swatantra Bharat", a Hindi daily published from Lucknow which contained some clue regarding the murder of Jacobs. Accordingly, he went to Delhi and interrogated Sobhraj who, at that time, was in custody of Tilak Nagar Police Station. Shri Chaudhary obtained the specimen hand writings of Sobhraj on six sheets of paper (Ext. Ka. 50 to Ka. 55). Thereafter on July 26, 1976, he seized the Register of Natraj Hotel and alongwith the sample handwritings of Sobhraj earlier taken, sent it to the Handwriting Expert Shri Prakash Chandra Pathak (P.W. 19). It may be mentioned that till then the case was being investigated into by the police on the basis of the report which had been made by the Manager of Natraj Hotel with regard to the death of Jacobs on January 6, 1976, but no formal first information report was lodged. Thereafter a formal first information report was lodged by the Inspector Chaudhary at Chetganj Police Station on July 30,1976; and after registering a case thereupon he went to Varanasi Hotel and seized the Guest Registration Card (Ext. Ka. 17), bill for payment (Ex. Ka. 22), the Register relating the entries in the name of A. Jacob and a copy of the foreign exchange transaction receipt (Ext. Ka. 21). Thereafter Shri Chaudhari went to Delhi and again obtained specimen handwritings of Sobhraj, (Ext. Ka. 38(1) to Ka. 38(4) in the presence of the Metropolitan Magistrate, Delhi. He sent those specimen hand writings as well as the Guest Registration Card (Ex. Ka. 17) to the hand writing expert for his report. In course of his investigation, Shri Chaudhari seized some documents from Ranjit Hotel, Delhi and from Hotel Mandavi, Panaji, Goa. (g) On conclusion of investigation Shri Chaudhari submitted charge-sheet stating therein the reliable evidence was available to establish that Sobhraj accompanied by deceased Jacobs and two others had gone to Hotel Natraj, Varanasi on January 3, 1976, and checked in there; that while Sobhraj along with his lady companion stayed in room No. 38 of the Hotel in the name of Mr. and Mrs. Ponant their other two companions, namely, the deceased Jacobs and one Mohan Lal stayed in Room No. 33; that while staying there Sobhraj stole the passport and travellers cheques belonging to Jacobs and shifted to Hotel Varanasi that on January 5, 1976, he came back to Hotel Natraj and administered zinc phosphide poison to Jacobs who took the same without suspecting any foul play and died as a result thereof; that Sobhraj and his lady companion then disappeared from Varanasi and that on January 7, 1976, they checked in at Hotel Mandavi, Panaji, Goa, in the name of Mr. and Mrs. Alan Aren Jacobs. Sobhraj pleaded not guilty to the charges levelled against him and denied the entire prosecution allegations. In his statement recorded under Section 313, Cr. P.C. he asserted that he was not even in India when the offences attributed to him were stated to have been committed.;