CRL A/810/1998 of Vs on 16 December 2002

:JUDGMENT

M.KARPAGAVINAYAGAM,J.

Latha, an young house wife was alone in her house in the morning hoursof 23-6-1992, after sending her husband to his shop for attending hisbusiness. The appellants/A-1 to A-4 gained entry into her house knowing thatshe was alone, threatened her to part with her jewels and when she refused,the accused stabbed her causing death and took away the jewels includingmangalya sutra from her body and sped away with the booty.

2. With the abovesaid allegations, the first appellant/A-1 and the third appellant/A-3 were convicted for the offences under Sections 120 -BI.P.C., 302 read with 34 and 394 I.P.C. and each sentenced to undergo lifeimprisonment for the offences under Sections 120-B and 302 read with 34 I.P.C.and rigorous imprisonment for ten years for the offence under Section 394I.P.C., the second appellant/A-2 was convicted for the offences under Sections120-B, 302 and 394 I.P.C. and sentenced to undergo life imprisonment for theoffences under Sections 1 20-B and 302 I.P.C. and rigorous imprisonment forten years for the offence under Section 394 I.P.C. and the fourthappellant/A-4 was convicted for the offences under Sections 120-B and 302 readwith 34 I. P.C. and sentenced to undergo life imprisonment for eachoffences. The sentences were directed to run concurrently. Challenging thesaid conviction and sentence, the appellants/A-1 to A-4 have preferred thiscriminal appeal.

3. The case of the prosecution in brief is as follows:- "(a) The deceased Latha is the wife of P.W.2 Ganesan. P.W.1Vijayaraghavan is the son of P.W.2's sister. The deceased and P.W.2 wereresiding in No.81, Thanappa Mudali Street, Madurai. P.W.1 along with hisparents, was staying in the house situated in the neighbouring street.

(b) On 23-6-1992, at about 10 a.m., P.W.2 Ganesan, the husband of thedeceased went to his jewellery shop to attend his business. At about 10.30a.m., A-1 to A-4 entered into the house of the deceased and murdered thedeceased with the knife and took away the thali chain and gold jewels from herbody and went away after locking the door.

(c) P.W.1 Vijayaraghavan, at about 2 p.m., came to the house of thedeceased to hand over the ever-silver box containing fish sambhar sent by hismother. When he knocked the door, there was no response. Then, he found thatthe door was locked from outside. So, he opened the lock and entered into thehouse. To his shock, he found that the deceased Latha died with injuries.Jewels were found missing. P.W.1 telephoned and informed this to P.W.2, thehusband of the deceased. P.W.2 rushed to the scene and found the dead body ofhis wife in a pool of blood and thali and gold bangles wer e missing.

(d) At about 4.15 p.m., on 23-6-1992, P.W.1 came to the Police Stationand gave a complaint to P.W.10, the Sub-Inspector of Police. He registered acase and sent the complaint and F.I.R. to the Court and informed the messageto the Inspector of Police.

(e) P.W.13 Inspector of Police, came to the scene and prepared Ex.P-2 observation mahazar and Ex.P-27 rough sketch. He conducted inquest. Theinquest report is Ex.P-28. He recovered the blood stained sticks whichcontained cotton, spectacles and blood stained swabs ( M.Os. 10 to 12).

(f) P.W.16, the finger print expert came to the scene as per the orderin Ex.P-37. He visited the scene at about 5 p.m. and found out the chanceprints in betel nut box (M.O.15). P.W.14 photographer of forensic laboratorytook photos of chance prints found on the betel nut box M.O.15. The finger print photo is M.O.13 and photo negatives are Ex.P-29 series. The report ofthe finger print expert is Ex.P-38.

(g) The intimation regarding the finger print expert are Exs.P-39 andP.40. They sent the betel nut box to the court on 3-7-1992.. along with theletter Ex.P-44.

(h) On 1-7-1992, P.W.13 handed over the investigation to P.W.15, another Inspector of Police. On 23-7-1992, P.W.15 arrested A-1 to A-3 and onthe confession of A-1, M.O.1 thali and M.O.16 kerchief were recovered fromhim. In pursuance of the confession of A-2, M.O.4 gold bangles wererecovered. From A-3, M.O.3 gold jewels were recovered. A-1 then took thePolice and pointed out one Sivawami P.W.6 alleging that M.O.2 gold bangleswere handed over to him. Accordingly, M.O.2 series were recovered from P.W.6.A-2 took th e Police to a graveyard and took out M.O.17 knife buried under theearth.

(i) On 24-7-1992 at about 2 p.m., P.W.15 arrested A-4 Packianathan andafter obtaining his finger print M.O.14, he was sent for remand.

(j) P.W.12 another finger print expert, compared the finger prints ofA-4 Pakcianathan and found that M.O.13, the chance prints in M.O.1 5 betel nutbox got tallied with M.O.14, the finger print photo of A-4. Ex.P-45 is thereport of the finger print expert P.W.12.

(k) After finishing investigation, P.W.15 filed charge-sheet on 12-10-1992."

4. A-1 to A-4 were tried for the offences under Sections 120-B, 302and 302 read with 34 I.P.C. and 394 I.P.C. The defence of the accused is oneof total denial. On conclusion of trial, the trial Court convicted A-1 andA-3 for the offences under Sections 120-B, 302 read with 34 and 394 I.P.C.,A-2 was convicted for the offences under Sections 120-B, 302 and 394 I.P.C.and A-4 was convicted for the offence under Section 120-B and 302 read with 34I.P.C. Aggrieved by the said conviction, the appellants/A-1 to A-4 have filedthis common appeal.

5. Mr.Gopinath, learned senior counsel appearing for A-3 and A-4 andMr.Ramu, learned counsel appearing for A-1 and A-2, while assailing thejudgment of the trial Court, would make the following contentions:-"Though the occurrence took place on 23-6-1992, A-1 to A-3 werearrested only on 23-7-1992, after one month and recovered the jewels worn bythe deceased. The witnesses who attested the mahazar for arrest and recovery,turned hostile. As such, the evidence relating to recovery of jewels cannotbe accepted and at any rate, mere recovery of jewels would not conclusivelyprove that the accused committed murder of the deceased, especially when thejewels have been recovered after a long gap of one month and at the most, A-1to A-3 could be convicted for the offence under Section 411 I.P.C."

6. While arguing on behalf of A-4, learned senior counsel would contend that there is no recovery from A-4 and only on the basis of the finger print expert's report, A-4 has been convicted and since the finger printreport has not been obtained by following the procedure under theIdentification of Prisoners Act or under the Police Standing Orders, the sameis not admissible and consequently, A-4 is liable to be acquitted.

7. Learned Additional Public Prosecutor, in reply to the abovesubmissions, would contend that A-1 to A-3 were arrested on 23-7-1992 and thejewels which were identified by P.Ws.1 and 2 as that of the deceased and theknife which was used for committing the murder of the deceased, have beenrecovered. As such, the gap of one month, cannot be a ground to reject thesaid evidence in respect of the offences under Sections 302 and 394 I.P.C.,especially when a presumption would arise under Sections 114 (a) and Section106 of the Indian Evidence Act, in the absence of any explanation for thepossession of jewels by A-1 to A-3. He would further submit that as far asA-4 is concerned, the evidence of the finger print expert, namely, P.W.12clearly indicates that A-4 also came to the scene of occurrence andparticipated in the occurrence and since competent Police Officer has takenthe finger print, there is no necessity for obtaining the order of theMagistrate concerned for taking finger print of A-4 as provided under theIdentification of Prisoners Act. As such, the conviction and sentence imposedon the appellants/accused are liable to be confirmed.

8. Both the learned counsel for the appellants and learned AdditionalPublic Prosecutor cited number of authorities in support of their contentions.

9. We have given our thoughtful consideration to the respectivesubmissions made by learned counsel for the parties.

10. There is no dispute in the fact that the deceased was foundmurdered on 23-6-1992 at about 11 a.m., while she was alone in her house andthe murder was committed for gain, as the thali chain and gold jewelstotalling about 23 sovereigns were found missing from the body, as seen fromthe evidence of P.W.1 vijayaraghavan, the nephew of the deceased and P.W.2,the husband of the deceased and post mortem Doctor P.W.7.

11. According to the prosecution, P.W.1 Vijayaraghavan who is therelative of the deceased, came to the house of the deceased on 23-6-199 2 atabout 2 p.m. to hand over the eversilver box containing fish sambhar given byhis mother. Then, he opened the door as there was no response and found thatthe deceased was dead lying in a pool of blood with the injuries on the neckand hands. On receipt of information from P.W.1, P.W.2 husband rushed to thescene of occurrence and found that the thali and other gold bangles weremissing.

12. P.W.13 Inspector of Police came to the scene and observed allformalities. He also requested P.W.14 photographer and P.W.16 finger printexpert to come to the scene of occurrence. P.W.16 finger print expert foundout the chance prints M.O.13 in the betel nut box M.O.15. Accordingly, P.W.14photographer took photo of the chance prints. Till that stage, the investigating agency was not able to know the identity of the culprits whoparticipated in the occurrence.

13. P.W.15, another Inspector of Police, who took up further investigation, arrested A-1 to A-3 on 23-7-1992 when they were standing nearThiruparangundram. In the presence of witnesses, namely, P.W.5 Dharmaraj andP.W.11 Selvaraj, the confession statements of the accused were recordedseparately. In pursuance of the confession from A-1, M.O.1 thali and M.O.16kerchief were recovered under mahazar Ex.P-31. A-2 also gave confession andin pursuance of the same, M.O.4 gold bangles were recovered under Ex.P-33. Onrecording confession from A-3, M.O.3 another set of gold jewels were recoveredfrom him under Ex.P-34.

14. On the same day, i.e., on 23-7-1992, A-1 took P.W.15 Inspector ofPolice to P.W.6 Sivasami with whom he pledged the other two bangles, namely,M.O.2 series. When A-1 pointed out P.W.6, P.W.15 interrogated and recoveredM.O.2 series from P.W.6 under Ex.P-35. Besides this, A-2 took P.W.15 toManikuravan Graveyard and took out M.O.17 the knife, the weapon of the offenceand handed over the same to P.W.15 . This was recovered under Ex.P-36.

15. Next day, i.e. on 24-7-1992, P.W.15 arrested A-4 and no recoverywas made from him. However, he obtained the finger print of A-4 and sent himfor judicial remand.

16. The said finger print M.O.14 was compared by P.W.12 finger print expertwith M.O.13, the chance prints found on the betel nut box M.O.15 and gave areport Ex.P-26, stating that the chance prints found on the betel nut boxtallied with the finger prints of A-4.

17. Thus, it is clear that the evidence against A-1 to A-3 is the recovery ofjewels belonging to the deceased from them and the evidence against A-4 is thepresence of his finger prints at the scene.

18. Let us now deal with the evidence relating to the recovery of jewels andknife from A-1 to A-3.

19. In the complaint given by P.W.1 on the date of occurrence on 23-6-1992,it has been specifically stated that the thali chain of 15 sovereigns and 4gold bangles of 8 sovereigns were found missing from the body of the deceased.After recovery of the jewels on 23-7-1 992, P.W.2 identified the jewels in thePolice Station that those jewels were worn by the deceased on the date ofoccurrence. The thali chain which was recovered from A-1 was marked as M.O.1and gold bangles which were recovered from P.W.6 at the instance of A-1 weremarked as M.O.2 series and another set of gold bangles which were recoveredfrom A-3 were marked as M.O.3 series and another set of bangles which wererecovered from A-2 were marked as M.O.4. P.W.2 would specifically identifythese jewels marked as M.Os.1 to 4, as that of the jewels of the deceased.This has not been challenged.

20. It is true that P.W.5 and P.W.11 who attested the mahazar for arrest andrecovery of these jewels from the accused turned hostile. But merely because the mahazar witnesses turned hostile, it cannot be straightaway held that theevidence relating to the arrest and recovery is false. It is equally truethat P.W.6, from whom M.O.2 series were recovered at the instance of A-1 alsoturned hostile. In this case, we have got the evidence of P.W.15, theinvestigating officer who speaks about the arrest and recovery of the jewelsfrom the accused as well as from P.W.6. Apart from that, P.W.15 recoveredM.O.1 7 knife in pursuance of the confession given by A-2 from the graveyard.

21. The fact that P.Ws.5,6 and 11 turned hostile would not automatically make the evidence of P.W.15 unreliable. If the evidence adducedby P.W.15 is otherwise reliable, there is no difficulty in holding that theprosecution has proved the arrest and recovery of articles from the accusedpersons.

22. On going through the evidence of P.W.15, it is clear that A-1 to

A-3 were arrested on the same day in the same place and on their separateconfessions, M.Os.1 to 4 and 17 were recovered. His evidence is clear andcogent and in the cross-examination, nothing was elicited from him that he wasspeaking falsehood against A-1 to A-3. As such, there is no reason to rejectthe evidence of P.W.15 who arrested the accused and recovered the jewels whichwere identified by P.W.2, the husband of the deceased that those jewels wereworn by the deceased on the date of occurrence.

23. It is contended by learned counsel for the appellants that mere recovery of jewels and belongings of the deceased would not be enough tofasten the liability on the accused for the offences of murder and robberyunder Sections 302 and 394 I.P.C., especially, when there is one month gapbetween the date of occurrence and the date of recovery of the M.Os.

24. Citing a decision of the Supreme Court reported in AIR 1997 SC 3

954 (RAMBILAS VS. STATE OF MADHYA PRADESH) and a decision of the DivisionBench of this Court reported in 2000 (III) C.T.C. 151 (RAJU VS. STATE), itis contended on behalf of the accused A-1 to A-3 that mere recovery of certainincriminating articles at the instance of the accused, cannot form the basisfor conviction.

25. Relying upon the decisions of the Supreme Court reported in 1993

S.C.C. (Crl.) 999 (UNION TERRITORY OF GOA VS. BEAVENTURA D'SOUZA), 1 980Crl.L.J. 1270 = AIR 1980 SC 1753 (NAGAPPA DONDIBA VS. STATE OF KARNATAKA)and 1982 Crl.L.J. 610 = AIR 1982 SC 129 (AMAR SINGH VS. STATE OF M.P.), itis argued by learned senior counsel for the appellants 3 and 4 that in theabsence of any other evidence except recovery to connect the accused with themurder, the accused would be liable to be convicted only under Section 411I.P.C. and not under Section 302 or 394 I.P.C. Learned senior counsel forA-3 and A-4 also relied on a decision of the Supreme Court reported in 2 001SCC (CRL) 235 ( MANISH DIXIT VS. STATE OF RAJASTHAN) in support of hissubmissions.

26. On the other hand, on the strength of the decisions of the Supreme Court reported in 1998 S.C.C. (Crl) 220 (A.DEVENDRAN VS. STATE OFTAMIL NADU) and 2000 AIR SCW 2060 (EZHIL VS. STATE OF TAMIL NADU), it iscontended by learned Additional Public Prosecutor that in the facts andcircumstances of the case, in so far as the recovery of the jewels from A-1 toA-3 is concerned, a presumption under Section 114 (a) of the Indian EvidenceAct would arise and as such, a presumption can be drawn not only for the factthat the accused were in possession of the stolen articles after committingrobbery, but also committed the murder of the deceased in the absence of anyexplanation from the accused.

27. It is true as pointed by the learned counsel for the accused that the Supreme Court would hold in several decisions that the recovery ofarticles which were found stolen from the body of the deceased, would make outonly the offence under Section 411 I.P.C. But, it is to be noted that in thevery same decisions, it is observed that in the absence of any explanationfrom the accused for the possession of jewels stolen from the deceased, then apresumption can be drawn and even that depends upon the facts andcircumstances of each case. It is also observed in some given cases, the presumption is further extended to the extent of holding that such a personcommitted the offence of murder also.

28. In this case, admittedly, the recovery of articles and arrest of the accused is after one month. But, mere lapse of one month will not compelthe Court to come to a conclusion that the presumption cannot be drawn and assuch, the accused had not committed the murder.

29. Whether a presumption under Section 114 (a) of the Indian Evidence Act, is drawn in a given situation, is a matter which depends on theevidence and the circumstances of each case. The nature of the stolenarticles, the nature of its identification by the owner, the places andcircumstances and its recovery, the intervening period between the date ofoffence and date of recovery, the explanation of the person from whom therecovery is made, are all factors which are to be taken into consideration inarriving at a decision of this Court.

30. When the prosecution succeeded in proving beyond any doubt that the commission of murder and robbery formed part of one transaction and theunexplained possession of the stolen property by the accused, would certainlyjustify the presumption that it was the accused and no one else had committedthe murder and robbery.

31. Though, the time factor, namely the intervening period is important, it is settled law that no standard time limit can be fixed todetermine whether the possession is recent or otherwise. Each case must bejudged on its own facts. In a case where there is no possible explanation bythe accused for the lawful possession of articles belonging to the deceased,the Courts cannot be held to be in error in considering that the murder androbbery were integral parts of the same transaction giving rise to thepresumption that the appellants not only committed the murder of the deceased,but also committed robbery of articles found in possession of the deceased.

32. The question as to what amounts to recent possession sufficientto justify the presumption of guilt varies, as the stolen articles is or isnot calculated to pass readily from hand to hand. As held by the SupremeCourt, the stolen articles were such, as were not likely to pass readily fromhand to hand, even the period of one year that lapsed cannot be said to be toolong, particularly when the accused had been absconding during that period.

33. The abovesaid principles have been laid down in the followingdecisions:-(a) 2001 SCC (CRL) 449 = AIR 2001 SC 979(SANJAY VS. STATE (NCT OF DELHI);(b) 2002 AIR SCW 2060 (supra) and(C) 1998 SCC (Crl) 220 (supra).

34. As laid down by the Supreme Court in the above decisions, thetime factor would not mean a particular time limit. It varies according tothe facts and circumstances of each case.

35. In this case, A-1 to A-3 have committed the murder and the jewelshave been distributed among themselves. From A-1, one thali chain and bangleswere recovered and from A-2 and A-3, the other gold bangles were recoveredwhich were identified by P.W.2, the husband of the deceased. Admittedly,there is no explanation for the possession from the accused either in thecross-examination of witnesses or in Section 313 Cr.P.C. statement.

36. As rightly pointed out by the Supreme Court, the jewels likethali chain with identifiable features, cannot be passed from hand to handreadily and immediately, because, the accused would apprehend that they wouldbe caught if those jewels were passed on to third party. Furthermore, in thiscase, M.O.2 series were pledged by A-1 to P.W.6 in between the period of onemonth. When once it is established that the jewels like thali (mangalyasutra) and gold bangles belonging to the deceased were recovered from theaccused, then, the accused who had the special knowledge as to how they cameinto possession, has to explain and rebut the presumption.

37. Under those circumstances, in our view, the presumption bothunder Section 114 (a) and Section 106 of the Indian Evidence Act drawn againstA-1 to A-3 from whom the jewels of the deceased identified by P.W.2 and also

the knife used for committing the offence were recovered, has not beenrebutted. Consequently, the conviction and sentence imposed on A-1 to A-3 areliable to be confirmed and accordingly confirmed.

38. With regard to A-4, the contention urged by learned seniorcounsel is that the opinion given by P.W.12 finger print expert that thechance prints M.O.13 found on the betel nut box recovered from the scene ofoccurrence would tally with M.O.14 finger prints of A-4, is not admissible, inview of the decisions rendered by the Supreme Court in MAHMOOD VS. STATE OFU.P.(1976 CRL.L.J. 10 = AIR 1976 SC 69) and PARAMASIVAM AND ANOTHER VS.STATE OF TAMIL NADU (SUPREME COURT) (2002(2)L.W.(CRL.)836), wherein, it is held that the order of the Magistrate concerned is mandatory before obtainingthe finger print of the accused as contained in Section 5 of theIdentification of Prisoners Act (hereinafter referred to as "the Act").

39. It is strenuously contended by learned Additional Public Prosecutor that Section 5 of the Act would not affect the power of the PoliceOfficer under Section 4 of the Act to take finger prints of the personarrested in connection with the case and as such, P.W.15 is competent to takethe finger prints, and therefore, the evidence of P.Ws.1 2 and 15 isadmissible. Learned Additional Public Prosecutor cited a decision of theSupreme Court reported in 1978 CRL.L.J. 1251 = AIR 19 78 SC 1248 (SHANKARIAVS. STATE OF RAJASTHAN) to substantiate his contention. Relevant portion ofthe observations of the Supreme Court in 1978 Crl.L.J. 1251 is as follows:- "79. Mr.Gambhir next contends that in view of S.5 of the Identification ofPrisoners Act, it was incumbent on the police to obtain the specimen thumbimpression of the appellant before a Magistrate, and since this was not donethe opinion rendered by the Finger-Print Expert Mr.Tankha, by using thoseillegally obtained specimen finger impressions, must be ruled out of evidence.80. The contention appears to be misconceived because in the State ofRajasthan, the Police were competent under S.4 of the Identification ofPrisoners Act, to take the specimen finger-prints of the accused, and thisthey did, in the instant case, before the Superintendent of Police, Shri.K.P. Srivastava. It was not necessary for them to obtain an order from theMagistrate for obtaining such specimen finger-prints."

40. Above said observations are made by the Supreme Court to hold that the said evidence is admissible in the light of the existence of relevantrules framed by the Rajasthan Government under the powers conferred underSection 8 of the Identification of Prisoners Act.

41. Admittedly, no rules have been framed by Tamil Nadu State.

Section 4 of the Identification of Prisoners Act would provide that any personwho has been arrested in connection with the offence punishable with rigorousimprisonment for a term of one year or upwards, shall, if so required by apolice officer, allow his measurements to be taken in the prescribed manner.

42. So, the prescribed manner for taking measurements of finger prints from the person arrested could be indicated either by the rules framedunder Section 8 of the Act or any other rules and procedures framed by theState. The observation of the Supreme Court, as mentioned earlier, wouldindicate that if the rules are not framed, then it is necessary for the PoliceOfficer to obtain permission under Section 5 of the Act. In this State, asnoted above, no rules have been framed under the Act giving the proceduredenoting the "prescribed manner" for taking finger prints.

43. When similar question was raised earlier before a Division Bench

of this Court in 1994 (1) L.W. (CRL.) 58 (RAVANAN VS. STATE ( INSPECTOR OFPOLICE), KUMBAKONAM AND ANOTHER), it was argued that a Police Officer, duringthe course of investigation, after arresting a person, shall take him beforethe Magistrate concerned and obtain orders from the Magistrate before taking finger prints under Section 5 of the Act, as Section 4 of the Act would notconfer power to the Police Officer for taking the finger prints. Thisargument was rejected by the Division Bench and quoted the followingobservations made in Crl.A. No.169 of 1986, dated 7-2-1992:- "The Act does not say that S.5 refers to the prescribed manner spelt out inS.4 of the Act. The power of the Magistrate under S.5 of the Act does notseem to affect the power of a police officer, to take finger prints orphotographs of the persons arrested in connection with the various factsreferred to under S.4 of the Act ... S.8 confers power on the StateGovernment to make rules for the purpose of carrying into effect theprovisions of this Act. It was stated by the learned Public Prosecutor, thatthe State of Tamil Nadu had not framed any rules for the purpose of carryinginto effect the provisions of this Act. After careful consideration of Ss.4and 5 of the Act, we are unable to agree with Mr.N.Dhinakar that invariablyduring investigation a person arrested must be taken before a Magistrate andorders obtained before the finger prints of such persons could be taken by aPolice officer. Ss.4 and 5 operate in different fields and obviously if theState Government had made any rules for the purpose of carrying into effectthe provisions of this Act, the Investigating Officer, ought to have followedsuch rules which would fall within the ambit of 'Prescribed manner'contemplated under S.4 of the Act. If the State Government has not made anyrules under the Act, it will be the duty of the investigating officer, tofollow Police Standing Order 836 . Police Standing Orders are in the natureof instructions given to be followed by the Police Force ....."Finger impressions shall be taken only by officers declared by aSuperintendent or, in the City of Madras, by the Commissioner of Police, to bequalified to take clear and well-rolled impressions."

..... We think it necessary that the State Government must make rulesunder S.8 of the Identification of Prisoners Act, 1920 for the purpose ofcarrying into effect the provisions of the Act. Some of the State Governmentshave made rules. A proper procedure in obtaining finger prints must befollowed for otherwise, the sanctity of scientific evidence not only getsobliterated but also becomes an exercise in futility ..."

44. The abovesaid decision of the Division Bench of this Court would showthat even in the absence of rules by the State under Section 8 of the Act, thePolice Officer has to follow the Police Standing Orders, which gives the"prescribed manner" for taking the finger prints.

45. Let us now see as to whether the said procedure has been followedby P.W.15 who has taken the finger prints.

46. In this case, P.W.15 Inspector of Police would state that he hadtaken impressions, the finger prints

of A-4 on 24-7-1992 and sent him for remand. P.W.12 finger print expert whohas given the opinion on a comparison as against A-4, would state that as perEx.P-47, the finger prints of A-4 was taken by one Head Constable 2127.Admittedly, he has not been examined. Curiously, P.W.15 has not stated thathe followed the procedures provided in the Police Standing Orders relating to taking of finger prints. It has not been established in this case that thesaid Head Constable or the Inspector of Police P.W.15 has been declared to bea competent officer to take finger print in the "prescribed manner" asprovided under Section 4 of the Act.

47. The method of taking finger prints with reference to theappliances forms part of Police Standing Order-836(4)(a). Police StandingOrder 836(4)(d) states that the prints should invariably be taken on anauthorised finger print slip in Form No.141 thereunder. As per PoliceStanding Order 836(4)(k), the finger impression shall be taken in the moffusilareas only by the Officers declared by the Superintendent of Police or in theCity of Madras by the Commissioner of Police to be qualified to take clearwell rolled impressions.

48. Admittedly, no evidence has been adduced to show that either P.W.15 or the Head Constable who took finger prints from A-4, has been declaredeither by the Superintendent of Police or the Commissioner of Police, as thecase may be, to be qualified as a competent Officer to take clear well rolledimpressions. There is also no evidence to show that the finger prints weretaken in Form No.141 specified in the Police Standing Orders. There is alsono indication that the method of taking finger prints as provided in PoliceStanding Order 836(4)(a) had been followed. Thus, it is clear that none ofthe provisions of the Police Standing Order 836, relating to taking of thefinger prints of the accused, had been followed by the investigating agency.

49. That apart, M.O.15 betel nut box was taken from the scene ofoccurrence on 23-6-1992. P.W.16 finger print expert on the same day, went tothe scene of occurrence and P.W.14, the photographer took photos and chanceprints found on M.O.15 kept in the scene of occurrence. Admittedly, P.W.13,the first investigating officer did not prepare any mahazar for recovery ofM.O.15. No reference had been made about M.O.15 in the observation mahazar inEx.P-2. Though it is stated by P.W.15 that the betel nut box which containedM.O.13, the chance prints of A-4 was sent on 3-7-1992 to the Court. P.W.8,the Court clerk would state that the same was received only on 23-7-1992.There is no explanation on the side of the prosecution as to why there was norecovery of mahazar in regard to the recovery of M.O.15 and as to why M.O.15containing M.O.13 chance prints, was sent to the Court nearly after a month.

50. In the light of the above fact situation, we are unable to actupon the finger print expert's opinion Ex.P-26, even assuming that the HeadConstable or the Inspector of Police could invoke power under Section 4 of theAct by following the procedure under the Police Standing Order to take thefinger prints without approaching the Magistrate under Section 5 of the Act.

51. As such, we are constrained to hold that A-4 cannot be convictedmerely on the basis of the finger print expert's opinion, which in ourconsidered opinion, is insufficient in the present facts of the case, as thesame cannot be accepted in view of violation of prescribed procedures.Accordingly, the conviction and sentence imposed on A-4 are liable to be setaside.

52. In the result, the conviction and sentence imposed on A-1 to A-3are confirmed. The conviction and sentence imposed on A-4 are set aside.Since A-4 is in jail, he is directed to be set at liberty forthwith unless heis required in any other case. The appeal is partly allowed.

53. Before parting with the case, we are constrained to remind theGovernment the necessity for framing the rules regarding the " prescribedmanner" for taking measurements of the finger prints from the arrested person.

54. The Supreme Court in AIR 1976 SC 69 (supra) and 2002 (2) L.W.(Crl.) 836 (supra) would specifically state that in the absence of rules, thePolice Officer has to approach the Magistrate concerned under Section 5 of theAct for obtaining permission for taking finger prints of the accused and ifthe same was not done, the opinion of the finger print expert would becomeinadmissible.

55. In this case, we have stated that even though the rules have notbeen framed under Section 8 of the Act, there are procedures provided underthe Police Standing Orders for taking the finger prints and the compliance ofthose rules would satisfy the "prescribed manner" as provided under Section 4of the Act.

56. However, we have acquitted A-4 on facts, since the proceduresprescribed under the Police Standing Orders have not been complied with.

57. Yet another argument is possible to contend that even when theprovisions of Police Standing Orders have been complied with, the saidcompliance would not make the finger print expert's opinion admissible, as thePolice Standing Orders do not have any statutory force. To avoid thiscriticism, it is better for the State to frame rules prescribing theprocedures for the same.

58. Under those circumstances, we think it necessary to direct theState Government to make the rules under Section 8 of the Identification ofPrisoners Act, 1920 for the purpose of carrying into effect the provisions ofthe Act. As a matter of fact, similar direction has been given by a DivisionBench of this Court earlier in Crl.A. No.169 of 1986, dated 7-2-1992, asindicated in the earlier paragraphs. But still, such a direction has not beencomplied with by the State Government.

59. It is noticed that several State Governments have made rules. Inour view, a proper procedure in obtaining finger prints from the accused,might be followed. Otherwise, the sanctity of the scientific evidence notonly gets obliterated, but also becomes an exercise in futility.

60. In a similar situation, in a case coming from Rajasthan, theSupreme Court in AIR 1978 SC 1248 (supra), while rejecting the contention oflearned counsel for the accused that in view of Section 5 of the Act, it wasincumbent on the part of the investigating agency to obtain the specimen thumb impression of an accused before a Magistrate or after obtaining an order ofthe Magistrate and since that was not done, the opinion rendered by the fingerprint expert must be ruled out of evidence, would observe that the saidcontention appears to be misconceived, because, in the State of Rajasthan, thePolice were competent under Section 4 of the Act to take specimen impressionsof the accused in the presence of Superintendent of Police and as such, it wasnot necessary for the Police to obtain order from the Magistrate concerned.

61. Thus, it is clear that by framing proper rules under Section 8 ofthe Act, giving the procedure for taking the finger prints, the sanctity ofthe scientific evidence adduced by the finger print expert would certainlysave the prosecution. Therefore, it is desirable for the State Government toframe appropriate rules under Section 8 of the Identification of PrisonersAct, giving clear-cut guidelines and procedures indicating the "prescribedmanner" as provided under Section 4 of the Act for taking the finger prints ofthe accused in custody.

62. Accordingly, learned Public Prosecutor is directed to get a copyof this judgment and send the same to the State Government with a coveringletter, intimating our direction to enable the Government to frame the rulesexpeditiously.

Index: YesInternet: Yescs

To

1. The Principal Sessions Judge, Madurai.

2. The Judicial Magistrate-II, Madurai.

3. -do- through the Chief Judicial Magistrate, Madurai.

4. The Superintendent, Central Prison, Madurai.

5. The Public Prosecutor, High Court, Madras.

6. The Inspector of Police,G-1 Thilagar Thidal Police Station (Crime),George Town (North), Madurai.G-1 Thilagar Thidal Police Station (Crime),George Town (North), Madurai.

7. The District Collector, Madurai.

8. The Inspector General of Police, Chennai-4.

9. The Secretary, Home Department, Secretariat, Chennai-9.

10. The Secretary, Law Department, Secretariat, Chennai-9.