SONVIR @ SOMVIR versus THE STATE OF NCT OF DELHI on 2 July 2018

1. As per the prosecution case, 15 items of golden jewellery,2 items of silver, 6 silver coins and Rs. 50,000/- in cash wereallegedly recovered from Appellant-Accused No. 2 at the time ofhis arrest, which was 16-17 days after the date of the occurrenceof the offence. The said jewellery and cash belonged to thedeceased. Appellant-Accused No. 2 in his statement recordedunder Section 313 Cr.P.C. stated that the recovery was planted,and that he had been falsely implicated. It is improbable andunnatural that 16-17 days after the date of occurrence of theoffence, when each of the accused was apprehended, each of themwas found holding bags of jewellery. The brother of deceased-PW-4 had denied the suggestion of the prosecution that he wasshown the jewellery recovered from the possession of the accusedpersons, or that he identified the jewellery articles to be belongingto the deceased. The jewellery articles were not identified to beof the deceased. In these circumstances, the alleged recovery ofjewellery and cash from appellant-accused No. 2 could not betaken as a piece of incriminating evidence. [Para 6.1][841-E-H;842-A-C]

2. As regards recovery of a blood-stained knife, the knifewas found to be stained with human blood, no blood groupingcould be given. The High Court found that in the absence of anywitness identifying the weapon of offence used in the commissionof crime, or the opinion of the post-mortem doctors that the injurywas possible by the said knife, or the FSL report regarding theblood of the deceased being found on the said knife, the knifecannot be said to be connected with the offence. Therefore, theweapon of offence allegedly recovered from appellant-accusedNo. 2 and used in the commission of the crime, cannot be takenas a piece of incriminating evidence against him. [Para 6.2][842-C-F]

3. The blood-stained shirt recovered at the instance ofappellant-accused No. 2 was sent for analysis to the FSL. As per A

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Athe FSL report (Ex. PW-33/A), the shirt was found to be stainedwith human blood of “B” group, which was the same “blood group”as that of the deceased. The High Court held the recovery of theblood-stained shirt from appellant-accused No. 2 to beincriminating against him, since the blood samples taken fromthe bed-sheet at the scene of crime, were also found to be of theBsame blood group. The mere matching of the blood-group of theblood samples taken from the bed-sheet at the scene of crime,and the blood-stained shirt recovered from appellant-accused No.2 cannot lead to the conclusion that the appellant had beeninvolved in the commission of the crime. The prosecution hasCnot proved that the room from where the blood-stained knife andblood-stained shirt were allegedly recovered, was in the exclusivepossession of the appellant. Therefore, the recovery of the blood-stained shirt from appellant-accused No. 2 cannot be used as anincriminating piece of evidence. [Para 6.3][842-G-H; 843-A-B,C-D, F-G]DPrakash v. State of Karnataka (2014) 12 SCC 133;Debapriya Pal v. State of West Bengal (2017) 11 SCC31 : [2017] 1 SCR 566 – relied on.

4. The recovery of the Maruti Van and the broken numberplate was held to be a piece of incriminating evidence againstEaccused No.1 and appellant-accused No. 2 by the trial court. PW-30 had stated in his cross-examination that no public person/independent witness was present at the time of the allegedrecovery. While PW-23 stated that the broken number plate wasallegedly recovered from the garbage dump, PW-30 and PW-32AFstated that it was allegedly recovered from the bushes. Theabsence of any independent witness of the alleged recoveries,and the discrepancy in the statements of the police officers, makesthe prosecution case doubtful. [Para 6.4][844-A-B, E-F]

5. The prosecution relied upon the report tendered by theFinger Print Expert PW-35, to state that the finger impressionsGobtained from appellant-accused No.2 matched with the chanceprints obtained from the scene of crime. The specimen chanceprints of both these accused viz. Accused No. 1 and appellant-accused No. 2 were taken by the I.O. PW-32A, without obtainingany order of a Magistrate whilst the accused were in policeHcustody. [Para 6.5][844-G; 845-C]

6. Thus, in the aforesaid facts and circumstances of the case,the prosecution has failed to make out the complete chain ofcircumstances to establish the guilt of the appellant beyondreasonable doubt. [Para 7][848-E]

Per Ashok Bhushan, J. (concurring)

1.1 The scheme of the Identification of Prisoners Act, 1920indicates that Section 3, Section 4 and Section 5 are separate andindependent provisions pertaining to taking of measurements.Measurement has been defined under Section 2(a) to includefinger impression and footprint impression. In the present case,it is the Police Officer, who have taken fingerprints of the appellantafter he was arrested which is referable to Section 4 of the Act.[Para 8][848-D-E]

1.2 The purpose and object of empowering Police Officerto take fingerprints in an offence punishable with rigorousimprisonment for a term of one year or upwards is for offences oftrivial nature. Where rigorous imprisonment is less than one yearPolice officer is not empowered to take fingerprints. The use ofwords “rigorous imprisonment for a term of one year or upwards”does not negate the punishment of life imprisonment or death.The object of the Section was not to empower the Police Officerto take fingerprints in trivial offences where imprisonment is lessthan one year but the provision cannot be read to mean that PoliceOfficer does not have such power if imprisonment is for life orcapital punishment. The reading of Section 4 in the mannersuggested in Sapan Haldar case will negate the very purpose ofempowerment of Police Officer to take the fingerprints. [Paras26 and 27][855-D-F]

1.3 Non-framing of any rules under Section 8 by the StateGovernment does not prohibit the exercise of powers given underSections 3 and 4 of the Act. Exercise of power under Sections 3and 4 is hedged by conditions as prescribed but in a case whereno rules have been framed, the authorities as empowered underSections 3 and 4 are not denuded of their powers to act underSections 3 and 4. If the interpretation that in absence of rulesframed under Section 8, no power can be exercised under Sections3 and 4 is accepted, the provisions of Sections 3 and 4 shallbecome dead letter, which has never been the intention of thelegislature in enacting the 1920 Act. [Para 48][864-B-C]

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A1.4 The High Court in the impugned judgment has discardedthe chance evidence of palm impression by observing “no ruleshaving been framed in Delhi and procedure as prescribed inSection 5 of Identification of Prisoners and having not beenfollowed, we would thus discard the evidences of palmimpressions”. Whether there were any executive instructionsBregarding taking of fingerprints in State of Delhi or not is an issueon which there is no clear materials. It is not the case of theappellant before any Court that fingerprints were taken indisregard of any executive instructions applicable in the State ofDelhi. Therefore, the view of the High Court that evidence ofCfingerprints of the accused has to be discarded cannot besupported. [Paras 49, 51][864-D-E; 865-A]

V.T. Khanzode and Others v. Reserve Bank of India andAnother (1982) 2 SCC 7 : [1982] 3 SCR 411 – followed.

Surinder Singh v. Central Government & Ors. (1986) 4DSCC 667 : [1986] 3 SCR 946 – relied on.

*Sapan Haldar & Another v. State 191 (2012) DLT225 – disapproved.

Shankaria vs. State of Rajasthan (1978) 3 SCC 435;EMohd. Aman and Another v. State of Rajasthan (1997)10 SCC 44; State of Madhya Pradesh v. Devendra(2009) 14 SCC 80 : [2009] 8 SCR 98; State of UttarPradesh v. Ram Babu Misra (1980) 2 SCC 343:[1980]2 SCR 1067; Mahmood vs. State of U.P. AIR 1976 SC69 : (1976) 1 SCC 542; Thavaraj Pandian & Ors v.FState 2003 Cri. L.J.2642; Prakash v. State of Karnataka(2014) 12 SCC 133 – referred to.

2. Even if, it is accepted that fingerprints of appellant’s,chance print Mark Q5 was identical to the specimen of left palmimpression of appellant-accused No.2, it does not complete theGchain of circumstances unerringly pointing out fingers to theappellant, that it was the appellant who committed the murder.Every circumstance would have to be proved beyond reasonabledoubt and further the chain of circumstances should be socomplete and perfect that the only inference of the guilt of theaccused should emanate therefrom. Thus, even if, above evidenceH

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is not discardable the entire chain of circumstances is notcomplete to unmistakeably point out the guilt to the appellant.The appellant stands acquitted of the charges under Sections 302,392 read with Section 34 of the IPC. [Paras 52, 53 and 54][865-B-F]

Ramesh and Others v. State of Rajasthan (2011) 3 SCC685 : [2011] 4 SCR 585 – relied on.

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Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.958 of 2017.

From the Judgment and Order dated 10-12-2014 of the HighCourt of Delhi in Criminal Appeal Nos.1300 of 2014.

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Harinder Mohan Singh, Ms. Shabana, Ajay Gupta Rishi Chawla,Advs. for the Appellant.

Sandeep Sethi, ASG, P. K. Dey, S. S. Ray, B. V. Balram Das,Advs. for the Respondent.

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AThe Judgment of the Court was delivered by

INDU MALHOTRA, J. 1. The present Criminal Appeal hasbeen filed by the Appellant-Accused No. 2 against the judgment andorder dated 10[th] December 2014 passed by the Delhi High Court inCriminal Appeal No.1300 of 2014. The appellant, along with AccusedBNos. 1 and 3, were convicted for offences punishable under Sections302, 392 read with Section 34 of the IPC by the Sessions Court. TheHigh Court affirmed the sentence awarded to Accused Nos. 1 and 2.The present appeal has been preferred by the Appellant-Accused No.2. Accused No. 1 has apparently not challenged the judgment of theHigh Court, and is serving the sentence awarded.C

1.1 The prosecution case is that on 20[th] October 2009, the PCRreceived information at 11:45 a.m. from some secret informerstating that House No. C-190, Kinner Wali Building, ShaheenBagh, New Delhi, was locked and there was something wronginside. The police opened the main gate with the help of a keyDmaker. On entering the main gate, dried blood was found onthe floor, and on the right side a Maruti car bearing No. 800DL-6CA-3414 was found parked with all four tyres deflated.On the left-hand side, inside the bathroom, the dead body ofMeena Kinner, aged 30 years, was found with injury marks onEthe neck and right arm. On the first floor, the dead body ofone Vimlesh Kinner, aged 45 years, was found on the doublebed. The body of Vimlesh had injury marks on the neck, chest,arm, toe, index finger etc. Articles were found scattered in thehouse. Both the deceased were persons of the third gender.

F1.2 Post-mortem was conducted on the body of Vimlesh by Dr.Sunay M (PW-2) who opined that the cause of death wasshock due to haemmorhage caused by injuries from a sharpweapon. Dr. Susheel Sharma (PW-7) conducted the post-mortem on the body of deceased Meena. The injuries werefound sufficient to cause death in the ordinary course of nature.GThe injuries were caused by a sharp pointed heavy weapon.

1.3 The Investigating Officer (“I.O.”) - Inspector Amrit Raj (PW-32A), got the FIR registered on the statement of Khalil Ahmed(Accused No. 3) who introduced himself as being in therelationship akin to that of a husband and wife with theHdeceased Vimlesh.

Sub-Inspector Naresh Kumar Sharma (PW-8),In-charge of the Fingerprint Bureau, Crime Branch, KamlaMarket visited the spot, and picked up six chance prints.

1.4 On 3[rd] November 2009, at about 8:30 pm on the basis of secretinformation, the police apprehended Sultan @ Rajesh (AccusedNo. 1) who was the driver of the deceased Vimlesh. Sultan @Rajesh (Accused No. 1) allegedly disclosed that Sonvir @Somvir (Appellant-Accused No. 2) a taxi-driver, Khalil Ahmed(Accused No. 3), and “N” (Juvenile) were also involved in theconspiracy with him. As per the prosecution case, Sultan @Rajesh (Accused No. 1) at the time of being apprehended,was allegedly found to be carrying a black bag on his shouldercontaining 15 items of golden jewellery, 2 pairs of payjeb, 6silver coins, Rs. 2,00,000/- in cash, one wrist watch of ICICImake, and two photographs of the deceased Vimlesh.

1.5 Later the same day at night, Sultan @ Rajesh (Accused No.1) led the police to Sonvir @ Somvir (Appellant-Accused No.2), who was staying in a room in the house of Teja Chaudhary.At the time of arrest, Sonvir @ Somvir (Appellant-AccusedNo. 2), was allegedly also carrying a black coloured bagcontaining 15 items of golden jewellery, 2 items of silver, 6silver coins and Rs. 50,000/- in cash. Sonvir @ Somvir(Appellant-Accused No. 2) led the police to his room, andbrought out a blood-stained knife, and a blood-stained shirt,from a bucket.

1.6 It is further alleged that the police apprehended Khalil Ahmed(Accused No. 3) at Hari Nagar who was also allegedly carryinga bag with him. On searching the bag, some golden jewellery,2 wrist watches, and Rs. 3,00,000/- in cash were allegedlyrecovered at about 4.35 a.m. on 4[th] November 2009.

1.7 Khalil Ahmed (Accused No. 3) then led to the arrest of “N”(Juvenile) on 4[th] November 2009. “N” (Juvenile) was sleepingon the floor with a bag under his pillow. On searching the bag,some jewellery items, 1 Nokia 6600 mobile phone and Rs.32,000/- in cash were allegedly recovered.

1.8 On 7[th] November 2009, Sultan @ Rajesh (Accused No. 1)and Sonvir @ Somvir (Appellant-Accused No. 2) led the police A

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Ato Village Bhind, District Morena for the recovery of a Marutivan belonging to Vimlesh. The Maruti van with the brokennumber plate had already been seized by ASI Udai Bhan SinghParmar (PW-23) on 1[st] November 2009 from Gate No. 2 ofthe Punj Llyod Factory at Noorabad. It was handed over tothe I.O. - SI Amrit Raj (PW-32A) on 8[th] November 2009. TheBMaruti van along with the articles in it were seized by the I.O.- SI Amrit Raj (PW-32A). A broken number plate was allegedlyrecovered by the police near Gate No. 2 of the Punj LlyodFactory at Noorabad at the instance of Sultan @ Rajesh(Accused No. 1) and Sonvir @ Somvir (Appellant-AccusedCNo. 2).

1.9 On 12[th] November 2009, Sultan @ Rajesh (Accused No. 1)led the police to the garage of Quarter No.86, Type-II, JalVihar and brought out a polythene bag after digging the earth.The said polythene bag allegedly contained Rs. 40,000/- in cashDand 2 golden chains.

1.10 The I.O - SI Amrit Raj (PW-32A), obtained finger impressionsof two of the accused viz. Sultan @ Rajesh (Accused No. 1)and Sonvir @ Somvir (Accused No. 2) whilst they were inpolice custody.

E1.11 The finger impressions were taken by the I.O. – SI AmritRaj (PW-32A), without obtaining the permission of theMagistrate as per Section 5 of the Identification of PrisonersAct, 1920.

1.12 There is no eye witness of the incident. The case is basedFwholly on circumstantial evidence.

1.13 That since “N” was a juvenile, he was proceeded separatelyby the Juvenile Justice Board.

1.14 The trial proceeded against the three accused viz. Sultan @Rajesh (Accused No. 1), Sonvir @ Somvir (Appellant-AccusedGNo. 2), and Khalil Ahmed (Accused No. 3). Khalil Ahmed(Accused No. 3) stated that he was in a relationship akin tothat of a husband and wife with the deceased Vimlesh. Sultan@ Rajesh (Accused No. 1) was employed as a driver byVimlesh; whilst Sonvir @ Somvir (Accused No. 3) was a taxi H

driver, whose taxi had been engaged by Vimlesh on someoccasion, as per Sonvir @ Somvir’s statement recorded underSection 313 of the Cr.P.C.

2. The Trial Court vide Judgment and Order dated 3[rd] June 2014convicted all the three accused for offences punishable under Sections302 and 392 r.w. Section 34 of the IPC.

2.1 The Trial Court held that most of the injuries were stab wounds/laceration/incised wounds. Apart from this, it was found thatthe articles in the house of the deceased were found scattered,which made it clear that the victims were killed because ofrobbery. The Trial Court notes that none of the accused claimedthe jewellery items/cash allegedly recovered from theirpossession as belonging to the them. The accused submittedthat they had been falsely implicated in the case.

The Trial Court records that it is true that no person from the public was joined at the time of recovery. The recoveries wereallegedly made only in the presence of police officers i.e. PW-21, PW-25, PW-31, PW-34 and PW-36.

2.2 With respect to the present appellant, it is alleged that a blood-stained shirt, and one blood-stained “churra” were recoveredfrom a plastic bucket lying under a dining table of his room inthe house of Teja Chaudhary. As per the Scientific Officer,articles seized from the house of the victim, and the shirts ofthe accused, had the same blood group “B”. It is further allegedthat out of the six chance prints marked Q1-Q6, Q5 wasidentical with the left palm impression of the present appellant.

2.3 The Trial Court holds that the recovery leads to a presumptionthat the accused along with the other accused had committedthe robbery. It is further held that it is not established that whichof the accused had caused the fatal blow, using any dangerousweapon. Similarly, it is not established from the record that theaccused persons had hatched any conspiracy to kill the victims.Hence, no offence punishable under Sections 397 or 120-BIPC is made out.

3. That all the three accused preferred appeals before the HighCourt. The High Court granted benefit of doubt to Khalil Ahmed A

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A(Accused No. 3) on the ground that the recovery of jewellery and cashcannot be taken to be incriminating as a stand-alone evidence. Thatsince Khalil Ahmed (Accused No. 3) has stated that he was in therelationship of husband and wife with the deceased Vimlesh, AccusedNo. 3 could have owned and possessed jewellery and cash.

B3.1 The High Court has recorded, in paragraph 16 of the Judgment,that none of the jewellery items were subjected to a TestIdentification Parade during the investigation. Even in the dock,no witness identified that the jewellery recovered at the instanceof the three accused belonged to the deceased. Further, inparagraph 18 of the Judgment, the High Court holds that theCprosecution had not proved that the jewellery recovered fromthe appellant belonged to the deceased. Hence, the recoveryof jewellery articles cannot be held to be connected with theoffence.

3.2 In paragraph 19 of the Judgment, the High Court has furtherDheld that with respect to the alleged recovery of a knife fromSonvir @ Somvir, on examination by the FSL, no blood groupingcould be given. Furthermore, no opinion was sought from thepost-mortem doctor whether the injuries to the deceased werepossible by the said weapon of offence. In the absence of anyEwitness identifying the weapon of offence used in thecommission of crime, or the opinion of the post-mortem doctorthat the injury was possible by the said knife, or the FSL reportregarding the blood of the deceased being found, the knifecould not be said to be connected with the offence, and cannotbe used as a piece of incriminating evidence against him.F3.3 The High Court dismissed the appeals filed by Sultan @ Rajeshand Sonvir @ Somvir and affirmed the judgment of the TrialCourt on the ground that the prosecution had proved therecovery of blood-stained shirts at their instance, which werefound to be blood-stained with the “blood group” of the deceasedGi.e. “B” group, unaccounted jewellery and cash, recovery ofthe Maruti van, a piece of broken number plate of the saidvan.

4. Aggrieved by the judgment of the High Court, Sonvir @ Somvir(Appellant-Accused No. 2) has filed the present SLP, which was re-Hnumbered as Criminal Appeal No. 958 of 2017.

SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI[INDU MALHOTRA, J.]

Sultan @ Rajesh (Accused No. 1) has apparently not challengedthe judgment of the High Court, and is undergoing the sentence awarded.

5. The legal evidence relied by the prosecution against Sonvir @Somvir (Appellant-Accused No.2) is as follows:

(i) recovery of unaccounted jewellery and cash;

(ii) recovery of the blood-stained knife;

(iii) recovery of blood-stained shirt;

(iv) recovery of abandoned Maruti van and broken number plate;

(v) report of the Forensic Expert stating that the chance printslifted from the scene of crime, matched the finger impressionsobtained from the Appellant whilst he was in police custody.

6. The legal evidence adduced by the prosecution is dealt withseriatim, to determine whether the prosecution has proved the case foroffences punishable under Sections 302, 392 read with Section 34 of theIPC against the present Appellant beyond reasonable doubt.

6.1 ALLEGEDRECOVERYOFUNACCOUNTEDJEWELLERYANDCASH

As per the prosecution case, 15 items of golden jewellery, 2 itemsof silver, 6 silver coins and Rs. 50,000/- in cash were allegedlyrecovered from Sonvir @ Somvir (Appellant-Accused No. 2) atthe time of his arrest on 3[rd] November 2009, which was 16-17days after the date of the occurrence of the offence. The saidjewellery and cash belonged to the deceased Vimlesh. Sonvir @Somvir (Appellant-Accused No. 2) did not claim that the jewelleryand cash belonged to him, and failed to give an explanation in hisstatement recorded under Section 313 of the Cr.P.C., as to howhe was in possession of such a large amount of jewellery andcash.

Sonvir @ Somvir (Appellant-Accused No. 2) in his statementrecorded under Section 313 of the Cr.P.C. stated that the recoverywas planted, and that he had been falsely implicated.

The prosecution alleged that 16-17 days after the date ofoccurrence of the offence, when each of the accused wasapprehended, each of them was found holding bags of jewellery.

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This seems improbable and unnatural. In the case of Sonvir @Somvir (Appellant-Accused No. 2), he was apprehended fromhis room in the house of one Teja Chaudhary.

The brother of deceased - Vimlesh, one Mohd. Ayub (PW-4) hasdenied the suggestion of the learned APP that he was shown thejewellery recovered from the possession of the accused persons,or that he identified the jewellery articles to be belonging toVimlesh. The jewellery articles were not identified to be of thedeceased. In these circumstances, the alleged recovery ofjewellery and cash from Sonvir @ Somvir (Appellant-AccusedNo. 2) could not be taken as a piece of incriminating evidence.

6.2 ALLEGEDRECOVERYOFBLOOD-STAINEDKNIFE

As per the prosecution, a blood-stained knife was also recoveredfrom Sonvir @ Somvir (Appellant-Accused No. 2), at the time ofhis arrest. As per the FSL report (Ex. PW-33/A), while the knifewas found to be stained with human blood, no blood groupingcould be given. The High Court, in paragraph 19 of its judgment,found that in the absence of any witness identifying the weaponof offence used in the commission of crime, or the opinion of thepost-mortem doctors that the injury was possible by the said knife,or the FSL report regarding the blood of the deceased being foundon the said knife, the knife cannot be said to be connected withthe offence. On the basis of the above finding, the High Courtconcluded that the recovery of the knife at the instance of Sonvir@ Somvir (Appellant-Accused No. 2) cannot be used as a pieceof incriminating evidence against him.

As a consequence, the weapon of offence allegedly recoveredfrom Sonvir @ Somvir (Appellant-Accused No. 2) and used inthe commission of the crime, cannot be taken as a piece ofincriminating evidence against him.

6.3 ALLEGEDRECOVERYOFBLOOD-STAINEDSHIRT

As per the prosecution, a blood-stained shirt was recovered atthe instance of Sonvir @ Somvir (Appellant-Accused No. 2) fromhis room in the house of Teja Chaudhary, at the time of his arrest.The blood-stained shirt was sent for analysis to the FSL. As perthe FSL report (Ex. PW-33/A), the shirt allegedly recovered fromSonvir @ Somvir (Appellant-Accused No. 2) was found to be stained with human blood of “B” group, which was the same“blood group” as that of the deceased.

In paragraph 20, the High Court held the recovery of the blood-stained shirt from Sonvir @ Somvir (Appellant-Accused No. 2)to be incriminating against him, since the blood samples takenfrom the bed-sheet at the scene of crime, were also found to beof the same blood group.

It is relevant to note that as per the FSL report (Ex. PW-33/A),both the blood-stained shirt allegedly recovered from Sonvir @Somvir (Appellant-Accused No. 2) and the blood samples takenfrom the bedsheet at the scene of crime were found to be stainedwith human blood of “B” group.

The mere matching of the blood-group of the blood samples takenfrom the bed-sheet at the scene of crime, and the blood-stainedshirt recovered from Sonvir @ Somvir (Appellant-Accused No.2) cannot lead to the conclusion that the appellant had beeninvolved in the commission of the crime.

On this issue, reliance can be placed on two decisions of thisCourt in Prakash v. State of Karnataka [(2014) 12 SCC 133;paragraphs 41 and 45] and Debapriya Pal v. State of West Bengal[(2017) 11 SCC 31; paragraph 8] wherein this Court while decidingcases based on circumstantial evidence had held that merematching of the blood group cannot lead to the conclusion of theculpability of the accused, in the absence of a detailed serologicalcomparison, since millions of people would have the same bloodgroup.

In the present case, the prosecution has not proved that the roomfrom where the blood-stained knife and blood-stained shirt wereallegedly recovered, was in the exclusive possession of theappellant. The prosecution case is that the said room was in thehouse owned by one Teja Chaudhary. The prosection did notexamine the said Teja Chaudhary to prove that the said room wasrented to Sonvir @ Somvir and/or was in the exclusive custody ofthe appellant.

Therefore, the recovery of the blood-stained shirt from Sonvir @Somvir (Appellant-Accused No. 2) cannot be used as anincriminating piece of evidence.

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SUPREME COURT REPORTS

A6.4 ALLEGEDRECOVERYOFTHE MARUTIVANANDTHEBROKENNUMBER

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The prosecution alleged that both Sultan @ Rajesh (Accused No.1) and Sonvir @ Somvir (Appellant-Accused No. 2) disclosedthat they had abandoned the Maruti van belonging to Vimlesh 20kilometers from Gwalior. They were taken to Morena by the I.O.- SI Amrit Raj (PW-32A), on 8[th] November 2009. The Maruti van B

with a broken number plate had, however, already been seized byASI Udai Bhan Singh Parmar (PW-23) as unclaimed on 1[st]November 2009.

Further, both these accused allegedly led the police party nearGate No. 2 of the Punj Lloyd Factory at Noorabad from wherethe Maruti van had already been recovered, and got recoveredthe broken number plate bearing number “86”. The recovery ofthe Maruti Van and the broken number plate was held to be apiece of incriminating evidence against Sultan @ Rajesh (AccusedNo. 1) and Sonvir @ Somvir (Appellant-Accused No. 2) by theTrial Court.

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SI Abhisek Singh (PW-30) had stated in his cross-examinationthat no public person/independent witness was present at the timeof the alleged recovery. It is important to note that while ASIEUdai Bhan Singh Parmar (PW-23) stated that the broken numberplate was allegedly recovered from the garbage dump, SI AbhishekSingh (PW-30) and Inspector Amrit Raj (PW-32A) stated that itwas allegedly recovered from the bushes. The absence of anyindependent witness of the alleged recoveries, and the discrepancyFin the statements of the police officers, makes the prosecutioncase doubtful.

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6.5 FORENSICREPORTREGARDINGMATCHINGFINGERIMPRESSIONS

The prosecution relied upon the report tendered by the SeniorFinger Print Expert of the Fingerprint Bureau, RN Rawat (PW-35), to state that the finger impressions obtained from Sonvir @Somvir matched with the chance prints obtained from the sceneof crime.

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The Trial Court and the High Court considered the six chanceprints lifted from the first floor of the house by SI Naresh Kumar H

Sharma (PW-8), In-charge of the Finger Prints Bureau, CrimeBranch. Chance prints Q1 to Q3 were lifted from the iron box onthe first floor, Q4 from the showcase glass, and Q5 and Q6 fromthe iron safe. The Senior Finger Prints Expert of the FingerprintBureau, RN Rawat (PW-35), vide his reports (Ex. PW-35/A andEx. PW-35/B), opined that the chance print marked Q1 wasidentical to the specimen right palm impression of Sultan @ Rajesh(Accused No. 1), while chance print marked Q5 was identical tothe specimen left palm impression of Sonvir @ Somvir (Appellant-Accused No. 2).

The specimen chance prints of both these accused viz. Rajesh @Sultan (Accused No. 1) and Sonvir @ Somvir (Appellant-AccusedNo. 2) were taken by the I.O. - SI Amrit Raj (PW-32A), withoutobtaining any order of a Magistrate whilst the accused were inpolice custody.

This leads to the issue as to whether the report of the ForensicExpert is admissible in evidence, in light of the provisions of theIdentification of Prisoners Act, 1920 (“the Act”) since no ruleshave been framed prescribed by the Government of NCT of Delhi.

This issue is being dealt with in the separate Judgment by JusticeAshok Bhushan.

7. In the aforesaid facts and circumstances, the prosecution hasfailed to make out the complete chain of circumstances to establish theguilt of the appellant beyond reasonable doubt. As a result, the presentappeal is allowed, and the judgment and order passed by the High Courtdated 10.12.2014 in Criminal Appeal no. 1300 of 2014 is set aside. Theappellant is acquitted of the charges under Sections 302, 392 read withSection 34 of the I.P.C. 1860.

ASHOK BHUSHAN, J. 1. I have gone through the elaboratejudgment prepared by Sister Justice Indu Malhotra.

2. The appellant has been convicted under Sections 302, 392 readwith Section 34 of the IPC by Addl. Sessions Judge-02:South East SaketCourt, New Delhi. The appeal against the conviction has also beendismissed by the Delhi High Court by judgment dated 10.12.2014.Detailed facts of the case including prosecution case and the evidenceon record have been elaborately noted by Sister Justice Indu Malhotra AB

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Ain her judgment. Hence, I feel no necessity to repeat the same. Afterelaborate consideration of entire evidence on record Sister Justice InduMalhotra has come to the conclusion that appeal should be allowed andappellant be acquitted.

Issues

3. I fully agree with the above view of the Sister Justice InduBMalhotra. However, an important question of law pertaining tointerpretation of Sections 4 and 5 of the Identification of Prisoners Act,1920 being involved in the present appeal, I proceed to consider thesame and give my reasons.

4. Now, I proceed to examine the provisions of the IdentificationCof Prisoners Act, 1920.

5. The statement of objects and reasons provides a fair idea ofthe purpose and object for which the Identification of Prisoners Act,1920 (hereinafter referred to as ‘1920 Act’) was enacted. The statementof objects and reasons reads:D“The object of this Bill is to provide legal authority for the takingof measurements, finger impressions, foot-prints and photographsof persons convicted of, or arrested in connection with, certainoffences. The value of the scientific use of finger impressionsand photographs as agents in the detection of crime and theEidentification of criminals is well known, and modern developmentin England and other European countries renders it unnecessaryto enlarge upon the need for the proposed legislation.

The existing system by which the police in India takes fingerimpressions, photographs, etc., of criminals and suspected criminalsis void of legal sanction, except as regards registered members ofFcriminal tribes, in whose case provision exists for the taking offinger impressions in section 9 of the Criminal Tribes Act, 1911(III of 1911). The need for legalizing the practice has long beenrecognised, but it was not thought expedient to take the matter upso long as no practical difficulties arose. Instances have recentlyGbeen reported to the Government of India where prisoners haverefused to allow their finger prints or photographs to be taken.With a view to prevent such refusals in future it is considerednecessary without further delay to place the taking ofmeasurements, etc., which is a normal incident of police work inIndia as elsewhere, on a regular footing. No measurement, etc.,H

of any person will be taken compulsorily unless that person hasbeen arrested.”

6. The above objects and reasons notice that under the existingsystem the Police in India takes finger impressions, photographs etc. ofcriminals and suspected criminals, which is void of legal sanction. Thus,the above mischief was sought to be remedied by the 1920 Act. In lastpart of the statement of objects and reasons the purpose has been clearlymentioned i.e. “with a view to prevent such refusals in future it isconsidered necessary without further delay to place the taking ofmeasurements, etc., which is a normal incident of Police work in Indiaas elsewhere, on a regular footing”.

7. Now, we come to Section 3, 4 and 5 which are relevant for thepresent purpose. Section 3 provides for taking of measurements ofconvicted persons which is as follows:

“3. Taking of measurements etc., of convicted persons.–Every person who has been–

(a) convicted of any offence punishable with rigorous imprisonmentfor a term of one year or upwards, or of any offence which wouldrender him liable to enhanced punishment on a subsequentconviction; or (b) ordered to give security for his good behaviour under section118 of the Code of Criminal Procedure, 1898 (5 of 1898)shall, ifso required, allow his measurements and photograph to be takenby a police officer in the prescribed manner.”

Section 4 deals with taking of measurements of non-convictedpersons which is to the following effect:

“4. Taking of measurements, etc., of non-convictedpersons.– Any person who has been arrested in connection withan offence punishable with rigorous imprisonment for a term ofone year or upwards shall, if so required by a police officer, allowhis measurements to be taken in the prescribed manner.”

Section 5 deals with the power of Magistrate to order a person tobe measured or photographed which is as follows:

“5. Power of Magistrate to order a person to be measuredor photographed.– If a Magistrate is satisfied that, for the A

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Apurposes of any investigation or proceeding under the Code ofCriminal Procedure, 1898, it is expedient to direct any person toallow his measurements or photograph to be taken, he may makean order to that effect, and in that case the person to whom theorder relates shall be produced or shall attend at the time andplace specified in the order and shall allow his measurements orBphotograph to be taken, as the case may be, by a police officer:

Provided that no order shall be made directing any person to bephotographed except by a Magistrate of the First Class:

Provided further, that no order shall be made under this sectionCunless the person has at some time been arrested in connectionwith such investigation or proceeding.”

8. The scheme of the Act indicates that Section 3, Section 4 andSection 5 are separate and independent provisions pertaining to takingof measurements. Measurement has been defined under Section 2(a) toDinclude finger impression and footprint impression. In the present case,it is the Police Officer, who have taken fingerprints of the appellant afterhe was arrested which is referable to Section 4 of the Act.

9. The High Court in paras 22 and 23 of the judgment has dealtwith the chance print. In para 22, High Court has observed that theEspecimen chance print of Sonvir alias Somvir was not taken in thepresence of a Magistrate. In para 23 of the judgment reasons have beengiven for discarding the evidence of palm impression of appellant.Following three reasons are decipherable from the judgment:

a. The Full Bench judgment of the Delhi High Court in SapanFHaldar & Another vs. State 191 (2012) DLT 225 lays downthat only when by way of rules or executive instruction the manneris prescribed to take the measurements then alone an IO underSection 4 of the 1920 Act can obtain the measurements.

b. It would be eminently desirable as per the decision in Mohd.GAman and Anr. vs. State of Rajasthan (1997) 10 SCC 44 tofollow the procedure ordained under Section 5 of 1920 Act.

c. No rules having been framed in Delhi and procedure asprescribed under Section 5 of the 1920 Act having not been followed H

we would discard the evidence of the palm impression of Sonviralias Somvir.

10. Now, we proceed to examine the above reasons.

11. The Full Bench Judgment of the Delhi High Court in SapanHaldar and Another (supra) has been heavily relied by the High Court.The above full Bench was constituted on the subject of admissibility ofsamples, hand writing or signatures obtained from a person accused ofhaving committed an offence during investigation of a crime by the IO.

12. In para 1 of the judgment while noticing the subject matter ofreference, the Full Bench has also noticed an earlier Full Bench judgmentin Bhupinder Singh vs. State, decided on 30.09.2011.

13. Before we proceed further, it is necessary to note the FullBench judgment of the Delhi High Court. In Bhupinder Singh vs.State,(Crl.A.No.1005/2008, decided on 30.09.2011) para 1 of thejudgment notices the question which has been referred for adjudicationby a larger bench. Para 1 of the judgment of Bhupinder Singh (supra)is as follows:

“1. Expressing doubt with regard to the correctness of the decisionsin Harpal Singh v. State (Criminal Appeal No. 362/2008 decidedon 25[th] May, 2010) and Satyawan v. State (Criminal Appeal No.34/2001 decided on 9[th] July, 2009) wherein the two DivisionBenches had ignored the part of the report of the handwritingexpert on the ground that the investigating officer had takenspecimen handwriting in violation of the provisions of theIdentification of Prisoners Act, 1920( for brevity ‘the 1920 Act’),the Division Bench that was hearing the Criminal Appeals No.1005/2008[Bhupender Singh v. The State (Govt. Of NCT of Delhi)]and No. 408/2007 [Drojan Singh v. The State (Govt. Of NCT ofDelhi)], referred the following question to be adjudicated by alarger Bench:

“Whether the sample finger prints given by the accused duringinvestigation under Section 4 of the Identification of PrisonersAct, 1920 without prior permission of the Magistrate under Section5 of the Act will be admissible or not?”

Under these circumstances, the matter has been placed beforeus.”

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A14. Full Bench in Bhupinder Singh’s case after noticing Sections3, 4 and 5 of the 1920 Act and referring to the judgments of this Court inShankaria vs. State of Rajasthan, (1978) 3 SCC 435; Mohd. Amanand Another vs. State of Rajasthan, (1997) 10 SCC 44 and State ofMadhya Pradesh vs. Devendra (2009) 14 SCC 80 as well as Stateof Uttar Pradesh vs. Ram Babu Misra, (1980) 2 SCC 343, approvedBthe view of learned Single Judge in Sunil Kumar @ Sonu vs. State ofNCT of Delhi(Crl.A.No.446 of 2005) case. In para 22 of the judgmentFull Bench held:

“22. Thus understood, in our considered opinion, the viewexpressed in the decisions in Harpal Singh (supra) and SatyawanC(supra) is not the correct view. Therefore, the decisions renderedtherein are hereby overruled. The view expressed in the case ofSunil Kumar (supra) by the learned Single Judge lays down thelaw in correct perspective.”

15. Sunil Kumar’s case which was approved by the Full BenchDhas been noticed in para 10, which is to the following effect:

“10. It is worth noting that a Single Judge of this Court in SunilKumar @ Sonu Vs State of NCT of Delhi, Crl.A. No. 446 of2005 decided on 25.3.2010, without taking note of the DivisionBench decisions, has held thus:

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“26. It is true that the specimen finger print impressions of theappellants were taken by the IO directly and not through theMagistrate as provided in Section 5 of Identification of PrisonersAct. But, that, to my mind was not necessary because Section4 of Identification Prisoners Act specifically provides that anyFperson who has been arrested in connection with an offencepunishable with rigorous imprisonment for a term of one yearor upwards shall, if so required by a police officer, allow hismeasurement to be taken in the prescribed manner. In view ofthe independent powers conferred upon a police officer underGSection 4 of the Act, it was not obligatory for him to approachthe Magistrate under Section 5 of the Act. He would haveapproached the Magistrate, had the appellants refused to giveSpecimen Finger Print Impressions to him. Therefore, noillegality attaches to the specimen finger print impressions takenby the Investigating Officer. The court needs to appreciate G

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that the very nature and characteristic of material such as fingerprints renders it intrinsically and inherently impossible foranyone to fabricate them. If there is an attempt to fabricatefinger prints, that can certainly be exposed by the accused byoffering to allow his finger prints to be taken so that the samecould be compared through the process of the court. Crl.A.No.1005/2008 Page 7 of 15 None of the appellants has comeforward to the court with a request to take his finger printimpressions in the court and get them compared with the chancefinger prints lifted by PW-1 from Car No. DL 2C A 4116 on21st December, 2000.””

16. It is thus clear that issue which was considered by Full Benchof the Delhi High Court in Bhupinder Singh case is the same issuewhich is involved in the present case. But the High Court in the impugnedjudgment without discussing and following the Full Bench judgment ofBhupinder Singh’s case has relied on Sapan Haldar (supra).

17. Now reverting to Sapan Haldar case as noticed above, theissue was with regard to admissibility of sample handwriting or signaturesobtained from a person accused of having committed an offence. TheFull Bench in Sapan Haldar case noticed para 18 of the BhupinderSingh case and in that reference proceeded to examine provisions ofSections 4 and 5 of the 1920 Act.

18. In para 22 of Sapan Haldar case, reliance was placed onjudgment of this Court in Mahmood vs. State of U.P. AIR 1976 SC 69:(1976) 1 SCC 542:

“22. What happens if there is no manner prescribed for aninvestigating officer to take the measurements of a person accusedof having committed an offence? In the decision reported as AIR1976 SC 69 Mahmood vs State of Uttar Pradesh, specimen fingerprint impressions taken by the investigating officer under Section4 of The Identification of Prisoners Act, 1920, in the absence of amanner prescribed for taking the finger print impressions, washeld to be a case of evidence not being admissible with respect tothe finger prints obtained and the opinion of the expert thereon.The Supreme Court held that in said situation Section 5 of TheIdentification of Prisoners Act, 1920 ought to have been followed.”

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19. Para Nos. 26, 28 and 32 of the judgment are relevant whichare extracted as below:

“26. In the decision reported Thavaraj Pandian & Ors. vs. State,the Division Bench of the Madras High Court noted that no Ruleswere framed in the State of Tamil Nadu with respect to the mannerin which an investigating officer could obtain the finger prints of aperson accused of an offence as contemplated by Section 4 ofThe Identification of Prisoners Act, 1920 but noted that there wereexecutive instructions with respect to the manner in which fingerprint impressions could be taken by the investigating officer andtherefore opined that in said circumstance evidence relating tofinger print impressions obtained by the investigating officer wouldbe admissible in evidence; but on facts noted that the saidinstructions were not followed and therefore held the evidence tobe inadmissible.

28. There is yet another argument which needs to be consideredwith respect to Section 4 of The Identification of Prisoners Act,1920. The Section empowers a police officer to take measurementsof a person who has been arrested in connection with an offencepunishable with rigorous imprisonment for a term of one year orupwards. Ex-facie, the Section would have no application wherethe person is suspected of having committed an offence which ispunishable with death or imprisonment for life, as was held by aDivision Bench of the Bombay High Court in the decision reportedas ILR 1983 Bom. 1508 Nizammuddin Usman vs. State ofMaharashtra.

32. Though not falling for consideration in this reference, withrespect to finger prints, which are included in ‘measurements’,the weight of the authorities is that if by way of Rules or Executiveinstructions the manner is prescribed to take the measurements,alone then can an Investigating Officer, under Section 4 obtainthe measurements but strictly as per manner prescribed; but itwould be eminently desirable, as per the decision in Mohd. Aman’scase (supra) to follow the procedure ordained under Section 5 ofThe Identification of Prisoners Act, 1920. Relevant would it be tofurther note that in relation to offences punishable with death orimprisonment for life, Section 4 of The Identification of PrisonersAct, 1920 would not be applicable because the said provision specifies a prerequisite : that the person concerned is accused ofhaving committed an offence which is punishable with a sentenceto undergo rigorous imprisonment for a term of one year or upwardsi.e. the sentence must relate to imprisonment for a term and wouldthus exclude such offences where either capital punishment orimprisonment for life is the sentence contemplated.”

20. It is relevant to note that in para 32 Full Bench in SapanHaldar has itself noticed that issue regarding fingerprint does not fallfor the consideration in the reference. However, the Full Bench proceededto discuss the law on fingerprints when the issue did not directly fall forconsideration in the reference. We fail to see the necessity to lay downany law with regard to Sections 4 and 5 in Sapan Haldar’s case whenreference was with regard to admissibility of sample handwriting obtainedfrom a person accused of having committed an offence duringinvestigation of crime.

21. We, however, in spite of the above proceed to examine theobservations made by Full Bench in Sapan Haldar (supra) in contextof Section 4. Judgment of this Court in Mahmood vs. State of U.P.(supra) was relied. Full Bench in Sapan Haldar read the judgment ofthis Court in Mahmood vs. State of U.P. as laying down that “in theabsence of a manner prescribed for taking the fingerprints impressionswas held to be a case of evidence not being admissible with respect tofingerprints obtained and the opinion of expert thereon”. The perusal ofthe judgment of this Court in Mahmood case (supra) indicates thatthere was complaint by the accused that his fingerprints were forciblytaken by the Police on some round object which has been noticed inpara 10 of the judgment. This Court noticed that specimen finger printsof the appellant were not taken before or under the order of Magistratewhich was held suspicious feature on the conduct of the investigation. Itwas further held that even if it is assumed that only a gandasa borefingerprints of the appellant then also it would not be inexorably andunmistakenly lead to the conclusion that the appellant and none-elsewas the murderer. Following was held in para Nos. 16, 18 and 19:

“16. Furthermore, the specimen fingerprints of the appellant werenot taken before or under the order of a Magistrate in accordancewith Section 5 of the Identification of Prisoners Act. This is anothersuspicious feature of the conduct of investigation. It has not beenexplained why this Magistrate was kept out of the picture.

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A18. Secondly, even if it is assumed that the handle of this gandasabore the fingerprints of the appellant, then also it would notinexorably and unmistakably lead to the conclusion that theappellant, and none else was the murderer of Dwarka, unless itwas firmly proved further that the fatal injury to the deceasedwas caused with this weapon. Definite proof of this link was lackingBin this case. The missing link could be best supplied by showingthat there was blood on this gandasa, and that blood was of humanorigin. But this was not done.

19. Lastly, it may be observed that Inspector Daryao Singh, PW15, has not given any reasons in support of his opinion. Nor has itCbeen shown that he has acquired special skill, knowledge andexperience in the science of identification of fingerprints. It wouldbe highly unsafe to convict one on a capital charge without anyindependent corroboration, solely on the bald and dogmatic opinionof such a person, even if such opinion is assumed to be admissibleDunder Section 45 Evidence Act.”

22. In the above background this Court held that the solitary pieceof circumstantial evidence on which prosecution have staked their claimis too shaky, suspicious and fragile to furnish a sound foundation forconviction, as held in para 20:E“20.

“20. In the light of the above discussion, we are of the view thatthe solitary piece of circumstantial evidence on which theprosecution have staked their case, is too shaky, suspicious andfragile to furnish a sound foundation for conviction.”

23. The above judgment cannot be read as a precedent layingFdown that in the absence of a manner prescribed for taking of fingersimpressions, the evidence is not admissible. We are of the view thatobservations made by Full Bench in Sapan Haldar case in para 22 arenot supportable from the judgment of this Court in Mahmood vs. Stateof U.P.G24. Now, we come to para 26 of the judgment of Sapan Haldarcase where Delhi High Court notices the Madras High Court judgmentin Thavaraj Pandian & Ors vs. State, 2003 Cri. L.J.2642 whereMadras High court has held that no rule has been framed in the State ofTamil Nadu with respect to manner in which an IO can obtain the fingerprints of a person accused of an offence, but noted that therewere executive instructions with respect to manner in which fingerprintsimpression could be taken. The Madras High Court has not relied on thefingerprints impressions having noted that executive instructions fortaking of fingerprints were not followed. Thus, judgment of the MadrasHigh Court was on its own facts.

25. Now, we come to another reason. In para 28 of the judgmentof Sapan Haldar (supra), Full Bench of the Delhi High Court has heldthat Section 4 of the 1920 Act is not applicable where a person issuspected of having committed an offence which is punishable with deathor imprisonment of life. Section 4 of the Act provides with regard to aperson who has been arrested in connection with an offence punishablewith rigorous imprisonment for a term of one year or upwards. WhatDelhi High Court seems to suggest is that Section 4 is not applicablewhen a person is suspected of committing an offence which is punishablewith death or imprisonment of life.

26. The purpose and object of empowering Police Officer to takefingerprints in an offence punishable with rigorous imprisonment for aterm of one year or upwards is; for offences of trivial nature whererigorous imprisonment is less than one year Police officer is notempowered to take fingerprints. The use of words “rigorous imprisonmentfor a term of one year or upwards” does not negate the punishment oflife imprisonment or death.

27. The object of the Section was not to empower the PoliceOfficer to take fingerprints in trivial offences where imprisonment isless than one year but the provision cannot be read to mean that PoliceOfficer does not have such power if imprisonment is for life or capitalpunishment. The reading of Section 4 in the manner suggested by FullBench will negate the very purpose of empowerment of Police Officerto take the fingerprints.

28. Now, we come to para 32 of the judgment where Delhi HighCourt has held that the weight of the authorities is that if by way ofRules or executive instructions, the manner is prescribed to take themeasurements, alone then can an IO under Section 4 obtain themeasurements, but strictly, as per the manner prescribed. In para 32 ofthe Sapan Halder (supra), the judgment of the Mohd. Aman’s casehas also been referred to:

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A“32. Though not falling for consideration in this reference, withrespect to finger prints, which are included in „measurements ,the weight of the authorities is that if by way of Rules or Executiveinstructions the manner is prescribed to take the measurements,alone then can an Investigating Officer, under Section 4 obtainthe measurements but strictly as per manner prescribed; but itBwould be eminently desirable, as per the decision in Mohd. Amans case (supra) to follow the procedure ordained under Section 5of The Identification of Prisoners Act, 1920.”

29. It is necessary to refer to the judgment of Mohd. Aman (supra)relied by the Delhi High Court. In the Mohd. Aman case, the fingerprintsCwere taken on several occasions, in para 7 the facts have been noticedwhich are to the following effect:

“7. As noticed earlier the only incriminating circumstance on thebasis of which the High Court upheld the conviction of Mohd.Aman is that his fingerprints were found on a brass jug in theDhouse of the deceased. From the evidence adduced in proof ofthe above circumstance it appears that the brass jug, togetherwith other articles, was seized, packeted and sealed on 14-4-1983and forwarded to the Fingerprint Bureau after five days — on19-4-1983 to be precise — through Constable Mohd. SadiqueE(PW 4) along with a letter written by the investigating officer(copy of which was marked as Ext. P-59). On the following day,that is, 20-4-1983 the Bureau sent the articles back after takingphotographs of the chance prints found on the jug and three otherarticles (out of the sixteen sent) with a corresponding letter (Ext.P-60). After Mohd. Aman was arrested on 20-4-1983 his specimenFfingerprints were taken by H.C. Ramji Ram (PW 24) andforwarded to the Bureau on 24-5-1983. As the prints were notclear, the same were returned by the Bureau asking for betterprints. Specimen fingerprints were thereafter again taken on 20-6-1983 and sent to the Bureau. These prints were also sent backGand for the third time prints of Mohd. Aman were taken and sentto the Bureau on 30-6-1983. Thereafter the Bureau gave its report(Ext. 115) with the opinion that the chance fingerprints found onthe brass jug were similar to and identical with his specimenfingerprints.”

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30. This Court observed that the prosecution has failed to establishthat the seized articles were not or could not be tempered with before itreached the Bureau for examination. Further following was stated inpara 8:

“8....Apart from the above missing link and the suspiciouscircumstances surrounding the same, there is another circumstancewhich also casts a serious mistrust as to genuineness of theevidence. Even though the specimen fingerprints of Mohd. Amanhad to be taken on a number of occasions at the behest of theBureau, they were never taken before or under the order of aMagistrate in accordance with Section 5 of the Identification ofPrisoners Act. It is true that under Section 4 thereof police iscompetent to take fingerprints of the accusedbut to dispel anysuspicion as to its bona fides or to eliminate the possibility offabrication of evidence it was eminently desirable that they weretaken before or under the order of a Magistrate.....”

(underlined by us)

31. The above observation although clearly mentions that underSection 4 Police officer is competent to take fingerprints of the accusedbut to dispel as to its bona fide or to eliminate the fabrication of evidenceit was eminently desirable that they were taken before or under theorder of magistrate.

32. The observation cannot be read to mean that this Court heldthat under Section 4 Police Officer are not entitled to take fingerprintsuntil the order is taken from the Magistrate. The observations weremade that it is desirable to take the fingerprints before or under theorder of the Magistrate to dispel any suspicion. Especially, the suspicionswhich were caused in the above case which is clear from the factsnoticed in para Nos. 7 and 8. Observations of this Court in Mohd.Aman’s case was in the facts of that case and cannot be read to meanthat Police Officer cannot obtain fingerprints without obtaining an orderfrom Magistrate under Section 5.

33. In this context, it is useful to note another judgment of thisCourt in Prakash vs. State of Karnataka, (2014) 12 SCC 133 wheretwo-Judge Bench of this Court relying on Mohd. Aman (supra) hasgiven following observations in para 28:

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A“28. Assuming Prakash’s fingerprint was in fact obtained byD’Souza, it was clearly not given voluntarily, but perhaps unwittinglyand in what seems to be a deceitful manner. To avoid any suspicionregarding the genuineness of the fingerprint so taken or resort toany subterfuge, the appropriate course of action for the investigatingofficer was to approach the Magistrate for necessary orders inBaccordance with Section 5 of the Identification of Prisoners Act,1920. In Mohd. Aman v. State of Rajasthan this Court referredto the possibility of the police fabricating evidence and to avoid anallegation of such a nature, it would be eminently desirable thatfingerprints were taken under the orders of a Magistrate. WeCmay add that this would equally apply to the creating evidenceagainst a suspect. This is what this Court had to say: (SCC p. 49,para 8)

“8. … Even though the specimen fingerprints of Mohd. Amanhad to be taken on a number of occasions at the behest of theDBureau, they were never taken before or under the order of aMagistrate in accordance with Section 5 of the Identificationof Prisoners Act. It is true that under Section 4 thereof policeis competent to take fingerprints of the accused but to dispelany suspicion as to its bona fides or to eliminate the possibilityof fabrication of evidence it was eminently desirable that theyEwere taken before or under the order of a Magistrate.””

34. This Court in above case repeated and reiterated theobservations of the Mohd. Aman case, which we have already discussedabove.F35. It is necessary to refer to a Three Judge Bench judgment of F35. It is necessary to refer to a Three Judge Bench judgment ofthis Court in Shankaria vs. State of Rajasthan (supra). This Court inthe above case had occasion to notice Section 4 and Section 5 of the1920 Act where submission was raised before this Court that specimenof thumb impression of the appellant having not been obtained beforethe magistrate they cannot be relied. The argument was repelled by thisGcourt and following was laid down in paras 83 and 84:

“83. Mr Gambhir next contends that in view of Section 5 of theIdentification of Prisoners Act, it was incumbent on the police toobtain the specimen thumb-impressions of the appellant before aMagistrate, and since this was not done, the opinion rendered by the Finger Print Expert, Mr. Tankha, by using those illegally obtainedspecimen finger-impressions, must be ruled out of evidence.

84. The contention appears to be misconceived because in theState of Rajasthan, the Police were competent under Section 4 ofthe Identification of Prisoners Act, to take the specimen fingerprintsof the accused, and this they did, in the instant case, before theSuperintendent of Police, Shri K.P. Srivastava. It was notnecessary for them to obtain an order from the Magistrate forobtaining such specimen fingerprints.”

36. The three Judge Bench clearly held that it was not necessaryfor the Police officer to obtain an order from a Magistrate for obtainingspecimen of fingerprints. Law laid down by three-Judge Bench judgmentis thus clearly applicable in the present case.

37. One of the reasons given by Full Bench of Delhi High Courtin Sapan Haldar case was that there being no rules or executiveinstructions prescribing a manner of taking of fingerprints, Police Officercannot exercise the power under Section 4. We need to dwell this aspectlittle more. The word prescribed has been defined under Section 2(c) as“prescribed means prescribed by rules made under this Act”. Section 8empowers the State Government to make rules for the purpose ofcarrying into effect the provisions of the Act. Section 8 is as follows:

“8. Power to make rules.—(1) The State Government may, 1[bynotification in the Official Gazette,] make rules for the purpose ofcarrying into effect the provisions of this Act.—(1) The StateGovernment may, 1[by notification in the Official Gazette,] makerules for the purpose of carrying into effect the provisions of thisAct.”

(2) In particular and without prejudice to the generality of theforegoing provision, such rules may provide for—

(a) restrictions on the taking of photographs of persons undersection 5; (b) the places at which measurements and photographs may betaken;

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A(e) the dress to be worn by a person when being photographedunder section 3; and (f) the preservation, safe custody, destruction and disposal ofrecords of measurements and photographs.

[(3) Every rule made under this section shall be laid, as soon asBmay be after it is made, before State Legislature.]”

38. Whether the power of the Police Officer under Section 4cannot be exercised till the State make rules under Section 8? Theappellant supporting the judgment of the Delhi High Court contends thatsince Section 4 uses the words “allow his measurement to be taken inCthe prescribed manner”, unless there is a prescribed manner by the rulesfingerprints cannot be taken. The power of the State given under Section8 to frame rules is an enabling power. The word used under Section 8 is,the State Government “may”. Can it mean that till the rules are framedby the State, power under Sections 3 and 4 cannot be exercised? TheDpower given to the Police Officer to ask a person arrested to give hismeasurements is a substantive power. This power is hedged by thecondition that such measurement has “to be taken in the prescribedmanner” if there is any prescribed manner that cannot be breached bysuch Police Officer. Taking of the measurements in the prescribed manneris a procedural part of the Section which does not affect the substantiveEpower of the Police Officer to ask an accused who is under arrest togive his measurement.

39. In event, it is held that unless the rules are framed underSection 8 power under Section 4 cannot be exercised that will not be inconsonance with the very purpose and object for which Section 4 hasFbeen enacted. The submission of the appellant further is that when thereis no rule framed providing prescribed manner for taking fingerprints,resort to Section 5 has to be taken by IO. Section 5 is a separate powergiven to Magistrate. The power of the Magistrate is an additional andseparate power to secure ends of justice for purpose of investigationGand proceedings under Code of Criminal Procedure. It may be exercisedeven in a case where after arrest Police Officer has not taken fingerprintsof an accused. But, it cannot be held that power under Section 4 can beexercised by the Police Officer only after obtaining an order underSection 5.

40. One more aspect needs to be looked into. Section 3 alsoprovides for taking of measurements of convicted person. Section 3 alsouses the phrase “allow the measurement and photographed be taken byPolice Officer in the prescribed manner”. Now, if the phrase “prescribedmanner” has to be read as existence of a rule providing for a prescribedmanner of taking of evidence, in absence of rule no fingerprints can betaken under Section 3 also of a convicted person, it is relevant to notethat Section 5 can also not be resorted in Section 3. Since Section 5 canonly be resorted for the purposes of any investigation or proceedingunder the Code of Criminal Procedure 1898. After a conviction of anaccused Section 5 is inapplicable then if the interpretation placed byappellant is accepted, even for convicted persons, it would not bepermissible to ask measurement unless the rules are framed.

41. In this context, we may like to refer the judgment of ConstitutionBench of this court in V.T. Khanzode and Others vs. Reserve Bank ofIndia and Another (1982) 2 SCC 7. In the above case, this Court hadoccasion to consider the Reserve Bank of India Act, 1934, Section 58sub section (2). Section 58 was power of the Central Board for makingregulations. Section 58(1) and (2) has been referred in para 13 of thejudgment which is to the following effect:

“13. Turning to the first question, Section 58(1) of the ReserveBank of India Act, 1934 provides that:

“The Central Board may, with the previous sanction of theCentral Government, make regulations consistent with this Actto provide for all matters for which provision is necessary orconvenient for the purpose of giving effect to the provisions ofthis Act.”

Sub-section (2) of Section 58 provides that in particular andwithout prejudice to the generality of the foregoing provision,such regulations may provide for all or any of the mattersmentioned in the various clauses of that sub-section. Clause(j) refers to “the constitution and management of staff andsuperannuation funds for the officers and servants of the Bank”,while clause (r) refers to the subject: “generally, for the efficientconduct of the business of the Bank”....”

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A42. This Court on Section 58(1) had observed that the powergiven to Central Board was an enabling power which is clear from theuse of word “may”. Following was observed in para 18 marked portion:

“18.....On that argument, it is material to note that Section 58(1)is in the nature of an enabling provision under which the CentralBBoard “may” make regulations in order to provide for all mattersfor which it is necessary or convenient to make provision for thepurpose of giving effect to the provisions of the Act. This provisiondoes not justify the argument that staff regulations must be framedunder it or not at all. The substance of the matter is that the CentralBoard has the power to frame regulations relating to the conditionsCof service of the Bank’s staff. If it has that power, it may exerciseit either in accordance with Section 58(1) or by acting appropriatelyin the exercise of its general power of administration andsuperintendence.”

43. The Constitution Bench also held that in absence of regulationDunder 58(1), the Central Board could have issued administrative circularsand there was no prohibition in regulating service conditions byadministrative circulars.44. The above view of ours find support from the judgment ofthis Court reported in (1986) 4 SCC 667, Surinder Singh Vs. CentralEGovernment & Ors. In the above case, this Court had occasion toconsider the provisions of Displaced Persons (Compensation andRehabilitation) Act, 1954. Section 8 of the Act lays down that a displacedperson shall be paid compensation as determined under Section 7 “subjectto the rules that may be made under this Act”. Section 40 confersFpower on the Central Government to frame rules to carry out the purposeof the Act. Clause (j) of sub-section (2) of Section 40 provides for framingof rules laying down procedure for transfer of property out of thecompensation pool and the manner of realisation of the sale proceeds.The Central Government had not framed rules regulating the disposal bysale or otherwise of urban agricultural land forming part of theGcompensation pool.

45. The authority constituted under the Act disposed of urbanagricultural property by auction sale. The High Court had held thatdisposal of property forming part of the compensation pool was “subject”to the rules framed as contemplated by Sections 8 and 40 of the Act andH

since no rules had been framed by the Central Government with regardto the disposal of the urban agricultural property forming part of thecompensation pool, the authority constituted under the Act had nojurisdiction to dispose of urban agricultural property by auction-sale.

46. This Court reversing the above opinion of the High Court heldthat where a statute confers powers on an authority to do certain acts orexercise power in respect of certain matters, subject to rules, the exerciseof power conferred by the statute does not depend on the existence ofrules unless the statute expressly provides for the same. In Para 6,following has been laid down:-

6........... In our opinion the view taken by the High Court isincorrect. Where a statute confers powers on an authority to docertain acts or exercise power in respect of certain matters, subjectto rules, the exercise of power conferred by the statute does notdepend on the existence of rules unless the statute expresslyprovides for the same. In other words framing of the rules is notcondition precedent to the exercise of the power expressly andunconditionally conferred by the statute. The expression “subjectto the rules” only means, in accordance with the rules, if any. Ifrules are framed, the powers so conferred on authority could beexercised in accordance with these rules. But if no rules are framedthere is no void and the authority is not precluded from exercisingthe power conferred by the statute....................”

47. This Court further held that framing of the rules regulating themode or manner of disposal of urban agricultural property by sale to adisplaced person is not a condition precedent for the exercise of powerby the authorities concerned under Sections 8, 16 and 20 of the Act.Following was laid down in Paragraph 7:- “7. ...........Framing of rules regulating the mode or manner ofdisposal of urban agricultural property by sale to a displaced personis not a condition precedent for the exercise of power by theauthorities concerned under Sections 8, 16 and 20 of the Act. Ifthe legislative intent was that until and unless rules were framedpower conferred on the authority under Sections 8, 16 and 20could not be exercised, that intent could have been made clear byusing the expression “except in accordance with the rules framed”a displaced person shall not be paid compensation by sale of pool A

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Aproperty. In the absence of any such provision the framing ofrules, could not be a condition precedent for the exercise of power.”

48. What has been laid down above is fully attracted in the factsof the present case. Non-framing of any rules under Section 8 by theState Government does not prohibit the exercise of powers given underBSections 3 and 4 of the Act. Exercise of power under Sections 3 and 4is hedged by conditions as prescribed but in a case where no rules havebeen framed, the authorities as empowered under Sections 3 and 4 arenot denuded of their powers to act under Sections 3 and 4. In a case,the interpretation put by the learned counsel for the appellant that inabsence of rules framed under Section 8, no power can be exercisedCunder Sections 3 and 4 is accepted, the provisions of Sections 3 and 4shall become dead letter, which has never been the intention of thelegislature in enacting the 1920 Act.

49. It is relevant to note that the Delhi High Court in para 23 ofthe impugned judgment has discarded the chance evidence of palmDimpression by observing “no rules having been framed in Delhi andprocedure as prescribed in Section 5 of Identification of Prisoners andhaving not been followed, we would thus discard the evidences of palmimpressions”. Whether there were any executive instructions regardingtaking of fingerprints in State of Delhi or not is an issue on which thereEis no clear materials. It is not the case of the appellant before any Courtthat fingerprints were taken in disregard of any executive instructionsapplicable in the State of Delhi.

50. Learned counsel for the respondent referring to the evidenceof PW32 where he made a statement regarding taking of fingerprints ofFthe accused, contended that there was no cross-examination by thedefence on this aspect. It is useful to extract following portion of thewritten submissions of the respondent:

“In this regard, the deposition of PW 32 at pg 173(bottom) isrelevant, “During police custody remand of accused, I took fingerGprint of accused Rajesh@Sultan and sonvir@Somvir. The sameas well as the chance print picked up by SI Naresh Kumar weresent to the Fingerprint Bureau, Malviyanagar, for their comparison.My application in this regard is Ex PW32/N.” There is no crossexamination by the defence on this aspect.”

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51. In view of the foregoing discussion we are of the opinion thatview of the Delhi High Court that evidence of fingerprints of the accusedhas to be discarded cannot be supported for the reasons given in theimpugned judgment of the Delhi High Court.

52. Even if, we accept that fingerprints of appellant’s, chanceprint Mark Q5 (taken from iron safe) was identical to the specimen ofleft palm impression of Sonvir, it does not complete the chain ofcircumstances unerringly pointing out fingers to the appellant, that it wasthe appellant who committed the murder. Law of conviction based oncircumstantial evidences is well settled. It is sufficient to refer to thejudgment of this Court in Ramesh and Others vs. State of Rajasthan,(2011) 3 SCC 685 where in para 17 following has been held:

“17. Before we proceed with the matter, it has to be borne inmind that this case depends upon circumstantial evidence and, assuch, as per the settled law, every circumstance would have to beproved beyond reasonable doubt and further the chain ofcircumstances should be so complete and perfect that the onlyinference of the guilt of the accused should emanate therefrom.At the same time, there should be no possibility whatsoever of thedefence version being true.”

53. Thus, even if, above evidence is not discardable the entirechain of circumstances is not complete to unmistakeably point out theguilt to the appellant.

54. In result, the appeal is allowed. The appellant stands acquittedof the charges under Sections 302, 392 read with Section 34 of the IPC.The appellant is directed to be released forthwith, if not required in anyother case.

Kalpana K. Tripathy

Appeal allowed.

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