Tuesday, 3 July 2018

Whether police can obtain specimen fingerprint of accused without order of magistrate?




  The three Judge Bench clearly held that it was not
necessary for the Police officer to obtain an order
from a Magistrate for obtaining specimen of
fingerprints. Law laid down by three-Judge Bench
judgment is thus clearly applicable in the present
case. {Para 16}

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 958 OF 2017

SONVIR @ SOMVIR Vs THE STATE OF NCT OF DELHI ... 
ASHOK BHUSHAN, J.
Dated: JULY 02, 2018



I have gone through the elaborate judgment prepared
by Sister Justice Indu Malhotra.
2. The appellant has been convicted under Sections
302, 392 read with Section 34 of the IPC by Addl.
Sessions Judge-02:South East Saket Court, New Delhi.
The appeal against the conviction has also been
dismissed by the Delhi High Court by judgment dated
10.12.2014. Detailed facts of the case including2
prosecution case and the evidence on record have been
elaborately noted by Sister Justice Indu Malhotra in
her judgment. Hence, I feel no necessity to repeat the
same. After elaborate consideration of entire evidence
on record Sister Justice Indu Malhotra has come to the
conclusion that appeal should be allowed and appellant
be acquitted.
3. I fully agree with the above view of the Sister
Justice Indu Malhotra. However, an important question
of law pertaining to interpretation of Sections 4 and 5
of the Identification of Prisoners Act, 1920 being
involved in the present appeal, I proceed to consider
the same and give my reasons.
4. Now, I proceed to examine the provisions of the
Identification of Prisoners Act, 1920.
5. The statement of objects and reasons provides a
fair idea of the purpose and object for which the
Identification of Prisoners Act, 1920 (hereinafter3
referred to as ‘1920 Act’) was enacted. The statement
of objects and reasons reads:
“The object of this Bill is to provide legal
authority for the taking of measurements,
finger impressions, foot-prints and
photographs of persons convicted of, or
arrested in connection with, certain
offences. The value of the scientific use of
finger impressions and photographs as agents
in the detection of crime and the
identification of criminals is well known,
and modern development in England and other
European countries renders it unnecessary to
enlarge upon the need for the proposed
legislation.
The existing system by which the police in
India takes finger impressions, photographs,
etc., of criminals and suspected criminals
is void of legal sanction, except as regards
registered members of criminal tribes, in
whose case provision exists for the taking
of finger impressions in section 9 of the
Criminal Tribes Act, 1911 (III of 1911). The
need for legalizing the practice has long
been recognised, but it was not thought
expedient to take the matter up so long as
no practical difficulties arose. Instances
have recently been reported to the
Government of India where prisoners have
refused to allow their finger prints or
photographs to be taken. With a view to
prevent such refusals in future it is
considered necessary without further delay
to place the taking of measurements, etc.,
which is a normal incident of police work in4
India as elsewhere, on a regular footing. No
measurement, etc., of any person will be
taken compulsorily unless that person has
been arrested.”
6. The above objects and reasons notice that under the
existing system the Police in India takes finger
impressions, photographs etc. of criminals and
suspected criminals, which is void of legal sanction.
Thus, the above mischief was sought to be remedied by
the 1920 Act. In last part of the statement of objects
and reasons the purpose has been clearly mentioned i.e.
“with a view to prevent such refusals in future it is
considered necessary without further delay to place the
taking of measurements, etc., which is a normal
incident of Police work in India as elsewhere, on a
regular footing”.
7. Now, we come to Section 3, 4 and 5 which are
relevant for the present purpose. Section 3 provides
for taking of measurements of convicted persons which
is as follows:
“3. Taking of measurements etc., of
convicted persons.– Every person who has
been– 5
(a) convicted of any offence punishable with
rigorous imprisonment for a term of one year
or upwards, or of any offence which would
render him liable to enhanced punishment on
a subsequent conviction; or
(b) ordered to give security for his good
behaviour under section 118 of the Code of
Criminal Procedure, 1898 (5 of 1898)shall,
if so required, allow his measurements and
photograph to be taken by a police officer
in the prescribed manner.”
Section 4 deals with taking of measurements of nonconvicted
persons which is to the following effect:
“4. Taking of measurements, etc., of nonconvicted
persons.– Any person who has been
arrested in connection with an offence
punishable with rigorous imprisonment for a
term of one year or upwards shall, if so
required by a police officer, allow his
measurements to be taken in the prescribed
manner.”
Section 5 deals with the power of Magistrate to
order a person to be measured or photographed which is
as follows:
“5. Power of Magistrate to order a person to
be measured or photographed.– If a
Magistrate is satisfied that, for the
purposes of any investigation or proceeding
under the Code of Criminal Procedure, 1898,6
it is expedient to direct any person to
allow his measurements or photograph to be
taken, he may make an order to that effect,
and in that case the person to whom the
order relates shall be produced or shall
attend at the time and place specified in
the order and shall allow his measurements
or photograph to be taken, as the case may
be, by a police officer:
Provided that no order shall be made
directing any person to be photographed
except by a Magistrate of the First Class:
Provided further, that no order shall be
made under this section unless the person
has at some time been arrested in connection
with such investigation or proceeding.”
8. The scheme of the Act indicates that Section 3,
Section 4 and Section 5 are separate and independent
provisions pertaining to taking of measurements.
Measurement has been defined under Section 2(a) to
include finger impression and footprint impression. In
the present case, it is the Police Officer, who have
taken fingerprints of the appellant after he was
arrested which is referable to Section 4 of the Act.
9. The High Court in paras 22 and 23 of the judgment
has dealt with the chance print. In para 22, High Court7
has observed that the specimen chance print of Sonvir
alias Somvir was not taken in the presence of a
Magistrate. In para 23 of the judgment reasons have
been given for discarding the evidence of palm
impression of appellant. Following three reasons are
decipherable from the judgment:
i. The Full Bench judgment of the Delhi
High Court in Sapan Haldar & Another vs.
State 191 (2012) DLT 225 lays down that only
when by way of rules or executive
instruction the manner is prescribed to take
the measurements then alone an IO under
Section 4 of the 1920 Act can obtain the
measurements.
ii. It would be eminently desirable as per
the decision in Mohd. Aman and Anr. vs.
State of Rajasthan (1997) 10 SCC 44 to
follow the procedure ordained under Section
5 of 1920 Act.
iii. No rules having been framed in Delhi
and procedure as prescribed under Section 5
of the 1920 Act having not been followed we
would discard the evidence of the palm
impression of Sonvir alias Somvir.
10. Now, we proceed to examine the above reasons.
11. The Full Bench Judgment of the Delhi High Court in
Sapan Haldar and Another (supra) has been heavily8
relied by the High Court. The above full Bench was
constituted on the subject of admissibility of samples,
hand writing or signatures obtained from a person
accused of having committed an offence during
investigation of a crime by the IO.
12. In para 1 of the judgment while noticing the
subject matter of reference, the Full Bench has also
noticed an earlier Full Bench judgment in Bhupinder
Singh vs. State, decided on 30.09.2011.
13. Before we proceed further, it is necessary to note
the Full Bench judgment of the Delhi High Court. In
Bhupinder Singh vs. State,(Crl.A.No.1005/2008, decided
on 30.09.2011) para 1 of the judgment notices the
question which has been referred for adjudication by 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 decisions in Harpal Singh
v. State (Criminal Appeal No. 362/2008
decided on 25th May, 2010) and Satyawan v.
State (Criminal Appeal No. 34/2001 decided on
9
th July, 2009) wherein the two Division
Benches had ignored the part of the report of
the handwriting expert on the ground that the
investigating officer had taken specimen
handwriting in violation of the provisions of
the Identification 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 of Delhi)], referred the following
question to be adjudicated by a larger Bench:
“Whether the sample finger prints given by
the accused during investigation under
Section 4 of the Identification of Prisoners
Act, 1920 without prior permission of the
Magistrate under Section 5 of the Act will be
admissible or not?”
Under these circumstances, the matter has
been placed before us.”
14. Full Bench in Bhupinder Singh’s case after noticing
Sections 3, 4 and 5 of the 1920 Act and referring to
the judgments of this Court in Shankaria vs. State of
Rajasthan, (1978) 3 SCC 435; Mohd. Aman and Another vs.
State of Rajasthan, (1997) 10 SCC 44 and State of
Madhya Pradesh vs. Devendra (2009) 14 SCC 80 as well as
State of Uttar Pradesh vs. Ram Babu Misra, (1980) 2 SCC
343, approved the view of learned Single Judge in Sunil10
Kumar @ Sonu vs. State of NCT of Delhi(Crl.A.No.446 of
2005) case. In para 22 of the judgment Full Bench held:
“22. Thus understood, in our considered
opinion, the view expressed in the decisions
in Harpal Singh (supra) and Satyawan (supra)
is not the correct view. Therefore, the
decisions rendered therein are hereby
overruled. The view expressed in the case of
Sunil Kumar (supra) by the learned Single
Judge lays down the law in correct
perspective.”
15. Sunil Kumar’s case which was approved by the Full
Bench has been noticed in para 10, which is to the
following effect:
“10. It is worth noting that a Single Judge
of this Court in Sunil Kumar @ Sonu Vs State
of NCT of Delhi, Crl.A. No. 446 of 2005
decided on 25.3.2010, without taking note of
the Division Bench decisions, has held thus:
 “26. It is true that the specimen
finger print impressions of the
appellants were taken by the IO
directly and not through the
Magistrate as provided in Section 5
of Identification of Prisoners Act.
But, that, to my mind was not
necessary because Section 4 of
Identification Prisoners Act
specifically provides that any person
who has been arrested in connection
with an offence punishable with11
rigorous imprisonment for a term of
one year or upwards shall, if so
required by a police officer, allow
his measurement to be taken in the
prescribed manner. In view of the
independent powers conferred upon a
police officer under Section 4 of the
Act, it was not obligatory for him to
approach the Magistrate under Section
5 of the Act. He would have
approached the Magistrate, had the
appellants refused to give Specimen
Finger Print Impressions to him.
Therefore, no illegality attaches to
the specimen finger print impressions
taken by the Investigating Officer.
The court needs to appreciate that
the very nature and characteristic of
material such as finger prints
renders it intrinsically and
inherently impossible for anyone to
fabricate them. If there is an
attempt to fabricate finger prints,
that can certainly be exposed by the
accused by offering to allow his
finger prints to be taken so that the
same could be compared through the
process of the court. Crl.A.
No.1005/2008 Page 7 of 15 None of the
appellants has come forward to the
court with a request to take his
finger print impressions in the court
and get them compared with the chance
finger prints lifted by PW-1 from Car
No. DL 2C A 4116 on 21st December,
2000.””12
16. It is thus clear that issue which was considered by
Full Bench of the Delhi High Court in Bhupinder Singh
case is the same issue which is involved in the present
case. But the High Court in the impugned judgment
without discussing and following the Full Bench
judgment of Bhupinder Singh’s case has relied on Sapan
Haldar (supra).
17. Now reverting to Sapan Haldar case as noticed
above, the issue was with regard to admissibility of
sample handwriting or signatures obtained from a person
accused of having committed an offence. The Full Bench
in Sapan Haldar case noticed para 18 of the Bhupinder
Singh case and in that reference proceeded to examine
provisions of Sections 4 and 5 of the 1920 Act.
18. In para 22 of Sapan Haldar case, reliance was
placed on judgment 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 an investigating officer to
take the measurements of a person accused
of having committed an offence? In the
decision reported as AIR 1976 SC 69 Mahmood13
vs State of Uttar Pradesh, specimen finger
print impressions taken by the
investigating officer under Section 4 of
The Identification of Prisoners Act, 1920,
in the absence of a manner prescribed for
taking the finger print impressions, was
held to be a case of evidence not being
admissible with respect to the finger
prints obtained and the opinion of the
expert thereon. The Supreme Court held that
in said situation Section 5 of The
Identification of Prisoners Act, 1920 ought
to have been followed.”
19. Para Nos. 26, 28 and 32 of the judgment are
relevant which are extracted as below:
“26. In the decision reported Thavaraj
Pandian & Ors. vs. State, the Division Bench
of the Madras High Court noted that no Rules
were framed in the State of Tamil Nadu with
respect to the manner in which an
investigating officer could obtain the
finger prints of a person accused of an
offence as contemplated by Section 4 of The
Identification of Prisoners Act, 1920 but
noted that there were executive instructions
with respect to the manner in which finger
print impressions could be taken by the
investigating officer and therefore opined
that in said circumstance evidence relating
to finger print impressions obtained by the
investigating officer would be admissible in
evidence; but on facts noted that the said
instructions were not followed and therefore
held the evidence to be inadmissible.14
28. There is yet another argument which
needs to be considered with respect to
Section 4 of The Identification of Prisoners
Act, 1920. The Section empowers a police
officer to take measurements of a person who
has been arrested in connection with an
offence punishable with rigorous
imprisonment for a term of one year or
upwards. Ex-facie, the Section would have no
application where the person is suspected of
having committed an offence which is
punishable with death or imprisonment for
life, as was held by a Division Bench of the
Bombay High Court in the decision reported
as ILR 1983 Bom. 1508 Nizammuddin Usman vs.
State of Maharashtra.
32. Though not falling for consideration in
this reference, with respect to finger
prints, which are included in
'measurements', the weight of the
authorities is that if by way of Rules or
Executive instructions the manner is
prescribed to take the measurements, alone
then can an Investigating Officer, under
Section 4 obtain the measurements but
strictly as per manner prescribed; but it
would be eminently desirable, as per the
decision in Mohd. Aman's case (supra) to
follow the procedure ordained under Section
5 of The Identification of Prisoners Act,
1920. Relevant would it be to further note
that in relation to offences punishable with
death or imprisonment for life, Section 4 of
The Identification of Prisoners Act, 1920
would not be applicable because the said
provision specifies a prerequisite : that
the person concerned is accused of having15
committed an offence which is punishable
with a sentence to undergo rigorous
imprisonment for a term of one year or
upwards i.e. the sentence must relate to
imprisonment for a term and would thus
exclude such offences where either capital
punishment or imprisonment for life is the
sentence contemplated.”
20. It is relevant to note that in para 32 Full Bench
in Sapan Haldar has itself noticed that issue regarding
fingerprint does not fall for the consideration in the
reference. However, the Full Bench proceeded to discuss
the law on fingerprints when the issue did not directly
fall for consideration in the reference. We fail to
see the necessity to lay down any law with regard to
Sections 4 and 5 in Sapan Haldar’s case when reference
was with regard to admissibility of sample handwriting
obtained from a person accused of having committed an
offence during investigation of crime.
21. We, however, in spite of the above proceed to
examine the observations made by Full Bench in Sapan
Haldar (supra) in context of Section 4. Judgment of
this Court in Mahmood vs. State of U.P. (supra) was16
relied. Full Bench in Sapan Haldar read the judgment of
this Court in Mahmood vs. State of U.P. as laying down
that “in the absence of a manner prescribed for taking
the fingerprints impressions was held to be a case of
evidence not being admissible with respect to
fingerprints obtained and the opinion of expert
thereon”. The perusal of the judgment of this Court in
Mahmood case (supra) indicates that there was complaint
by the accused that his fingerprints were forcibly
taken by the Police on some round object which has been
noticed in para 10 of the judgment. This Court noticed
that specimen finger prints of the appellant were not
taken before or under the order of Magistrate which was
held suspicious feature on the conduct of the
investigation. It was further held that even if it is
assumed that only a gandasa bore fingerprints of the
appellant then also it would not be inexorably and
unmistakenly lead to the conclusion that the appellant
and none-else was the murderer. Following was held in
para Nos. 16, 18 and 19:
“16. Furthermore, the specimen fingerprints
of the appellant were not taken before or
under the order of a Magistrate in17
accordance with Section 5 of the
Identification of Prisoners Act. This is
another suspicious feature of the conduct of
investigation. It has not been explained why
this Magistrate was kept out of the picture.
18. Secondly, even if it is assumed that the
handle of this gandasa bore the fingerprints
of the appellant, then also it would not
inexorably and unmistakably lead to the
conclusion that the appellant, and none else
was the murderer of Dwarka, unless it was
firmly proved further that the fatal injury
to the deceased was caused with this weapon.
Definite proof of this link was lacking in
this case. The missing link could be best
supplied by showing that there was blood on
this gandasa, and that blood was of human
origin. But this was not done.
19. Lastly, it may be observed that
Inspector Daryao Singh, PW 15, has not given
any reasons in support of his opinion. Nor
has it been shown that he has acquired
special skill, knowledge and experience in
the science of identification of
fingerprints. It would be highly unsafe to
convict one on a capital charge without any
independent corroboration, solely on the
bald and dogmatic opinion of such a person,
even if such opinion is assumed to be
admissible under Section 45 Evidence Act.”
22. In the above background this Court held that the
solitary piece of circumstantial evidence on which
prosecution have staked their claim is too shaky,
suspicious and fragile to furnish a sound foundation
for conviction, as held in para 20:18
“20. In the light of the above discussion,
we are of the view that the solitary piece
of circumstantial evidence on which the
prosecution have staked their case, is too
shaky, suspicious and fragile to furnish a
sound foundation for conviction.”
23. The above judgment cannot be read as a precedent
laying down that in the absence of a manner prescribed
for taking of fingers impressions, the evidence is not
admissible. We are of the view that observations made
by Full Bench in Sapan Haldar case in para 22 are not
supportable from the judgment of this Court in Mahmood
vs. State of U.P.
24. Now, we come to para 26 of the judgment of Sapan
Haldar case where Delhi High Court notices the Madras
High Court judgment in Thavaraj Pandian & Ors vs.
State, 2003 Cri. L.J.2642 where Madras High court has
held that no rule has been framed in the State of Tamil
Nadu with respect to manner in which an IO can obtain
the fingerprints of a person accused of an offence, but
noted that there were executive instructions with
respect to manner in which fingerprints impression
could be taken. The Madras High Court has not relied on19
the fingerprints impressions having noted that
executive instructions for taking of fingerprints were
not followed. Thus, judgment of the Madras High Court
was on its own facts.
25. Now, we come to another reason. In para 28 of the
judgment of Sapan Haldar (supra), Full Bench of the
Delhi High Court has held that Section 4 of the 1920 Act
is not applicable where a person is suspected of having
committed an offence which is punishable with death or
imprisonment of life. Section 4 of the Act provides with
regard to a person who has been arrested in connection
with an offence punishable with rigorous imprisonment
for a term of one year or upwards. What Delhi High Court
seems to suggest is that Section 4 is not applicable
when a person is suspected of committing an offence
which is punishable with death or imprisonment of life.
26. The purpose and object of empowering Police Officer
to take fingerprints in an offence punishable with
rigorous imprisonment for a term of one year or upwards
is; for offences of trivial nature where rigorous20
imprisonment is less than one year Police officer is
not empowered to take fingerprints. The use of words
“rigorous imprisonment for a term of one year or
upwards” does not negate the punishment of life
imprisonment or death.
27. The object of the Section was not to empower the
Police Officer to take fingerprints in trivial offences
where imprisonment is less than one year but the
provision cannot be read to mean that Police Officer
does not have such power if imprisonment is for life or
capital punishment. The reading of Section 4 in the
manner suggested by Full Bench will negate the very
purpose of empowerment of Police Officer to take the
fingerprints.
28. Now, we come to para 32 of the judgment where Delhi
High Court has held that the weight of the authorities
is that if by way of Rules or executive instructions,
the manner is prescribed to take the measurements,
alone then can an IO under Section 4 obtain the
measurements, but strictly, as per the manner21
prescribed. In para 32 of the Sapan Halder (supra), the
judgment of the Mohd. Aman’s case has also been
referred to:
“32. Though not falling for consideration in
this reference, with respect to finger
prints, which are included in
„measurements , the weight of the ‟
authorities is that if by way of Rules or
Executive instructions the manner is
prescribed to take the measurements, alone
then can an Investigating Officer, under
Section 4 obtain the measurements but
strictly as per manner prescribed; but it
would be eminently desirable, as per the
decision in Mohd. Aman s case (supra) to ‟
follow the procedure ordained under Section
5 of 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 fingerprints were taken on several
occasions, in para 7 the facts have been noticed which
are to the following effect:
“7. As noticed earlier the only
incriminating circumstance on the basis of
which the High Court upheld the conviction
of Mohd. Aman is that his fingerprints were
found on a brass jug in the house of the
deceased. From the evidence adduced in proof
of the above circumstance it appears that
the brass jug, together with other articles,
was seized, packeted and sealed on 14-4-1983
and forwarded to the Fingerprint Bureau
after five days — on 19-4-1983 to be precise22
— through Constable Mohd. Sadique (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 taking photographs of
the chance prints found on the jug and three
other articles (out of the sixteen sent)
with a corresponding letter (Ext. P-60).
After Mohd. Aman was arrested on 20-4-1983
his specimen fingerprints were taken by H.C.
Ramji Ram (PW 24) and forwarded to the
Bureau on 24-5-1983. As the prints were not
clear, the same were returned by the Bureau
asking for better prints. Specimen
fingerprints were thereafter again taken on
20-6-1983 and sent to the Bureau. These
prints were also sent back and for the third
time prints of Mohd. Aman were taken and
sent to the Bureau on 30-6-1983. Thereafter
the Bureau gave its report (Ext. 115) with
the opinion that the chance fingerprints
found on the brass jug were similar to and
identical with his specimen fingerprints.”
30. This Court observed that the prosecution has failed
to establish that the seized articles were not or could
not be tempered with before it reached the Bureau for
examination. Further following was stated in para 8:
“8....Apart from the above missing link and
the suspicious circumstances surrounding the
same, there is another circumstance which
also casts a serious mistrust as to
genuineness of the evidence. Even though the
specimen fingerprints of Mohd. Aman had to
be taken on a number of occasions at the
behest of the Bureau, they were never taken
before or under the order of a Magistrate in23
accordance with Section 5 of the
Identification of Prisoners Act. It is true
that under Section 4 thereof police is
competent to take fingerprints of the
accused but to dispel any suspicion as to
its bona fides or to eliminate the
possibility of fabrication of evidence it
was eminently desirable that they were taken
before or under the order of a
Magistrate.....“
(underlined by us)
31. The above observation although clearly mentions
that under Section 4 Police officer is competent to
take fingerprints of the accused but to dispel as to
its bona fide or to eliminate the fabrication of
evidence it was eminently desirable that they were
taken before or under the order of magistrate.
32. The observation cannot be read to mean that this
Court held that under Section 4 Police Officer are not
entitled to take fingerprints until the order is taken
from the Magistrate. The observations were made that
it is desirable to take the fingerprints before or
under the order of the Magistrate to dispel any
suspicion. Especially, the suspicions which were caused
in the above case which is clear from the facts noticed
in para Nos. 7 and 8. Observations of this Court in24
Mohd. Aman’s case was in the facts of that case and
cannot be read to mean that Police Officer cannot
obtain fingerprints without obtaining an order from
Magistrate under Section 5.
33. In this context, it is useful to note another
judgment of this Court in Prakash vs. State of
Karnataka, (2014) 12 SCC 133 where two-Judge Bench of
this Court relying on Mohd. Aman (supra) has given
following observations in para 28:
“28. Assuming Prakash’s fingerprint was in
fact obtained by D’Souza, it was clearly not
given voluntarily, but perhaps unwittingly
and in what seems to be a deceitful manner.
To avoid any suspicion regarding the
genuineness of the fingerprint so taken or
resort to any subterfuge, the appropriate
course of action for the investigating
officer was to approach the Magistrate for
necessary orders in accordance with Section
5 of the Identification of Prisoners Act,
1920. In Mohd. Aman v. State of Rajasthan
this Court referred to the possibility of
the police fabricating evidence and to avoid
an allegation of such a nature, it would be
eminently desirable that fingerprints were
taken under the orders of a Magistrate. We
may add that this would equally apply to the
creating evidence against a suspect. This is
what this Court had to say: (SCC p. 49, para
8)25
“8. … Even though the specimen
fingerprints of Mohd. Aman had to be
taken on a number of occasions at the
behest of the Bureau, they were never
taken before or under the order of a
Magistrate in accordance with Section
5 of the Identification of Prisoners
Act. It is true that under Section 4
thereof police is competent to take
fingerprints of the accused but to
dispel any suspicion as to its bona
fides or to eliminate the possibility
of fabrication of evidence it was
eminently desirable that they were
taken before or under the order of a
Magistrate.””
34. This Court in above case repeated and reiterated
the observations of the Mohd. Aman case, which we have
already discussed above.
35. It is necessary to refer to a Three Judge Bench
judgment of this Court in Shankaria vs. State of
Rajasthan (supra). This Court in the above case had
occasion to notice Section 4 and Section 5 of the 1920
Act where submission was raised before this Court that
specimen of thumb impression of the appellant having
not been obtained before the magistrate they cannot be
relied. The argument was repelled by this court and
following was laid down in paras 83 and 84: 26
“83. Mr Gambhir next contends that in view
of Section 5 of the Identification of
Prisoners Act, it was incumbent on the
police to obtain the specimen thumbimpressions
of the appellant before a
Magistrate, and since this was not done, the
opinion rendered by the Finger Print Expert,
Mr. Tankha, by using those illegally
obtained specimen finger-impressions, must
be ruled out of evidence.
84. The contention appears to be
misconceived because in the State of
Rajasthan, the Police were competent under
Section 4 of the Identification of Prisoners
Act, to take the specimen fingerprints of
the accused, and this they 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
the Magistrate for obtaining such specimen
fingerprints.”
36. The three Judge Bench clearly held that it was not
necessary for the Police officer to obtain an order
from a Magistrate for obtaining specimen of
fingerprints. Law laid down by three-Judge Bench
judgment is thus clearly applicable in the present
case.
37. One of the reasons given by Full Bench of Delhi
High Court in Sapan Haldar case was that there being no27
rules or executive instructions prescribing a manner of
taking of fingerprints, Police Officer cannot exercise
the power under Section 4. We need to dwell this aspect
little more. The word prescribed has been defined under
Section 2(c) as “prescribed means prescribed by rules
made under this Act”. Section 8 empowers the State
Government to make rules for the purpose of carrying
into effect the provisions of the Act. Section 8 is as
follows:
“8. Power to make rules.—(1) The State
Government may, 1[by notification in the
Official Gazette,] make rules for the
purpose of carrying into effect the
provisions of this Act.—(1) The State
Government may, 1[by notification in the
Official Gazette,] make rules for the
purpose of carrying into effect the
provisions of this Act."
(2) In particular and without prejudice to
the generality of the foregoing provision,
such rules may provide for—
(a) restrictions on the taking of
photographs of persons under section 5;
(b) the places at which measurements and
photographs may be taken;
(c) the nature of the measurements that may
be taken;
(d) the method in which any class or classes
of measurements shall be taken;
(e) the dress to be worn by a person when
being photographed under section 3; and28
(f) the preservation, safe custody,
destruction and disposal of records of
measurements and photographs.
[(3) Every rule made under this section
shall be laid, as soon as may be after it is
made, before State Legislature.]”
38. Whether the power of the Police Officer under
Section 4 cannot be exercised till the State make rules
under Section 8? The appellant supporting the judgment
of the Delhi High Court contends that since Section 4
uses the words “allow his measurement to be taken in
the prescribed manner”, unless there is a prescribed
manner by the rules fingerprints cannot be taken. The
power of the State given under Section 8 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 framed by the State, power under Sections 3
and 4 cannot be exercised? The power given to the
Police Officer to ask a person arrested to give his
measurements is a substantive power. This power is
hedged by the condition that such measurement has “to
be taken in the prescribed manner” if there is any
prescribed manner that cannot be breached by such
Police Officer. Taking of the measurements in the29
prescribed manner is a procedural part of the Section
which does not affect the substantive power of the
Police Officer to ask an accused who is under arrest to
give his measurement.
39. In event, it is held that unless the rules are
framed under Section 8 power under Section 4 cannot be
exercised that will not be in consonance with the very
purpose and object for which Section 4 has been
enacted. The submission of the appellant further is
that when there is no rule framed providing prescribed
manner for taking fingerprints, resort to Section 5 has
to be taken by IO. Section 5 is a separate power given
to Magistrate. The power of the Magistrate is an
additional and separate power to secure ends of justice
for purpose of investigation and proceedings under Code
of Criminal Procedure. It may be exercised even in a
case where after arrest Police Officer has not taken
fingerprints of an accused. But, it cannot be held that
power under Section 4 can be exercised by the Police
Officer only after obtaining an order under Section 5.30
40. One more aspect needs to be looked into. Section 3
also provides for taking of measurements of convicted
person. Section 3 also uses the phrase “allow the
measurement and photographed be taken by Police Officer
in the prescribed manner”. Now, if the phrase
“prescribed manner” has to be read as existence of a
rule providing for a prescribed manner of taking of
evidence, in absence of rule no fingerprints can be
taken under Section 3 also of a convicted person, it is
relevant to note that Section 5 can also not be
resorted in Section 3. Since Section 5 can only be
resorted for the purposes of any investigation or
proceeding under the Code of Criminal Procedure 1898.
After a conviction of an accused Section 5 is
inapplicable then if the interpretation placed by
appellant is accepted, even for convicted persons, it
would not be permissible to ask measurement unless the
rules are framed.
41. In this context, we may like to refer the judgment
of Constitution Bench of this court in V.T. Khanzode
and Others vs. Reserve Bank of India and Another (1982)31
2 SCC 7. In the above case, this Court had occasion to
consider the Reserve Bank of India Act, 1934, Section
58 sub section (2). Section 58 was power of the
Central Board for making regulations. Section 58(1)
and (2) has been referred in para 13 of the judgment
which is to the following effect:
“13. Turning to the first question, Section
58(1) of the Reserve Bank of India Act, 1934
provides that:
“The Central Board may, with the
previous sanction of the Central
Government, make regulations
consistent with this Act to provide
for all matters for which provision
is necessary or convenient for the
purpose of giving effect to the
provisions of this Act.”
Sub-section (2) of Section 58
provides that in particular and
without prejudice to the generality
of the foregoing provision, such
regulations may provide for all or
any of the matters mentioned in the
various clauses of that sub-section.
Clause (j) refers to “the
constitution and management of staff
and superannuation funds for the
officers and servants of the Bank”,
while clause (r) refers to the
subject: “generally, for the
efficient conduct of the business of
the Bank”....”32
42. This Court on Section 58(1) had observed that the
power given to Central Board was an enabling power
which is clear from the use 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
Central Board “may” make regulations in
order to provide for all matters for which
it is necessary or convenient to make
provision for the purpose of giving effect
to the provisions of the Act. This provision
does not justify the argument that staff
regulations must be framed under it or not
at all. The substance of the matter is that
the Central Board has the power to frame
regulations relating to the conditions of
service of the Bank’s staff. If it has that
power, it may exercise it either in
accordance with Section 58(1) or by acting
appropriately in the exercise of its general
power of administration and
superintendence.“
43. The Constitution Bench also held that in absence
of regulation under 58(1), the Central Board could
have issued administrative circulars and there was no
prohibition in regulating service conditions by
administrative circulars.
44. The above view of ours find support from the
judgment of this Court reported in (1986) 4 SCC 667,33
Surinder Singh Vs. Central Government & Ors. In the
above case, this Court had occasion to consider the
provisions of Displaced Persons (Compensation and
Rehabilitation) Act, 1954. Section 8 of the Act lays
down that a displaced person shall be paid compensation
as determined under Section 7 “subject to the rules
that may be made under this Act”. Section 40 confers
power on the Central Government to frame rules to carry
out the purpose of the Act. Clause (j) of sub-section
(2) of Section 40 provides for framing of rules laying
down procedure for transfer of property out of the
compensation pool and the manner of realisation of the
sale proceeds. The Central Government had not framed
rules regulating the disposal by sale or otherwise of
urban agricultural land forming part of the
compensation pool.
45. The authority constituted under the Act disposed
of urban agricultural property by auction sale. The
High Court had held that disposal of property forming
part of the compensation pool was “subject” to the
rules framed as contemplated by Sections 8 and 40 of34
the Act and since no rules had been framed by the
Central Government with regard to the disposal of the
urban agricultural property forming part of the
compensation pool, the authority constituted under the
Act had no jurisdiction to dispose of urban
agricultural property by auction-sale.
46. This Court reversing the above opinion of the High
Court held that where a statute confers powers on an
authority to do certain acts or exercise power in
respect of certain matters, subject to rules, the
exercise of power conferred by the statute does not
depend on the existence of rules 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 is incorrect. Where a
statute confers powers on an authority to do
certain acts or exercise power in respect of
certain matters, subject to rules, the
exercise of power conferred by the statute
does not depend on the existence of rules
unless the statute expressly provides for
the same. In other words framing of the
rules is not condition precedent to the
exercise of the power expressly and
unconditionally conferred by the statute.35
The expression “subject to the rules” only
means, in accordance with the rules, if any.
If rules are framed, the powers so conferred
on authority could be exercised in
accordance with these rules. But if no rules
are framed there is no void and the
authority is not precluded from exercising
the power conferred by the
statute....................”
47. This Court further held that framing of the rules
regulating the mode or manner of disposal of urban
agricultural property by sale to a displaced person is
not a condition precedent for the exercise of power by
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 of disposal of urban
agricultural property by sale to a
displaced person is not a condition
precedent for the exercise of power by the
authorities concerned under Sections 8, 16
and 20 of the Act. If the legislative
intent was that until and unless rules
were framed power conferred on the
authority under Sections 8, 16 and 20
could not be exercised, that intent could
have been made clear by using the
expression “except in accordance with the
rules framed” a displaced person shall not
be paid compensation by sale of pool
property. In the absence of any such
provision the framing of rules, could not
be a condition precedent for the exercise
of power.”36
48. What has been laid down above is fully attracted in
the facts of the present case. Non-framing of any
rules under Section 8 by the State Government does not
prohibit the exercise of powers given under Sections 3
and 4 of the Act. Exercise of power under Sections 3
and 4 is hedged by conditions as prescribed but in a
case where no rules have been framed, the authorities
as empowered under Sections 3 and 4 are not 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 in absence of rules framed under Section
8, no power can be exercised under Sections 3 and 4 is
accepted, the provisions of Sections 3 and 4 shall
become dead letter, which has never been the intention
of the legislature in enacting the 1920 Act.
49. It is relevant to note that the Delhi High Court
in para 23 of the impugned judgment has discarded the
chance evidence of palm impression by observing “no
rules having been framed in Delhi and procedure as
prescribed in Section 5 of Identification of Prisoners37
and having not been followed, we would thus discard
the evidences of palm impressions”. Whether there were
any executive instructions regarding taking of
fingerprints in State of Delhi or not is an issue on
which there is no clear materials. It is not the case
of the appellant before any Court that fingerprints
were taken in disregard of any executive instructions
applicable in the State of Delhi.
50. Learned counsel for the respondent referring to the
evidence of PW32 where he made a statement regarding
taking of fingerprints of the accused, contended that
there was no cross-examination by the defence on this
aspect. It is useful to extract following portion of
the written submissions of the respondent:
“In this regard, the deposition of PW 32 at
pg 173(bottom) is relevant, “During police
custody remand of accused, I took finger
print of accused Rajesh@Sultan and
sonvir@Somvir. The same as well as the
chance print picked up by SI Naresh Kumar
were sent to the Fingerprint Bureau,
Malviyanagar, for their comparison. My
application in this regard is Ex PW32/N.”
There is no cross examination by the defence
on this aspect.”38
51. In view of the foregoing discussion we are of the
opinion that view of the Delhi High Court that evidence
of fingerprints of the accused has to be discarded
cannot be supported for the reasons given in the
impugned judgment of the Delhi High Court.
52. Even if, we accept that fingerprints of
appellant’s, chance print Mark Q5 (taken from iron
safe) was identical to the specimen of left palm
impression of Sonvir, it does not complete the chain of
circumstances unerringly pointing out fingers to the
appellant, that it was the appellant who committed the
murder. Law of conviction based on circumstantial
evidences is well settled. It is sufficient to refer to
the judgment 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 in mind that this case
depends upon circumstantial evidence and, as
such, as per the settled law, every
circumstance would have to be proved beyond
reasonable doubt and further the chain of
circumstances should be so complete and
perfect that the only inference of the guilt
of the accused should emanate therefrom. At
the same time, there should be no39
possibility whatsoever of the defence
version being true.”
53. Thus, even if, above evidence is not discardable
the entire chain of circumstances is not complete to
unmistakeably point out the guilt to the appellant.
54. In result, the appeal is allowed. The appellant
stands acquitted of 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
any other case.
........................J.
 (ASHOK BHUSHAN)
New Delhi,
July 02, 2018. 40
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 958 OF 2017
SONVIR @ SOMVIR APPELLANT
VERSUS
THE STATE OF NCT OF DELHI RESPONDENT
J U D G M E N T
INDU MALHOTRA, J.
1. The present Criminal Appeal has been filed by the Appellant-Accused No. 2
against the judgment and order dated 10th December 2014 passed by the Delhi
High Court in Criminal Appeal No.1300 of 2014. The appellant, along with
Accused Nos. 1 and 3, were convicted for offences punishable under Sections
302, 392 read with Section 34 of the IPC by the Sessions Court. The High 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 the High Court, and is serving the sentence
awarded.
 1.1 The prosecution case is that on 20th October 2009, the PCR received
information at 11:45 a.m. from some secret informer stating that House No. C-41
190, Kinner Wali Building, Shaheen Bagh, New Delhi, was locked and there
was something wrong inside. The police opened the main gate with the help of
a key maker. On entering the main gate, dried blood was found on the floor,
and on the right side a Maruti car bearing No. 800 DL-6CA-3414 was found
parked with all four tyres deflated. On the left-hand side, inside the bathroom,
the dead body of Meena Kinner, aged 30 years, was found with injury marks
on the neck and right arm. On the first floor, the dead body of one Vimlesh
Kinner, aged 45 years, was found on the double bed. The body of Vimlesh had
injury marks on the neck, chest, arm, toe, index finger etc. Articles were found
scattered in the house. Both the deceased were persons of the third gender.
 1.2 Post-mortem was conducted on the body of Vimlesh by Dr. Sunay M (PW-2)
who opined that the cause of death was shock due to haemmorhage caused by
injuries from a sharp weapon. Dr. Susheel Sharma (PW-7) conducted the postmortem
on the body of deceased Meena. The injuries were found sufficient to
cause death in the ordinary course of nature. The 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 the relationship akin to that of a husband and
wife with the deceased Vimlesh.
Sub-Inspector Naresh Kumar Sharma (PW-8), In-charge of the Fingerprint
Bureau, Crime Branch, Kamla Market visited the spot, and picked up six
chance prints.
 1.4 On 3rd November 2009, at about 8:30 pm on the basis of secret information,
the police apprehended Sultan @ Rajesh (Accused No. 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 the
conspiracy with him. As per the prosecution case, Sultan @ Rajesh (Accused
No. 1) at the time of being apprehended, was allegedly found to be carrying a42
black bag on his shoulder containing 15 items of golden jewellery, 2 pairs of
payjeb, 6 silver coins, Rs. 2,00,000/- in cash, one wrist watch of ICICI make,
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-Accused No. 2), was allegedly also carrying a black coloured bag
containing 15 items of golden jewellery, 2 items of silver, 6 silver coins and
Rs. 50,000/- in cash. Sonvir @ Somvir (Appellant-Accused No. 2) led the
police to his room, and brought 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 carrying a bag with him. On
searching the bag, some golden jewellery, 2 wrist watches, and Rs. 3,00,000/-
in cash were allegedly recovered at about 4.35 a.m. on 4th November 2009.
 1.7 Khalil Ahmed (Accused No. 3) then led to the arrest of “N” (Juvenile) on 4th
November 2009. “N” (Juvenile) was sleeping on 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 7th November 2009, Sultan @ Rajesh (Accused No. 1) and Sonvir @
Somvir (Appellant-Accused No. 2) led the police to Village Bhind, District
Morena for the recovery of a Maruti van belonging to Vimlesh. The Maruti
van with the broken number plate had already been seized by ASI Udai Bhan
Singh Parmar (PW-23) on 1st November 2009 from Gate No. 2 of the Punj
Llyod Factory at Noorabad. It was handed over to the I.O. - SI Amrit Raj (PW-
32A) on 8th November 2009. The Maruti van along with the articles in it were
seized by the I.O. - SI Amrit Raj (PW-32A). A broken number plate was
allegedly recovered by the police near Gate No. 2 of the Punj Llyod Factory at
Noorabad at the instance of Sultan @ Rajesh (Accused No. 1) and Sonvir @
Somvir (Appellant-Accused No. 2).43
 1.9 On 12th November 2009, Sultan @ Rajesh (Accused No. 1) led the police to
the garage of Quarter No.86, Type-II, Jal Vihar and brought out a polythene
bag after digging the earth. The said polythene bag allegedly contained Rs.
40,000/- in cash and 2 golden chains.
 1.10 The I.O - SI Amrit Raj (PW-32A), obtained finger impressions of two of
the accused viz. Sultan @ Rajesh (Accused No. 1) and Sonvir @ Somvir
(Accused No. 2) whilst they were in police custody.
 1.11 The finger impressions were taken by the I.O. – SI Amrit Raj (PW-32A),
without obtaining the permission of the Magistrate as per Section 5 of the
Identification of Prisoners Act, 1920.
 1.12 There is no eye witness of the incident. The case is based wholly on
circumstantial evidence.
 1.13 That since “N” was a juvenile, he was proceeded separately by the Juvenile
Justice Board.
 1.14 The trial proceeded against the three accused viz. Sultan @ Rajesh
(Accused No. 1), Sonvir @ Somvir (Appellant-Accused No. 2), and Khalil
Ahmed (Accused No. 3). Khalil Ahmed (Accused No. 3) stated that he was in
a relationship akin to that of a husband and wife with the deceased Vimlesh.
Sultan @ Rajesh (Accused No. 1) was employed as a driver by Vimlesh;
whilst Sonvir @ Somvir (Accused No. 3) was a taxi driver, whose taxi had
been engaged by Vimlesh on some occasion, as per Sonvir @ Somvir’s
statement recorded under Section 313 of the Cr.P.C.
 2 The Trial Court vide Judgment and Order dated 3rd June 2014 convicted all the
three accused for offences punishable under Sections 302 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 that the
articles in the house of the deceased were found scattered, which made it clear44
that the victims were killed because of robbery. The Trial Court notes that
none of the accused claimed the jewellery items/cash allegedly recovered from
their possession as belonging to the them. The accused submitted that 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 were allegedly 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 recovered from a plastic bucket lying
under a dining table of his room in the house of Teja Chaudhary. As per the
Scientific Officer, articles seized from the house of the victim, and the shirts of
the accused, had the same blood group “B”. It is further alleged that out of the
six chance prints marked Q1-Q6, Q5 was identical with the left palm
impression of the present appellant.
 2.3 The Trial Court holds that the recovery leads to a presumption that the accused
along with the other accused had committed the robbery. It is further held that
it is not established that which of the accused had caused the fatal blow, using
any dangerous weapon. Similarly, it is not established from the record that the
accused persons had hatched any conspiracy to kill the victims. Hence, no
offence punishable under Sections 397 or 120-B IPC is made out.
 3 That all the three accused preferred appeals before the High Court. The High Court
granted benefit of doubt to Khalil Ahmed (Accused No. 3) on the ground that the
recovery of jewellery and cash cannot be taken to be incriminating as a stand-alone
evidence. That since Khalil Ahmed (Accused No. 3) has stated that he was in the
relationship of husband and wife with the deceased Vimlesh, Accused No. 3 could
have owned and possessed jewellery and cash.
 3.1 The High Court has recorded, in paragraph 16 of the Judgment, that none of
the jewellery items were subjected to a Test Identification Parade during the
investigation. Even in the dock, no witness identified that the jewellery45
recovered at the instance of the three accused belonged to the deceased.
Further, in paragraph 18 of the Judgment, the High Court holds that the
prosecution had not proved that the jewellery recovered from the appellant
belonged to the deceased. Hence, the recovery of jewellery articles cannot be
held to be connected with the offence.
 3.2 In paragraph 19 of the Judgment, the High Court has further held that with
respect to the alleged recovery of a knife from Sonvir @ Somvir, on
examination by the FSL, no blood grouping could be given. Furthermore, no
opinion was sought from the post-mortem doctor whether the injuries to the
deceased were possible by the said weapon of offence. In the absence of any
witness identifying the weapon of offence used in the commission of crime, or
the opinion of the post-mortem doctor that the injury was possible by the said
knife, or the FSL report regarding the blood of the deceased being found, the
knife could not be said to be connected with the offence, and cannot be used as
a piece of incriminating evidence against him.
 3.3 The High Court dismissed the appeals filed by Sultan @ Rajesh and Sonvir @
Somvir and affirmed the judgment of the Trial Court on the ground that the
prosecution had proved the recovery of blood-stained shirts at their instance,
which were found to be blood-stained with the “blood group” of the deceased
i.e. “B” group, unaccounted jewellery and cash, recovery of the Maruti van, a
piece of broken number plate of the said van.
 4 Aggrieved by the judgment of the High Court, Sonvir @ Somvir (AppellantAccused
No. 2) has filed the present SLP, which was re-numbered as Criminal
Appeal No. 958 of 2017.
Sultan @ Rajesh (Accused No. 1) has apparently not challenged the judgment of
the High Court, and is undergoing the sentence awarded.
 5 The legal evidence relied by the prosecution against Sonvir @ Somvir (AppellantAccused
No.2) is as follows:
i. recovery of unaccounted jewellery and cash;46
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 prints lifted from the scene of
crime, matched the finger impressions obtained from the Appellant whilst he was
in police custody.
 6 The legal evidence adduced by the prosecution is dealt with seriatim, to determine
whether the prosecution has proved the case for offences punishable under Sections
302, 392 read with Section 34 of the IPC against the present Appellant beyond
reasonable doubt.
 6.1 ALLEGED RECOVERY OF UNACCOUNTED JEWELLERY AND CASH
As per the prosecution case, 15 items of golden jewellery, 2 items of silver, 6
silver coins and Rs. 50,000/- in cash were allegedly recovered from Sonvir
@ Somvir (Appellant-Accused No. 2) at the time of his arrest on 3rd
November 2009, which was 16-17 days after the date of the occurrence of
the offence. The said jewellery and cash belonged to the deceased Vimlesh.
Sonvir @ Somvir (Appellant-Accused No. 2) did not claim that the jewellery
and cash belonged to him, and failed to give an explanation in his statement
recorded under Section 313 of the Cr.P.C., as to how he was in possession of
such a large amount of jewellery and cash.
Sonvir @ Somvir (Appellant-Accused No. 2) in his statement recorded under
Section 313 of the Cr.P.C. stated that the recovery was planted, and that he
had been falsely implicated.
The prosecution alleged that 16-17 days after the date of occurrence of the
offence, when each of the accused was apprehended, each of them was found
holding bags of jewellery. This seems improbable and unnatural. In the case
of Sonvir @ Somvir (Appellant-Accused No. 2), he was apprehended from
his room in the house of one Teja Chaudhary.47
The brother of deceased - Vimlesh, one Mohd. Ayub (PW-4) has denied the
suggestion of the learned APP that he was shown the jewellery recovered
from the possession of the accused persons, or that he identified the jewellery
articles to be belonging to Vimlesh. The jewellery articles were not identified
to be of the deceased. In these circumstances, the alleged recovery of
jewellery and cash from Sonvir @ Somvir (Appellant-Accused No. 2) could
not be taken as a piece of incriminating evidence.
 6.2 ALLEGED RECOVERY OF BLOOD-STAINED KNIFE
As per the prosecution, a blood-stained knife was also recovered from Sonvir
@ Somvir (Appellant-Accused No. 2), at the time of his arrest. As per the
FSL report (Ex. PW-33/A), while the knife was found to be stained with
human blood, no blood grouping could be given. The High Court, in
paragraph 19 of its judgment, found that in the absence of any witness
identifying the weapon of offence used in the commission of crime, or the
opinion of the post-mortem doctors that the injury was possible by the said
knife, or the FSL report regarding the blood of the deceased being found on
the said knife, the knife cannot be said to be connected with the offence. On
the basis of the above finding, the High Court concluded that the recovery of
the knife at the instance of Sonvir @ Somvir (Appellant-Accused No. 2)
cannot be used as a piece of incriminating evidence against him.
As a consequence, the weapon of offence allegedly recovered from Sonvir @
Somvir (Appellant-Accused No. 2) and used in the commission of the crime,
cannot be taken as a piece of incriminating evidence against him.
 6.3 ALLEGED RECOVERY OF BLOOD-STAINED SHIRT
As per the prosecution, a blood-stained shirt was recovered at the instance of
Sonvir @ Somvir (Appellant-Accused No. 2) from his 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 per the FSL report (Ex. PW-33/A), the shirt allegedly
recovered from Sonvir @ Somvir (Appellant-Accused No. 2) was found to be48
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 taken from the bed-sheet at the scene of crime,
were also found to be of the same blood group.
It is relevant to note that as per the FSL report (Ex. PW-33/A), both the bloodstained
shirt allegedly recovered from Sonvir @ Somvir (Appellant-Accused
No. 2) and the blood samples taken from the bedsheet at the scene of crime
were found to be stained with human blood of “B” group.
The mere matching of the blood-group of the blood samples taken from the
bed-sheet at the scene of crime, and the blood-stained shirt recovered from
Sonvir @ Somvir (Appellant-Accused No. 2) cannot lead to the conclusion
that the appellant had been involved in the commission of the crime.
On this issue, reliance can be placed on two decisions of this Court 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 deciding cases based on circumstantial evidence had
held that mere matching of the blood group cannot lead to the conclusion of
the culpability of the accused, in the absence of a detailed serological
comparison, since millions of people would have the same blood group.
In the present case, the prosecution has not proved that the room from where
the blood-stained knife and blood-stained shirt were allegedly recovered, was
in the exclusive possession of the appellant. The prosecution case is that the
said room was in the house owned by one Teja Chaudhary. The prosection did
not examine the said Teja Chaudhary to prove that the said room was rented to
Sonvir @ Somvir and/or was in the exclusive custody of the appellant.49
Therefore, the recovery of the blood-stained shirt from Sonvir @ Somvir
(Appellant-Accused No. 2) cannot be used as an incriminating piece of
evidence.
 6.4 ALLEGED RECOVERY OF THE MARUTI VAN AND THE BROKEN NUMBER PLATE
The prosecution alleged that both Sultan @ Rajesh (Accused No. 1) and
Sonvir @ Somvir (Appellant-Accused No. 2) disclosed that they had
abandoned the Maruti van belonging to Vimlesh 20 kilometers from Gwalior.
They were taken to Morena by the I.O. - SI Amrit Raj (PW-32A), on 8th
November 2009. The Maruti van with a broken number plate had, however,
already been seized by ASI Udai Bhan Singh Parmar (PW-23) as unclaimed on
1
st November 2009.
Further, both these accused allegedly led the police party near Gate No. 2 of
the Punj Lloyd Factory at Noorabad from where the Maruti van had already
been recovered, and got recovered the broken number plate bearing number
“86”. The recovery of the Maruti Van and the broken number plate was held to
be a piece of incriminating evidence against Sultan @ Rajesh (Accused No. 1)
and Sonvir @ Somvir (Appellant-Accused No. 2) by the Trial Court.
SI Abhisek Singh (PW-30) had stated in his cross-examination that no public
person/independent witness was present at the time of the alleged recovery. It
is important to note that while ASI Udai Bhan Singh Parmar (PW-23) stated
that the broken number plate was allegedly recovered from the garbage dump,
SI Abhishek Singh (PW-30) and Inspector Amrit Raj (PW-32A) stated that it
was allegedly recovered from the bushes. The absence of any independent
witness of the alleged recoveries, and the discrepancy in the statements of the
police officers, makes the prosecution case doubtful.
 6.5 FORENSIC REPORT REGARDING MATCHING FINGER IMPRESSIONS
The prosecution relied upon the report tendered by the Senior Finger Print
Expert of the Fingerprint Bureau, RN Rawat (PW-35), to state that the finger50
impressions obtained from Sonvir @ Somvir matched with the chance prints
obtained from the scene of crime.
The Trial Court and the High Court considered the six chance prints lifted
from the first floor of the house by SI Naresh Kumar Sharma (PW-8), Incharge
of the Finger Prints Bureau, Crime Branch. Chance prints Q1 to Q3
were lifted from the iron box on the first floor, Q4 from the showcase glass,
and Q5 and Q6 from the iron safe. The Senior Finger Prints Expert of the
Fingerprint Bureau, RN Rawat (PW-35), vide his reports (Ex. PW-35/A and
Ex. PW-35/B), opined that the chance print marked Q1 was identical to the
specimen right palm impression of Sultan @ Rajesh (Accused No. 1), while
chance print marked Q5 was identical to the 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-Accused No. 2) were taken
by the I.O. - SI Amrit Raj (PW-32A), without obtaining any order of a
Magistrate whilst the accused were in police custody.
This leads to the issue as to whether the report of the Forensic Expert is
admissible in evidence, in light of the provisions of the Identification of
Prisoners Act, 1920 (“the Act”) since no rules have been framed prescribed by
the Government of NCT of Delhi.
This issue is being dealt with in the separate Judgment by Justice Ashok
Bhushan.51
 7 In the aforesaid facts and circumstances, the prosecution has failed to make out the
complete chain of circumstances to establish the guilt of the appellant beyond
reasonable doubt. As a result, the present appeal is allowed, and the judgment and
order passed by the High Court dated 10.12.2014 in Criminal Appeal no. 1300 of
2014 is set aside. The appellant is acquitted of the charges under Sections 302, 392
read with Section 34 of the I.P.C. 1860.
………………...…………...J.
(INDU MALHOTRA)
NEW DELHI,
JULY 02, 2018
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