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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

ASHOK BHUSHAN, J.

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  including

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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  (hereinafter

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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 in

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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–

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(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 non-

convicted persons which is to the following effect:  

“4.  Taking  of  measurements,  etc.,  of  non- convicted 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,

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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 Court

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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  heavily

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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 9th July,  2009)  wherein  the  two  Division Benches had ignored the part of the report of

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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 Sunil

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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  with

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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.””

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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 Mahmood

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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.

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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  having

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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) was

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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  in

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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:

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“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 on

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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  rigorous

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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  manner

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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 precise

22

—  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 in

23

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 in

24

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  thumb- impressions  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 no

27

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; and

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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”....”

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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 of

34

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 Prisoners

37

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  no

39

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 post-

mortem 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 a

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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 4 th

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).

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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 clear

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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  jewellery

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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  (Appellant- Accused 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 (Appellant- Accused No.2) is as follows:

i. recovery of unaccounted jewellery and cash;

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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.

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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 be

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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 blood-

stained 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.

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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 8 th

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

1st 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 finger

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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),  In-

charge 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.

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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