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SUPREME COURT OF INDIA
ASHOK BHUSHAN, INDU MALHOTRA, JJ.
Sonvir @ Somvir – Appellant
Versus
The State of NCT of Delhi – Respondent
Criminal Appeal No. 958 of 2017
Decided On : 02-07-2018
(a) Identification of Prisoners Act, 1920 – Sections 3, 4 and 5 – Separate and independent provisions pertaining to taking of measurements – Fingerprints, section 4 – Police Officer empowered to take fingerprints in an offence punishable with rigorous imprisonment for a term of one year or upwards – Words “rigorous imprisonment for a term of one year or upwards” do not negate the punishment of life imprisonment or death. (Para 26)
(1997) 10 SCC 44; Crl.A.No.1005/2008; Crl.A.No.446 of 2005 – Referred
191 (2012) DLT 225; AIR 1976 SC 69: (1976) 1 SCC 542; 2003 Cr.L.J. 2642 – Distinguished
(b) Interpretation of judgment – Section 4, Identification of Prisoners Act, 1920 – Mohd. Aman observing that ‘to dispel as to bona fide of Police officer or to eliminate fabrication of evidence it was eminently desirable that they were taken before or under the order of magistrate’ – Does not mean that Police Officers are not entitled to take fingerprints until an order is taken from Magistrate. (Para 31, 32)
(1978) 3 SCC 435 – Relied upon
(1997) 10 SCC 44; (2014) 12 SCC 133 – Referred
(c) Identification of Prisoners Act, 1920 – Section 4 and 8 r/w section 2(c) – Power u/s 4 to be exercised in prescribed manner – Section 2(c) defined ‘prescribed’ as prescribed under rules – State ‘may’ make rules u/s 8 – No rules made – Section 8 is an enabling provision whereas section 4 is substantive provision – Substantive power of Police officer to take measurement u/s 4 cannot be affected by procedural provision of doing it in prescribed manner. (Para 38)
(d) Identification of Prisoners Act, 1920 – Section 3, 4 and 5 – Power to police officer u/s 4 and power to Magistrate u/s 5 are separate – Power u/s 5 an additional power – May be exercised in case police officer even after arrest not taking fingerprints of accused – Cannot be held that power u/s 4 can be exercised only after obtaining order u/s 5. (Para 39, 40, 47, 48, 50)
(1982) 2 SCC 7; (1986) 4 SCC 667 – Relied upon
(e) Criminal trial – Circumstantial evidence – Even if an evidence is not discardable, conviction cannot be based on it unless entire chain of circumstances is complete. (Para 52)
(2011) 3 SCC 685 – Relied upon
Per Indu Malhotra, J.
(f) Criminal trial – Appreciation of evidence – Recovery – Appellant in statement u/s 313 CrPC alleging planting of recovered items – Denying identification of the same as belonging to deceased – Mere matching of the blood-group of samples taken from bed-sheet at scene of crime, and blood-stained shirt recovered from appellant – Cannot conclusively indicate involvement of appellant in crime. (Para 6)
(2014) 12 SCC 133; (2017) 11 SCC 31 – Relied upon
(g) Criminal trial – Appreciation of evidence – Recovery – No independent witness of alleged recoveries – Discrepancy in statements of the police officers – Makes prosecution case doubtful. (Para 6)
Facts of the case:
The appellant has been convicted under Sections 302 and 392 read with Section 34 IPC. The appeal against the conviction has also been dismissed by the High Court.
Finding of the Court:
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.
Prosecution has failed to make out the complete chain of circumstances to establish the guilt of the appellant beyond reasonable doubt.
Result: Appeal allowed.
JUDGMENT :
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 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 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 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–
(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
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