Point of Law: 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.

JUDGMENT :

K. VINOD CHANDRAN, J.

1. A septuagenarian spinster, a retired teacher, residing alone was murdered. The prosecution alleged that the perpetrators of the crime were the two accused, one a neighbour and the other a resident of the locality, who trespassed into her house, through the roof, in the night of 02.04.2005 smothering her to death and decamping with her ornaments and cash. The first accused was arrested and stood trial twice, since the earlier conviction was set aside and de novo trial ordered. The conviction and sentence from which the present appeal arises is after the de novo trial. The second accused has given the slip and has not yet been traced. The prosecution makes an assertion, through the Investigating Officer that it was the second accused who removed the tiles on the roof of the house and climbed down into the inside of the house on the night of the 2nd of April, 2005.

2. The prosecution examined PW-1 to PW-24 as witnesses, produced Exts.P1 to P33 documents and marked MO1 to MO14 material objects. For the defence, the wife of the accused was examined and four documents were marked as Exts.D2 to D5. Two contradictions Exts.D1 and D1(a) were marked from the prior statement of PW-7. The accused who stood trial was found guilty of offences under S.457, 392, 201 and 302 of the Indian Penal Code [for brevity ‘IPC’]. Under S.302 IPC imprisonment for life and fine of Rs. 25,000/- was imposed and five years rigorous imprisonment [R.I.] with fine of Rs. 10,000/- was imposed, each under Ss.392 and 457. A further sentence of three years R.I. with fine of Rs. 5,000/- was imposed under S.201 IPC.

3. Sri. Renjith B. Marar, learned Counsel appearing for the accused, argued that the charge set up by the prosecution is based only on circumstantial evidence and there is not even one circumstance established to find the accused guilty. The witnesses of all the recoveries turned hostile and there is no scientific evidence linking the recovered items to the crime proper. According to the accused, he was summoned from the hospital, where his wife was admitted for delivery and kept in custody from the very next day of detection of the crime. A cooked up arrest was stage managed on 14.02.2005, after about 11 days in custody. The recoveries under S.27 were of an iron rod, a lungi from the scene of occurrence and one chain with a locket and some currency. The iron rod was recovered from a public pond and there is only an inference that it could have been used to pry open the lock on the grill at the front entrance. The lungi, recovered from under the cot, the prosecution allege, was used to smother the deceased. The Doctor has merely opined that the lungi could have been so used to cover the nose and mouth of the victim. But the Doctor also opined that there would be froth and blood on smothering, the evidence of which is not found in the cloth. More importantly, the lungi has been recovered from the scene of occurrence, where a sniffer dog was brought on the very next day and the Police also would have necessarily carried out a search of the premises. MO1 ornament said to have been recovered was taken by the Police from the house itself, as deposed by PW-1. There is nothing connecting the currency to the victim and the place where the booty was hidden is alleged to be the construction site of the accused; for which no evidence is offered. The scientific evidence regarding finger print and the fabric found on the hands of the victim, tested as identical to the fabric of the pants recovered from the house of the accused cannot at all be believed. The manner in which the recoveries were made is suspect and the materials sent for scientific examination have not been immediately submitted to Court. The entire case is set up on surmises and conjectures and the accused ought to be acquitted.

4. Smt. S. Ambikadevi, learned Special Government Pleader [Atrocities against Women and Children and Welfare of Women and Children] argues that th