Madras High Court
P.Meyyappan vs State By on 25 February, 2010
Author: C.T.Selvam
Bench: C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25/02/2010
CORAM
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Crl.A.(MD)No.259 of 2001
Crl.A.(MD)No.270 of 2001
Crl.A.(MD)No.271 of 2001
Crl.A.(MD)No.276 of 2001
Crl.A.(MD)No.291 of 2001
Crl.A.(MD)No.297 of 2001
and
Crl.A.(MD)No.300 of 2001
1.P.Meyyappan .. Appellant in Crl.A.259/2001-A4
2.Dr.Binay Babu .. Appellant in Crl.A.270/2001-A6
3.M.R.Meyyappan .. Appellant in Crl.A.271/2001-A7
4.S.Rajamohamed .. Appellant in Crl.A.276/2001-A1
5.D.Rathinasamy .. Appellant in Crl.A.291/2001-A3
6.R.Sivasamy .. Appellant in Crl.A.297/2001-A2
7.S.Paulraj .. Appellant in Crl.A.300/2001-A5
Vs
State by
Deputy Superintendent of Police
Vigilance and Anti-Corruption Wing,
Sivaganga.
.. Respondent (in all Crl. Appeals)
:COMMON PRAYER
Criminal appeals filed under Section 374(2) of Cr.P.C., against
the judgement and Conviction dated 9.3.2001 and made in C.C.No.141/1991 on the
file of Additional Sessions Judge-cum-Chief Judicial Magistrate, Sivaganga.
!For Appellants
A1 ... M/s.R.N.Amarnath
A2 ... M/s.Thirumalairaj, SC
for Mr.S.Chandrasekaran
A3 ... M/s.L.Magendran
A4 & A5 ... Mr.A.R.L.Sundaresan, SC
M/s.AL.Gandhimathi
A6 ... Mr.Gopalakrishna Lakshmana Raju,SC
for Mr. R.Venkateswaran
A7 ... Mr. S.Silambanan
^For Respondent ... Mr.P.Rajendran, GA (Crl.side)
:JUDGMENT
These appeals are filed against the judgement dated 9.3.2001 and passed in C.C.No.141/1991 on the file of Additional Sessions Judge-cum-Chief Judicial Magistrate, Sivaganga. 7 accused faced trial in such proceedings for offences under Sections 120(b), 471, 467 (3 counts), 471 r/w. 109, 167, 409, 406 r/w.109, 409 r/w.109 IPC, 5(1)(c)(d) r/w 5(2) of the Prevention of Corruption Act, 1947 r/w 109 IPC. Accused 1 to 7 stood convicted as follows:
A1:- U/s.120(B), 467, 471, 409 and sentenced to undergo rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s.120(B); rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s.467 IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s.471; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s.409 IPC.
A2:- U/s.120(B), 467 (3 counts), 406 r/w 109, 467, 471 r/w 109, 409 r/w 109 and u/s. 5(1)(c)(d) r/w Sec.5(2) of the Prevention of Corruption Act, 1947 r/w 109 IPC and sentenced to undergo rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s.120(B); rigourous imprisonment for 3 years & fine of Rs.250/- on each count & i/d. 9 months rigourous imprisonment for offence 467 IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 406 r/w 109 IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 467 IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 471 r/w 109; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 409 r/w 109; and rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s. 5(1)(c)(d) of the Prevention of Corruption Act, 1947 r/w 5(2) r/w 109 IPC.
A3:- U/s.120(B), 467, 471 r/w 109, 409 r/w 109, 167 and u/s. 5(1)(c)(d) r/w Sec.5(2) of the Prevention of Corruption Act, 1947 and sentenced to undergo rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s.120(B); rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 467 IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 471 r/w 109 IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 409 r/w 109 IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 167; and rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 5(1)(c)(d) r/w 5(2) of Prevention of Corruption Act.
A4:- U/s.120(B), 467, 471 r/w 109, 409 r/w 109 and sentenced to undergo rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s.120(B); rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 467 IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 471 r/w 109 IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 409 r/w 109 IPC.
A5:- U/s.120(B), 467, 471 r/w 109, 409 r/w 109 and sentenced to undergo rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s.120(B); rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 467 IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 471 r/w 109 IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 409 r/w 109 IPC.
A6:- U/s.120(B), 467, 471 r/w 109, 409 r/w 109, 167 and u/s. 5(1)(c)(d) r/w Sec.5(2) of the Prevention of Corruption Act, 1947 and sentenced to undergo rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s.120(B); rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 467 IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 471 r/w 109 IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 409 r/w 109 IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 167; and rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 5(1)(c)(d) r/w 5(2) of Prevention of Corruption Act.
A7:- U/s.120(B), 467, 471 r/w 109, 409 r/w 109 and sentenced to undergo rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence u/s.120(B); rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 467 IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 471 r/w 109 IPC; rigourous imprisonment for 3 years & fine of Rs.3,000/- & i/d. 9 months rigourous imprisonment for offence 409 r/w 109 IPC.
2. The case of the prosecution is as follows:
2.1. The first accused S.Rajamohamed was the Manager of the Kannangudi Pandyan Grama Bank during 1981. A2 was the President of Sooriyankudiyiruppu Sheep Rearers Association. A3 was functioning as Secretary in Eriyur Agricultural Co-operative society. Accused 4 and 5 were cashier and Junior Assistant respectively in the said Bank; A6 was the Veterinary Doctor attached to the Kannangudi Panchayat Union. A7 was the supervisor and officer in-charge of Pandyan Grama Bank.
2.2. The accused are said to have joined hands towards usurping the loan funds under the Integrated Rural Development Programme(IRDP), released through the Pandyan Grama Bank and for purchase of sheep for the use of small and very small farmers. They entered into a conspiracy whereunder, the first and second accused with the help of other accused made it appear that non-existent persons had applied for loan, prepared false documents there regards, used the same as genuine and made it appear that loans were granted there under.
2.3. Similarly, the 2nd accused also forged the signature of two persons as if they had been granted loan under the scheme and usurped the funds.
The finger prints obtained from certain farmers under the guise of affording them loans for an amount of Rs.3000/- instead only Rs. 2100/- was so given. The remaining amount of Rs.900/- in each instance was taken as bribe by the 1st accused, which act was assisted by the other accused as well. The second accused received a sum of Rs.45000/-. The accused 1, 3, 4, 5, 6 and 7 were Government officials, while the 2nd accused was the Co-operative Society President. The 3rd accused issued false certificate to the effect that sheep has been purchased by the beneficiaries. It is in respect of such conduct of the accused, that they faced charges and stood trial before the lower Court. The lower Court was pleased to convict the accused A1 to A7 as aforementioned.
3. The prosecution examined 37 witnesses and marked Exs.P1 to P139. The defendants examined six witness and marked Exs.D1 to D12. PW's 1 to 3 have spoken to the sanction for prosecution accorded in the case. PW4 was the then Sub Collector, who has prepared the initial report regarding commission of offences. PW 5, the then Manager of the Panchayat Union Office and PW-27, the General Manager of the Pandyan Grama Bank have spoken to the grant of loans to small and marginal farmers and agricultural labourers for purchase of bullocks, carts, milch cows etc., under the Integrated Development Programme Scheme in the year 1981. PW-5 also deposed that where loan was sought, the Welfare Officer was to receive the application, verify if the applicant's name found mention in the record of small and marginal farmers, note the same thereupon, identify the applicants and forward the same to the Panchayat Office with his recommendation. PW-5 further informed the procedure in the grant of loan and availment of subsidy. PW-5 and PW-27 also deposed to the formation of a committee for the purchase of cattle and sheep under the scheme. PW-33 had deposed to the circular issued by the Collector on the formation and members of the committee and also of the second accused having been nominated as the President of the Sooriyangudiyiruppu Sheep Rearers Association and the third accused as Secretary of Eriyur Agricultural Co-operative Society. PW-27 also had spoken to the posts held by the bank employee, accused. PW-5 deposed that one Mr.Somasundaram was the Commissioner of the Kannangudi Panchayat Union and one Mr.Swamidurai was the Rural Welfare Officer for Mangalagudi and Anumanthangudi, one Mr.Jayaram having been the Rural Welfare Officer for Anumanthangudi during the relevant period. PW-2 deposed to the third accused having been the Livestock Inspector/ Secretary of Eriyur Sheep Breeding Co-operative Society and the sixth accused being the Veterinary Doctor. PW-5 have spoken to the recommendations made by the Commissioner of the Panchayat Union for grant of loan to 45 persons for purchase of bullock, milch cows and carts. He also had spoken to the said Commissioner having recommended the grant of subsidy in a sum of Rs.63,500/- to 63 persons towards purchase of sheep. PW-27, General Manager of the bank has spoken to grant of loan of Rs.3000/- each to 63 members of the Suriyangudiyiruppu Sheep Rearers Association during the year 1981 and of the ineligibility of two persons thereto. PW-27 also deposed that his suspicions regarding wrong doings were aroused since one Deivasagayam had submitted quotation for supply of 6 carts for Rs.12,000/- and instead of the cheques in respect thereof having been issued and received by the said Deivasagayam, the second accused had received the cheque though the same was issued in the name of the said Deivasagayam. On enquiry, the said Deivasagayam had informed that he had not supplied any carts nor received the consideration therefor but received only a small compensatory amount. PW-27 further deposed to having enquired of certain persons who informed that they had not received loans and hence he had caused enquiry through the Bank Inspector who submitted two reports. He also spoke to the petition forwarded by the said Deivasagayam, as also a petition forwarded by the second accused. PW-4, the then Sub Collector of Devakottai has spoken to having conducted an enquiry upon instructions of the Collector and that several irregularities were committed in the conduct of the scheme. PW-36 informed that the third accused who was the Secretary of Eriyur Agricultural Co-operative Society had asked one Kumariah to obtain signatures on stamped receipts and in keeping with such instructions he had obtained the same on two dates. PW-28, the Village Administrative Officer at Poosalakudi had at the request of the Investigating Agency participated in the enquiry and informed that certain persons were not resident at such village. PW-6, an alleged guarantor informed that he had not signed the loan documents, that the signature on the receipt was not his and that the photographs affixed also was not his. PW-7 had deposed that he had not taken any loan either through Kannangudi Pandyan Grama Bank or Sooriyangudiyiruppu Sheep Rearers Association and denied the signature on documents shown to him. PW-22 has spoken to having received a loan of Rs.2000/- and having purchased sheep from the Thiruvadanai Market, of not having purchased any sheep through Eriyur Sheep Breeding Society and also denied having affixed finger prints on the documents put up to her. PW-29 had informed that there were no person by name Shanmugha Udaiyar S/o.Veerappan, that he had not guaranteed any loan and also denied the signature on the document put up to him. PW-32 informed that he had gone to the Veterinary hospital for treatment of his cow when the third accused asked him if would he like to become a member of the Co-operative Society. He answered affirmatively and signed certain papers. He identified the signatures on certain stamped receipts as his and denied having sold any sheep to the Co-operative Society. PW-1, 2 and 3 have spoken to the sanction of prosecution accorded in the case. PW-35, then Head Constable had deposed to having assisted the Deputy Superintendent of Police by name Subbiah in the conduct of investigation and in having obtained the finger prints that were put up for examination of the finger print expert. PW-19 is the Finger Print Expert who had conducted examination and submitted his report along with reasons. PW-37 has obtained the necessary sanction and filed the charge sheet in the case. PW-8 to PW-18, PW-20, PW-21, PW-23 to PW-26, PW-30 and PW-31 who have been examined for the purpose of establishing that grant of loans and execution of documents were falsely portrayed by the accused, have all turned hostile.
5. Heard Mr.R.N.Amarnath, learned counsel for the appellant/A1 in Crl.A.259/2001, Mr.Thirumalairaj, Senior counsel for the appellant/A2 in Crl.A.297/2001, M/s.L.Magendran, learned counsel for the appellant/A3 in Crl.A.291/2001, Mr.A.R.L.Sundaresan, Senior Counsel for the appellant/A4 & A5 in Crl.A.259/2001 & 300/2001, Mr.Gopalakrishna Lakshmana Raju, learned counsel for the appellant/A6 in Crl.A.270/2001, Mr.S.Silambanan, learned counsel for the appellant/A7 in Crl.A.271/2001 and also Mr.P.Rajendran, learned Government Advocate (Crl.side) appearing for the respondents.
6. Certain broad features are common to all the accused/appellants and these appeals may be disposed of on consideration thereof. The investigating officer in the case, the then Deputy Superintendent of Police Subbiah, has not been examined as a witness and this, in the circumstances of the case, has caused grave prejudice to the accused. In connected case in C.C. No.140 of 1991, alleging irregularities in the purchase of cows and bullocks, PW-37 who was examined as PW-40 therein has admitted that the Investigating Officer Subbiah, who had retired was available. Towards showing that certain persons in whose names loans had been released were really non-existent persons, the certificate of Village Administrative Officer PW28 has been produced. Something more, than the mere certificate of the VAO ought to have been shown by the prosecution. In this regard, as to how the investigating officer had arrived at the satisfaction that the certificate issued by PW-28 reflected the correct position could only be explained by such investigating officer. PW-37 who has filed the charge sheet, has claimed knowledge of the IRDP Scheme and from his evidence it is clear that the Block Development Officer has played a pivotal role therein. It is admitted by him that such Block Development Officer was put up as an accused by the investigating officer. It is only the investigating officer who could have explained why he thought it fit to include the Block Development Officer as an accused. PW-37 in no uncertain terms admits to not having played any part in the investigation of the case. Given the above facts, the Officer who conducted the investigation viz. Subbiah, Deputy Superintendent of Police was a material witness whose non-examination is fatal to the prosecution case.
7. The Hon'ble Apex Court in Habeeb Mohammed v. State of Hyderabad AIR 1954 SC 51, has observed as follows:
'In this situation it seems to us that Biabani who was a top-ranking police officer present at the scene was a material witness in the case and it was the bounden duty of the prosecution to examine him, particularly when no allegation was made that if produced, he would not speak the truth; and in any case, the court would have been well advised to exercise its discretionary powers to examine the witness. The witness was at the time of the trial in charge of the Police Training School and was certainly available. In our opinion, not only does an adverse inference arise against the prosecution case from his non-production as a witness in view of illustration (g) to section 114 of the Indian Evidence Act, but the circumstance of his being withheld from the court casts a serious reflection on the fairness of the trial.' The observations would apply in the facts of the present case.
8. The observations of The Karnataka High Court in decision reported in 2004 Crl.LJ. 2255 also are most apt. Paragraph 3, of such decision reads as follows :
'3. The serious infirmity that has been recorded by the trial court is that the Investigating Officer was not examined. Some other officer, who was to a limited extent dealing with this investigation, has been examined and certain reasons have been set out on behalf of the State as to why this had happened. Since the full facts are not before us, we do not desire to make any comments with regard to the non-examination of the Investigating Officer beyond pointing out that the trial court was right when it recorded a finding to the effect that the non examination of the Investigating Officer is fatal to the prosecution. One of the submissions canvassed on behalf of the State is that in this case the other officer was examined and therefore, if the proving of any omissions or contradictions was to be done that this was feasible through the officer who has been examined and secondly what is contended is that the examination of the Investigating Officer in the majority of instances is only a formality. We are unable to accept this last submission because the Investigating Officer is the principal architect and executor of the entire investigation. He is a crucial witness for purposes of establishing that there are omissions and contradictions but more importantly, it is always open to the defence to question the honesty and calibre of the entire process of investigation. It is well settled law that where an investigation is defective, insufficient or dishonest that these factors prove fatal to the prosecution. In the given instance, the accused was totally precluded from any opportunity of being able to establish the infirmities in the prosecution case and on this ground alone the order of acquittal will have to be confirmed.'
9. Prosecution seeks support for its case through the opinion of the evidence of PW-19, the Finger Print Expert. The same could be considered only where gathering of finger prints put up to the expert have met legal requirements. In the instant case, PW-35 who claims to have gathered the finger prints was at the relevant time a Head Constable. In Shanmugayya & Ors. v. State, 1992 (3) Crimes p.505, a Division Bench of this Court has held as follows:-
'31. In this context, it would be worthwhile to refer to certain provisions of the Identification of Prisoners Act 1920 (Act No.33 of 1920). The object of this Act was to authorise taking of measurements and photographs of convicts and others. The word "measurements" has been defined under Section 2(a) of the Act to include finger impressions and foot-print impressions and under Section 2(b), it is stated that 'Police Officer' means an Officer in charge of a police station, a police officer making an investigation under Chapter XIV of the Code of Criminal Procedure,1898 (5 of 1898) or any other police officer not below the rank of Sub Inspector. Section 3 of the Act concerns itself with taking of measurements etc., of convicted persons. In the instant case we are not concerned with this section. Section 4 deals with taking of measurements or photographs of non-convicted persons, Section 4 reads as follows :-
"4. Taking of measurements of photographs of non-convicted persons,-
Any person - (a) who has been arrested -
(i)Under section 55 of the Code of Criminal Procedure, 1898, or under section 4 of the Bombay Beggars Act, 1945;
(ii)In connection with an offence punishable under Section 122 of the Bombay Police Act, 1951, or under section 6 or 9 of the Bombay Beggars Act, 1945, or in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards, or
(b) in respect of whom a direction or order under section 55 or 56 of the Bombay Police Act, 1951, or under sub section (1) or (2) of section 23 of the Bombay Beggars Act, 1945, or under Section 2 of the Bombay Public Security Measures Act, 1947, has been made, shall, if so required by a Police Officer, allow his measurements or photograph to be taken in the prescribed manner.'' A look at Section 4 of the Act shows, that any person who had been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards (as far it is relevant to this case) shall, if so required by a police Officer allow his measurements or photograph to be taken in the prescribed manner.
32. Section 4 refers to taking of measurements etc. of habitual offenders against whom restriction order is made. We are not concerned with this section in the present appeal. Section 5 deals with the power of a Magistrate to order a person to be measured or photographed. Under this Section if a Magistrate is satisfied that, for the purpose of any investigation or proceeding under the Code of Criminal Procedure, 1898, 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. Such an order can be made only by a Magistrate of First Class and further unless the person has at some time been arrested in connection with such investigation or proceeding. The Act does not say, that Section 5 refers to the prescribed manner spelt out in Section 4 of the Act. The power of the Magistrate under Section 5 of the Act does not seem to affect the power of a Police Officer, to take finger prints or photographs of the persons arrested in connection with, the various facets referred to under Section 4 of the Act.
33. Section 6 takes in its fold permissibility of use of lawful means necessary to secure measurements or photographs when resistance is offered or refusal is indicated by the person concerned. Such resistance or refusal, according to Section 6 of the Act shall be deemed to be an offence punishable under Section 186 of the Indian Penal Code. We are not concerned with Section 7 of the Act.
34. Section 8 confers powers on the State Government to make rules for the purpose of carrying into effect the provisions of this Act. It was stated by the learned Public Prosecutor, that the State of Tamil Nadu had not framed any rules for the purpose of carrying into effect the provisions of the Act. After careful consideration of Sections 4 and 5 of the Act, we are unable to agree with Mr.N.Dinakar, that invariably during investigation a person arrested must be taken before a Magistrate and orders obtained before the finger prints of such persons could be taken by a Police Officer. Sections 4 and 5 operate in different fields and obviously if the State Government had made any rules for the purpose of carrying into effect the provisions of this Act, the Investigating Officer, ought to have followed such rules which would fall within the ambit of ''prescribed manner'' contemplated under Section 4 of the Act. If the State Government has not made any rules under the Act, it will be the duty of the Investigating Officer, to follow Police Standing Order 836. Police Standing Orders are in the nature of instructions given, to be followed by the Police force. Police Standing Order 836 (3) (a) defines ''finger prints'' as including prints of thumb and are either 'rolled' or 'plain'. P.S.O.836(3) (f) defines 'proficient' to be an Officer, who has been declared by a Superintendent of Police or in the City of Madras by the Commissioner of Police, to be qualified to take clear and well-rolled impressions. The method of taking finger prints with reference to appliances, forms part of P.S.O. 836 (4) (a). P.S.O. 836(4) (d) states that prints should invariably be taken on the authorised Finger-Print Slip (Form No.141). It also states, that the headings of the slip are self-explanatory.
35. If Form No.141 had been used in the instant case, the various infirmities we have pointed would in all possibility, not have occurred at all.
36. P.S.O. 836(4)(k) reads as follows:-
'' Finger impressions shall be taken only by officers declared by a Superintendent or, in the City of Madras, by the Commissioner of Police, to be qualified to take clear and well-rolled impressions.'' None of the provisions of Police Standing Order 836 had been followed by the investigating agency. Of course, it is possible to argue that Police Standing Orders do not have statutory force and therefore non-following of the Standing Order cannot be held in favour of the appellants. Even if the provisions of the Police Standing Orders had not been complied with and if the obtaining of finger prints from the appellants in the manner spoken to by C.Ws. 1 and 2, did inspire confidence, we would have still to consider if non-
following of the procedure of the Police Standing Orders, was only irregular, which did not affect the fact of finger print impressions having been obtained by C.W.1 in the presence of C.W.2, claimed by the former.
We have already pointed out several infirmities, which taint the whole process of obtaining of finger print impressions and probably less said it would be better for the prosecution. We think it necessary that the State Government must make rules under Section 8 of the Identification of Prisoners Act 1920 for the purpose of carrying into effect the provisions of this Act. Some of the State Governments have made rules. A proper procedure in obtaining finger prints must be followed for otherwise, the sanctity of scientific evidence not only gets obliterated but also becomes an exercise in futility".
10. Again in case of K.Dhanasekaran v. State, 2003 (1) CTC 223, this Hon'ble Court has, after dealing with the aspect of obtaining finger prints, also dealt with the question of arriving at a finding of conviction, on the strength of the expert evidence. This Court has this to say;
" 9. It is also argued that in the absence of any evidence to show that the specimen signatures were obtained as per the procedure laid down under Section 5 of the Identification of Prisoners Act, it is not safe to impose conviction merely on the basis of expert's opinion. In our case, I have already referred to the fact that the evidence of Pws.1,3 and 4 are not reliable for the reasons stated above; accordingly in the absence of compliance of Section 5 of the Identification of Prisoners Act, now I shall consider whether the conviction can be based only on the expert's (P.W.8's) evidence. The following conclusion of the Supreme Court in S.Gopal Reddy v. State of A.P. 1996 SCC (Crl.) 792 is pressed into service: (para 28) "28. Thus, the evidence of PW.3 is not definite and cannot be said to be of clinching nature to connect the appellant with the disputed letters. The evidence of an expert is a rather weak type of evidence and the courts do not generally consider it as offering 'conclusive' proof and therefore safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal v.State of Punjab, 1977 (2) SCC 210: 1977 SCC (Cri.) 313, while dealing with the evidence of a handwriting expert, this Court opined : (SCC pp.213-14, para-7) "... We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P., AIR 1957 SC 381 : 1957 Crl LJ 559 that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but is may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad Misra v. Mohdn. Isa, AIR 1963 SC 1728 : 1963 BLJR 226 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakruddin v. State of M.P., AIR 1967 SC 1326 : 1967 (2) Andh LT 38 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence,direct or circumstantial."
It is clear from the above judgment that it is not desirable to impose conviction solely on the evidence of expert without corroborative evidence either direct or circumstantial."
Thus it would be seen that the report of the Finger Print expert does not carry forward the prosecution case.
11. Whatever be the other merits in the prosecution case, the same get obliterated owing to the above stated glaring defects. Given the same, the prosecution case would fail and consequently, these appeals shall stands allowed. Fine amount paid if any, shall be refunded to the appellants.
avr To
1.Deputy Superintendent of Police Vigilance and Anti-Corruption Wing, Sivaganga.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.