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5. The crime team also lifted chance prints marked as Q1 and Q2 from a tape recorder RX-FS 400 lying in the lobby of the complainant‟s house. Chance print Q3 was lifted from the double bed and chance print Q4 was lifted from the Polythene guarantee card. The chance prints were photographed and samples finger prints were also taken, which were sent by letter dated 23rd August, 1999 to the Finger Prints Bureau, Delhi police along with the sample finger prints of the accused and 11 other suspects. The police had further seized a foot-mat lying under the head of the deceased in the bathroom, an iron safe with brass handle, 10 keys of different types lying near the safe and some torn papers were seized by the police vide seizure memo Ex PW3/B. The police had also seized the tape recorder, one steel chain (the two ends of which were closed with a safety pin) and paper guarantee card vide seizure memo Ex 3/A.

7. After considering the evidence on record and the statement of the appellants under Section 313 of the Criminal Procedure Code and the defence evidence. The trial Court on noticing the facts that the appellant Sh.Bhupender Singh was refused an advance of Rs.50,000/- by the complainant and that he was in need of money in connection with the marriage of his sister, therefore, he had a motive to kill Smt.Harbhajan Kaur and to rob the money from the house of Sh.Jaswant Singh, his employer; also that for robbing, the appellant, Sh.Bhupender Singh colluded with Sh.Dinesh Singh and Sh.Drojan Singh and on being apprehended, the appellants, Sh.Bhupender Singh and Sh.Drojan Singh made disclosure statements, and in furtherance of their disclosure statements, some of the articles robbed were recovered and one chance print on the tape recorder which was found lying at the spot, also matched with the middle finger print of the appellant, Sh.Bhupender Singh; that the chance print which was lifted from the tape recorder was found to be fresh, though he had left the service of Sh.Jaswant Singh one and half months before the incident and in the circumstances, the prosecution had established the chain of links pointing without any doubt, the complicity of both the appellants, convicted them under Sections 302/392/34 of the Indian Penal Code.

34. While appreciating circumstantial evidence, the Court has to adopt a very cautious approach and should record a conviction only if all the links in the chain are complete and pointing to the guilt of the accused. In the present facts and circumstances one of the important links is the chance fingerprints which were lifted from the tape recorder and which have matched with the sample fingerprints of the appellant Bhupender Singh. The Sample fingerprints which were taken under section 4 of Identification of Prisoners Act, 1920 will be admissible or not is an important question in this case. In case the Sample fingerprints are not admissible as has been contended by the counsel for the appellant, a very pertinent link will be snapped as the other evidence is only regarding recoveries of articles pursuant to the disclosure statements of both the appellants.

45. In State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 a plea was raised on behalf of the accused that the tape recorded conversation obtained by interception could not be utilized by the prosecution to incriminate them. The plea was opposed by the prosecution contending that the illegality or irregularity does not affect its admissibility in evidence as there was no specific embargo against the admissibility in the Telegraph Act or in the rules. The Supreme Court had held at page 717 in paragraph 154 that the non compliance or inadequate compliance with the provisions of the Telegraph Act does not per se affect the admissibility. The Supreme Court had placed reliance on R.M.Malkani v. State of Maharashtra, (1973) 1 SCC 471 where it was clarified that a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible as res gestae under Section 7 of the Evidence Act. Reliance was also placed on Karuma v. Reginam, (1955) 1 All. ER 239 where the judicial committee had held that if evidence is admissible it matters not how it was obtained. It was, however, further held that the judge has the discretion to disallow evidence in a criminal case, if the strict rules of admissibility would operate unfairly against the accused.