# SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI

- **Citation:** [2018] 7 S.C.R. 830
- **Court:** Supreme Court of India
- **Decided:** 2018-07-02
- **Case number:** Criminal Appeal No. 958 of 2017
- **Bench:** Ashok Bhushan, Indu Malhotra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sonvir-somvir-v-the-state-of-nct-of-delhi-33703
- **Pages:** 36

## Headnote

Penal Code, 1860:
ss. 302 and 392 u/s. 34 - Prosecution of three accused,
including appellant (accused No. 2) - For double murder - u/ss.
120-B, 302, 392 and 397-IPC - Trial court relying on the
circumstantial evidence viz. recoveries at the behest of the accused
and the report of the fingerprint expert, convicted all the accused -
High Court, upheld conviction of appellant-accused No. 2 and
accused No. 1 - Accused No. 3 was acquitted granting benefit of
doubt - Appeal by accused No. 2 - Held: In the facts and
circumstances of the case, recoveries cannot be taken as
incriminating evidence - Prosecution has failed to make out the
complete chain of circumstances to establish the guilt of the
appellant-accused beyond reasonable doubt.
Evidence:
Circumstantial evidence - Held: In cases of circumstantial
evidence, every circumstance has to be proved beyond reasonable
doubt - Chain of circumstances should be so complete and perfect
that only inference of the guilt of the accused should emanate
therefrom.
Identification of Prisoners Act, 1920:
ss. 3, 4, 5 and 8 - Power of Police officer u/s. 4 - Whether
can be exercised in absence of Rules framed u/s. 8 - Held: Nonframing of any rules u/s. 8 does not prohibit the exercise of powers
given u/ss. 3 and 4.
[2018] 7 S.C.R. 830
830
A
B
C
D
E
F
G
H
831
Allowing the appeal, the Court
HELD:
Per Indu Malhotra, J.
1. 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 Appellant-Accused No. 2 at the time of
his arrest, which was 16-17 days after the date of the occurrence
of the offence. The said jewellery and cash belonged to the
deceased. Appellant-Accused No. 2 in his statement recorded
under Section 313 Cr.P.C. stated that the recovery was planted,
and that he had been falsely implicated. It is improbable and
unnatural 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. The brother of deceasedPW-4 had denied the suggestion of the prosecution 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 the deceased. The jewellery articles were not identified to be
of the deceased. In these circumstances, the alleged recovery of
jewellery and cash from appellant-accused No. 2 could not be
taken as a piece of incriminating evidence. [Para 6.1][841-E-H;
842-A-C]
2. As regards recovery of a blood-stained knife, the knife
was found to be stained with human blood, no blood grouping
could be given. The High Court 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. Therefore, the
weapon of offence allegedly recovered from appellant-accused
No. 2 and used in the commission of the crime, cannot be taken
as a piece of incriminating evidence against him. [Para 6.2][842C-F]
3. The blood-stained shirt recovered at the instance of
appellant-accused No. 2 was sent for analysis to the FSL. As per
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
A
B
C
D
E
F
G
H
832
SUPREME COURT REPORTS
[2018] 7 S.C.R.
the FSL report (Ex. PW-33/A), the shirt was found to be stained
with human blood of "B" group, which was the same "blood group"
as that of the deceased. The High Court held the recovery of the
blood-stained shirt from 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. 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 appellant-

## Text

_Characters 0–39,929 of 79,502. This is a partial read: ask again with offset=39929 for what follows._

A
B
C
D
E
F
G
H
830
SUPREME COURT REPORTS
[2018] 7 S.C.R.
SONVIR @ SOMVIR
v.
THE STATE OF NCT OF DELHI
(Criminal Appeal No. 958 of 2017)
JULY 02, 2018
[ASHOK BHUSHAN AND INDU MALHOTRA, JJ.]
Penal Code, 1860:
ss. 302 and 392 u/s. 34 - Prosecution of three accused,
including appellant (accused No. 2) - For double murder - u/ss.
120-B, 302, 392 and 397-IPC - Trial court relying on the
circumstantial evidence viz. recoveries at the behest of the accused
and the report of the fingerprint expert, convicted all the accused -
High Court, upheld conviction of appellant-accused No. 2 and
accused No. 1 - Accused No. 3 was acquitted granting benefit of
doubt - Appeal by accused No. 2 - Held: In the facts and
circumstances of the case, recoveries cannot be taken as
incriminating evidence - Prosecution has failed to make out the
complete chain of circumstances to establish the guilt of the
appellant-accused beyond reasonable doubt.
Evidence:
Circumstantial evidence - Held: In cases of circumstantial
evidence, every circumstance has to be proved beyond reasonable
doubt - Chain of circumstances should be so complete and perfect
that only inference of the guilt of the accused should emanate
therefrom.
Identification of Prisoners Act, 1920:
ss. 3, 4, 5 and 8 - Power of Police officer u/s. 4 - Whether
can be exercised in absence of Rules framed u/s. 8 - Held: Nonframing of any rules u/s. 8 does not prohibit the exercise of powers
given u/ss. 3 and 4.
[2018] 7 S.C.R. 830
830
A
B
C
D
E
F
G
H
831
Allowing the appeal, the Court
HELD:
Per Indu Malhotra, J.
1. 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 Appellant-Accused No. 2 at the time of
his arrest, which was 16-17 days after the date of the occurrence
of the offence. The said jewellery and cash belonged to the
deceased. Appellant-Accused No. 2 in his statement recorded
under Section 313 Cr.P.C. stated that the recovery was planted,
and that he had been falsely implicated. It is improbable and
unnatural 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. The brother of deceasedPW-4 had denied the suggestion of the prosecution 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 the deceased. The jewellery articles were not identified to be
of the deceased. In these circumstances, the alleged recovery of
jewellery and cash from appellant-accused No. 2 could not be
taken as a piece of incriminating evidence. [Para 6.1][841-E-H;
842-A-C]
2. As regards recovery of a blood-stained knife, the knife
was found to be stained with human blood, no blood grouping
could be given. The High Court 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. Therefore, the
weapon of offence allegedly recovered from appellant-accused
No. 2 and used in the commission of the crime, cannot be taken
as a piece of incriminating evidence against him. [Para 6.2][842C-F]
3. The blood-stained shirt recovered at the instance of
appellant-accused No. 2 was sent for analysis to the FSL. As per
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
A
B
C
D
E
F
G
H
832
SUPREME COURT REPORTS
[2018] 7 S.C.R.
the FSL report (Ex. PW-33/A), the shirt was found to be stained
with human blood of "B" group, which was the same "blood group"
as that of the deceased. The High Court held the recovery of the
blood-stained shirt from 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. 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 appellant-accused No.
2 cannot lead to the conclusion that the appellant had been
involved in the commission of the crime. 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. Therefore, the recovery of the bloodstained shirt from appellant-accused No. 2 cannot be used as an
incriminating piece of evidence. [Para 6.3][842-G-H; 843-A-B,
C-D, F-G]
Prakash v. State of Karnataka (2014) 12 SCC 133;
Debapriya Pal v. State of West Bengal (2017) 11 SCC
31 : [2017] 1 SCR 566 - relied on.
4. The recovery of the Maruti Van and the broken number
plate was held to be a piece of incriminating evidence against
accused No.1 and appellant-accused No. 2 by the trial court. PW30 had stated in his cross-examination that no public person/
independent witness was present at the time of the alleged
recovery. While PW-23 stated that the broken number plate was
allegedly recovered from the garbage dump, PW-30 and 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. [Para 6.4][844-A-B, E-F]
5. The prosecution relied upon the report tendered by the
Finger Print Expert PW-35, to state that the finger impressions
obtained from appellant-accused No.2 matched with the chance
prints obtained from the scene of crime. The specimen chance
prints of both these accused viz. Accused No. 1 and appellantaccused No. 2 were taken by the I.O. PW-32A, without obtaining
any order of a Magistrate whilst the accused were in police
custody. [Para 6.5][844-G; 845-C]
A
B
C
D
E
F
G
H
833
6. Thus, in the aforesaid facts and circumstances of the case,
the prosecution has failed to make out the complete chain of
circumstances to establish the guilt of the appellant beyond
reasonable doubt. [Para 7][848-E]
Per Ashok Bhushan, J. (concurring)
1.1 The scheme of the Identification of Prisoners Act, 1920
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.
[Para 8][848-D-E]
1.2 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 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.
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 in Sapan Haldar case will negate the very purpose of
empowerment of Police Officer to take the fingerprints. [Paras
26 and 27][855-D-F]
1.3 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. If the interpretation 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. [Para 48][864-B-C]
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
A
B
C
D
E
F
G
H
834
SUPREME COURT REPORTS
[2018] 7 S.C.R.
1.4 The High Court in 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 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. Therefore, the view of the High Court that evidence of
fingerprints of the accused has to be discarded cannot be
supported. [Paras 49, 51][864-D-E; 865-A]
V.T. Khanzode and Others v. Reserve Bank of India and
Another (1982) 2 SCC 7 : [1982] 3 SCR 411 - followed.
Surinder Singh v. Central Government & Ors. (1986) 4
SCC 667 : [1986] 3 SCR 946 - relied on.
*Sapan Haldar & Another v. State 191 (2012) DLT
225 - disapproved.
Shankaria vs. State of Rajasthan (1978) 3 SCC 435;
Mohd. Aman and Another v. State of Rajasthan (1997)
10 SCC 44; State of Madhya Pradesh v. Devendra
(2009) 14 SCC 80 : [2009] 8 SCR 98; State of Uttar
Pradesh v. Ram Babu Misra (1980) 2 SCC 343:[1980]
2 SCR 1067; Mahmood vs. State of U.P. AIR 1976 SC
69 : (1976) 1 SCC 542; Thavaraj Pandian & Ors v.
State 2003 Cri. L.J.2642; Prakash v. State of Karnataka
(2014) 12 SCC 133 - referred to.
2. Even if, it is accepted that fingerprints of appellant's,
chance print Mark Q5 was identical to the specimen of left palm
impression of appellant-accused No.2, it does not complete the
chain of circumstances unerringly pointing out fingers to the
appellant, that it was the appellant who committed the murder.
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. Thus, even if, above evidence
A
B
C
D
E
F
G
H
835
is not discardable the entire chain of circumstances is not
complete to unmistakeably point out the guilt to the appellant.
The appellant stands acquitted of the charges under Sections 302,
392 read with Section 34 of the IPC. [Paras 52, 53 and 54][865B-F]
Ramesh and Others v. State of Rajasthan (2011) 3 SCC
685 : [2011] 4 SCR 585 - relied on.
Case Law Reference
In the judgment of Indu Malhotra, J.
(2014) 12 SCC 133
relied on
Para 6.3
[2017] 1 SCR 566
relied on
Para 6.3
In the judgment of Ashok Bhushan, J.
(2012) DLT 225
disapproved
Para 9
(1978) 3 SCC 435
referred to
Para 14
(1997) 10 SCC 44
referred to
Para 14
[2009] 8 SCR 98
referred to
Para 14
[1980] 2 SCR 1067
referred to
Para 14
(1976) 1 SCC 542
referred to
Para 18
2003 Cri. L.J.2642 referred to
Para 24
(2014) 12 SCC 133 referred to
Para 33
[1982] 3 SCR 411 followed
Para 41
[1986] 3 SCR 946 relied on
Para 44
[2011] 4 SCR 585 relied on
Para 52
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
958 of 2017.
From the Judgment and Order dated 10-12-2014 of the High
Court of Delhi in Criminal Appeal Nos.1300 of 2014.
Harinder Mohan Singh, Ms. Shabana, Ajay Gupta Rishi Chawla,
Advs. for the Appellant.
Sandeep Sethi, ASG, P. K. Dey, S. S. Ray, B. V. Balram Das,
Advs. for the Respondent.
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
A
B
C
D
E
F
G
H
836
SUPREME COURT REPORTS
[2018] 7 S.C.R.
The Judgment of the Court was delivered by
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-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 postmortem 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 (PW32A), 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.
A
B
C
D
E
F
G
H
837
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 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 4th 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
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[INDU MALHOTRA, J.]
A
B
C
D
E
F
G
H
838
SUPREME COURT REPORTS
[2018] 7 S.C.R.
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).
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
A
B
C
D
E
F
G
H
839
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 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. PW21, PW-25, PW-31, PW-34 and PW-36.
2.2 With respect to the present appellant, it is alleged that a bloodstained 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
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[INDU MALHOTRA, J.]
A
B
C
D
E
F
G
H
840
SUPREME COURT REPORTS
[2018] 7 S.C.R.
(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 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 renumbered as Criminal Appeal No. 958 of 2017.
A
B
C
D
E
F
G
H
841
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;
(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.
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[INDU MALHOTRA, J.]
A
B
C
D
E
F
G
H
842
SUPREME COURT REPORTS
[2018] 7 S.C.R.
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.
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
A
B
C
D
E
F
G
H
843
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 bloodstained 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.
Therefore, the recovery of the blood-stained shirt from Sonvir @
Somvir (Appellant-Accused No. 2) cannot be used as an
incriminating piece of evidence.
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[INDU MALHOTRA, J.]
A
B
C
D
E
F
G
H
844
SUPREME COURT REPORTS
[2018] 7 S.C.R.
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 8th 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 (PW35), to state that the finger 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
A
B
C
D
E
F
G
H
845
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 (AppellantAccused 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.
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.
ASHOK BHUSHAN, J. 1. 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
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
A
B
C
D
E
F
G
H
846
SUPREME COURT REPORTS
[2018] 7 S.C.R.
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.,
A
B
C
D
E
F
G
H
847
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 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
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
848
SUPREME COURT REPORTS
[2018] 7 S.C.R.
purposes 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:
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 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:
a. 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.
b. It would be eminently desirable as per the decision in Mohd.
Aman and Anr. vs.