John Beaumont, Kt. , C. J. -
(1.) THIS is an appeal by the accused against his conviction on two charges under Sections 454 and 380 of the Indian Penal Code. On February 13, 1935, a theft was committed at a house in Dadyseth Agiary Lane. The police were called to the house, and they found the complainant, a woman named Kasturbai, there. She was asked to sleep somewhere else during the ensuing night, and the police then locked up the room in which the theft had taken place, and the next day they attended with the finger print bureau expert, who took the impressions of certain finger prints. He found a right thumb impression on a glass jar, and the imprint of a right index ringer on a box of jewellery. There was also on a glass door of the cupboard an impression of the palm of a hand, but that has not been identified. A photograph was subsequently taken of the thumb impression on the glass jar and of the impression of the right index finger on the jewellery box, and those photographs are exhibits B and C, which have been enlarged: the enlargements are exhibits F-1a and F-2a. On February 25, a room in Bazar Gate Street was also burgled. The police were fetched, and as in the previous case, they brought the finger print expert, who found certain impressions. He found a left-thumb impression, which is exhibit D, on the glass of a cupboard door, and a palm impression on a drawer. On the evidence, and apart from that of the finger print expert, it would have been possible for persons who had been in the room after the theft to have left these impressions. As the procedure under the two offences appeared to be similar, a search was made amongst the finger-print records of the police, and it was discovered that the impressions taken on these two occasions corresponded with the finger prints of the present accused, which had been taken by the police on the occasion of a previous conviction, and accordingly the accused was arrested, and was tried by the Chief Presidency Magistrate, and convicted on both charges.
(2.) THE peculiarity of the case is that there is absolutely no evidence to connect the accused with either of the offences except the evidence of the finger prints. A witness named" Sitaram Baburao Rane was called on behalf of the prosecution, who said that he was a finger-print expert attached to the finger-print bureau, and had been there for twelve years. He then described to the Court how he took the photographs of the impressions to which I have referred and which were found on the scene of these two offences, and then he produced finger prints of the accused which had been taken on the occasion of the accused's previous conviction, and also fresh finger prints which were taken after the accused was arrested on this occasion, the latter being exhibit L, and the former, exhibit K. THE witness then said that there were eighteen identical ridge characteristics in nature and sequence between the left thumb impression taken in the room where the second offence was committed and the impression of the left thumb of the accused taken by the police after his arrest, and the witness further said that it is impossible to find so many as eighteen characteristics identical in the finger prints of two persons, that is to say, his evidence is that having regard to the similarities which he found between the finger prints-found in the place of offence and the finger print of the accused, it was impossible that anybody but the accused could have made the finger prints in the place of the second offence. THE witness also stated with reference to the right thumb impression and the impression of the right index finger taken on the occasion of the first offence, that there were fifteen points of similarity between the right thumb, and seven in respect of the right index finger, and the finger prints of the accused and that it must have been the accused who made the marks found on the scene of the first offence. From that evidence it appears that the accused was present in both of these rooms at about the time of the respective offences, from which I think that it follows as a necessary inference that he is the person who committed the offences. It is not suggested that he had an innocent object in being in either of those two rooms.
Now it is argued by Mr. Dalai on behalf of the accused that the Court ought not to act on the uncorroborated evidence of finger-print experts, and in support of that contention he has referred us to a good many cases. He relies particularly on the cases of Bazari Hajam v. King-Emperor (1921) I. L. R. 1 Pat. 242 and Jassu Ram v. The Crown (1923) I. L. R. 4 Lah. 246. It is, in my opinion, going too far to say that the Court must insist upon corroboration of the evidence of a finger print expert. On the other hand the Court must be careful not to delegate its authority to a third party. The Court has to be satisfied that the accused is guilty, and the Court cannot hold him guilty merely because an expert comes forward and says that in his opinion the accused must be guilty. The Court must satisfy itself as to the value of the evidence of the expert in the same way as it must satisfy itself of the value of other evidence. In the present case I am not sure how far the learned Magistrate himself went into the question of the similarity between the different marks, although he refers to that question having been gone into in cross-examination. But we have examined the photographs in evidence, which give very clear impressions. The finger and thumb marks are not smudged, and I am satisfied that there are a very large number of points of similarity between the thumb and finger impressions found in the rooms where the offences were committed, and in the impressions of the corresponding thumbs and fingers of the accused. The Court, in a case of this sort, has to rely on the expert upon two distinct points, first of all, on the question of similarity between the marks, which is a question of fact on which the Court can, and should, with the assistance of the expert, satisfy itself; and secondly on the point, which is one for expert opinion, whether it is possible to find the finger prints or thumb impressions of two individuals corresponding in as many points of resemblance as are shown to exist between the impressions found in the case before the Court and those of the accused. In the present case, I think, the witness might have been invited to go rather further than he does go. I think he might have been asked to say how much experience he' had had in the way of comparison of finger prints, and how much literature on the subject he had studied. However this science is not a new one, and when the expert tells the Court that it is impossible to find so many characteristics identical in the finger prints of two persons as are found in this case, and when that statement entirely agrees with what one has read on the subject in scientific books, I do not think the Court need hesitate in accepting the opinion. If the science were a new one, it might have been necessary for the evidence to go rather further. As it is, I think the evidence here is sufficient to satisfy the Court that the accused must have been present in the two rooms where these offences were committed, and as I have said, from that it must follow that he was the offender. I think, therefore, the conviction was right, and the appeal should be dismissed. Macklin, J.
I agree. No particular number of witnesses shall be required for the proof of any fact according to the Indian Evidence Act, and I take it that the evidence of experts is subject to the same principle. It is of course necessary in the case of finger-print experts, as in the case of every other witness, whether expert or not, that the Court should exercise its own judgment upon the evidence and not merely accept the evidence without consideration; and if the evidence of a finger-print expert is given in such a way that the Court is able to follow it and make up its own mind as to the accuracy of that evidence and as to the accuracy of the opinions given by the expert, I can see no reason why it should not be open to the Court to convict solely upon the evidence of that witness. Reliance has been placed by the appellant upon Bazari Hajam v. King-Emperor (1921) I. L. R. 1 Pat. 242 and Jassu Ram v. The Crown (1923) I. L. R. 4 Lah. 246. But in so far as they decide that a Court ought not to rely upon the evidence of an expert alone, those cases, in my opinion, go further than is necessary; and other authorities, in particular King-Emperor v. Virammal (1922) I. L. R. 46 Mad. 715 have been quoted to us by the Crown to show that the opinion given in the two cases relied upon has not been universally followed. I agree that in the circumstances of the present case the evidence of the finger-print expert was such that it was open to the Magistrate to convict on his evidence alone, having made up his mind judicially that that evidence was reliable. I agree, therefore, that the appeal must be dismissed in each case. .;