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Judgment
Arunachalam, J.—The Petitioners are accused 1 and 2. They along with five others were tried in S.C. No. 98 of 1987 on the file of the
Fifteenth Assistant Sessions Judge, Madras, for offences u/s 395 read with S. 397, I.P.C. The first Petitioner (A1) was convicted for the offence
u/s 395, I.P.C., and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000 in default to undergo
rigorous imprisonment for six months. The second Petitioner (A-2) was convicted u/s 397, I.P.C. and sentenced to undergo the minimum
imprisonment of seven years prescribed in law, apart from a direction to pay a fine of Rs. 2,000 in default to suffer rigorous imprisonment for one
year. The trial Court acquitted accused 6 and 7. The third accused was convicted u/s 395, I.P.C., and sentenced to undergo rigorous
imprisonment for five years and to pay a fine of Rs. 1,000 in default to undergo rigorous imprisonment for six months. Accused 4 and 5 were each
convicted u/s 395, I.P.C., and sentenced to four years'' rigorous imprisonment and to pay a fine of Rs. 1,000 in default to undergo rigorous
imprisonment for six months. The eighth accused Ravichandran was discharged even before the commencement of the trial. It is seen from the case
records that originally eleven persons were remanded as suspects in this crime and ultimately, only eight were charge-sheeted out of whom one
was discharged.
The Petitioner along with accused 3 and 5 preferred Criminal Appeals 94 of 1988 and 164 of 1988 being aggrieved against the conviction and
sentence recorded and awarded by the trial Court. However, the fourth accused Sridhar did not choose to prefer an appeal. The appellate Court
found accused 3 and 5 not guilty and acquitted them. The convictions and sentences imposed on the Petitioners were, however, confirmed.
The brief facts which led to this prosecution can be now stated: On 6.2.1987 at about 9.30 p.m. at No. 87, G.N. Chetty Road, Madras 18,
which is a wine shop belonging to P.W 2 in which P.W.1 is the Manager, the Petitioners, along with one another, are said to have entered into the
shop at the time of closure and at knife point robbed P. Ws.1 and 2 of Rs. 5,900 in cash and a gold dollar chain (M.O.4), a ring (M.O.5) and a
Citizen wrist watch (M.O.6). It appears that the other accused were standing outside and all of them ultimately escaped in a car.
The prosecution, to substantiate its case, examined P. Ws.1 to 12 and marked Exhibits P-1 to P-11 apart from producing M. Os. 1 to 13. The
important material objects are M. Os. 4 to 6 which are respectively a gold dollar chain, a ring and a Citizen wrist watch. Though the accused did
not examine any witnesses on their side, exhibited, Exs.D-1 to D-8.
The ocular version of the incident is furnished by P. Ws. 1 and 2. The Petitioners and the other accused when examined u/s 313 , Crl.P.C.,
denied their complicity in the crime. The first Petitioner would have it that he was arrested from his house on 19-2-1987. A similar plea was made
by the second Petitioner that he was arrested from his residence at Trivellore on 19-2-1987. The fourth accused, who did not appeal but whose
case I intend taking up suo motu, pleaded that he was arrested at Pondy Bazaar bus stand on 15-2-1987.
It was the prosecution case that the Petitioners and accused 4 and 5 were arrested on 22-2-1987 on being pointed out by the third accused
who had been arrested earlier. Soon after the arrest, M.O. 6 watch was seized from the person of the second Petitioner (A-2) under a mahazar,
Ex.P-4, attested by P.W.5.
Apart from the evidence of P. Ws.1 and 2 and the seizure of M.O.6 from the second Petitioner (A-2) the prosecution examined P.W.9 to
substantiate that M. Os.4 and 5 which are the subject matter of this robbery were seized from P.W.9, with whom the Petitioners and A-4 had left
them for being sold. However, P.W.9, who has been treated hostile is categoric that it was one Abibur Rehman, who had pledged the articles with
him and not any one of the accused. This Abibur Rehman was remanded as one of the suspected accused in this case and later cited in the charge-
sheet as a witness but was not examined.
One other circumstance which the prosecution chose to rely upon is the evidence of P.W.8, the Finger Print Expert, who speaks about the
tallying of the finger print, Ex.R-3, found in the scene of occurrence, with the admitted specimen finger print of the first Petitioner (A-1), received
by him on 25-2-1987, It is seen that the admitted finger print of the first Petitioner (A-1) was enlarged, so also the finger print referred to by
P.W.8 as R.3 and both of them have been marked as M.O.13 (series). The original finger print of the first Petitioner (A-1) does not appear to
form part of the case records.
As far as the first Petitioner is concerned the only evidence appearing against him is that of P.W.2 who identifies him as one of the persons who
got into his shop on the fateful night, to whom he had handed over the ring, watch and chain with the dollar. None of these articles had been seized
from the first Petitioner. However, the prosecution would seek to connect the first Petitioner with the crime in question in the light of the opinion of
the finger print expert, P.W.8. that the finger print impression of the first Petitioner found in the bureau in the shop of P.W.2, tallied with that of the
specimen finger print taken from the first Petitioner. Even at this stage it must be mentioned that though the accused were arrested on 22-2-87 the
investigating agency did not think it fit to hold an identification parade. The memory of the witnesses would have been fresh at that point of time and
the need for an identification parade at that earliest point of time cannot be gainsaid, for, ultimately the decision as to the identity of the accused to
connect them with the crime on the substantive evidence let in will be of utmost importance. Both P. Ws.1 and 2 were examined in Court nearly
one year after the occurrence on 1-2-1988. Unfortunately, though P. Ws.1 and 2 are the eye witnesses to this incident both of them have identified
different sets of accused as the persons who entered into the shop. P.W.1, would have it that the persons who entered into the shop were accused
4 and 7 and one another, whom he could not identify. P.W.2, would seek to identify accused 1 and 2, (Petitioners herein) as the persons who
entered the shop and the fourth accused as the person who stood outside. One cannot completely overlook the fact that the shutter was half-
closed and it would not have been possible for P.W.2, to identify any person standing outside. Whatever it might be, in respect of this night
occurrence when the prosecution witnesses could have had only a fleeting glance of the accused when they must have been in absolute terror, their
identification in Court for the first time could have no significance whatsoever. The Supreme Court on more than one occasion has held that it
would not be safe to convict the accused merely on the basis of the identification for the first time in Court and that the substantive evidence
regarding Identification given by a witness during trial is of little or no evidentiary value in the absence of a prior test identification parade. If in this
case when different sets of accused are sought to be identified by P. Ws. 1 and 2 who are the only two persons competent to speak about this
incident, the absence of a test identification parade goes to the root of the matter. The evidence regarding the identity of the accused appears to be
absolutely doubtful and a conviction on the basis of the identification of the Petitioner by P.W.2, alone in court for the first time will not be sufficient
to safely base a conviction. At this stage it cannot be overlooked that the appellate Judge found that accused 3 and 5, were entitled to acquittal
solely on this point of the lack of identification parade and distrusting their identification in Court for the first time.
If the evidence regarding identity is eschewed from consideration the only evidence that survives is the evidence of the finger print expert,
P.W.8, seeking to tally a chance print found in the bureau in the scene of occurrence with that of the specimen finger print of the first Petitioner
(A1). The evidence of the finger-print expert leaves much to be desired. Admittedly, this expert has not even noticed the pattern of the finger
prints. He has categorically deposed that he did not even attempt to look into the core and the delta. Still more astonishing is his version that it will
not be necessary to look for the ridge formation around the core. He admits that the impression in R-3 was blurred. He further confirms that if
there was a difference in pattern it must be positively concluded that the finger prints were different. Questions have been put to him in cross-
examination about the ridges and the termination thereof and his answers indisputably indicate that the whole opinion offered by him had been done
in a haphazard manner without application of mind on all the important features which could form the basis of rendering a safe and acceptable
opinion. Further he admits that he had formed an opinion on the finger prints a year later and he had neither his opinion in writing, when the police
examined him nor did the police ask him for his written opinion. The opinion appears to have been prepared after the receipt of summons from
court, during trial.
H.R. Hardless in his Book on ''Handwriting and Thumb Print Identification and Forensic Science'' published in 1970 has observed that the
core and delta are the important features in an impression and the ridges in all impressions form patterns. M.K. Mehta in his Book on ''The
Identification of Thumb Impression and the Cross-examination of finger Print Experts, published in 1959, has definitely stated that to begin with,
the patterns should be examined first, for, if the patterns are different it is conclusive proof that the impressions are different. The same author has
also observed that it was not uncommon for experts to manipulate the difference in such a manner, especially in blurred impressions, as to lead to
the findings recorded by them.
H.R. Hardless in his book (quoted above), on the aspect of ''Points which prove Non-Identity'' of two impressions and about the differences in
configuration of ridges within the pattern area, emphasises the need for both the impressions being clear and not blurred. As regards the non-
identity, according to Hardless, even one major point of difference would be sufficient to exclude the identity and one of the major points of
difference is the presence of a ridge characteristic in one print while in the other impression such characteristic is absent. A comparison by me of
the enlarged prints in M.O. 13 taken along with the evidence of the expert, P.W.8, clearly portrays that in ridge characteristics there is dissimilarity.
The evidence of the expert also has got to be tested as any other evidence and the evidence of the expert in this case does not commend itself for
acceptance. I am not satisfied that there is proof that the finger print found in the scene of occurrence has been satisfactorily established to be that
of the first Petitioner (A-1). There being no other material to connect the first Petitioner with the crime, the points of identity of the accused as well
as the comparison of finger print having failed, he (first Petitioner) is bound to be acquitted.
As far as the second Petitioner (A-2) is concerned, the evidence regarding identification for the first time in Court by P.W.2 does not merit
acceptance. As I have observed already, P. Ws.1 and 2 give varying versions about the three intruders who had entered into the shop. There
having been no prior identification parade, their evidence in Court is absolutely worthless to connect the second Petitioner with the crime.
However, the watch (M.O.6) belonging to P.W.I has been seized from the second Petitioner and it has been identified both by P. Ws.1 and 2 as
the watch belonging to P.W.1. This evidence, to my mind, is sufficient to convict the second Petitioner of an offence u/s 411, I.P.C., though his
presence at the scene has been doubted. 1 set aside the conviction and sentence of the second Petitioner (A-2) u/s 397, I.P.C. and instead convict
him for an offence u/s 411, I.P.C. It is represented by the learned Counsel for the second Petitioner that the second Petitioner has been in jail for
nearly two years. I am satisfied that the period of imprisonment already undergone by him would be sufficient to meet the ends of justice. It is also
represented by the learned Counsel that the second Petitioner was not in a position to pay the fine imposed by the trial Court and therefore, he
continues to be in jail. I do not think that imposition of fine will be necessary since the second Petitioner is now convicted for an offence u/s 411.
I.P.C., and since he has already undergone imprisonment for a period of two years. Therefore, the fine imposed by the trial Court is also set aside.
It must be stated at this juncture that the other two material objects (M. Os. 4 and 5) do not connect either of the two Petitioners with the
crime in question. The recovery of these material objects does not advance the prosecution case any further.
Though the fourth accused Sridhar had not even chosen to file an appeal before the appellate Court, I find from the records that his case
cannot be distinguished from that of accused 3 and 5 who have been acquitted by the appellate Judge. The only evidence against the fourth
accused was the identification for the first time in Court by P.W.1 as the person who came inside the shop. P.W.2 would seek to identify him as
one of the persons standing outside the shop, but I have already held that in view of the closed shutters P.W.2 would not have been in a position to
identify the fourth accused. The identification of the fourth accused was also made for the first time in Court, a year after the occurrence and there
was no test identification parade. Such evidence, as already observed, is worthless and cannot form a safe basis for recording a conviction.
In In re Karuppiah AIR 1951 Mad 885 Panchapakesa Ayyar, J., while considering the scope of Ss. 423 and 439, Cri PC 1898, had
observed that when two persons were convicted by the trial Court and one alone appeals and was acquitted and the acquittal was on merits, there
being no difference on law and in facts between the case of the acquitted accused and the non-appealing accused, the non-appealing accused
should also be acquitted although he had not chosen to prefer an appeal against his conviction. The learned Judge also observed that the powers of
a criminal Court of justice in revision are even wider than that of the powers of an appellate Court. Sitting in revision, when a glaring case of
injustice is brought to the notice of this Court, I am certain that this Court has the power to unhesitatingly record an order of acquittal on the
accused, who did not choose to file appeal, when his conviction cannot be sustained in law and on facts. In the background of my view
aforementioned I have suo motu taken up the case of the fourth accused Sridhar, who has been convicted by the trial Court for an offence u/s 395,
I.P.C., and sentenced to undergo rigorous imprisonment for four years and who is now said to be undergoing the sentence, for recording his
acquittal since on facts and in law, he deserves it. That such suo motu power could be exercised by the High Court in revision has been upheld by
the Supreme Court in Municipal Corporation of Delhi Vs. Girdharilal Sapuru and Others, wherein the Supreme Court has observed that the High
Court should exercise suo motu power of revision and could not allow to perpetuate illegality and miscarriage of justice.
In the result, the revision of the first Petitioner (first accused) is allowed, the conviction and sentence passed against him are set aside and he is
acquitted. The fine amount, if paid by him, shall be refunded to him.
As far as the second Petitioner (second accused) is concerned, his conviction u/s 397, I.P.C., is set aside and instead he is convicted u/s 411,
I.P.C., and the Sentence of imprisonment is reduced to the period already undergone by him. The sentence of fine is also set aside.
Though Sridhar, the fourth accused, has not filed any appeal or chosen to bring his case before this Court, his conviction and sentence are set
aside and he is acquitted.
The revision Petitioners (A1 and A2) and the fourth accused in the case, viz., Sridhar, shall be set at liberty forthwith.
It is unfortunate that I am constrained to acquit the accused 1, 2 and 4 in this case of a daring night robbery at knife point, when the alleged
robbers whomsoever they may be, had pre-planned and gone in a car to facilitate their quick escape soon after the occurrence. In cases of this
type, the investigating agency must spring into action not only to arrest the persons involved in the crime but also to place before Court convincing
evidence to connect the persons arrested, with the crime. The investigating agency has failed in this case to hold an identification parade though the
accused had been arrested within a few days after the incident. If an identification parade had been held and the witnesses had identified the
culprits then the substantive evidence in Court could have been accepted in the light of the test identification parade. This basic negligence on the
part of the police has paved the way in no small measure for the acquittal of the revision Petitioners and the fourth accused.
Similarly, the haphazard handling of the comparison of the finger prints by the Expert, P.W.8, is also responsible to a considerable extent for
recording an acquittal of one of the Petitioners. If only the expert had applied his mind to the primordial requisites which form the basic necessity in
the comparison of finger prints and offered his definite opinion, which would be acceptable on the scientific basis on the existing materials, things
could have been different. Both the investigating agency and the expert, P.W.8, have failed to perform their duty, they owe to the society.