Shiv Dayal Shrivastava, J.
1. The petitioner was convicted under Section 411 of the Indian Penal Code by the Additional Magistrate First Class, Gwalior, and sentenced to three months R. I. The conviction and sentence have been upheld by the Additional Sessions Judge, Gwalior.
2. The case for the prosecution was that inthe night between the 7th and the 8th may, 1956,atheft was committed in the house of Mohanlal Dabra Mandi. A report was lodged to the police at 6. 30 A. M. on the 8th May by Mohanlal and a list of property was also submitted by him (that is Ex. P2). In connection with that theft, Nazir Singh petitioner was arrested on May 11, 1956 by Udaya Bhan Singh (P. W. 1) Station Officer Police, Dabra, The same day, he was transferred to Lashkar Kotwali.
There he gave an information (memo Ex, P8) on which, and at his instance, three articles were recovered from the possession of Saublwgmal (P. W. 2) as per memo. Ex. P6. The allegation was that the petitioner, under a fictitious name Kartar Singh, sold those stolen ornaments to Saubhagmal for Rs. 175/- as per entry in his bahikhata (Ex. P5) on which according to the prosecution there was a thumb impression of the accused. These facts were believed by the courts below and hence the conviction under Section 411 I. P. C. was based on presumption under illustration (a) of Section 114 of the Evidence Act.
3. Shri Dey learned counsel for the petitioner has placed as foremost among his arguments, a point of law. The thumb impression on Ex. P5 was compared by Shvipal Rao (P. W. 9), an expert, with another thumb impression (Ex. P4) which was taken when the accused was in police custody. This has been challenged as unconstitutional and in violation of the fundamental right guaranteed under Article 20(3) of the Constitution. The learned counsel has relied on two decisions of this Court reported in Brij Bhushan Raghunandan Prasad v. The State, AIR 1957 Madli Pra 106 and State v. Ram-kumar Ramgopal, AIR 1957 Madh Pra 73 In my opinion, the first case is clearly distinguishable because there it was under order of a Magistrate that the accused was made to supply a piece, of evidence.
In the second case also, it was assumed that because the specimen handwriting of the accused was obtained before, a Magistrate that amounted to testimonial compulsion. In the present case, the accused did not on any occasion, allege that he was compelled to give his specimen thumb impression. When the question whether the impressions of his thumb and fingers (Ex. P4) had been taken, and what he had to say about it, was put to the accused tinder Section 342, Cr. P. C., his answer was 'Ex. P 4 ko dekhkar kaha yeh anguthe wa un-galion ke nishan mujhse Dabra police ne liye the.' Neither in this statement, nor in a subsequent statement on oath (under Section 342-A) did the accused state that the impressions were taken under compulsion or against his will. It is implicit in the provisions contained in Article 20(3) of the Constitution that unless and until there is an element of compulsion there cannot be the infringement of that fundamental right.
4. In the case of M.P. Sharma v. Satish Cbandra 1954 S. C. R. 1077: (AIR 1954 SC 300), their Lordships have laid down that two elements in the act complained of are essential in order to attack the constitutional prohibition: (1) It must be a positive volitional act as opposed to the negative attitude of silence or submission on the part of the accused; and (2) such an act must be procured by coercion. Applying these tests I am clearly of the opinion that taking finger prints of an accused, while he remains merely passive, is beyond the pale of the constitutional protection. But where the accused is made to give his finger prints un-der some form of duress, that would be hit by Article 20(3). The distinction may appear to the thin but it is real.
5. In Willis' Constitutional Law of the United Slates it is stated at page 522:
'Is the taking of finger-prints a violation of the privilege of self-incrimiuation? This question seems to have been answered in the negative. The accused does not exercise a volition or give oral testimony. He is passive.'
6. In a recent Madras case of In re, Palani Coundan, ILR 1957 Mad 66; (AIR 1957 Mad 546), Ramaswamy Gounder J., delivering the judgment of the Court, observed:
'An incriminating or relevant object or document or other form of evidence can be seized under process of law from the custody or person of the accused. But he cannot be compelled to produce it.' ..... 'There is one aspect of thismatter which calls for some mention, namely, the taking of the signature or the thumb impression of an accused for the purpose of its being compared with the signature or thumb impression in questioned documents, with a view to establishing offences, such as forgery, criminal breach of trust, etc.
It appears to me that the making of thumb impression or the signature of the accused does not stand on a different footing from the seizure of documents or articles or other facts of evidence from the person of the accused. Though he cannot be compelled to produce such evidence, it can be taken or seized from him. That is 'an act of another to which he is obliged to submit', and not 'the positive volitional evidentiary act' of the accused to use the 'language of the Supreme Court.'
In this connection decisions reported in In re, Govinda Reddy, AIR 1958 Mys. 150, Bhaluka Behara v State. AIR 1957 Orissa 172, and Gulam Nabi v. State, AIR 1957 J. and K. 44, may be referred to where it is held that in the absence of compulsion, taking the thumb impression of an accused does not infringe the protection against self-inerimination.
7. Really speaking the above discussion becomes only academic in view of the fact that the thumb impression of the accused appearing on the order sheets of the court was also used for the purpose of comparing the disputed thumb impression and Shri Dey has conceded before me that there was no illegality in that procedure.
8. Shri Dey has then contended that the recovery of the ornaments as alleged by the prosecution must not be believed and, further, that there is no satisfactory evidence in the case to prove that the ornaments which were produced by Sau-bhagmal (P. W. 2) were sold to him by the petitioner. After hearing the learned Deputy Government Advocate I have formed the view that this contention must be accepted. As said above, the accused was arrested on May 11, 1956 at Dabra by the Dabra Police.
Udhaibhan Singh (P. W. 1) stated in his cross-examination that the petitioner wag a 'history sheeter' and he was. therefore, arrested under suspicion. The very same day he was sent to Lashkar Kotwali. It remains shrouded in mystery why he was sent there. There is no evidence to indicate that the accused gave any information to the police at Dabra. Even so, he was brought to Lashksr, certain memoranda were drawn, and ornaments recovered from Saubbagmal (P. W. 2) all on the same day namely the 11th May. Thereafter, the accused was sent back to Dabra.
9. The information alleged to have been given by the accused to the Lashkar police is recorded in memorandum Ex. PS. The Panch witnesses are Paruraal (P. W. 6) and Pannalal (P. W. 10). Ac-cording to the recovery memo Ex. P6 also it was in the presence of ihe.se very witnesses, Pannalal and Parumal, that the ornaments were recovered from the possession of Saubhagmal. Parumal (P. W. 6) stated in his examination-in-chief that the ornamenis had already been taken and the memoranda had been prepared before he went to Sau-bhagrnal's shop.
'Mal dukan par Pahile se nikla rakha tha Ham bad men aye, Likha Parhi kar kar rakhi thi nahin malum Parh kar nahin sunai thi.'
and in his cross-examination he stated that it was at that shop only that he put his signatures on the two papers. He further made it clear, that his signa-ture was obtained on Ex. P8 after the recovery of the aftieles and that he had not gone to the police station before he went to the sarafa Bazar (where Saubhag-mal's shop is situate). In re-examination he stated that the accused did not say anything in his presence. This witness was not declared hostile by the prosecution. In view of this evidence no argument is necessary to infer that the statement contained in Ex. P8 was false. It cannot, therefore, be held beyond doubt that it was on the information given by the accused that the ornaments were recovered,
10. Adverting now to the recovery memo (Ex. P6) it must be said at once that the weight of the articles recovered as stated therein exactly tallies with that of the articles mentioned in the last three items of Ex. P2. They are (1) Silver Anokhey weighing 42 tolas and another silver Anokhey weighing 24 3/4 tolas, (2) Silver pail (anklet) weighing 14 3/4 tolas and (3) Bazuband (armlet) weighing 13 tolas, The total of these is 94 1/2 tolas. Saubhagmal stated that these articles had been sold to him by the accused on May 9, 1956 as per entry in his account book (Ex. P5). The entry runs thus:
''175 rupye pail santhe tola 95 Kartar Singh wald Chandan Singh quam Sikh Sakin Dabra Zila Gwalior Angutha Nishan Kartar Singh ka.'
I am quite unable to accept the finding that on the basis of this entry it can be inferred that the accused sold the recovered articles. Since Shri Dey has not argued before me that the evidence of the thumb impression expert as regards the impression on Ex. P5 is unreliable, it must be assumed that the said thumb impression is that of the petitioner. The necessary inference is that the petitioner, under an assumed name 'Kartar Singh', sold silver pails weighing 95 tolas to Saubhagmal on May 9, 1956. But then the whole question is which those pails were,
Among the recovered articles there are pails (anklets) which weighed only 14 3/4 tolas but not 9.5 tolas. Both the lower courts have held that in fact all the recovered ornaments, the total weight whereof was about 95 tolas, were entered in Sau-bhagmal's bahi as nail. I cannot accept such a reasoning. It will require a feat of art to call anokhey or bazuband as pail. I for one cannot believe that a saraf, whose ordinary course of business is to deal in silver and gold ornaments would call 'anokhey' or 'bazuband' as 'pails.' Bazuband is an ornament for the arm while nail is for the leg. What is still more, Saubhaamal himself did not say in his statement before the court that Anokhey and Bazuband were according to his vocubulary covered by the expression pail.
11. Then again, Ex. P5 is written on a single leaf of paper which has been produced by the pro-seution in evidence. Saubhagmal stated that this leaf was a part of his account books (bahi) and he had handed over the entire account book to the police. No explanation appears in the record nor has the learned Dy. Govt. Advocate been able to explain why this leaf was detached from the book itself. While admitting this revision and issuing notice to the Government Advocate my learned brother Khan J. specifically ordered on January 30, 1959 that onthe day of hearing the account' book which was seized by the police from Saubhagmal should beproduced on the day of hearing. This was notcomplied with.
12. It was the duty of the prosecution to prove the guilt of the accused to the hilt. iB the present case a doubt legitimately arises that it may be that the petitioner sold to Saubhagmal some anklets weighing 95 tolas, but they are not forthcoming; it may be that somebody else sold the particular articles which were produced by Saubhagmal (Ex. P6) which exactly tallied with the last three items of the list of stolen property (Ex. P2).
But who that person was who sold them is not known (Saubhagmal alone might be knowing). The fact remains that the anklets weighing 95 tolas of Ex. P5 cannot be identified with the recovered articles namely the anklets, anokhey and armlets of Ex. P6. It also cannot be forgotten that the weight of the ornaments alleged to have been sold by the accused was entered in the bahi (Ex. P5) as 95 tolas by a person who was a saraf and not a lay-man. The accuracy with which gold and silver merchants weigh is proverbial. As such a saraf cannot call 94 1/2 tolas as 95 tolas.
13. Stress has been laid in the judgment of the appellate court as also by the learned Dy. Govt. Advocate here that there was no reason why the saraf would come forward as a witness against the accused. In my opinion, that is not the correct approach. The result of the above discussion is that on the evidence produced in this case by the prosecution, no judicial mind can connect the articles recovered (Ex. P6) with the petitioner.
14. This revision, is therefore, allowed. The conviction and sentence are set aside and the petitioner is acquitted. The bail bonds are discharged.
15. Since the accused has not claimed as histhe silver ornaments recovered from the possessionof Saubhagmal (per Ex. P6), the order of the trialMagistrate for restoring those articles to the complainant is maintained.