Stephen and N.R. Chatterjea, JJ.
1. The petitioner in this case is Tunoo Mia., who has been convicted under Section 193 of tire Indian Penal Code of giving false evidence. A Hale has been granted calling on the District Magistrate to show cause why the conviction of, and sentence on, the accused, should not be set aside and a re-trial of his case ordered, on the grounds that the evidence of thumb-impressions was admitted contrary to the provisions of Section 132 of the Evidence Act, and also that the lower Courts have not dealt with a great, deal of the evidence placed before them.
2. On the first point the facts are that the petitioner brought a charge of defamation against one Mohim Chuuder Guha, and during 'his cross-examination swore that he was not convicted at Rangoon on a charge under Section 408 of the Indian Penal Code brought by Fazul Rahman Chowdhry, and was not sentenced to imprisonment and fine, and did not appeal. During the hearing of that ease, the trying Magistrate took, or caused to be taken, the petitioner's thumb-impression, and that impression corresponds with the impression of a man who was convicted at Rangoon in the circumstances above stated. The argument indicated by the Rule as arising on these facts is that taking a thumb-impression is equivalent to asking a question and receiving an answer, and that, therefore, the thumb-impression is equivalent to an answer within the purview of the proviso to Section. 132 of the Evidence Act, and may not, therefore, be proved against the petitioner in the present proceedings. To this there are several answers.
3. In the first place, the taking of a thumb-impression is merely observing a characteristic; feature of a man's body. Whether the Magistrate had a right to take the impression is a question we are not concerned with, and. at present we need, not consider whether the prisoner consented or not to the impression being taken. The impression was in fact taken, that is, an observation was made and. recorded, and, in-principle, the position is the same as if the Magistrate had photographed the appellant, or noticed a deformity or a scar, matters which might certainly be proved, if they were relevant. The analogy between taking a thumb-impression, and asking a question, therefore, breaks down.
4. In the second place, it was held by the majority of the Court in Queen v. Gopal Doss (1881) I.L.R. 3 Mad. 271 that, where an accused person has made a statement voluntarily, and without compulsion, on the part of the Court, it may be used against him on his trial, if relevant, that is, the proviso to Section 132 does not apply, unless the witness objects to answer the question; and. this decision has been followed by this Court in Moher Sheikh v. Queen-Empress (1893) I.L.R. 21 Calc. 392: see too the note to Section 132 in Woodroffe's Evidence Act. In this ease there is nothing to show that the appellant made any objection to the impression of his thumb being taken, and. the proviso to Section 132 does not, therefore, apply.
5. In the third place, Section 132 obviously only applies to questions asked in the Court of the trial, and. there is nothing to show that the thumb-impression in this case was taken during the trial. It seems in fact to have been taken with a view to the possibility of this trial.
6. For these reasons, we are of opinion that the first reason for setting aside the conviction mentioned in. the Rule must fail.
7. As to the second ground, the only evidence placed before the Court, with, which it is suggested that it has not dealt, is the record of the case tried in Rangoon which, it is said, shows that the Fazul Rahman who was the complainant there described gave a different description of his own parentage and age, and the parentage of the Tunoo Mia then accused, from that given of the sante matters by the Fazul Rahman who gave evidence in the present case. Fazul. Rahman in the present case, however, was not asked to explain the discrepancy, nor were the contents of the Rangoon record said to bear the record in this case, though it is not before us, brought to his notice. We cannot, therefore, hold that the matter was not sufficiently considered by the lower Courts. No reason for our interference is, therefore, made out on the second, ground, mentioned in the Rule; and it must, therefore, be discharged.