1. When the Criminal case was pending the accused moved the learned Magistrate for an acquittal on the principle of autrefois convict on the following grounds:
2. The accused was an employee of Ramthirtham Multi-purpose Co-operative Society and is stated to have misappropriated a sum of Rs. 31/- and odd through falsification and forgery of material accounts. Earlier he had been convicted for a similar offence said to have been committed during the currency of that year.
3. The accused pleaded that an equitable principle on the analogy of Section 403 of the Cr PC should be applied and the accused saved from the harassment of a second charge when the prosecution could have clubbed this charge along with the one which was tried. The argument did not find favour with the Magistrate; hence this revision. Reliance is placed on Sidh Nath Awasthi…Accused, v. The Emperor…Opposite Party., AIR 1929 Cal 457 and Ramchandra Chetty v. State of Andhra 68 Mad LW (An) 526 : (AIR 1956 Andh 102).
4. It is manifestly unjust for an accused to be tried as many times as there are offences. Hence the salutary provision of S. 234 enabling the Court to try three charges at a time. No doubt separate trials for each of the offences may not be illegal but are highly inexpedient. With due respect to the observations in Sidh Nath Awasthi…Accused, v. The Emperor…Opposite Party., (AIR 1929 Calcutta, 457). I am unable to hold that the principle of ‘autrefois convict’ or the extended principle embodied in Section 403 of the Cr PC can save the accused. For the principle of autrefois convict to have any bearing, there must be a conviction in respect of the same offence. It Would be a patent violation of the principle and a contravention of the terms of S. 403 if the accused should ask for relief on that principle. It is a distinct offence altogether that is charged. Nevertheless, under S. 561-A, the High Court has power to interfere to secure the ends of justice. When the principles of justice and equity not specifically embodied in the provisions of the Code call for application, it is this provision that has to give the accused justice. See Chaman Lal v. Emperor, AIR 1943 Lah 304. I consider this is a fit case in which the proceedings against him now pending before the Judicial First Class Magistrate. Vizianagaram, should be quashed and the accused acquitted. Ordered accordingly.
5. Criminal Appeals Nos. 225 to 227 of 1956: In these three appeals, the accused is one Godavarty Bhasyakaracharyulu. He was charged with the offences of forgery and using forged documents.
6. The prosecution states — The accused was for several years a clerk-manager of the Ramathirthalu Multipurpose Co-operative Credit Society. One of his duties was the maintenance of accounts and the handling of the funds of the society by collecting the amounts from various members who repay loans and also the disbursement of the loans sanctioned. The keys of the office as well as the iron safe are generally in the hands of the accused. The affairs of the society are conducted by five panchayatdars with one elected president. The clerk makes a note of the requirements of the members in the minutes book. The panchayatdars scrutinise them and sanction the loans. They apply to the Central Co-operative Bank at Vijayanagaram for funds and when the amounts are received the loans are disbursed to the applicants.
7. The accused taking advantage of his position as the clerk in charge of the accounts and cash, made false entries and forged all thumb impressions of the applicants concerned and misappropriated the funds. The alleged borrowers have given evidence in the case to the effect that they have not received the amounts said to have been acknowledged in the books. But the fact remains that they have submitted themselves to awards (decrees) being passed against them for those amounts. They never demurred. No contest was put up before the Arbitrator under the Act and this is an element which throws a considerable cloud of suspicion over the veracity of the witnesses.
8. The other point stressed by the prosecution is that an expert of the Finger Print Bureau, Vellore, has given evidence that the thumb impressions found on the various accounts and vouchers do not pertain to any of the fingers of the alleged borrowers and are definitely the impressions of the accused. The learned advocate for the accused-appellant argues that the thumb impressions of the accused were taken by force and compulsion and that they cannot be used for comparison in view of the protection afforded by Article 20(3) of the Constitution which prohibits an accused person from being compelled to be a witness against himself. The question whether the use of the thumb impressions of the accused amounts to such a compulsion is debatable and it is needless to express an opinion thereon.
9. I have scanned the evidence of the expert. His statement before the Magistrate about the identity of the disputed impressions with the undisputed finger prints of the accused, gives no reasons for his view. How he came to that conclusion was never explained. He merely filed a list of common characteristics, about none of which was anything elicited in the examination-in-chief or even in the cross-examination. The Court totally failed in its duty of scrutinising the evidence or making a comparison of the impressions personally. The Ipse Dixit of the expert was accepted and acted upon by the Court and the accused was convicted. The Sessions Court too never discussed the question. In this state of things I felt it necessary to summon the expert and elicit some particulars about the reasons on which his conclusion was based.
10. He brought a magnifying lens and after some difficulty was able to indicate 2 or 3 ridge characteristics as being common to the disputed and undisputed impressions. I have asked him as to what method he used for making comparisons. He confessed that he made no enlargement on the screen. In most of the impressions, the delta was missing and he himself admitted that the core was indistinct and when one of the two fixed points is missing it can only be expected that one set of data is lacking. An equality in the number of ridges between the core and delta is one of the sure criteria for comparison. A similarity in the type — here, the loop — can carry no significance because all the millions of people inhabitating the world have their finger prints falling within 4 broad types — Arches, Loops. Whorls and Composites. Similarly in this respect his method cannot be a certain index.
11. We have then the other test viz., a comparison of the ridge characteristics — bifurcations upward or downward, abrupt endings, islands, and other features. The expert has pointed out a similarity in respect of 2 or 3 ridges but even after a close scrutiny I have not felt sure that there was such similarity established. He has taken one ridge in the disputed impression and another ridge in the admitted impression without having regard to the number which that ridge bears from the fixed point viz., the core and tried to make the comparison. That is certainly a fallacious approach. The core being indistinct and the delta being absent, the expert ought to have taken some fixed point common to both. When questioned on the technique of comparison when neither of the two, the core and delta, is visible distinctly, the expert would say that he takes for his scrutiny the areas which correspond to each other, judged roughly by distance and direction from the core and begins making comparisons.
12. I am not satisfied that it is the correct way. In such cases, it is expedient that magnification is made on the screen. The location of the “corresponding areas” can be geometrically fixed relatively to the core at least, because despite indistinctness, its location is certain and then a comparison of the ridge characteristics in the two corresponding areas made.
13. It is not the moral conviction which the expert has that matters. He must rule out the possibility of all reasonable doubt about the identity of the impressions.
14. Again, the expert states that a commonness in about 5 or 6 ridge characteristics suffices for establishing identity. He quotes no authority for this. The characteristics were not brought specifically to the notice of the Court. The Court never verified the correctness of the conclusions of the expert.
15. In these circumstances, I cannot act on the evidence of the expert adduced and uphold the convictions. I am setting aside the convictions and sentences but I do not feel that a fresh trial is warranted taking into account the age of the accused and the fact that the offences were said to have been committed 7 years ago.
KB/R.G.D
16. Order accordingly.