JUDGMENT Kanwaljit Singh Ahluwalia, J. (Oral) - On 10.3.1982 at 2.00 AM, Khillu was murdered in his residential house in Village Ujoli. His neck was severed by an incised weapon called "Fawali". Case of the prosecution is that Risal (PW.1) wife of the deceased in night at 2.00 AM was entering in her house when at that nick of the moment she saw four persons coming out of the house and one of them, present appellant Pappu @ Rajveer, was armed with a "Fawali". She thereafter entered into her house, saw the dead body of her husband and became unconscious. 2. To similar effect is the statement of Sheochand (PW.2), uncle (Chacha) of deceased Khillu. 3. It is further case of the prosecution that Ram Kanwar (PW.9) on hearing noise entered the house, met Risal (PW.1), wife of the deceased, and Sheochand (PW.2), uncle of the deceased, and thereafter went to lodge the report (Ex.P.4) to the police. The said report (Ex.P.4) was lodged at Police Station Kotkasim, District Alwar on 10.3.1982 at 3.15 AM. The report (Ex.P.4) is silent regarding the names of the assailants. 4. Prosecution besides above two witnesses Risal (PW.1) and Sheochand (PW.2), relied upon evidence of recovery of weapon, blood stained clothes from the person of present appellant Pappu @ Rajveer. It is further case of the prosecution that finger prints on the articles at the spot and foot moulds were lifted from the spot. 5. The Court of Additional Sessions Judge, Kishangarh Bas, Alwar, out of four assailants named, vide impugned judgment dated 1.3.1985 acquitted Ramsharan, Sardar Singh and Jailal of offence under Section 302 read with Section 34 IPC by extending them benefit of doubt. However, vide impugned judgment dated 1.3.1985 the said court convicted Pappu @ Rajveer substantively for offence under Section 302 IPC and vide a separate order of even date sentenced him to life imprisonment. 6. Aggrieved against his conviction and sentence, Pappu @ Rajveer has preferred instant D.B. Criminal Appeal No. 184/85. 7. State of Rajasthan has opted not to assail the acquittal of Ramsharan, Sardar Singh and Jailal. 8. We have heard Shri Mohit Balwada, learned counsel for the appellant, and Shri Aladeen Khan, learned Public Prosecutor. 9. As stated earlier, criminal proceedings in the present case were set into motion on the basis of report (Ex.P.4) lodged at the instance of Ram Kanwar (PW.9). 8. We have heard Shri Mohit Balwada, learned counsel for the appellant, and Shri Aladeen Khan, learned Public Prosecutor. 9. As stated earlier, criminal proceedings in the present case were set into motion on the basis of report (Ex.P.4) lodged at the instance of Ram Kanwar (PW.9). The report (Ex.P.4) lodged by Ram Kanwar (PW.9) when translated into English, reads as under:- "Tonight in our village Ujoli on Holi festival, drum (Nagara) was playing. I was watching Tamasha. In the night at 2.00 AM we heard noises of weeping and crying coming from the house of Shiv Chand. Somebody in the crowed said that Khillu has been murdered. I and people watching Tamasha went into the house of Shiv Chand. We saw there Shiv Chand and wife of Khillu were weeping and became unconscious. Khillu was lying dead. His neck was severed. It is not known who caused murder. I have come to lodge the report. Action be taken." 10. Now, we shall deal with the evidence of the persons who stated that they had seen accused coming out of the house. 11. Risal (PW.1) wife of the deceased Khillu stated that she was married two years before the occurrence, with Khillu. On the date of occurrence, Holi was being celebrated. The witness stated that she had gone to the house of Ramchandra Nambardar to whom grandson was born and her husband was sleeping alone in the house. She had gone at 8.00-9.00 PM and had returned around 12.00-12.30 AM. We reproduce following lines from examination-in-chief of the witness:- 12. Risal (PW.1) further stated that her daughter Saroj is aged 2 1 /2 - 3 years. The witness stated that when she returned to her house she saw that Pappu, Sardara, Ramsharan and Jailal were coming out of the door of her house. Jailal, Sardara and Ramsharan were empty handed, Pappu was armed with a Fawali. Thereafter when she went inside, she saw that her husband was lying dead. Her neck was severed. 13. Sheochand (PW.2) stated that he was sitting in Chaupal where Tamasha was going on. After sometime, he returned to his house. When he was returning, Risal (PW.1) was 8-7 steps ahead to him. While entering into the house, he saw Pappu, Jailal, Sardara and Ramsharan coming out of doors of the house. Pappu was armed with Fawali. 13. Sheochand (PW.2) stated that he was sitting in Chaupal where Tamasha was going on. After sometime, he returned to his house. When he was returning, Risal (PW.1) was 8-7 steps ahead to him. While entering into the house, he saw Pappu, Jailal, Sardara and Ramsharan coming out of doors of the house. Pappu was armed with Fawali. He went inside the house and saw that neck of Khillu was severed. 14. To explain as to why names of accused have not surfaced in the FIR (Ex.P.4), the witnesses have coined an explanation that when they came inside the house, they became unconscious. This, to us, is a false explanation coined later to introduce name of the accused. In the FIR (Ex.P.4), Ram Kanwar (PW.9) has stated that when he went inside the house, Sheochand (PW.2) and Risal (PW.1) were weeping and they were becoming unconscious. We find that when immediately Risal (PW.1) and Sheochand (PW.2) had entered the house, their natural reaction will be to raise noise naming the accused. In the same night names of the accused ought to have been relayed. Ram Kanwar (PW.9) went inside the house, met both Risal (PW.1) and Sheochand (PW.2). They were weeping, but curiously enough in the FIR (Ex.P.4) accused were not named. Thus, we can safely say that when police arrived in the morning, after consultations and deliberations, names of the accused surfaced. Thus, we disbelieve the testimony of Risal (PW.1) and Sheochand (PW.2) that they became unconscious. 15. To us, it is also highly improbable that at the nick of moment when accused were coming out of their house, then only both Risal (PW.1) and Sheochand (PW.2) have arrived at the door step of their house. Sheochand (PW.2) was at the Chaupal, whereas Risal (PW.1) had gone to attend daughter-in-law of Ramchandra Nambardar who had given birth to a child. It is a great chance that at very particular moment when the accused were coming out of the house, not one but two witnesses have arrived, saw accused coming out of house and thereafter became unconscious only to name the accused in the morning when police arrived. Thus, we can safely say that Risal (PW.1) and Sheochand (PW.2) have not seen the accused coming out of the house. Thus, we rule out the testimony of Risal (PW.1) and Sheochand (PW.2) in this regard. 13. Thus, we can safely say that Risal (PW.1) and Sheochand (PW.2) have not seen the accused coming out of the house. Thus, we rule out the testimony of Risal (PW.1) and Sheochand (PW.2) in this regard. 13. Now, we are only left with circumstantial evidence. 14. Phool Singh (PW.3) had attested Panchayatnama (inquest) (Ex.P.1). 15. Ramphal (PW.4) stated that hearing the noise he had gone to the house of Khillu where Risal (PW.1) and Sheochand (PW.2) were lying unconscious, in the context that accused were not named in the FIR. 16. We have already not relied on the evidence of Risal (PW.1) and Sheochand (PW.2) that they became unconscious, in the context that accused were not named in the FIR. 17. Prithvi Singh (PW.5) deposed in court that accused, vide memo (Ex.P.2) got recovered Fawali. However, this witness in court stated that Khillu is husband of his sister. 18. Soniya (PW.6) has turned hostile to the prosecution. 19. Ram Prasad (PW.7) has also stated that after hearing the noise, he went to the house of Khillu, saw the dead body and found that Risal (PW.1) and Sheochand (PW.2) were lying unconscious. 20. Maha Singh (PW.8) stated that in the year 1980 he had gone to the police station. Police brought accused out of lock-up and had taken specimen of his feet by preparing sample foot moulds. 21. Ram Kanwar (PW.9) has stated that he had lodged the report. The witness in crossexamination stated that he specifically asked Risal (PW.1) and Sheochand (PW.2) as to how Khillu had died, they both were weeping and later, they became unconscious. Thus, cross-examination of Ram Kanwar (PW.9) fortify the reasoning given by us to disbelieve testimony of Risal (PW.1) and Sheochand (PW.2). 22. Ram Prasad (PW.10) has stated that the accused in his presence got recovered Fawali vide memo (Ex.P.2). 23. Gordhan (PW.11) also could not advance the case of the prosecution except to say that after hearing noise he went to the house of Khillu. 24. Ramhet (PW.12) had partly investigated the case. He stated that he had taken various samples from the spot. This witness has proved various facets of investigation. 25. Madan Lal Bhargava (PW.13) has stated that in police station he had taken specimen foot moulds by POP powder vide articles (Ex.P.8 and 9). 26. Dr. Ajay Kumar Gupta (PW.14) had conducted autopsy on the dead body. 27. He stated that he had taken various samples from the spot. This witness has proved various facets of investigation. 25. Madan Lal Bhargava (PW.13) has stated that in police station he had taken specimen foot moulds by POP powder vide articles (Ex.P.8 and 9). 26. Dr. Ajay Kumar Gupta (PW.14) had conducted autopsy on the dead body. 27. Ram Singh (PW.15) had carried sealed samples to Forensic Science Laboratory. 28. We may notice here that from the person of Pappu @ Rajveer, present appellant, on the basis of disclosure statement made (Ex.P.14), vide memo (Ex.P.10), one bushirt and one Pajama were recovered which were stained with blood. 29. We have seen report (Ex.P.18) submitted by Forensic Science Laboratory. As per report, sufficient blood stains were not found to determine the blood group on the clothes. Thus, mere recovery of clothes in no way advance the case of the prosecution. Similarly, on the weapon of assault, no blood group has been found. However, on Fawali recovered from the accused, human blood was found, but Serelogist has not determined the blood group thereon. Until the prosecution determine and tally the blood group on the weapon with the blood group of deceased, mere recovery of weapon is not sufficient to uphold conviction of the appellant. 30. Now, we shall deal with the footprints lifted and foot moulds prepared by the prosecution. 31. A Division Bench of this court in bunch of three appeals, lead case being Vikram @ Vikky vs. State of Rajasthan [D.B. Criminal Appeal No. 888/2009], decided on 17.07.2015, relying on decision of another Division Bench of this court in Sunder & Ors. vs. State of Rajasthan [D.B. Criminal Appeal No. 1011/2012] decided on 27.01.2015, qua the evidence of foot moulds, held as under:- "Circumstance-III, Evidence of foot moulds: A.S.I. Ram Singh (P.W.14) has deposed in court that on 22.9.2007 vide memo (Ex.P.31) in presence of Kishori Lal (P.W.1) and Ramjilal, two foot moulds were lifted. Ramjilal has not been examined and as stated earlier, Kishori Lal (P.W.1) has not deposed that any foot moulds were lifted in his presence from the spot. He is totally silent on this count. It has further come in evidence that on 30.9.2007 vide memo (Ex.P.20) sample foot moulds of each accused appellants were also prepared. A Division Bench of this court in Sunder & Ors. He is totally silent on this count. It has further come in evidence that on 30.9.2007 vide memo (Ex.P.20) sample foot moulds of each accused appellants were also prepared. A Division Bench of this court in Sunder & Ors. vs. State of Rajasthan [D.B. Criminal Appeal No. 1011/2012, decided on 27.1.2015] to which one of us (K.S. Ahluwalia, J.) was a Member, taking into consideration the Rajasthan Police Rules, has held as under:- "But according to the site plan (Ex. P. 4) the footprints were not lifted from the courtyard, or from near the dead bodies. According to the site plan (Ex. P. 4) the dead body was lying in a room marked as ''A''. But the footprints were lifted from outside the house, at a place marked as ''X'' and ''X2''. It is, indeed, an old adage that "man may lie, but circumstances do not". The site plan (Ex. P. 4) is a contemporaneous document. According to Sunder Singh (P.W. 11) the site plan is correct and depicts the way the things were found. Therefore, even if Sunder Singh (P.W.11) and Prahlad Swaroop (P.W. 22) claim that the footprints were lifted from near the dead bodies, their testimonies are belied by the site plan (Ex.P.4). Moreover, there is a contradiction between the testimony of Prahlad (P.W.22) and testimony of Sunder Singh (P.W.11) with regard to the time when the footprints were lifted. According to Prahlad (P.W. 22), the footprints were lifted around 4:00 PM in the evening; according to Sunder Singh (P.W. 11), the footprints were lifted at 8:00 O''clock in the morning. It is also pertinent to note that according to Charan Singh (P.W.1), Balbeer (P.W.2), Sunita (P.W.7), Mani (P.W.8), Sunder Singh (P.W. 11), Jagdish (P.W. 13), the villagers had been coming and going in and around the house. Thus, it is unclear as to whose footprints were lifted from the scene of the crime. It is equally unclear from where were they lifted, and at what time they were lifted from the scene of the crime. Most importantly, Prahlad Swaroop (P.W.22) has clearly admitted that the footprints were not lifted before a Magistrate. Therefore, the lifting of the footprints from the scene of the crime is enigmatic. Rule 6.26 of the Rajasthan Police Rules, 1965 is as under:- "6.26. Importance of footprints and track evidence.- (1) Footprints are of the first importance in the investigation of crime. Therefore, the lifting of the footprints from the scene of the crime is enigmatic. Rule 6.26 of the Rajasthan Police Rules, 1965 is as under:- "6.26. Importance of footprints and track evidence.- (1) Footprints are of the first importance in the investigation of crime. For this reason all officers incharge of police stations shall instruct their subordinates as well as all chaukidars that, when any crime occurs all footprints and other marks existing on the scene of the crime should be carefully preserved and a watch set to see that as few persons as possible are permitted to visit the scene of the crime. (2) When it is desired to produce evidence of the identity of tracks found at the scene of or in connection with a crime, the procedure for securing the record of such evidence shall be similar to that prescribed in rule 7.31 for the identification of suspects. The attendance of a magistrate of the highest available status, shall be secured or, if that is impossible, independent witnesses of reliable character shall be summoned. In the presence of the magistrate or other witnesses, and in conformity with the reasonable directions which they may give, ground shall be prepared for the tests. On this ground the suspect or suspects, and not less than five other persons shall be required to walk. The magistrate, or in his absence the police officer conducting the test, shall record the names of all these persons and the order in which they enter the test ground. While these preparations are preceding the tracker or other witness, who is to be asked to identify the tracks shall prevented from approaching the place or seeing any of the persons concerned in the tests. When all preparations are complete the witness shall be called up and required to examine both the original tracks and those on the test ground, and thereafter to make his statement. The magistrate, or in his absence, the police officer conducting the test shall record the statement of the witness as to the grounds of his claim to identify the tracks, and shall put such other questions as he may deem proper to test his bona fides. The officer investigating the case and his assistants shall be allowed no share in the conduct the test. The officer investigating the case and his assistants shall be allowed no share in the conduct the test. Tracks found, which it is desired to test by comparison as above, shall be protected immediately on discovery, and their nature, measurements and peculiarities shall be recorded at the time in the case diary of the investigating officer. The details of the preparation of the test ground and the actions required of the suspect and those with whom his tracks are mixed must vary according to the circumstances of the case. The officer conducting the test in consultation with the magistrate or independent witnesses, shall so arrange that the identifying witness may be given a fair chance, but under the strictest safeguards, of comparing with the original tracks, other tracks made on similar ground and in similar conditions. (3) The evidence of a tracker or other expert described in the foregoing rule can be substantiated by the preparation of moulds of other footprints of the criminal or criminals found at the scene of the crime. In making moulds for production as evidence the following precautions should be observed:- (a) The footprints found on scene of the crime must be pointed out to the reliable witnesses at the time and these same witnesses must be present during the preparation of the moulds. (b) The latter must also be signed or marked by the witnesses and the officer preparing them while still setting. (c) After the procedure described in Sub-rule (2) above has been completed a mould should be prepared in the presence of the Magistrate or witnesses of one of the foot prints of the suspect made in their presence. This mould should be signed by the Magistrate or witnesses when still setting. (d) Both moulds should be carefully preserved for production in court for identification by witnesses and comparison by the Court." Thus, Rule 6.26 (3) requires that prior to taking the impression of the footprints and before making a mould, the footprints found on scene of the crime must be pointed out to reliable witnesses. However, in the present case neither Prahlad Singh (P.W.22), nor Jagdish (P.W.13) states that the footprints of the alleged accused persons were pointed out to them. According to Rule 6.26 (3)(c), the moulds of the footprints should be made either in front of Magistrate, or in front of witnesses. However, in the present case neither Prahlad Singh (P.W.22), nor Jagdish (P.W.13) states that the footprints of the alleged accused persons were pointed out to them. According to Rule 6.26 (3)(c), the moulds of the footprints should be made either in front of Magistrate, or in front of witnesses. The said moulds have to be signed either by the Magistrate, or the witnesses. According to Rule 6.26 (3) (d), during the course of trial the mould should be produced in the court for identification by the witnesses and comparison by the court. However, in the present case, according to Prahlad (P.W.22), the footprints were not lifted from the place of the occurrence in front of a magistrate. They were, in fact, lifted in front of Jagdish. But Jagdish is not an independent witness as he is one of the sons of the deceased. Furthermore, according to Jagdish (P.W.13), the moulds of the footprints were not produced before the trial court during his testimony for his identification and for comparison by the court. Therefore, the procedure established by the rules has not been followed. Moreover, the second recovery witness, Kunwar Singh, has not been produced by the prosecution. Thus, a material witness has been withheld by the prosecution. Therefore, considering the contradictions between the witnesses, considering the contradiction between the testimonies of the witnesses and the site plan, considering the fact that the procedure prescribed by law has not been followed, considering the conduct of the prosecution in withholding an independent witness of recovery from the court, the recovery of the footprints from the scene of the crime cannot be believed. According to Prahlad (P.W.22), even when he had taken the footprints of the appellants in the police custody, the Magistrate was not present. Section 4 and Section 5 of the Act of 1920 are as under:- "4. Taking of measurements, etc., of non-convicted persons.-Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner. 5. Taking of measurements, etc., of non-convicted persons.-Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner. 5. Power of Magistrate to order a person to be measured or photographed.-If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898 (5 of 1898) [now, Code of Criminal Procedure, 1973 (2 of 1974)] it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer: Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class: Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding." Section 5 prescribes the manner in which the measurement of a non-convicted person is to be taken. Therefore, before a foot impression of an accused can be taken during the course of investigation, the procedure as laid down by Section 5 has to be followed. A magistrate has to be satisfied in order to direct the person to allow his measurements or photographs to be taken. The said order has to be passed by the magistrate of the First Class. However, in the present case no such order has been passed by the magistrate of the First Class directing the appellants to allow the police to take their footprints. According to Rule 6.26 of the Rajasthan Police Rules, 1965 the procedure for securing the record of such footprint shall be similar to that prescribed for holding a T.I. parade of suspects under Rule 7.31. This rule prescribes an elaborate procedure for holding a test identification of the footprints. However, in the present case, the police neither secured the attendance of a Magistrate, nor associated witnesses of reliable character, nor followed the procedure prescribed by this rule. This rule prescribes an elaborate procedure for holding a test identification of the footprints. However, in the present case, the police neither secured the attendance of a Magistrate, nor associated witnesses of reliable character, nor followed the procedure prescribed by this rule. For, according to Exhibit-P.34 the footprints were lifted before two Police Constable, namely Dayanand and Ghamsi Ram. The investigating officer, Gopal Singh (P.W.30) has not given any explanation for non-procuring of the Magistrate of the highest rank, and for non-procuring of a witness of reliable character. Further, Ghamsi Ram (P.W.23) admits in his cross-examination that "the names of the accused were not tagged with the impression of their foot. It is true that at the time of taking the foot impression by Exhibit-P.34, only police personnel were present and no outside person was present at that time. No person from outside was called. It is true that the foot impressions which were taken are not before me in the court. It is true when the foot impressions were taken, a Magistrate was not present at that time". The other witness to this recovery, Dayanand, has not been produced by the prosecution. Thus, again the prosecution has withheld a material witness. Further, the procedure prescribed by law has been flouted by the investigating agency. Neither a magistrate, nor independent witnesses have been associated with taking of the footprints and the foot moulds of the appellants during police custody. Considering the fact that the entire case is based on circumstantial evidence, considering the fact that the prosecution has failed to prove as to where the footprints were lifted from the place of the occurrence, considering the fact that the procedure for lifting the footprint has been flouted, considering the fact that according to Ghamsi Ram (P. W. 23), the foot prints lifted during the police custody were not even tagged with the names of the appellants, the report of the FSL (Ex.P.50) loses all its significance. The said report claims that the footprints lifted from the scene of the crime and the footprints of the accused match perfectly. But the footprint taken by the police seem to be padding made by the police in order to strengthen its case based on circumstantial evidence. Hence, the evidence of the recovery of the footprints of the appellants is clearly unreliable. But the footprint taken by the police seem to be padding made by the police in order to strengthen its case based on circumstantial evidence. Hence, the evidence of the recovery of the footprints of the appellants is clearly unreliable. In the case of Leelaram & Ashok vs. State of Rajasthan [2008 (1) RLW 745] , this court had expressed its opinion that foot impression mould should be taken either before a magistrate, or at his direction, or under his order. In the case of Mohd. Aman vs. State of Rajasthan [ (1997) 10 SCC 44 ] , the Apex Court has disbelieved the evidence of footprint inter alia on the ground that the sample was not taken before a magistrate. The Apex Court further observed that the science of identification of footprints is not a fully developed science. In the case of Balbir Singh and Anr. vs. State of Punjab 1996 (6) SCALE 72 the Hon''ble Supreme Court opined that where the prosecution has failed to prove as to whose footprints were lifted and examined, the trial court is unjustified in treating the evidence of the footprint as conclusive circumstance for establishing the complicity of the accused in the crime. Likewise, in the present case, the prosecution has failed to prove as to whose footprints were lifted and from where they were lifted from. Thus, the evidence of the footprints cannot be read against the appellants. Therefore, this court does not find the evidence of footprints as a reliable piece of evidence for convicting the appellants." Relying upon above judgment we find that necessary safeguard qua foot moulds to quell suspicion have not been assured by the investigation agency. Nonexamination of Ramji Lal, and silence on part of Kishori Lal (P.W.1) qua this important part make this piece of evidence doubtful and hence same is also excluded from consideration." In the case of Vikram @ Vikky (supra), the Division Bench has also dealt with the evidence of finger prints, as under:- "Circumstance-II, Evidence of finger prints: On 22.9.2007 vide memo (Exhibit-P.32) in presence of Ramjilal (not examined) and Kishori Lal (P.W.1), investigating agency had pickedup chance finger prints from the goods lying scattered in the house. Ram Singh (P.W.14) who was posted as ASI in M.O.B. Branch in the office of Superintendent of Police, Alwar stated that he examined household articles lying scattered at the place of murder and from the utensils he had lifted chance finger prints. Thereafter, on 28.9.2007, the S.H.O. called him at the police station and at the police station accused-appellants gave their finger prints and sample finger prints of Gordhan, Vikram @ Vikky and Mahendra were taken into possession vide memos (Ex.P.34, P.35 and P.36 respectively). Learned counsel for the appellants have relied upon Prakash vs. State of Karnataka [(2014 Cri. L.J. 2503] wherein it was held that where there is no evidence that the finger prints were taken by the investigating officer under the orders of the Magistrate, manner of taking finger prints cannot be held credible and same cannot be construed against the accused. We will reproduce Paras-46 and 47 of the judgment in the case of Prakash (supra) as under:- "46. Assuming Prakash''s fingerprint was in fact obtained by D''Souza, it was clearly not given voluntarily, but perhaps unwittingly and in what seems to be a deceitful manner. To avoid any suspicion regarding the genuineness of the fingerprint so taken or resort to any subterfuge, the appropriate course of action for the Investigating Officer was to approach the Magistrate for necessary orders in accordance with section 5 of the Identification of Prisoners Act, 1920. In Mohd. Aman vs. State of Rajasthan (1997) 10 SCC 44 this Court referred to the possibility of the police fabricating evidence and to avoid an allegation of such a nature, it would be eminently desirable that fingerprints were taken under the orders of a Magistrate. We may add that this would equally apply to the creating evidence against a suspect. This is what this Court had to say: "Even though the specimen fingerprints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. This is what this Court had to say: "Even though the specimen fingerprints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take fingerprints of the accused but to dispel any suspicion as to its bonafides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate." 47. The Karnataka High Court has taken the view [State of Rural Police vs. B.C. Manjunatha, ILR 2013 Karnataka 3156] that it is not incumbent upon a police officer to take the assistance of a Magistrate to obtain the fingerprints of an accused and that the provisions of the Identification of Prisoners Act are not mandatory in this regard. However, the issue is not one of the provisions being mandatory or not - the issue is whether the manner of taking fingerprints is suspicious or not. In this case, we do not know if Prakash''s fingerprint was taken on 7th November, 1990 as alleged by him or later as contended by the Investigating Officer, or the circumstances in which it was taken or even the manner in which it was taken. It is to obviate any such suspicion that this Court has held it to be eminently desirable that fingerprints are taken before or under the order of a Magistrate. As far as this case is concerned, the entire exercise of Prakash''s fingerprint identification is shrouded in mystery and we cannot give any credence to it." We may also add here that possibility cannot be ruled out that sample finger prints and alleged finger prints taken from the spot may have been prepared at the police station." In the case of Vikram @ Vikky (supra), it was further held by the Division Bench as under:- "In these circumstances, we cannot rely on the statement of the police personnel especially when finger prints of the accused were not taken under the orders of the Magistrate. In Paramasivam @ Paraman @ Kottiyan and Anr. vs. State of Tamil Nadu [J.T. 2002 (8) SC 214] it was held as under:- "4. In Paramasivam @ Paraman @ Kottiyan and Anr. vs. State of Tamil Nadu [J.T. 2002 (8) SC 214] it was held as under:- "4. Before proceeding further, however, the learned advocate placed a strong reliance on a decision of this Court in Mahmeed vs. State of U.P., 1976 CRI. L.J. 10 as regards the finger prints and its admissibility wherein this Court in paragraph 16 of the report was pleased to observe as below : "16. Furthermore, the specimen fingerprints of the appellant were not taken before or under the order of a magistrate in accordance with section 5 of the Identification of Prisoners Act. This is another suspicious feature of the conduct of investigation. It has not been explained why this magistrate was kept out of the picture." 5. Admittedly there has been no magistrate''s presence or order in that regard and in that view this Court has expressed that in terms of the statutory provisions, the question of relying thereon would not arise. Reliance on PW 16 by the High Court thus possibly cannot be had by reason of the non-admissibility as noticed by this Court in Mahmood (supra)." A similar view was reiterated by the Hon''ble Apex Court in Mohd. Aman and another vs. State of Rajasthan [ AIR 1997 SC 2960 ]." 32. In the present case, both finger prints and foot moulds were not taken and prepared in the presence of Magistrate. Thus, this piece of evidence cannot be construed incriminating towards the accused. Thus, circumstance of tallying of finger prints and foot moulds cannot be relied against the accused. 33. Consequently, as a result of above discussion, present appeal is allowed. Conviction and sentence of accused-appellant Pappu @ Rajveer is set aside. He is acquitted of the charge. 34. We find that a Division Bench of this court on 12.8.1985 had ordered that sentence awarded upon the appellant shall remain suspended and he shall be released on bail. Thus, the appellant is on bail as on today. Thus, we direct the trial court to call the accused-appellant to execute bail bonds and bonds by the sureties for compliance of section 437A Cr.P.C., 1973