TUNOO MIA Vs. EMPEROR

JUDGEMENT

(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.