Author: Ankur Jain


Introduction

The evidentiary value of the fingerprints as evidence of the individual’s identity was entrenched many years ago. However, there are numerous complications while considering such evidence- the qualification of the experts is doubted; established laws are put in questions; the power of police to collect the evidence are restraint; the question of breach of individual’s privacy – these issues might make fingerprints week evidence.

By virtue of Art. 21 of the Constitution of India, we are granted with Right to Privacy as a fundamental right, but with certain restrictions, individuals can’t deny giving the fingerprints if it is necessary for further proceeding of a case. In India, Section 45 of the Indian Evidence Act, 1872 pronounces that court can form an opinion upon a point of finger impressions and on the expert opinion, which shall be considered as relevant facts

Laws regulating Fingerprint Evidence

As per Section 3 of the Identification of Prisoners Act, 1920, SHO and Police Investigating officers are empowered to take fingerprints of every person who has been convicted of any offence punishable with rigours imprisonment for a term of one year or more. Under Section73 of IEA, 1872, the magistrate is empowered to take the impressions of any person arrested or for investigation or identification; refusal to the same will make a person liable for punishment endowed under Section 186 of IPC, 1860. Section 45 of the Evidence Act makes experts testimony admissible before the trial court and report submitted by him may be used as the evidence under S. 293 Cr.PC.  

Evidentiary Value in Court

Evidence has the probative value, which has the ability to make a relevant disputed issue more or less accurate. Fingerprints may be accepted as evidence upon the testimony and the cross-examination of the expert witness; it must be shown that the expert possesses specialized knowledge on the very subject on which he proposes to express an opinion. It is at the discretion of the trial court whether to consider the evidence of experts as the relevant fact to the case or not, and its ruling will not be disturbed unless a flagrant abuse of the justice is shown.

The fingerprint evidence is excluded if it appears that the impressions might have been deposited innocently or when the person was lawfully present at the crime scene. This makes the testimony more questionable and thus, it must be proved that fingerprints found at the scene of the crime could only have been deposited there at the time when the crime was committed.

Materiality & Probative-ness

Relevancy of the evidence depends upon two concepts; first, Materiality, which signifies whether the evidence produced, is directly related to the issue or not, second, probative-ness, which signifies that evidence presented, must logically tend to prove the proposition for which it is produced. Probative evidence is more likely to be excluded as it creates the prospect of unfair prejudice, delay and irrelevance.

In Musheer Khan & Badshah Khan & Anr. v. the State of M.P, the court held that Fingerprint expert evidence is not substantive; it can only be used to corroborate the other substantive evidence. However, there are case laws in which, the sole testimony of the expert results in the conviction of the accused.

In the case of Ranjit Ram v. State, it’s held that Even the accused denied having put his thumb impression; the accused was convicted on the evidence of the expert who gave his opinion, that thumb impression was of the accused after comparing the fingerprints of the complainant and accused. 

The actual probative value of the evidence differs from case to case, and it remains for the judge to determine after carefully examining the testimony of the expert and the other circumstantial evidence set forth before them.

Constitutional Objection to Fingerprinting

Is fingerprinting an Invasion of Right against self-incrimination?

The constitutionality of obtaining fingerprints while arresting the individual has been challenged persistently. Arrestees usually raise question that they have the Right against self-incrimination. This issue has been raised many times before the Apex Court, and the Court settled it with widely accepted precedent.

The Right against Self-incrimination is endowed under Art. 20(3), says, “No person accused of any offence shall be compelled to be a witness against himself.”  In the recent judgment of State of U.P. v. Sunil, the Apex Court said:

Any person can be directed to give his footprints for corroboration of evidence, and the same cannot be considered a violation of protection guaranteed under Article 20(3) of the Constitution.

Is fingerprinting an Invasion of Right to Privacy?

Another issue is Invasion of the Right to Privacy of the arrestee while collecting the fingerprint/impression. The Supreme Court said unanimously that mere making of a record of fingerprints by police officers (of a person in custody) on a criminal charge does not constitute an unwarranted invasion of the Right of privacy. The Right to privacy is not absolute, in the sense that it will always be superior to the public’s rights.  

In the case of McGovern v. Van Riper, the court held that:

The Right of privacy of the individual has certain limitations when considered with the rights of the public. The practice of dissemination of fingerprint records to other law enforcement agencies before the conviction was held to be a proper exercise of the police power to facilitate crime detection, and that “one who has been indicted must submit to such slight invasion.

When a person is indicted, his life ceases to be private and becomes a “matter of public interest.” Another ground for upholding the Right to disseminate the records is that it is necessary for the purpose of determining whether the person under indictment is a repeater or a habitual offender. Such dissemination is not an unwarranted invasion of the Right of privacy claimed by the indicted persons to be protected by Art. 21 of Constitution.

Conclusion

Comparing Pudd’mhead Wilson to another book, in a letter to Fred Hall in 1893, Mark Twain said,

There was nothing new in that story, but the fingerprints in this one are virgin ground-absolutely fresh, and mighty curious and interesting to everybody.” Fingerprints evidence cannot be supplemented with any other form of evidence.

Fingerprints are unique for every individual and can be used for the identification of the concerned person, and that identification is based upon the testimony of experts. Fingerprints should not be treated as the “badge of crime”, and it should not subject a person to humiliation. It is merely a procedure to establish the identity of the person and nothing more. Taking fingerprint impression of the person does not violate the constitutional privileges and immunities as endowed under Art. 20(3) and 21 of the Constitution of India.  

In a few countries, there are laws concerning the destruction of fingerprint evidence post acquittal, which assures individuals that their Privacy Rights are patronized by the State; however currently there is no such law in India. There is an exigency to initiate legal awareness that people that giving fingerprint impression will not make them indistinguishable from criminals; simultaneously the government agencies must take care that the fundamental rights are not infringed.


About the Author: Ankur [2018-23 Batch] pursuing B.A.LL.B(Hons.) from Institute of Law, Nirma University, Ahmedabad.


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