Andhra HC (Pre-Telangana)
Narne Gopikrishna And Another vs State Of A.P. Rep By Public ... on 3 August, 2012
Equivalent citations: AIRONLINE 2012 AP 82
Bench: N.V. Ramana, B.N. Rao Nalla
THE HON'BLE SRI JUSTICE N.V. RAMANA AND #THE HON'BLE SRI JUSTICE B.N. RAO NALLA
CRIMINAL APPEAL No. 1051 of 2008
03-08-2012.
Narne Gopikrishna and another
State of A.P. rep by Public Prosecutor,High Court, Hyderabad.
For the appellants : Smt D. Sangeetha Reddy
For the Respondent: Public Prosecutor
< Gist:
> Head Note:
? CITATIONS:
1. AIR 1960 SC 29
2. AIR 1952 SC 343
3. AIR 1976 SC 69
4.AIR 1997 SC 2960
5. AIR 1978 SC 1248
6. (1985) 1 SCR 98
Judgement: (Per Sri. N.V. Ramana, J.)
This criminal appeal is directed against the judgement dated 08.08.2008,
passed by the VIII Additional District and Sessions Judge (FTC), Visakhapatnam,
in S.C. No. 5 of 2008, convicting the appellants-accused for the offences under
Section 302 read with Section 34 IPC and sentencing them to undergo imprisonment
for life and to pay fine of Rs.500/- each, in default to undergo simple
imprisonment for two months each, and further convicting them for the offence
under Section 379 IPC and sentencing them to suffer imprisonment for a period of
six months each.
Briefly stated, the case of the prosecution is that P.W.3 is the mother of the
deceased, namely Pondara Raju. The deceased, P.W.5 and L.Ws. 8 to 11 used to
live in opposite rooms in the house of P.W.7 at Chattivanipalem and became
friends. About fifteen days prior to the incident on 05.06.2006, the deceased
along with P.W.5 came from Thippanaputtuga, Ichapuram Mandal to Gajuwaka and
joined in A.B.B.S. Talent Training Centre of P.W.4 at Autonagar, for industrial
training. As the accused did not have any earnings for their livelihood, they
decided to kill the deceased and take away his motorcycle and his personal
belongings. Therefore, the accused used to move closely with the deceased and
visit the hotel of P.W.6 for meals. P.W.5 and L.Ws. 8 to 11 and others
witnessed the same. They convinced the deceased to go with them to Anakapalle
for a ride on his motorcycle. Accordingly, on the night of 5.06.2006 at about
8.00 pm, both the accused waited at the bus stop of Chattivanipalem Main Road.
When the deceased came from the photo studio along with P.W.5, the accused took
the deceased towards Anakapalle on his motorcycle by leaving P.W.5 there. At
about 9.00 or 10.00 pm, they stopped the motorcycle at the wine shop of P.W.11.
The deceased purchased three beer bottles, some stuff and cigarettes. Later,
they came to Jalagalamadumu Junction, Anakapalle. The accused and the deceased
parked the motorcycle in a thatched hut situated by the side of the road and
went into a sugarcane field and sat there and consumed beer. After consuming
the beer, the accused tried to steal the motorcycle. As the deceased resisted,
the accused attacked the deceased with the empty beer bottles. Accused No.1
beat the deceased with the empty beer bottle on his head, while accused No.2
strangulated the neck of the deceased with a thin wire and killed him. The
accused later snatched the gold chain from the neck of the deceased weighing
about three grams. They tried to secure the key of the motorcycle, and as they
could not trace it, they left the scene of offence and went directly to
Chattivanipalem. At about 1.00 pm, when both the accused came to their room,
P.W.5 saw the accused moving hurriedly to their room. They packed their luggage
and left their room. When P.W.5 enquired the accused about the deceased, the
accused did not give any reply and went away.
On 06.06.2006 in the morning, on information P.W.1 visited the scene of offence,
saw the dead body of the deceased and presented a complaint at Anakapalle Town
Police Station at about 11.00 am. P.W.13, based on the complaint lodged by
P.W.1, registered a case in Crime No. 138 of 2006 under Section 302 IPC.
Thereafter, P.W.17 took up investigation.
During the course of investigation, P.W.17 on 06.06.2006 at about 12.00 pm,
visited the scene of offence, seized the blood stained earth, controlled earth,
broken glass bottles, cigarette butts, key chain of the motorcycle, thin wire
etc. under cover of Mediators Report in the presence of two mediators, namely
P.W.8 and L.W.15. Thereafter, he held inquest over the dead body of the
deceased from 1.00 pm to 4.00 pm in the presence of P.Ws. 1, 2 and L.W.2 and the
panchayatdars, P.W.8 and L.W.15. He established the identity of the deceased
with the Driving Licence available in the toolbox of the motorcycle. P.W.13
passed on the information to P.W.3. P.W.17 also examined and recorded their
statements. L.W.19 took the photographs of the scene of offence. P.W.17
prepared rough sketch of the scene of offence. L.W.20 examined the scene of
offence and traced the chance prints. After conducting inquest, the dead body
was sent to Government Hospital, Anakapalle for autopsy under escort of L.W.24.
P.W.17 examined P.W.11 and recorded his statement. P.Ws. 3 to 5 and L.Ws. 8 to
11 identified the dead body of the deceased.
On 07.06.2006, at about 4.00 pm, P.W.17 visited Chattivanipalem and examined the
rooms of both the accused in the presence of mediators, namely P.Ws. 6 and P.W.9
and seized a newspaper and small bundles of thin wire under cover of Mediator's
report. Thereafter, he examined P.Ws.3 to 5, 6, 7 and L.Ws. 8 to 11 and
recorded their statements. P.W.10, the Medical Officer, who conducted post
mortem examination, issued post mortem certificate opining that the deceased
died due to Asphyxia due to strangulation ligature.
P.W.17 arrested accused No.1 on 16.06.2006 at about 4.00 pm at Vuppugonduru near
Ongole junction and recorded his confessional statement in the presence of P.Ws.
13 and 14 and seized stolen gold chain of the deceased. Based on the
confessional statement of accused No.1, P.W.17 arrested accused No.2 on
16.06.2006 at 6.00 pm at Railway Station, Ongole and recorded his confessional
statement in the presence of two mediators, P.Ws. 13 and 14 and sent them to
judicial custody. The Finger Prints of the accused and the chance finger prints
traced at the scene of offence were sent through SDPO, Anakapalle to Forensic
Science Laboratory, Hyderabad, for comparison. He preserved the saliva of the
accused along with cigarette butts that were sent to RFSL, Visakhapatnam, for
comparison through SDPO, Anakapalle. P.W.12 conducted Test Identification
Parade of the accused and P.Ws.3, 4, 11 and others identified the accused.
After completion of investigation, P.W.17 filed the charge sheet against the
accused.
The learned Sessions Judge framed the charges under Section 302 read with
Section 34 IPC and Section 379 IPC against the accused. The accused pleaded not
guilty for the said charges and claimed to be tried.
The prosecution, in order to establish the said charges, examined P.Ws.1 to 17
and got marked Exs.P1 to P31 and M.Os.1 to 7. On behalf of the defence, neither
any witness was examined nor any documents were marked.
The learned Sessions Judge, upon appraisal of the evidence on record, found the
appellants-accused guilty for the offences under Section 302 read with Section
34 IPC and convicted and sentenced them to undergo imprisonment for life and to
pay fine of Rs.200/-, in default to undergo simple imprisonment for two months;
he also found the appellants- accused guilty for the offence under Section 379
IPC and sentenced them to undergo simple imprisonment for six months. Both the
sentences were ordered to run concurrently.
Questioning the said conviction and sentence, the appellants-accused, who are
two in number, have preferred the present appeal.
Heard the learned counsel for the appellants and the learned Public Prosecutor
for the State.
Now the point that arises for consideration in this criminal appeal is:
Whether the prosecution could establish the charges under Section 302 read with
Section 34 IPC and Section 379 IPC against the appellants-accused beyond all
reasonable doubt?
The prosecution, to prove the guilt of the accused for the charges framed, has
examined as many as seventeen witnesses as P.Ws.1 to 17.
P.W.1 is the Village Revenue Officer, Anakapalle, who found the dead body of the
deceased at surgarcane fields and reported the matter to police. He stated that
on being informed by ryots that they found a dead body at Jalagala Madumu, he
went there along with one Talyari and found a dead body of a male person lying
in feeder canal by the side of sugarcane fields of Ponnada Sanjeeva Rao. He
also found broken glass pieces, wire (telephone) and burnt cigarette butts. He
noticed a ligature mark around the neck of the deceased. Then he drafted Ex.P1-
report and presented the same to Anakapalle Town Police Station. Then P.W.13-
Sub Inspector of Police, registered the same as crime. Thereafter, P.W.13 along
with his police constables came and held inquest over the dead body of the
deceased. The police seized glass pieces, telephone wire, cigarette butts and
prepared observation-cum-seizure report in their presence. That M.O.1 is the
broken glass pieces of beer bottles, M.O.2 is the telephone wire and M.O.3 is
cigarette butts and cigarette packet. He stated that he was present at the time
when inquest over the dead body of the deceased was conducted by the police. In
his cross-examination, P.W.1 stated that he does not know what was written by
the police in the inquest report. He also found one red broken bangle piece at
the scene of offence and that he noticed a gold chain lying at the scene of
offence, and he did not affix his signature on any of the slips of M.Os. 1 to 3.
P.W.2 is the brother-in-law of Ponnada Sanjeeva Rao, at whose sugarcane fields
the dead body of the deceased was found. He stated that he is looking after the
sugarcane fields of his brother-in-law and that he noticed a dead body of a male
person, and he also noticed broken glass pieces of beer bottles, broken bangle
pieces, telephone wire and burnt cigarette butts and burnt match sticks.
P.W.3 is the mother of the deceased. She stated that she came to know her son
was murdered near a sugarcane field at Anakapalle. On the next day of the
incident, she went to Anakapalle Police Station. That she saw the dead body of
the deceased at the Government Hospital, Anakapalle and identified him to be her
son. She stated that her son completed Intermediate, and after the death of her
husband, her son came to Visakhapatnam in pursuit of employment and joined an
institute in Autonagar, Gajuwaka. Her son and P.W.5 both joined in the said
course, and her son was staying in a rented house near to the institute. Her
son was using the motorcycle belonging to his father. The belongings of her son
i.e. gold chain, cell phone and some cash were found stolen. M.O.4 is the gold
chain and M.O.5 is a piece of M.O.4. In her cross-examination, she stated that
she identified M.Os. 4 and 5 when they were shown to her by the police only
after she went there from the hospital. That four or five days after the death
of her son, she again went to the Anakapalle Police Station and then the police
showed her the accused.
P.W.4 is the owner of the institute in which the deceased was studying. He
stated that he knows the deceased. That he also knows the accused because he
has seen them at Anakapalle Police Station. In his cross-examination, he stated
that the police took some students studying in his institution for
interrogation.
P.W.5 is the roommate of the deceased in the rented room of one Pardesamma. He
stated that the deceased also belongs to his village. That along with them,
four others also used to stay. Himself, the deceased and another, shifted to
another accommodation in the same locality. That he knows the accused who used
to stay in the room opposite to their room. On 05.06.2006, himself and the
deceased after returning from the institute, went to a photo studio. After
taking the photos, while they were returning on the motorcycle, he saw the
accused at Autonagar Bus Stop. The deceased stopped the motorcycle and asked
him to go to the room and that he will go along with the accused. Then the
deceased and both the accused went on the motorcycle. On that day, at about
10.00 pm, when he telephoned to the mobile number of the deceased, the deceased
informed him that they will come within a short time and asked him and the other
room mate to take food without waiting for him. That at about 1.00 am in the
night, both the accused came, while the deceased did not. When he asked the
whereabouts of the deceased, the accused replied that the deceased did not come
along with them and that the accused proceeded to their room, packed their
clothes in a hurried manner and left the room. When himself and his roommate
questioned the accused, they informed them that the deceased will come later.
Thereafter, he did not see the accused. On the next day, they informed P.W.4
that the deceased was missing. Thereafter, P.W.4 went to Gajuwaka Police
Station to give a report. Later, they received a phone from the village that
the deceased died near Anakapalle. In his cross-examination, he stated that two
days prior to the death of the deceased, they shifted to their room, and
admitted that before the police he stated that they shifted the room five days
prior to the death of the deceased. He further admitted that the accused did
not visit the new room and that he cannot say exactly when the accused visited
their old room. He stated that he does not know whether accused are related to
each other and that he never saw the accused going with the deceased on his
motorcycle prior to 05.06.2006. He stated that he telephoned the deceased on
05.06.2006 from a local coin box. That he never visited the room of the
accused. That he does not know whether there were broken bangle pieces found at
the scene of offence. The deceased used to get phone calls from friends, but
he does not know whether they are from girl friends or boy friends. He admitted
that the room of the accused is not visible from their new room. He enquired
with the accused about the deceased at their old room. He further admitted that
their new room and the room of the accused are not situated in the same street.
On that night, from 12.00 am to 1.00 am, they tried to contact the deceased, but
his mobile phone was switched off. He has seen the accused only once when they
were taking their luggage and that too on the road which is near to the old
room.
P.W.6 is the owner of the mess where the deceased and others used to have lunch
and dinner. He stated that the deceased used to come alone and have lunch and
dinner in their mess and the police informed him that the deceased was murdered.
P.W 7 is the owner of the room of the accused. He stated that the accused
stayed in their house for rent for one month. He stated that he came to know
through police that the deceased was murdered.
P.W.8 is Councillor of 15th Ward of Anakapalle. He is mediator to seizure of
M.Os. 1 to 3 and Ex.P2-observation report and also Ex.P3-inquest report.
P.W.9 is Instructor in the institute run by P.W.4. He is mediator to Ex.P4-
mediator's report and seizure of M.O.6-newspapers.
P.W.10 is the Civil Assistant Surgeon, who conducted autopsy over the dead body
of the deceased. He stated that on receipt of requisition from the Anakapalle
Town Police Station, he conducted autopsy over the dead body of the deceased.
That he found the following external injury:
Ligature mark: A dark brown hard parchmentized ligature mark present on and
around the neck 32 x 3 cms length at the level of thyroid cartilage region.
There is no definite patter. There is no definite knot mark. The ligature mark
is transversely passing all around the neck.
He further stated that he also found internal injuries. The sub-coetaneous
tissues and neck muscle are bruised under the ligature mark. The fracture of
both greater coronae of thyroid bone and superior horns of thyroid cartilage are
present. He further stated that except the above injuries, he did not find any
other ante-mortem injuries. He opined the cause of death of the deceased is
Asphyxia due to strangulation by ligature. The said injuries are sufficient to
cause the death of a person in the ordinary course of nature. In his cross-
examination, he stated that it will take one hour for 30 ml of liquor to digest,
and that if a person who consumed 30 ml of liquor dies within one hour after
consumption, traces of the same will be found in the stomach. In Ex.P5-post
mortem report, he noted that the stomach of the deceased was empty. He stated
that there is possibility of a person receiving injuries to his hand, if wire
like M.O.2 is used for strangulation.
P.W.11 is a Cashier-cum-Sales Man in a Wine Shop. He stated that he never saw
the accused and that he cannot identify them. He denied that he identified the
motorcycle on which the accused and another person came to his shop to purchase
liquor on 05.06.2006. He stated that the police brought the two accused on that
day, and that he identified the accused before the AJFCM at Anakapalle and Sub-
Jail. In his cross-examination, he stated that both the accused were shown to
him prior to the Test Identification Parade and that they were brought to his
shop and that is the reason why he identified them in the Test Identification
Parade and in the Court.
P.W.12 is the AJFCM who conducted Test Identification Parade. He stated that he
recorded the statements of P.Ws. 7 and 11 to know the physical features and
identification particulars of the suspects and that P.Ws. 7 and 11 identified
the accused.
P.W.13 is the S.I. of Police, who registered the crime, based on Ex.P1-report
given by P.W.1 and issued Ex.P7-FIR.
P.W.14 is panch witness to the confessional statement of accused Nos. 1 and 2
under Exs.P8 and P9. He turned hostile. He did not support the case of the
prosecution that accused No.1 is the person who got down from the auto and
handed over the gold chain to the S.I. of Police.
P.W.15 is the Inspector of Police. At the time when the incident took place, he
was S.I. of Police. He stated that on receipt of requisition from P.W.17, he
visited the scene of offence, examined the broken pieces of beer bottles and
developed three chance finger prints out of the broken pieces of beer bottles
and labelled them as A, B and C. He further stated that he got the chance
fingerprints photographed by a photographer of the Clues Team. On examination
of the photocopies of the chance prints, he found the photocopies of the chance
prints labelled as 'B' unfit for comparison for want of ridge characterises; the
photocopies of chance prints labelled as 'A' and 'C' were fit for comparison,
and accordingly communicated the report to P.W.17. He further stated that upon
receipt of finger print slips of the two accused, he compared them with the
chance finger prints and found that the chance finger prints labelled as 'A' was
identical to the right middle finger impression of accused No.1 and the chance
finger prints labelled as 'C' was identical to the right thumb impression of
accused No.2. Accordingly, he sent Exs.P10, P11, P12 and P13-charts showing the
comparison of identical ridge characteristics of chance prints, while Ex.P14 is
his report. In his cross-examination, he admitted that there is no recorded
evidence to show whether the chance finger prints marked as A and C are
collected from a single broken beer glass bottle piece or from two pieces. He
also admitted that he did not note down the length and breadth of the broken
glass pieces from which the chance prints were collected. He admitted that he
is a subordinate to his Inspector and that he has no recorded evidence to show
that he marked copies to his Inspector and that the Inspector had acknowledged
the same from 06.06.2006 to 19.06.2006. He denied the suggestion that he did
not go to the scene of offence on 06.06.2006 along with the Clues Team and
collected the chance prints from the broken beer glass pieces. He also denied
the suggestion that the finger prints and chance finger prints belong to the
same persons and that he is obliging the Inspector of Police. He stated that he
prepared the report basing on the finger prints taken from the accused only and
not from chance finger prints.
P.W.16 is the Inspector of Police, Finger Print Expert, who forwarded the report
of P.W.15 to the Inspector of Police.
P.W.17 is the Inspector of Police, who conducted investigation. He stated that
immediately after registration of the crime, he visited the scene of offence and
found the dead body of the deceased lying with scuffle marks, a pair of
footwear, cigarette butts, broken beer bottles, one cut piece of gold chain and
seized them. He prepared observation report and inquest report. He sent the
dead body of the deceased for post-mortem examination to P.W.12. Thereafter, he
visited the place where the accused and the deceased resided and also the Wine
Shop and after examining the witnesses recorded their statements. On
16.06.2006, he arrested accused No.1 and recorded his confessional statement in
the presence of mediators and recovered the gold chain, and thereafter, he
arrested accused No.2. In his cross-examination, he admitted that after he went
to the house of the accused, he sent word to P.W.7. The wire bundle was found
in the open terrace of the house of the accused. He did not have any
communication with the police of Ongole District. He admitted that he did not
note down the length and breadth of the gold chain which he seized from the
scene of offence. M.O.5 was about 1/4 mm in length and that he did not get it
tested whether it is gold or not. He denied that M.O.5 is not the piece of
chain recovered by him, and that it is not the piece of M.O.4. He admitted that
in Ex.P3, it is mentioned that a gold chain was seized, but in respect of
seizure, it is mentioned that it is a piece of gold chain. He admitted that
when they saw accused No.1, they found him walking. That he arrested accused
No.1 at 4.00 pm in the evening and made entry at 8.00 am on 17.06.2006 in the
Sentry Diary about the arrest of the accused. That they have taken two sets
each of finger prints of both the accused also two sets of toe prints. He
denied the suggestion that he did not arrest the accused on 16.06.2006 at Ongole
and seized M.O.4 from him and that he brought the accused three to four days
prior to his arrest and showed their arrest on 16.06.2006. He also denied the
suggestion that the Clues Team did not come to the scene of offence and that he
himself had taken the chance finger prints.
Thus, admittedly, there are no eyewitnesses to the incident. The entire case
of the prosecution is based on circumstantial evidence. The law is well settled
that when the case of the prosecution is wholly dependant on circumstantial
evidence, presumption of innocence of the accused must have a dominant role.
Therefore, before examining whether the prosecution could prove its case by
connecting the accused to the death of the deceased based on the circumstantial
evidence, we feel it appropriate to refer to the decisions of the Apex Court,
which laid down the principles that govern the consideration of circumstantial
evidence.
The Constitution Bench of the Apex Court in Govinda Reddy v. State of Mysore1,
quoted with approval the principles laid down by it in relating to
circumstantial evidence, in Hanumant Govind Nargundkar v. State of M.P.2. They
are -
... in cases where the evidence is of a circumstantial nature, the circumstances
which lead to the conclusion of guilt should be in the first instance fully
established, and all the facts so established should be consistent only with the
hypothesis of the guilt of the accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other words, there must be a
chain of evidence so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it must be sown that
within all human probability the act must have been committed by the accused.
In Mahmood v. State of U.P.3, the Apex Court held when a case is wholly
dependant on circumstantial evidence, the Court before recording a conviction on
the basis therefore, must firmly be satisfied -
(a) that the circumstances from which the interference of guilt is to be drawn,
have been fully established by unimpeachable evidence beyond a shadow of doubt;
(b) that the circumstances are of a determinative tendency unerringly pointing
towards the guilt of the accused; and
(c) that the circumstances, taken collectively, are incapable of explanation on
any reasonable hypothesis save that of the guilt sought to be proved against
him.
It is in the light of the above principles governing the consideration of
circumstantial evidence, now we shall proceed to examine whether the prosecution
could prove the circumstances to connect the accused to the death of the
deceased, beyond all reasonable doubt.
The first circumstance relied upon by the prosecution to prove its case is
motive for the accused to kill the deceased. According to the prosecution, the
motive for the accused to kill the deceased is that the accused were not having
any earnings, and therefore, they decided to kill the deceased and take away the
motorcycle and the gold chain from him. The learned counsel for the appellants
contended that there is no evidence produced by the prosecution to prove the
motive of the accused to kill the deceased.
To consider whether the prosecution could prove the motive of the accused to
kill the deceased, it would be appropriate to consider the evidence placed by
the prosecution. Ex.P3-inquest report shows that the motor cycle of the
deceased bearing No. AP 30D 4622 was found parked on its stand near the scene of
offence. P.W.1 who lodged Ex.P1-report, in his evidence stated that he noticed
a gold chain at the scene of offence. Even though the prosecution sought to
prove recovery of gold chain from accused No.1 by examining P.W.14, who stood as
mediator to the confession and recovery panchanama, the fact remains that, in
his evidence he stated that he did not notice accused No.1 handing over the gold
chain to P.W.17. Thus, from this evidence, it would become clear that the gold
chain and motorcycle of the deceased were found at the scene of offence itself.
If really the accused had the intention to kill the deceased to take away the
motorcycle and gold chain, the accused would not have left the motorcycle and
gold chain and run away from the scene of offence. Hence, we hold that the
prosecution failed to prove the motive for the accused to kill the deceased.
The second circumstance relied upon by the prosecution is that the accused were
last seen in the company of the deceased. According to the prosecution, the
deceased was last seen in the company of the accused by P.W.5 before his death.
The learned counsel for the appellant submitted that except the evidence of
P.W.5, whose evidence is inconsistent, there is no other evidence. To consider
this circumstance, it would be appropriate to refer to the evidence of P.W.5.
P.W.5 is the roommate of the deceased. He stated that on the date of incident,
after returning from the institute, he and the deceased went to photo studio,
and after taking the photos, while they were returning from the photo studio on
the motorcycle, they saw the accused at Autonagar Bus Stop. Then the deceased
stopped the motorcycle and asked him to go to his room and that he will go along
with the accused. Thereafter when the deceased did not return till 10.00 pm, he
called the deceased and the deceased told him that he would come in a short
period and asked them to take dinner. However, the deceased did not return. At
about 1.00 pm, the accused came to him in a hurried manner and when they asked
about the whereabouts of the deceased, they stated that he did not come along
with them and proceeded to their room, packed their belongings and left the room
in a hurried manner.
Though P.W.5, in his chief-examination, deposed that the accused informed him
that the deceased did not come with them and left to their room, packed their
belongings and left the room in a hurried manner, but in his cross-examination,
he admitted that two days prior to the death of the deceased, the deceased,
himself and another shifted to another room, which is situated in another
street, that he never visited the room of the accused and the accused also did
not visit their new room, and that the room of the accused is not visible from
their new room. When the room of the accused is not visible from the room of
P.W.5, which is located in another street, it is highly doubtful that P.W.5
could have witnessed the accused going to their room, packing their luggage and
vacating the room in hurried manner. Further, P.W.5 also admitted in his cross-
examination that he saw the accused only when they were taking their luggage and
that too on the road near the old room. Thus, there is inconsistency in his
evidence. It is also unnatural that the accused after committing the offence
would go and inform P.W.5 that the deceased did not come along with them.
Having regard to the inconsistency in his evidence, as discussed above, the
evidence of P.W.5 that the accused came to his room and on his questioning, they
informed him that the deceased did not come along with them, and thereafter, he
saw the accused leaving their room in a hurried manner after packing their
belongings, cannot be believed. Further, in his evidence, P.W.5 stated that at
about 10.00 p.m. on 05.06.2006, when he telephoned to the deceased on his mobile
number, the deceased informed him that he would come within a short period and
asked him to take food without waiting for him. This was not stated by him
before the Investigating Officer-P.W.17, who recorded his statement under
Section 161(3) Cr.P.C. This omission in the 161(3) Cr.P.C. statement of P.W.5
creates any amount of doubt on the credibility and trustworthiness of his
evidence. Hence, we hold that the prosecution also failed to prove this
circumstance to connect the accused to the death of the deceased.
The third circumstance relied upon by the prosecution to connect the accused to
the death of the deceased is that the accused and the deceased were seen
together by P.W.11, who is working as Cashier-cum-Salesman in a wine shop, just
before the incident, and that in the Test Identification Parade conducted by
P.W.12, the accused were identified by P.W.11. To consider this circumstance,
it would be appropriate to refer to the evidence of P.W.11. P.W.11, in his
evidence, stated that he never saw the accused. He stated that the accused
might have come to the shop, but he does not remember and he cannot identify
them. He further stated that he was not examined by the police. He denied that
he identified the motorcycle on which the accused and another person came to his
shop to purchase wine on the day of the incident. He stated that he identified
the accused in the Test Identification Parade conducted by AJFCM, Anakapalle, as
also at the Sub Jail, because prior to the Test Identification Parade, the
accused were brought to his shop by the police. In view of this evidence of
P.W.11, it cannot be said that P.W.11 has actually seen the accused and the
deceased just before the incident. Therefore, we hold that the prosecution
failed to prove this third circumstance also to connect the accused to the death
of the deceased.
The fourth circumstance relied upon by the prosecution to connect the accused to
the death of the deceased is the arrest of the accused by P.W.17 on 16.06.2006
and recovery of M.O.4-gold chain from accused No.1 and the further arrest of
accused No.2 at the instance of A1. The recovery of M.O.4-gold chain from
accused No.1 cannot be believed because P.W.3-mother of the deceased in her
evidence stated that M.O.4-gold chain and M.O.5-piece of M.O.4, were shown to
her by the police in the Police Station on the very next day of the incident
i.e. on 07.06.2006, when she went there from the hospital after seeing the dead
body of the deceased. This apart, P.W.1, who lodged Ex.P1-report with P.W.13-
Sub Inspector of Police, stated that he noticed a gold chain lying at the scene
of offence. Further, P.W. 14, who stood as panch witness to the confession and
recovery panchanama, stated that he did not see the handing over of gold chain
by the accused and that it was recovered by the police. In view of this
evidence of P.Ws. 1, 3 and 14, it cannot be said that M.Os. 4 and 5 were
recovered from accused No.1 by P.W.17, basing on his confessional statement.
Hence, we hold that the prosecution failed to prove the recovery of M.O.4-gold
chain at the instance of accused No.1.
The last circumstance relied upon by the prosecution to connect the accused to
the death of the deceased is that the chance finger prints developed from prints
taken from the broken beer bottles matched with the finger prints of the
accused. It is the case of the counsel for the appellants that for taking the
chance prints and finger prints of the accused, no permission was taken from the
Magistrate, as is required under Section 5 of the Identification of Prisoners
Act, 1920. It is also the case of the appellants-accused that they were
arrested by the police after three or four days of the incident itself, and kept
in police station and shown to have been arrested on 16.06.2006, and P.W.17 has
obtained their fingerprints in the police station and sent them to P.W.15.
To prove this circumstance, the prosecution relied upon the evidence of P.W.15-
Inspector of Police, Finger Print Branch, CID, Srikakulam. At the time when the
incident took place, he was Sub Inspector of Police. It is his evidence that on
receipt of request from P.W.17, on 06.06.2006, he visited the scene of offence
and examined the broken pieces of beer bottles. That he developed three chance
finger prints out of the broken pieces of the beer bottles and labelled them as
A, B and C and photographed them. On 10.06.2006, he received the photocopies of
the chance prints from the Clues Team. On examination of the photocopies of the
chance prints, he found that the chance prints marked as 'B' were found unfit
for comparison for want of ridge characteristics, while the other two chance
prints, marked as 'A' and 'C' were fit for comparison. Thereafter, P.W.17
collected the fingerprints of both the accused and sent them to him for
comparison. On comparison of the photocopies of the chance finger prints with
those of the accused, he found that the chance prints marked as 'A' tallied with
the right middle finger impression of accused No.1, while the chance finger
prints marked as 'C', tallied with the right thumb impression of accused No.2.
That Ex.P11 is the chart and Ex.P14 is his report.
The learned counsel appearing for the appellants-accused relied upon the
judgments of the Hon'ble Apex Court in Mahmood v. State of U.P. (3 supra) and
Mohd. Aman v. Babu Khan4 and submitted that finger prints were taken without
obtaining permission from the Magistrate as contemplated under Section 5 of the
Identification of Prisoners Act, 1920, and as such the same is inadmissible in
evidence and cannot be looked into and the conviction of the accused based on
such evidence cannot be sustained.
To consider this contention of the counsel for the appellants-accused, it may be
appropriate to refer to the judgments relied upon by the counsel for the
appellant.
In Mohd. Aman v. Babu Khan (4 supra), the Hon'ble Apex Court has given the
benefit of doubt to the accused on the ground that the brass jug and other
articles seized by the police were kept in the police station for five days
without any justifiable reason and also on the ground that the finger prints of
the accused were not taken with the permission of the Magistrate in accordance
with Section 5 of the Identification of Prisoners Act, 1920, and further
observed that though under Section 4 of the Identification of Prisoners Act,
1920, police are competent to take finger prints of the accused, to dispel any
suspicion as to its bona fides or to eliminate the possibility of fabrication of
evidence, it is eminently desirable that they were taken before or under the
order of a Magistrate.
In Mahmood v. State of U.P. (3 supra) also, the Hon'ble Apex Court held that the
specimen finger-prints 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, which was another suspicious feature about conducting of investigation.
Before we go into the relevancy of these judgments to the facts of the case, we
deem it appropriate to refer to the relevant provisions of the Identification of
Prisoners Act, 1920.
Section 2(a) of the Act defines 'measurements' which include finger impressions
and foot-print impressions.
Sections 4 and 5 of the Act read 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. Power of Magistrate to order a person to be measured or photographed- If a
Magistrate is satisfied that, for the purpose of any investigation or proceeding
under the Code of Criminal Procedure, 1898, 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.
By virtue of the powers conferred on it by Section 8 of the Act, the State
Government made A.P. Identification of Prisoners Rules, 1975. As per Rule 3 of
the said Rules, measurements and photographs can be taken only at (a) Jails (b)
Magistrate's Court (c) police stations and out-posts and (d) police lock-ups.
As per Rule 12 (xxiiii) (c), finger prints of all persons, who take part in
violent crimes, whether political or non-political, involving injury to body,
life or property, can be taken by the police. Rule 2(g) of the Rules defines
'finger print slip' means the finger print slip of a suspect taken on Form II
(Annexure 1) by the Station House Officer and sent for search to the Bureau at
Hyderabad with Form III (Annexure III) in order to know his antecedents.
Now, we would like to examine the relevant provisions under the Code of Criminal
Procedure. As per Section 2(h) of the Code of Criminal Procedure,
'investigation' includes all the proceedings under this Code for the collection
of evidence conducted by a police officer or by any person (other than a
Magistrate) who is authorised by a Magistrate in this behalf. Under Section
156(1) of Cr.P.C., any officer in charge of a police station may, without the
order of a Magistrate, investigate any cognizable case which a Court having
jurisdiction over the local area within the limits of such station would have
power to inquire into or try under the provisions of Chapter XIII. Therefore,
the object of investigation is to collect the evidence.
A bare reading of the above provisions contained in the Code of Criminal
Procedure, the Identification of Prisoners Act and the A.P. Identification of
Prisoners Rules, 1975, makes it crystal clear that the police officer has got
the power and authority to take the fingerprints of a suspect even without the
permission of the Magistrate.
In Mohd. Aman v. Babu Khan (4 supra), relied on by the learned counsel for the
appellants, the Hon'ble Apex Court, basing on the facts and circumstances of the
case, where the articles seized were sent to the Finger Print Bureau five days
after they were seized, at para 8 of the judgment observed that though under
Section 44 of the Act, the police is competent to take finger prints of the
accused, but to dispel and suspicion as to its bona fides or to eliminate the
possibility of fabrication of evidence, it is desirable that they were taken
before or under the orders of Magistrate. The Hon'ble Apex Court basing on the
facts and circumstances of the case, where there are glaring defects in the
prosecution case, has made an observation that in those circumstances, it is
desirable to take the finger prints to eliminate the possibility of fabrication
of evidence which are involved in that case. We are afraid, that this judgment
is in any way not helpful to the appellant as that was not the ratio decidendi
laid down by the Hon'ble Apex Court that the police has no authority to take the
finger prints of the appellants without the permission of the Magistrate.
Further, in Shankaria v. State of Rajasthan5, when it was contended by the
appellant therein that in view of Section 5 of the Identification of Prisoners
Act, it was incumbent on the police to obtain the specimen thumb impression of
the appellant before a Magistrate, and since that was not done, the opinion
rendered by the Finger-Print Expert by using those illegally obtained specimen
finger impressions, must be ruled out of evidence, the Hon'ble Apex Court
observed that the said contention of the appellant therein appears to be
misconceived and held that under Section4 of the Identification of Prisoners
Act, police are competent to take the finger prints.
The learned Sessions Judge, at para 50 of the judgment, has observed that the
fingerprints were obtained from the accused when the accused were in the custody
of police and it cannot be said that they are the prisoners detained in any
prison and as such it is very much doubtful as to whether the Identification of
Prisoners Act is applicable to the person outside the prison. Therefore, the
learned Sessions Judge felt that there was no force in the said contention of
the counsel for the accused.
We are of the view that the observation of the learned Sessions Judge is not
tenable. Section 4 of the Identification of Prisoners Act, 1920, provides that
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, and as such it applies to the appellants-accused in the present case,
irrespective of the fact whether the finger prints were taken in jail or when
the accused were in the custody of police.
In view of our discussion, we hold that the permission of the Magistrate is not
necessary for obtaining the finger prints of the accused.
Now, we have to examine the manner in which the finger prints were taken and the
evidentiary value of the opinion of the finger print expert.
Even though P.W.15 upon comparison of the chance finger prints marked as 'A' and
'C' gave report stating that the chance finger prints marked as 'A' tallied with
the right middle finger of accused No.1 and the chance finger print marked as
'C' tallied with the right thumb impression of accused No.2, the fact remains,
P.W.15, in his cross-examination, stated that he has no recorded evidence to
show whether the said chance finger prints were collected from a single broken
piece or two broken pieces of the beer bottle. He also deposed that he did not
note down the length and breadth of the broken glass pieces from which the
chance prints were collected. That he has no recorded evidence to show as to
how many smudged prints were there on the broken beer bottle pieces. He also
admitted that he has no recorded evidence to show that he marked copies to
P.W.17 and that he had acknowledged the same.
Admittedly, P.W.15 deposed that he did not note down the length and breadth of
the broken glass pieces from which the chance prints were collected. In view of
non-taking the length and breadth of the chance finger prints from the broken
pieces of beer bottles by P.W.15, and there being no recorded evidence produced
by P.W.15 whether the chance finger prints were developed from a single piece of
broken beer bottle or two pieces of broken beer bottle, we are of the considered
opinion that the evidence of P.W.15 cannot be relied upon to connect the accused
to the death of the deceased, particularly when there is no evidence produced to
show that the accused and the deceased took liquor just before the death of the
deceased. The fact that the deceased was not drunk is evident from the evidence
of P.W.10, who having conducted autopsy over the dead body of the deceased
stated that the stomach of the deceased did not contain traces of alcohol.
Hence, we hold that the prosecution failed to prove the last circumstance also
to connect the accused to the death of the deceased.
It has become a rule of law that evidence of finger print expert is not a
substantive evidence. It is well settled that opinion of expert must always be
considered with great caution. Conviction cannot solely be based on expert
opinion without substantive corroboration.
Hence, we are of the considered opinion that it is highly hazardous to rely on
the circumstantial evidence, which is brought on record in a very unsatisfactory
manner and which does not inspire confidence in the mind of the Court.
In Birdhichand Sarda v. State of Maharashtra6, His Lordships have observed that
"A moral conviction strong or genuine cannot amount to legal conviction
supported in law, it must be realised that the well established rule of criminal
justice is that "foulder the crime higher the proof".
The prosecution having failed to establish the circumstances, much less each
circumstance connecting the accused to the death of the deceased beyond all
reasonable doubt, the conviction and sentence of the appellants for the charges
under Section 302 read with Section 34 IPC and Section 379 IPC, recorded by the
learned Sessions Judge, cannot be sustained and is liable to be set aside.
In the result, the criminal appeal is allowed. The conviction and sentence
imposed against the appellants/accused, by judgment dated 08.08.2008 passed in
S.C. No. 5 of 2008 by the VIII Additional District and Sessions Judge (FTC),
Visakhapatnam, for the charges under Section 302 read with Section 34 IPC and
Section 379 IPC, is hereby set aside. The appellants shall be set at liberty
forthwith, if they are not required in any other case, and the fine amount, if
any paid by them, shall be refunded.
________________
N.V. RAMANA, J
_________________ B.N. RAO NALLA, J Dated: 3rd August, 2012