Karnataka High Court
Mallappa Basappa Ihole vs The State Of Karnataka on 3 October, 2018
Bench: Ravi Malimath, John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 3RD DAY OF OCTOBER 2018
BEFORE
THE HON'BLE Mr. JUSTICE RAVI MALIMATH
AND
THE HON'BLE Mr. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.625/2013
BETWEEN:
Mallappa Basappa Ihole,
S/o.Basappa Ihole,
Aged about 33 years,
Occ: Agriculture,
R/o.Keloor village,
Hunagunda Taluk,
Bagalkote District-587 118. ... APPELLANT
(By Sri.R.B.Deshpande, Advocate)
AND:
The State of Karnataka,
Panambur Police Station,
Mangalore-575 001. ...RESPONDENT
(By Sri.I.S.Pramod Chandra, SPP-II)
This Criminal Appeal is filed under Section 374(2) Cr.P.C.,
praying to set aside the order dt.2/4.4.13 passed by the III Addl.
Dist. & Sessions Judge, D.K, Mangalore in S.C.No.44/11 -
convicting the appellant/accused for the offence p/u/s.302 of IPC
& the appellant/accused is sentenced to undergo imprisonment
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for life and to pay fine of Rs.5,000/- (Rupees Five Thousand
only) and in default to pay the fine to undergo R.I for further
period of three months for the offences p/u/s.302 of IPC.
This Criminal Appeal coming on for hearing, this day, John
Michael Cunha., J., delivered the following:
JUDGMENT
Sole accused who is convicted for the offence punishable under Section 302 of IPC and sentenced to imprisonment for life and a fine of Rs.5,000/- is in appeal before this Court.
2. The case of the prosecution in brief is as follows:
The deceased Mallesha Mallappa Honnali and the accused were the natives of Bagalkote District. They were childhood friends. They had come in search of job to Dakshina Kannada District. According to the prosecution, the accused was eyeing the wife of the deceased (P.W.6). In this backdrop, it is alleged that on 09.01.2011, the accused took the deceased with him to Nilagiri grove at Bengre by the sea side within the limits of Panambur Police Station and got him intoxicated and thereafter, slashed his neck with a knife and fled away from the scene. 3
3. P.W.1, a resident of the locality, having been informed about the murder, reported the matter to the Police. The Police arrived to the scene. P.W.1 lodged a report vide Ex.P.1, based on which, Crime No.3/2011 was registered against unknown persons under Section 302 of IPC.
4. P.W.22, the Investigating Officer secured a fingerprint expert and the dog squad to the spot. Fingerprint expert-P.W.21 lifted a "chance fingerprint" from a beer bottle found at the spot. A knife-M.O.1, a beer bottle, whisky bottle, water bottle and soda bottle (M.Os.2 to 5) were seized during the inquest mahazar-Ex.P.3. The dead body was sent for post mortem examination and it was ascertained that the deceased died due to "cut throat" injury to the neck caused by sharp force trauma. On 15.01.2011, the accused was arrested. His specimen fingerprints were obtained and were forwarded to P.W.21. At the instance of the accused, his blood-stained clothes were recovered from his residence at Lakshmindra Nagara at Udupi under a mahazar-Ex.P.2. On completing the investigation, 4 charge-sheet was laid against the accused under Section 302 of IPC.
5. The accused continued in judicial custody. He denied the charges and faced trial. Prosecution examined 22 witnesses and marked 34 documents as Exs.P.1 to P.34 and the material objects at M.Os.1 to 19. The accused examined two witnesses as D.Ws.1 and 2 in support of his plea of alibi. On his behalf, Ex.D.1, the Voters Identity Card was also marked. On considering this material, by the impugned Judgment, the Trial Court found the accused guilty of the above offence and accordingly, sentenced him to imprisonment for life and a fine of Rs.5,000/-. Being aggrieved by the impugned Judgment, the appellant has filed this appeal.
6. We have heard Sri.R.B.Deshpande, learned counsel appearing for the appellant and Sri.I.S.Pramod Chandra, learned SPP-II on behalf of the respondent-State.
7(i). Sri.R.B.Deshpande, learned counsel for the appellant, at the outset, submitted that the Trial Court has committed a 5 serious error in convicting the accused. The case of the prosecution is rested solely on circumstantial evidence. None of the circumstances relied on by the prosecution are conclusively proved. The motive projected by the prosecution is improbable. There is nothing on record to suggest that the accused was in love with the wife of the deceased. On the other hand, the circumstances brought out in the evidence indicate that the deceased and the accused were childhood friends and the accused was addicted to alcohol. The death having been taken place in the said circumstances, the conviction of the accused is contrary to the material on record.
(ii) Placing reliance on the decision of the Hon'ble Supreme Court of India in PRAKASH vs. STATE OF KARNATAKA reported in 2015 AIR SCW 2354 and the decision of this Court in THE REGISTRAR GENERAL, HIGH COURT OF KARNATAKA, BENGALURU, 2017(4) SCCR 3252 he contends that the prosecution has failed to prove the opinion of the fingerprint expert so as to connect the said opinion to the accused. The Investigating Officer has failed to follow the procedure in 6 collecting the specimen fingerprint of the accused. No panchanama was prepared either at the time of lifting the alleged chance fingerprint or collecting the specimen fingerprints of the accused. In view of these defects, the evidence relating to the fingerprint opinion is rendered unreliable.
(iii) He further contends that the arrest of the accused is not in accordance with law. The Investigating Officer has admitted that no arrest memo was prepared; consequently, recovery of alleged clothes of the accused is also rendered doubtful. Further he contends that the accused was a resident of Udupi situated more than 50 kms away from the spot of occurrence. The accused himself being a coolie/labourer, merely on the basis of the stains found on his clothes, the Trial Court should not have jumped to the conclusion that the said stains were of the same origin as that of the deceased. The serology report does not establish the blood group either of the deceased or of the accused. The Trial Court therefore has committed a grave error in convicting the accused based on inadmissible 7 evidence and hence he pleads for the acquittal of the accused by allowing the appeal.
8. Learned SPP-II however has argued in support of the impugned judgment. He submits that the evidence produced by the prosecution clearly establishes the circumstance of the deceased last seen in the company of the accused. The evidence of P.Ws.4, 5 and 6 establish a clear motive. The wife of the deceased P.W.6 has unequivocally stated that the accused wanted to marry her which was being resisted by her sister. Hence, there was a very strong motive for the accused to commit the alleged offence. Further, the opinion of P.W.21, the fingerprint expert establishes the presence of the accused at the spot of occurrence. The law does not require preparation of any mahazar at the time of lifting the chance fingerprints or the specimen fingerprints of the accused in view of Section 4 of the Prisoners' Identification Act. The evidence produced by the prosecution in this regard has not been discredited in the cross- examination and therefore, there is no reason to doubt or disbelieve the evidence let in by the prosecution in proof of these 8 circumstances. The above circumstances coupled with the recovery of the blood-stained clothes of the accused and the false plea of alibi set out by the accused establishes the complicity of the accused beyond any reasonable doubt. Hence he seeks for dismissal of the appeal.
9. We have considered the submissions made at the bar and have meticulously examined the records.
10. The case of the prosecution is rested solely on circumstantial evidence. The prosecution has relied on four circumstances namely;
i) Deceased was last seen in the company of accused;
ii) Fingerprint opinion; iii) Motive; iv) Recovery of the blood-stained clothes of the accused. LAST SEEN:
11. In order to prove the circumstance of the deceased last seen in the company of the accused, the prosecution has relied on the evidence of P.Ws.1, 11 and 13. We have examined the evidence of these witnesses. P.W.1-Hamza.N.A, was a local 9 witness. According to this witness, on 09.01.2011 at about 12.30 p.m., after attending a meeting at masjid, he was in his house. At that time, he saw two persons walking in front of his house holding a plastic cover. At about 4.30 p.m., he heard the shouts of a lady that a dead body of a male person was found in the plantation. Immediately, he rushed to the spot and saw a person lying dead with slashed injury on his neck.
12. Undisputedly, PW1 was the person who lodged the complaint-Ex.P.1. It is important to note that in the said complaint, nowhere he has stated that he saw two persons passing in front of his house before the discovery of the dead- body. His complaint indicates that after attending the meeting, he had his food and was sleeping in the house and at about 4.30 p.m., some women informed him about the dead-body and he immediately, rushed to the spot. Therefore, the evidence given by PW1 before the Court that he had seen the accused passing in front of his house has turned out to be an improvement in the case of the prosecution.
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13. In appreciating the evidence of P.W.1, it is necessary to note that the spot sketch Ex.P1 does not indicate the location of his house anywhere near the spot of occurrence. On the other hand, the spot sketch depicts a road on the western side of the Eucalyptus grove. The prosecution has examined P.W.13, another witness to speak about the last seen circumstance. According to this witness, on the date of the incident, he ferried the deceased and the accused in his boat to Bengre around 1.15 p.m. If the accused and the deceased had reached the shore through a boat and as the Eucalyptus grove is situated by the side of the sea and no houses are found in that stretch, there was absolutely no occasion for the deceased and the accused to pass in front of the house of P.W.1. As a result, the statement of P.W.1 that he had seen accused and the deceased passing in front of the house, stands falsified. Therefore, we are not inclined to accept the evidence of this witness in proof of the 'last seen circumstance' projected by the prosecution.
14. P.W.11 is another witness examined by the prosecution in proof of this fact. This witness has turned hostile 11 to the case of the prosecution and nothing worthwhile has been elicited in the cross-examination of this witness in support of this circumstance. P.W.13, as already discussed above, has deposed contrary to the evidence of P.W.1 stating that at 1.45 p.m., he ferried the accused and the deceased in his boat from Bunder to Bengre. In appreciating the evidence of this witness, it is important to note that he was engaged for collecting money from persons ferrying in the boat. According to this witness, every boat used to take 15-20 round trips and in each trip, 30- 50 people used to go by the said boat. He has not indicated any special reason as to what made him to remember only accused and the deceased amongst the large number of people crossing the river. Even if it is assumed that there was any occasion for P.W.13 to see the accused, the records indicate that after the arrest of the accused, no test identification parade was conducted to facilitate P.W.13 to identify the accused. His statement was recorded on 25.02.2012 and in his cross- examination, he has admitted that for the first time, he saw the accused in the Court. Having regard to this fact, even his evidence does not inspire confidence to hold that the accused 12 and the deceased were last seen together at the spot of occurrence as contended by the prosecution.
FINGERPRINT OPINION:
15. The next circumstance relied on by the prosecution is the 'fingerprint evidence'. In proof of this circumstance, the prosecution has relied on the evidence of P.W.21. On consideration of his evidence, we are of the view that his evidence falls short of the legal requirement of an expert witness. We find his evidence sketchy and unacceptable.
According to this witness, on 09.01.2011, on receipt of a wireless message, he rushed to the spot between 5.45 and 6.00 p.m., and inspected the spot, and found a knife, beer bottle, whisky bottle, water bottle and a soda bottle at the spot. According to him, he developed a fingerprint from a beer bottle. On 10.01.2011, he sent an e-mail to Panambur Police Station and thereafter, forwarded the said "chance fingerprint" to the Finger Print Bureau, Bengaluru. He further deposed that subsequently, the Investigating Officer forwarded the fingerprints of all the ten fingers of the accused to his office. 13 After receipt of these specimen finger prints, he secured the developed fingerprints from Bengaluru and compared them with the specimen fingerprints and issued his report dated 18.05.2011 as per Ex.P.14. Through this evidence, the developed chance fingerprint is marked as Ex.P.15.
16. We have perused Ex.P.14 and the annexure appended thereto, wherein P.W.21 has furnished ten grounds in justification of his opinion. On careful consideration of his evidence and the contents of Ex.P.14, we are not persuaded to accept his evidence for more than one reason. Firstly, his evidence is not specific with regard to the date and time when he lifted the alleged "chance fingerprint". Secondly, the said "chance fingerprint" is not produced before the Court. From the evidence of P.W.21, it can be gathered that he had collected the "chance fingerprint" from the beer bottle. The beer bottle is also not seized. His evidence is silent as to the manner in which he lifted the chance finger print. He has merely stated that he collected a "developed fingerprint" and forwarded it to the Fingerprint Bureau. What has been produced along with Ex.P.14 14 is the developed fingerprint, viz., Ex.P.15 and not the "chance fingerprint". The non-production of this "chance fingerprint", in our view, creates strong doubt about the very existence of "chance fingerprint" at the spot as contended by the prosecution. This doubt gets further reinforced from the fact that no contemporaneous document like the mahazar or the photographs of the said chance fingerprints are produced before the Court by way of corroboration.
17. Even though P.W.21 has asserted in his evidence that he had intimated to his higher superior about the lifting of chance fingerprint, but no document is produced in support of this assertion. His evidence is not clear as to when he received the specimen fingerprints from the Investigating Officer. He has merely stated that on receiving the specific fingerprints from the Investigating Officer, he secured the developed print from the Bureau and thereafter, compared the specimen with the chance fingerprints. When the prosecution has failed to produce cogent proof for having lifted the chance fingerprint and the chance fingerprint itself is not produced before the Court, there was 15 absolutely no occasion for P.W.21 to compare it with specimen fingerprints. Therefore, viewed from any angle, we do not find his evidence worthy of credence.
18. His opinion gets further falsified from the fact that in the opinion given by him at Ex.P.14, except making a reference to the requisition dated 09.01.2011, he has not referred to any covering letter under which the specimen finger prints are said to have been forwarded to him by the Investigating Officer. All these circumstances, indicate that P.W.21 has failed to follow the due procedure either in lifting the "chance fingerprint" or in getting them analysed. Further, we do not find his opinion intelligible and convincing so as to base a finding against the accused on this aspect. In the wake of the above defects, we do not ascribe any weight to the opinion evidence given by P.W.21. No other independent or corroborating material is available to test the accuracy of his opinion so as to form an independent opinion on this point. As a result, we hold that the prosecution has failed to prove this circumstance so as to 16 establish the presence of the accused at the spot of occurrence during the incident.
MOTIVE:
19. Coming to the 'motive', no doubt the prosecution has examined P.Ws.4, 5 and 6, viz., the younger brother of the deceased, the father-in-law of the deceased and the wife of the deceased who have stated that the accused was eyeing the wife of the deceased, viz., P.W.6. Having regard to the consistent evidence given by these witnesses, their testimony deserves to be accepted. But motive by itself is a double-edged sword. It can be a reason for the commission of the offence as well as a reason for false implication. In the instant case, having regard to the motive projected by the prosecution that the accused was eyeing the wife of the deceased, the possibility of false implication of the accused in the alleged incident cannot be ruled out.
RECOVERY OF THE BLOODSTAINED CLOTHES OF THE ACCUSED
20. The material on record indicate that the accused was a native of Bagalkot District and he had come in search of a job 17 and was residing at the relevant time at Udupi at a distance of 50 kms from the spot of offence. The seizure panchamana Ex.P.2 clearly indicates that the blood-stained clothes of the accused were seized from his shed at Udupi, which goes to show that accused was not residing near the place where the deceased was residing. According to the prosecution, the deceased was residing at Kottara Chowki. There is no material to show that on the date of the incident, accused had come to Mangalore and had joined the deceased at Kottara Chowki and thereafter, proceeded to the spot of offence. Under the said circumstance, merely on the ground that blood stains were found on the clothes recovered at the instance of the accused, it cannot be inferred that the said stains related to the blood group of the deceased. There is also inordinate delay in subjecting his clothes for chemical examination. Ex-P10 the serology report does not indicate the date on which the said clothes were forwarded to the FSL. The report is dated 11.03.2011. As per Ex-P2, the recovery was effected on 15.01.2011. The incident is stated to have taken place on 09.01.2011. This delay has not been explained by the prosecution leading to doubt the recovery evidence relied 18 on by the prosecution. In view of the above circumstances, we are not persuaded to accept this evidence as conclusive proof of the fact that the blood stains found on the clothes of the accused were of the same blood group of the deceased so as to connect him to the alleged occurrence.
Thus on consideration of all the above facts and circumstances of the case and on reassessing the entire material on record, we do not have any hesitation to hold that the prosecution has failed to prove its case beyond reasonable doubt. None of the circumstances relied on by the prosecution are proved conclusively. The evidence let in by the prosecution in proof of the fact that the deceased and the accused were 'last seen together' is not cogent and convincing. The evidence of the fingerprint expert is unreliable. None of these circumstances are conclusively established by the prosecution. The trial Court has failed to consider these aspects in proper perspective. On going through the impugned judgment, we are of the view that the trial court has misdirected itself in passing the impugned judgment. The findings recorded by the trial Court are perverse 19 in as much as they are not based on legal evidence. Merely on the basis of the alleged motive, the trial court appears to have assumed the accused guilty of the above offence. The evidence adduced by the prosecution in our opinion does not establish the ingredients of the offence charged against the accused. His presence at the spot of occurrence is not proved. There is no cogent and convincing evidence to establish any of the circumstance pointing out the guilt of the accused in the alleged offence. Therefore, we are of the view that the impugned conviction recorded against the accused cannot be sustained.
For the above reasons, Criminal Appeal No.625/2013 is allowed.
The impugned judgment of conviction dated 02.04.2013 and the order of sentence dated 04.04.2013 in S.C.No.44/2011 on the file of the III Addl. District and Sessions Judge, Dakshina Kannada, Mangalore is set-aside.
The appellant-accused, namely, Sri.Mallappa Basappa Ihole, S/o Basappa Ihole is acquitted of the charges levelled 20 against him under Section 302 of Indian Penal Code. He shall be set at liberty forthwith, if not required in any other case/s. The fine amount, if any deposited, shall be returned to the accused.
Registry to communicate the operative portion of this order to the concerned jail authorities where the accused/appellant is lodged forthwith.
Sd/- Sd/-
JUDGE JUDGE
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