Karnataka High Court
State By Rural Police Shimoga vs B C Manjunatha @ Manju on 17 April, 2013
Equivalent citations: 2013 (3) AKR 742
Author: Mohan .M. Shantanagoudar
Bench: Mohan .M. Shantanagoudar
1 R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 17TH DAY OF APRIL, 2013
PRESENT
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
AND
THE HON'BLE MR.JUSTICE V.SURI APPA RAO
CRIMINAL APPEAL NO.380/2007
BETWEEN :
State by Rural Police, Shimoga. ..Appellant
(By Sri G.M. Srinivasa Reddy, HCGP.,)
AND :
1. B.C. Manjunatha @ Manju
S/o B.J. Chandra Shekar,
Aged about 21 years,
Vishwakarma by caste,
Painting work, R/at No.13,
III Cross, Vidya Nagar, Shimoga.
2. V. Prashanth
S/o Venkatesh,
20 years, Jarijan by caste,
Lorry Cleaner work,
II Cross, Mallikarjuna Nagar,
Ragigudda, Shimoga City. ..Respondents
(By Sri R.B. Deshpande, Adv. for R-1
Sri. Harish Kumar, Adv. for R-2
Sri P.M.Nawaz, Amicus Curiae)
2
This Criminal Appeal is filed under Section
378(1) & (3) of Code of Criminal Procedure praying to
grant leave to appeal against the Judgment and order
of acquittal passed by the District and Sessions Judge
and Fast Track Court-II, Shimoga in S.C. No.124/2004
dated 27.10.2006, acquitting the respondents/accused
of the offences punishable under Sections 302, 392,
449 r/w Sec. 34 of IPC; set aside the aforesaid
Judgment and order of acquittal passed by the Court
below by allowing this appeal; and convict and
sentence the accused - respondents for the offences
with which they had been charged and tried in
accordance with law.
This Appeal coming on for hearing this day,
MOHAN .M. SHANTANAGOUDAR, J., delivered the
following:-
JUDGMENT
This appeal is filed by the State against the Judgment and order of acquittal passed by Fast Track Court-II, Shimoga in S.C. No.124/2004. The accused were charged, tried and acquitted for the offences under Sections 449, 392 and 302 r/w Section 34 I.P.C.
2. This appeal arises out of merciless and ghastly murder of the old couple in their farm house for gain. 3
Case of the prosecution in brief is that accused No.1 was acquainted with both the deceased; deceased U.B. Manjunath Ithal is husband of deceased Kalavathi Ithal; accused No.1 is the friend of accused No.2; accused Nos.1 and 2 with the common intention of committing robbery of the house of deceased and murder of the deceased trespassed into the farm house of the deceased in between 9.00 to 9.30 p.m. on 14.11.2003, murdered both the deceased and robbed silver, gold and diamond articles worth Rs.1,71,000/- apart from certain cash. On the following morning, PW-3 - Lakshman the servant working in the house of the deceased went to the house of the deceased to attend the work as usual and noticed the dead body of the deceased Kalavathi Ithal through the window and also noticed the blood marks near the window; being afraid he informed the matter through telephone to Smt. Vani Upadyaya (PW-1), the daughter of deceased Ithal couple staying 4 at Shimoga; immediately PW-1 along with her husband (PW-17) and others came to the spot and saw the couple having fallen in a pool of blood with injuries all over their bodies; PW-1 also noticed missing of gold and diamond articles from the person of her mother; having found that her parents are murdered for the sake of money and ornaments, she lodged the complaint before the PSI of Rural Police Station, Shimoga (PW 24) as per Ex.P1 at about 9.00 A.M. on 05.11.2003. PSI - PW-24 took the complaint from PW-1 from the spot and sent the same to Police Station through Police Constable No.1402, who in turn took the complaint to the Rural Police Station, Shimoga (PW-19) wherein ASI registered crime No.833/2003 in Shimoga Rural Police Station. Thereafter, FIR was sent to the learned jurisdictional Magistrate as per Ex.P19. The Police during course of investigation lifted finger prints of the accused No.1 from the steel almirah of the deceased and recovered 5 gold ornaments as well as weapons at the instance of accused No.1 and weapon from accused No.2 after recording their voluntary statements. The Police after completion of investigation laid the charge sheet against both the accused for the offences under Sections 302, 392 and 449 r/w Sec. 34 I.P.C.
3. Since the accused did not plead guilty, the Trial was conducted against the accused for the offences under Sections 449, 392 and 302 r/w Sec. 34 I.P.C.
4. In support of its case, the prosecution in all examined 24 witnesses and got marked 42 exhibits and 22 material objects. The accused did not lead any evidence. However, Ex.D1 and D2 are got marked in the cross-examination of PWs 10 and 15 respectively.
5. The Trial Court on evaluation of evidence on record held that the prosecution has not proved its 6 case beyond reasonable doubt and has consequently acquitted the accused.
6. Sri. G.M. Srinivasa Reddy, learned Government Advocate representing State and Sri. R.B. Deshpande and Harish Kumar for the respondents argued in support of their respective cases. The Advocates on record have taken us through the entire material on record including the judgment of the Court below. Learned Amicus Curie assisted the Court effectively.
7. The following points arise for our consideration :
a) Whether the Trial Court is justified in disbelieving the recovery made by the investigating agency pursuant to voluntary statements of Accused Nos.1 and 2 ?
b) Whether the Trial Court is justified in not relying upon the evidence on record relating to finger prints of accused No.1 found on the 7 Almirah of the deceased as compared with the admitted finger prints ?
c) Whether the Trial Court is justified in acquitting the accused ?
8. PW-1 is the daughter of the deceased couple; she lodged the complaint as per Ex.P1 before PW-24 (the PSI attached to Shimoga Rural Police Station on the spot), she was also a witness for scene of offence mahazar - Ex.P2. Though she was present at the time of recovery of jewelleries at the behest of the accused No.1, she has not signed the mahazars Exs.P8 and P13.
PW-2 is the witness for inquest panchanama of deceased Manjunath Ithal which is at Ex.P3. He is also a witness for scene of offence panchanama Ex.P2. He was present at the time of lifting the finger prints in the house of the deceased by PW-23.
PW-3 - is the worker in the house of the deceased. He saw the dead body of Kalavathi Ithal, 8 standing outside through window and intimated the same to PW-1 over phone.
PW-4 is a witness for inquest panchanama Ex.P5 conducted on the dead body of Kalavathi Ithal.
PW-5 is the owner of the house wherein the telephone which was used by PW-3 to call PW-1 immediately after seeing the dead body was installed.
PW-6 is a Videographer who has videographed the recovery of gold and silver articles at the instance of accused No.1. Ex.P7 is the Video Cassette.
PW-7 is a witness to seizure mahazar - Ex.P8, under which the gold articles and cash were recovered at the instance of accused No.1 from the house of accused No.1.
PW-8 is relative of accused No.2, who has turned hostile. His evidence is of no use either to the prosecution or to the defence.
PW-9 is a neighbour of accused No.1, who was supposed to depose about the seizure of silver articles 9 at the behest of accused No.1. He has turned hostile. His evidence is also of no use to the prosecution as well as to the defence.
PW-10 is the near relative of Accused No.2. She has deposed about the recovery of chopper made by Police in the presence of panchas at the instance of Accused No.2. MO-18 - chopper is seized from the house of PW-10. The said chopper was used by accused No.2 for commission of offence.
PW-11 is the Doctor who conducted Autopsy over the dead bodies of Manjunath Ithal and Kalavathi Ithal as per Ex.P10 & Ex.P11 respectively. He has given his opinion regarding the weapon seized as per Ex.P12.
PW-12 has deposed about the motive for commission of murder of Accused No.1. According to her, accused No.1 had loved one Smt. Saritha and he wanted to marry her; for the purpose of marriage he wanted to gather finances.
10
PWs 13 and 14 are the witnesses for seizure Mahazar Ex.P13, under which silver articles were seized at the behest of accused No.1 from another house of accused No.1.
PW-15 is the neighbour of PW-10 (relative of accused No.2). He has deposed that accused No.2 used to come to the house of PW-10 very often.
PW-16 is the witness for mahazar Ex.P14, under which MO-18 - machchu, MO-19 - towel and MO-20 - Bag were recovered at the behest of Accused No.2.
PW-17 is the son-in-law of the deceased. He is the husband of PW-1. He was also present at the time of seizure of gold and silver articles and at the time of video graphing of the recovery aspect.
PW-18 is the Head Constable who arrested accused No.1 on 30.01.2004. Accused No.1 was produced by PW-18 before the Investigating Officer as per his report - Ex.P15.
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PW-19 is the Assistant Sub-Inspector who received the complaint sent by PW-24 in the Police Station and registered crime No. 833/2003 of Shimoga Rural Police Station. He sent FIR to the jurisdictional Magistrate as per Ex.P17.
PW-20 is the Deputy Superintendent of Police, who is the finger print expert. He compared the lifted chance prints Q1, Q2 and Q3 with the admitted finger print slips of 15 suspects including the accused No.1 and found that the chance prints (marked as Q3) developed and lifted from the iron safe tallied with the admitted left middle finger print of accused No.1. In other words, the evidence of PW-20 reveals that the finger prints found on the iron safe tallied with admitted finger prints of accused No.1.
PW-21 is the Investigating Officer, who completed the investigation and laid the charge sheet. 12
PW-22 is Photogrpher who took the photographs including the photograph of dead bodies as per Ex.P16 series.
PW-23 is Police Constable, who lifted the finger prints from various places including the iron safe belonging to the deceased. He converted the lifted finger prints obtained from the spot into photographs and sent them for examination.
PW-24 is PSI who received the complaint from PW-1 on the spot and sent to Police Station through PC No.1402 to Police Station, who in turn submitted the said complaint before PW-19 (ASI) attached to Shimoga Rural Police Station. He has also conducted certain part of investigation.
9. From the aforementioned, it is clear that the case rests on the circumstantial evidence. The circumstances are :
a) homicidal death;
b) motive;13
c) acquaintance of accused No.1 with the deceased;
d) finger prints found on iron safe of the deceased from which the gold and silver articles were stolen tallied with admitted finger prints of accused No.1.
e) recovery of robbed golden and silver articles at the instance of accused No.1;
f) recovery of weapon used by accused No.2 for commission of offence.
10. Re. Homicidal death:
The death of the deceased couple has occurred during night intervening 14.11.2003 and 15.11.2003 in the farm house of the deceased. The said farm house is situated about more than 10 kmts. away from Shimoga Town. Deceased Manjunath Ithal was having Sweet Mart at Shimoga. Due to his old age, the said Sweet Mart was looked after by his son-in-law (PW.17) who was residing at Shimoga along with his wife PW.1. Their death is neither suicidal nor natural. 14
11. The postmortem reports at Ex.P10 and P11 reveal that the deceased Manjunath Ithal had sustained as many as 45 injuries and most of them are chop wounds and stab wounds. So also deceased Kalavathi Ithal had sustained about 13 injuries.
PW.11-doctor who conducted the postmortem examination has opined that the death of both the deceased is due to shock and hemorrhage as a result of multiple injuries sustained. Even before the Court, the doctor has deposed that the death is due to shock and hemorrhage as a result of multiple injuries sustained. Even otherwise there was no serious contest on the point that the death was homicidal in nature. Be that as it may, having regard to the injuries sustained and as the death is as a result of injuries sustained as is clear from the postmortem reports and the evidence of the doctor-PW.10, the Trial Court is justified in holding that it is a case of homicidal death.
15
12. Re. Motive:
The aspect of motive is spoken to by PW.12. She has deposed that she knew both the accused; accused No.1 is the friend of her husband; accused No.2 is the distant relative of her husband; since both the accused knew PW.12 very well, they used to come to her house occasionally; accused No.1 used to take the husband of PW.12 for painting work; accused No.1 had taken the husband of PW.12 even for horticultural work in the farm house of the deceased and PW.17, the son-in-law of the deceased; accused No.1 was in love with one Smt.Saritha, W/o.Sridhar who was the friend of accused No.1 and he was intending to marry her; accused No.1 used to tell PW.12 that for the purpose of such marriage he needs Rs.10,000/- urgently and for the said purpose, something has to be done; accused No.1 had also told PW.12 that in case if the money could not be arranged by him, he would even murder rich persons; when questioned by 16 PW.12 as whom he was going to murder, accused No.1 had told her that in case if old Ithal couple (deceased) are murdered in the farm house situated at Gajanuru, he would get lot of money; said facts were disclosed by accused No.1 to PW.12 about 20-22 days prior to the incident; however, PW.12 suitably advised accused No.1 not to commit murder; subsequently she came to know about the incident.
In the cross-examination, PW.12 has admitted that her husband was also suspected and interrogated by police once; her statement was recorded on 30.1.2004 and till that day, she did not disclose about she talking with accused No.1 as aforementioned.
However, she has admitted that she told about such facts before Rajappa-Additional Superintendent of Police and Uttappa-Deputy Superintendent of Police orally; she wanted to disclose the aforementioned facts before the police, but her husband told her not to disclose before anybody and therefore she did not 17 disclose the aforementioned facts till her statement is recorded. She has further admitted that accused No.1 told her that he was also interrogated by the police and he had told the police that he does not know anything and accordingly accused No.1 requested PW.12 not to disclose the aforementioned conversation between PW.12 and accused No.1 before anybody. She has also deposed that since her husband told her not to disclose aforementioned facts to anybody she has kept quiet.
13. From the aforementioned evidence of PW.12, it is clear that she is acquainted with both the accused. There is no reason as to why she should depose against accused No.1 specifically, if accused No.1 had not really disclosed anything before her. She has also made it clear that she did not disclose about the version between her and accused No.1 relating to requirement of money of accused No.1 and that he would murder the old couple, because her 18 husband told her not to disclose about the same before anybody. We find, the evidence of PW.12 most natural. Since accused No.1 used to provide work for the husband of PW.12 by taking him for horticultural work and painting work, it is but natural for PW.12 to obey her husband by keeping mum for saving Accused No.1. However, as the husband of PW.12 was also interrogated, it seems she has come out with truth before the police. The evidence of PW.12 further makes it clear that accused No.1 was friend of the husband of PW.12. Under these circumstances, PW.12 must have kept quiet particularly when she was told by her husband not to disclose before police. Ultimately, she has disclosed truth before the police about the motive for the incident since she could not hide the said important fact. Mere recording of her statement belatedly by police would not make her version doubtful. In view of the same, we find that the prosecution has successfully made out the 19 circumstance of 'motive' through the evidence of PW.12.
14. Re. Acquaintance:
So far as acquaintance of accused No.1 with the deceased is concerned, there is no serious dispute with regard to the same even by defence. The trend of examination by the defence would clearly reveal that accused No.1 was acquainted with the deceased couple. Even when the statement of accused was recorded under the provisions of Section 313 of Cr.P.C., accused No.1 did not deny the fact that he had acquaintance with the deceased. On the other hand, the statement of accused No.1 clearly reveals that accused No.1 had painted the house of the deceased at Shimoga and had painted the house of PWs.1 and 17 at Shimoga and had also painted farm house of the deceased. House of deceased is situated at Gajanur Village, where the incident has taken 20 place. So also there is ample material to show that the deceased used to even hand over the keys of farm house to accused No.1 for the purpose of cleaning the same and for the purpose of horticultural work, which clearly means that accused No.1 had developed lot of acquaintance, intimacy & confidence with the deceased. Therefore, we hold that accused No.1 had got acquaintance with the deceased.
15. Re. Finger prints:
The next circumstance is that finger prints of accused No.1 were found on iron safe of the deceased situated in the farm house of Gajanur Village from which the gold and silver articles were robbed. In order to prove the said circumstance, the prosecution has relied upon the evidence of PWs.20, 21 and 23.
16. PW.23 was working as Constable during the relevant time in Finger Prints Bureau at Shimoga. He is trained in lifting the finger prints and developing the 21 same. PW.23 has deposed that on 5.11.2003 he went to the farm house of the deceased couple for lifting the finger prints; he had taken kit box along with him; he verified the spots for the purpose of lifting the finger prints; he examined doors, latches, pooja room, bed room, etc. of the farm house for lifting the finger prints; he had used chemicals at the time of such inspection to verify the finger prints. He did not get sufficient and clear finger prints as required on the door latches, kitchen door and utensils. However, he found three finger prints on the iron safe placed in bed room. He used powder for getting clear finger prints. Thereafter finger prints were lifted with the help of adhesive tapes and subsequently the finger prints were taken, stored and developed into photographs. Thereafter, finger prints were sent to Finger Prints Bureau, Davangere for examination. He identified the photographs in which the finger prints were developed. He has also identified his signature at 22 finger print mahazar-Ex.P4(c). Nothing worth is elicited in cross-examination of PW.23 by the defence relating to lifting of finger prints by PW.23. There is hardly any cross-examination by defence, of this witness. Not even a suggestion is made by defence that PW-23 is not the expert in lifting the finger prints and developing them.
From the evidence of PW.23, it is clear that he went to the spot and verified all the materials found in the house to find out the finger prints. It is also brought on record that he is trained in lifting the finger prints. After using chemical powder he lifted the finger prints from the iron safe and developed them into photographs, which were sent to Finger Prints Bureau at Davanagere for opinion.
17. PW.21 is the Investigating Officer. He has deposed that he took the sample/admitted finger prints of accused No.1 on 6.1.2004. He has also 23 deposed that along with the finger prints of accused No.1, he had taken finger prints of fifteen persons including PW.17, son-in-law of the deceased inasmuch as he was also suspected along with 15 others at the initial stage. He has identified the finger prints of accused No.1 at Ex.P18(a). He has further deposed that after getting expert's opinion from Deputy Superintendent of Police, Shimoga on 29.1.2004, it was confirmed that the finger prints lifted by PW.23 from iron safe of the deceased tallied with the admitted finger prints of accused No.1.
18. PW.20 is the Finger Print Expert who examined the admitted and chance finger prints of accused No.1 along with the finger prints of 15 others. PW.20 has deposed that lifted chance finger prints of accused No.1 were brought by Head Constable- A.R.Purushotham; those lifted chance finger prints had been developed by P.B.Hanumanthappa (PW.23); the chance/lifted finger prints were marked as Q1, Q2, 24 and Q3. The Head Constable-A.R.Purushotham had also brought finger prints of other 15 suspected persons such as Srikanth Bhat, Guruprasad Bhat, V.Girish, Shivaprasad, Advocate, D.S.Lakshmikanth, Manjunatha, Srinath Ithal, etc. All such finger prints of 15 suspected persons, including accused No.1 were compared by PW.20 with the lifted/chance finger prints at Q1, Q2 and Q3. After examination, he found that chance prints marked at Q3, which were lifted and developed from the iron safe were found identical with the admitted left middle finger prints found on the finger print slip of accused No.1. He has also deposed that chance print marked as Q1 was not found identical with any of the finger prints of 15 suspects. Chance print marked as Q2 was unfit for comparison as it did not disclose sufficient number of bridge details. Accordingly, he has issued letter to the concerned. He has further deposed that on 5.2.2004 he sent lifted chance finger prints (Q3) for supply of 25 enlarged photo and lifted chance print (Q1) in natural size and left middle finger print of accused No.1. On 9.3.2004 he received photographs through Head Constable A.R. Purushottam. On the same day, he marked the identical ridge characteristics in the relative sequences and pasted them on a white paper in juxtaposition. A letter written by him is marked as Ex.P18 in which he has given his opinion as per Ex.P19. He has opined that the finger prints slip (containing admitted finger prints) of accused No.1 tallied with the lifted chance finger prints and the same is marked as Ex.P18(a). He has also specifically deposed that finger prints at Q3 is of accused No.1 only. PW.20 was cross-examined thoroughly to find out as to whether he is expert or not on the subject. In the cross-examination he has stated that he is the author of a book relating to Finger Prints in Kannada language running with 270 pages. The said book contains entire finger print science and his experience. 26 In spite of searching cross-examination of PW.20, nothing worth is elicited to discard his evidence. PW.20 is a Senior Officer of the Department and he is expert in the field. The finger print expert has given ample reasons in support of his opinion. His evidence reveals that he has acquired special skill, knowledge and experience in science of identification of finger prints. We find that his opinion is specific. It is neither bald nor dogmatic.
19. From the evidence of PWs.23, 21 and 20 it is amply clear that the prosecution has proved that the chance finger prints found on the iron safe of the deceased tally with the admitted finger prints of accused No.1.
20. It is argued on behalf of accused No.1 that since accused No.1 was working with the deceased very often, it is but natural to find his finger prints anywhere in the house. Though such argument 27 appears to be attractive prima facie, the same cannot be accepted. The person who works in the farm house or in the garden land is not expected to touch the iron safe belonging to his employer. If the finger prints of accused No.1 were found elsewhere, the things would have been different. In the matter on hand, the finger prints of accused No.1 are not found anywhere, except on the iron safe of the deceased which itself clearly reveals that the iron safe was recently handled by accused No.1 only. It is also not in dispute that the iron safe was open; gold and silver articles found in iron safe as well as on the body of the deceased lady are missing. In view of the aforementioned facts, we are of the clear opinion that the prosecution has proved that the finger prints found on the iron safe from which the gold and silver ornaments were stolen are of accused No.1. 28
21. The Trial Court has disbelieved the case of the prosecution relating to finger prints mainly on the ground that the Investigating Officer is not justified in law in taking admitted/sample finger prints from the accused. The Trial Court relying upon the provisions of Sections 4 and 5 of Identification of Prisoner Act, 1920 (for short hereinafter called as '1920 Act') as well as certain judgments of the Supreme Court and this Court, has concluded that the finger prints ought to have been taken by the Investigating Officer pursuant to the order of Magistrate and that the Investigating Officer should have followed the provisions of Section 5 of '1920 Act' in such matters. Such conclusion reached by the Trial Court cannot be accepted at all. The Trial Court in our considered opinion has merely mechanically relied upon certain judgments of the Apex Court as well as this Court to conclude that the Investigating Officer should have 29 taken the Magistrate's permission/order before taking the sample/admitted finger prints of the accused.
22. It is no doubt true that the Investigating Officer (PW.21) has not taken the permission of the Magistrate while taking the sample/admitted finger prints of accused No.1. However, we make it clear that the chance/lifted finger prints were obtained by PW.23 by drawing mahazar in the presence of panchas as per Ex.P4. However, no mahazar is drawn when the sample finger prints/admitted finger prints of accused No.1 were taken. So also, the Investigating Officer has not obtained the order from the jurisdictional Magistrate for obtaining the sample finger prints/admitted finger prints of accused No.1.
23. In our considered opinion, it is not necessary for the Investigating Officer to do so in the State of Karnataka. Section 3 of Identification of Prisoners Act, 1920 is not applicable to this case, inasmuch as 30 the said provision is relating to taking of measurements, etc., of convicted persons. In the matter on hand, the finger prints were taken by the Investigating Officer of the persons, in the crime which was still under investigation. Thus, Sections 4 and 5 of '1920 Act' are relevant. Section 4 as amended in Karnataka reads thus:-
"4. Taking of measurements or photographs of unconvicted persons - Any person -
(a) Who has been arrested in connection with an offence punishable under Section 96 of the Karnataka Police Act, 1963, or in connection with an offence punishable with rigorous imprisonment for a term of one year or upward or in connection with an offence for the commission of which on a second or subsequent occasion enhanced penalties have 31 been provided for under any law for the time being in force; or
(b) In respect of whom direction or order under Sections 54 or 55 of the Karnataka Police Act, 1963, has been made, shall, if so required by a police officer, allow his measurements or photographs to be taken in the prescribed manner."
(Emphasis supplied) The bare reading of Section 4 makes it amply clear that if the Police Officer requires accused person who is arrested in connection with the offence punishable for a term of one year or more, the accused shall allow his measurements or photographs to be taken in the prescribed manner. Section 4 of '1920 Act' empowers the Police Officer to take necessary finger prints of the accused who is arrested in connection with the offence punishable with rigorous imprisonment for a term of one year or more. In the matter on hand, PW.21, the Investing Officer 32 has taken the finger prints of accused No.1 as per Section 4 of the Act, 1920.
24. Under Section 5 of '1920 Act', the Magistrate has got power to order a person to be measured or photographed. In the matter on hand, the Police Officer has not taken the assistance of Magistrate under Section 5 of '1920 Act'. It is not incumbent on the part of the Police Officer to take help of the Magistrate since Section 4 empowers Police Officer to take finger prints of the accused on his own. In the matter on hand, accused No.1 has not resisted the Police Officer while giving his finger prints. Even in the statement recorded under Section 313 of Cr.P.C., the accused has not stated that his finger prints were taken forcibly. It is relevant to note the observations of the Division Bench of this Court in the case of K.T.Mohammed vs. State of Karnataka, reported in ILR 1988 Karnataka 1129, wherein it is observed thus:-
33
"In our State, Section 4 of the Identification of Prisoners Act is in force and according to it, the police officer could take the finger prints, of the accused as they were arrested in connection with an offence punishable with death or imprisonment for life. Therefore, and in view of the decision in SHANKARIA .vs. STATE OF RAJASTHAN (AIR 1978 SC 1248) (para-80) the PSI could take the finger prints and hence we see no force in the said contention of Mr. B.V. Acharya". The aforementioned observations were made by this Court after considering the judgment in the case of MOHAMOOD .vs. STATE OF U.P. reported in 1976 Crl.LJ 10.
25. It is clear from Section-4 of "1920 Act" that in Karnataka, the Police Officer can take the finger prints of the accused, who were arrested in connection with an offence punishable with imprisonment for a term of one year or more. Section 4 of '1920 Act' 34 clearly empowers the Police Officer to take finger prints in a prescribed manner. There is no other manner or procedure which is prescribed in law as such in Karnataka for taking the finger prints. The relevant portion of the Karnataka Police Manual as existed during relevant time relating to this aspect reads thus:-
"Person Authorised to take
Fingerprints
1826. Finger impressions will be taken only by proficients under the direction of an officer of the rank of Sub-Inspector or above as provided in the identification of Prisoners' Act (Act XXXIII of 1920). The Sub-Inspector or the Inspector directing the proficient to take finger impressions should sign the fingerprint slip."
26. We are conscious of the fact that Police Manual is nothing but a compendium of Departmental orders issued by the Inspector-General of Police for 35 the administrative guidance of police officers. However, they are issued under the Karnataka Police Act. Be that as it may, even the Karnataka Police Manual does not prescribe any procedure/manner for the Police Officer to take finger prints. Since it is expressly provided under Section 4 of '1920 Act, empowering the Police Officer to take finger prints, we do not find any fault with the Police Officer in taking finger prints of accused No.1 for comparing the same with the chance finger prints. The judgments relied upon by the defence to show that it is mandatory on the part of Police Officer to take permission of Magistrate to take sample finger prints, are not applicable to Karnataka State, inasmuch as those judgments are pertaining to the matters which arose from different States other than Karnataka State.
27. Re. Recovery of robbed golden and silver articles:
In so far as recovery of gold and silver articles at the behest of accused No.1 is concerned, the Trial 36 Court in our considered opinion has gravely erred in disbelieving the evidence of prosecution by giving importance to minor variations found in the evidence of the prosecution. At the time of conducting trial, the Trial Court has viewed the video cassette recorded by the police during the course of recovery of gold and silver articles at the behest of accused No.1. The Trial Court has found certain loopholes, which in our considered opinion are very minor and such trivial factors would not have been made as ground to disbelieve the entire aspect of recovery done by the investigating agency. In order to satisfy our conscience, we viewed the video cassette (Ex.P7) personally in the presence of learned Government Pleader and the learned advocates appearing on behalf of the defence as well as the Court Officer in the Mini meeting Hall of High Court Building. The arrangement to view the video cassette was made by the Registrar (Judicial) pursuant to our order dated 37 8.4.2013. On viewing the video cassette, we are of the clear opinion that the Trial Court is definitely wrong in rejecting the evidence relating to recovery made by the investigating agency. Transparency is disclosed by the Investigating Officer by videographing the entire recovery procedure while recovering the gold and silver articles at two places, as per panchanamas Ex.P8 and Ex.P13.
28. The circumstance of recovery is supported by the evidence of PW.6 the videographer, PW.7 the mahazar witness for seizure of gold ornaments and cash under panchanama at Ex.P8, and PWs.13 and 14 mahazar witnesses for seizure of silver articles under Ex.P13 at the behest of accused No.1.
PW.7 is the witness for recovery panchanama at Ex.P8 under which gold articles of the deceased were seized. He has deposed that accused No.1 took the police and panchas on 30.1.2004 for showing the 38 place in which the gold articles/ornaments were hidden by him. Accused No.1 stopped the police jeep near Match Factory wherein his house is situated. The said house was attached with zinc sheet room; he pointed towards the place on the floor wherein the gold ornaments were hidden in a blue box under a stone slab. He lifted the stone slab and took out the box embedded in earth containing the gold ornaments and gave it to the police in the presence of panchas. The gold ornaments were, four bangles, two necklaces and one pair of ear studs. They were marked as MO.Nos.10 to 15. In the very box three Indian currency notes of Rs.1,000/. denomination were also found. They were marked as M.O.No.5. Same is the evidence of PWs.1 and 17 who were also present at the time of recovery. However, PWs.1 and 17 have not signed the mahazar. But the fact remains that PW.7 is witness to the recovery mahazar and he supported the case of prosecution regarding recovery 39 fully. The Trial Court has given much weightage to minor & trivial variations found in prosecution evidence. We find that the floor of the house of Accused No.1 is of stone slabs and the same is plastered. However, one of the stone slabs is lifted and under the said stone slab, the box containing gold ornaments was hidden by removing certain portion of the earth. After hiding such box, the stone slab is again laid, but however it is not plastered. The entire aspect of recovery of gold ornaments was disbelieved by the Trial Court on the ground that the stone slab was kept loose without being plastered and the box containing the gold ornaments was hidden under such stone slab. We also find that the stone was loosely put and was not plastered around. Merely because the stone slab was not plastered, the recovery aspect cannot be disbelieved. The accused might not have plastered the stone slab after hiding the box containing gold ornaments in a hurry. There is no rule 40 that the stolen articles should be hidden in sealed manner only by the accused. Nobody knows (except the accused) as to under what circumstances, the accused had kept the gold articles in a box under a stone slab without being plastered. The accused alone has the knowledge about the said aspect. Merely because the loose stone slab was placed over the box containing the gold ornaments, the recovery aspect cannot be found fault with. In this context, it is relevant to note certain observations made by the Apex Court in the case of State of Himachal Pradesh vs. Jeet Singh, reported in AIR 1999 SC 1293, wherein it is observed thus:-
"26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating 41 article was made from a place which is open or accessible to others it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried on the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."
(Emphasis supplied)
29. Thus, it is clear that there is nothing under Section 27 of the Evidence Act, which renders the 42 statement of the accused inadmissible if recovery of the articles was made from any place which is open or accessible to others. It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others.
30. In the matter on hand, the articles were buried in the earth (floor) by keeping them in a box. However, a stone slab had covered the said hidden articles in the house of the accused without being plastered. The place in question is admittedly the house of accused No.1. No body has access to the said house. Merely because the stone slab was not plastered, the evidence regarding recovery cannot be doubted. The video cassette clearly reveals that accused No.1 takes the police to his house and shows the place. Merely because there was some utterance 43 during the course of recovery by the police against the accused, the same would not render recovery aspect untrustworthy.
31. Subsequent to recovery of gold ornaments, the police have recovered and seized silver articles in the presence of PWs.13 and 14 from the another house of accused No.1. PW.13 is the mahazar witness for seizure panchanama-Ex.P13. He has deposed that accused No.1 led the panchas and the police to his house situated at Halkola and took them inside the house. Thereafter the floor of the wash room was dug by accused No.1 wherein he had hidden the silver articles in a plastic bag. It is relevant to note that accused No.1 himself led the police to the spot and thereafter he took panchas and police near the toilet and he himself dug the floor of the toilet, wherein he had hidden the silver articles. It is also relevant to note that toilet was fully plastered and nothing was visible from outside. With great difficulty accused 44 No.1 dug the floor with the help of crowbar. It is clear from the video cassette that accused No.1 led the Police and panchas to the place and showed the place and at his instance the silver articles which were hidden in the floor of toilet (which was completely plastered) were recovered.
32. As aforementioned, merely because loose stone slab was put on the box, the Trial Court has disbelieved the evidence relating to recovery. However, such loose slab is not found in another house of accused No.1 wherein the silver articles were hidden. Absolutely no reason is available to disbelieve the recovery of silver articles made by police. As aforementioned, we viewed the video cassette and we are fully satisfied about the recovery made by the police. The police have acted in highly transparent manner in the matter on hand. Had the police suo motu planted the gold ornaments in the house of accused No.1, they would not have dared to 45 videograph the recovery of such planted articles. But in the matter on hand, both gold and silver ornaments have been recovered at the instance of accused No.1. Public did not have access to the houses of accused No.1. Accused No.1 was arrested on 30.1.2004 itself. On the very day, the police have recovered the gold and silver ornaments from the house of accused No.1. Accused No.1 was using those houses for his residential purpose till that day. Therefore, none of the others including the police had access to the houses wherein gold and silver articles were hidden.
33. Re. Recovery of weapons:
Though the case of prosecution is that M.O.No.5
- knife was recovered from accused No.1 in his house situated at Match Factory, Vidyanagar, wherein gold ornaments were hidden, the police did not videograph the recovery of knife at the behest of accused No.1. However, a spot panchanama is made to evidence the recovery of knife made at the behest of accused No.1. 46 We do not prefer to believe the recovery of knife by the police at the behest of accused No.1. Had accused No.1 really hidden the knife in the very house, wherein the gold ornaments were hidden, they would have definitely videographed the same. Though the knife was recovered under the very panchanama at Ex.P8, under which gold ornaments were recovered, the police did not venture to vediograph the recovery of knife. Therefore, recovery of knife- MO.No.5 by police at the behest of accused No.1 cannot be accepted and the same is not accepted.
34. So far as accused No.2 is concerned, the police have recovered chopper-M.O.No.18 from accused No.2. The recovery of chopper was spoken to by PW.10, the paternal aunt of accused No.2, PW.15 neighbour of PW.10 and PW.16 the mahazar witness for seizure mahazar at Ex.P14 under which the chopper is seized.
47
35. PW.10 has deposed that accused No.2 is the son of her brother; that he was working as a conductor in the lorry; on the relevant day, the police came along with accused No.2 to her house and asked accused No.2 as to where he has hidden the chopper; accused No.2 took out the chopper from the loft of house of PW.10. PW.10 has withstood in her cross- examination by deposing that when the police seized the chopper from her house, she was in her house. However, she has deposed that when the police came to her house, she was not in the house.
36. PW.15 is the neighbour of PW.10. He has deposed that accused No.2 used to come to the house of PW.10 frequently and at the time of seizure of chopper, accused No.2 was living in the house of PW.10.
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37. PW.16 is the mahazar witness for seizure panchanama at Ex.P14, under which the chopper was seized from accused No.2.
PW16 has deposed that the second accused took the police and the panchas including PW16 to the house of his maternal Aunt Lakshmamma, situate at II Cross, Mallikarjuna Nagar, Shimoga and told the police that in the said house he has kept the weapon used for commission of the offence. So saying accused No.2 went inside the house and went towards the loft and took out blue distemper coloured bag. In the said bag, the chopper was wrapped in a towel and the said chopper was blood stained. He identified the said blood stained chopper as M.O.18. The towel is M.O.19 and the blue distemper coloured bag is M.O.20. All of them were seized under the panchanama Ex.P14 in the presence of PW16 who is signatory to Ex.P14.
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In the cross-examination PW16 has reiterated that accused No.2 himself took them to his house and took out the chopper. Nothing is brought out in the cross-examination of PW16 so as to discard his evidence relating to the recovery of chopper at the instance of accused No.2.
In addition to the same, the recovery of gold and silver articles at the behest of accused No.1 as well as the chopper at the behest of accused No.2 were spoken to by the Investigation Officer. He has deposed as to how the investigation was conducted relating to recovery. He has also deposed about the videographing of the recovery proceedings. The Trial Court has disbelieved the evidence of PW16 and recovery of the chopper from accused No.2 solely on the ground that there was no hurdle for the police to videograph the recovery of chopper from Accused No.2 also. The recovery of gold ornaments was made by the police at the behest of accused No.1 in the 50 presence of panchas on 30.01.2004. On that day the videographing was done. On the subsequent day, i.e., on 31.01.2004 the recovery of chopper was made at the behest of accused No.2 from the house of PW10. There is no rule that every recovery should be supported by videographing. Wherever the Investigation Officer finds that it is necessary to videograph, he may choose to videgraph in order to ward off any suspicion in the mind of the Court. Therefore, merely because the videographing was not done on the subsequent day i.e., on 31.01.2004 relating to recovery of chopper at the behest of accused No.2, the case of the prosecution relating to recovery cannot be suspected, more particularly when the entire evidence relating to recovery of chopper at the instance of Accused No.2, is consistent, cogent, natural and reliable.
The Trial Court has also disbelieved the aspect of recovery strangely on the ground that both the 51 accused were not apprehended till 30.01.2004 though the incident has occurred on 14.11.2003. The Trial Court also finds the conduct of accused No.1 unnatural in keeping the gold and silver articles intact without being disturbed for a long period of two months, though accused No.1 was allegedly in need of money and on the said ground also the Trial Court disbelieves the recovery. We are unable to persuade our mind to concur with the said opinion of the Trial Court. The police have suspected as many as 15 persons including an Advocate and the son-in-law of the deceased. The finger prints of all such 15 persons including accused No.1 were taken. Only after getting confirmation that the finger prints of accused No.1 tallied with the chance finger prints found on the iron safe belonging to the deceased kept in the house where the incident has occurred, the police apprehended accused No.1 on 30.01.2004 and thereafter accused No.2. Serious investigation has 52 taken place thereafter. The Investigation Officer may have his own reasons for not suspecting and interrogating the accused seriously as soon as he saw the accused. In the matter on hand, the accused No.1 was also interrogated at the inception, but the police did not get any clue from him. The Court cannot ignore the realties of the situation with which Investigation Officer who is otherwise a Police officer is placed. He has to attend to umpteen engagements and even in the investigation of a particular case itself he may have to observe number of formalities, even it is presumed that he had only one case to investigate at that time. Moreover, it would be unreasonable and unlawful on the part of Police to apprehend any person unless specific clues are available against a person. On going through the material on record more particularly, after viewing the video cassette relating to recovery, we are of the firm opinion that the police have investigated into the crime in a highly 53 transparent manner. The gold and silver articles were recovered at the behest of accused No.1 who had hidden the articles in his two houses. As aforementioned, the silver articles were hidden in a bag underneath the toilet which was completely plastered. The accused himself led the police and dug the floor with the help of crowbar and thereafter took out the bag containing the silver articles and produced the same before the police. The entire procedure is videographed. In this view of the matter, we conclude that the Trial Court has gravely erred in not believing the recovery made by the police relating to gold and silver articles as well as the weapon at the behest of accused No.2. In our considered opinion, the prosecution has proved beyond reasonable doubt, the circumstance relating to recovery of gold and silver articles as well as the weapon used by accused No.2.
PW11 Doctor who conducted post mortem examination has opined that the chop wounds and 54 stab wounds might be caused by M.Os.5 and 18. M.O.18 is the chopper seized at the behest of accused No.2.
38. In view of the above, it is clear that the prosecution has proved the entire chain of circumstances which will unerringly point towards the guilt of the accused. Accused No.1 with the help of his friend accused No.2 committed murder of both the deceased i.e., old couple viz., Manjunath Ithal and Kalavathi Ithal, aged about 70 and 65 years respectively in their farm house taking advantage of their nearness, acquaintance with the deceased and their old age. The murder is for gain. After commission of murder, the accused robbed the gold and silver articles belonging to the deceased and thereafter have hidden them in the house of accused No.1.
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The Trial Court, in our considered opinion, has gravely erred in observing that had it been the intention of the accused to commit robbery, they would not have left any gold ornaments on the person of the deceased Manjunath Ithal. Such reasoning in our considered opinion is uncalled for. What weighs in the mind of the accused on the spur of the moment would not be known to anybody. Only accused would be knowing the same. Merely because some of the ornaments are left on the body of the deceased Manjunath Ithal and certain gold and silver articles found on the body of Kalavathi Ithal and stored in the iron safe were stolen, the prosecution case cannot be doubted. Merely because some of the articles were left without being robbed, the prosecution case cannot be dubbed to be suspicious.
39. Even assuming that the case of the prosecution relating to comparison of chance and admitted finger prints is doubtful as the Magistrate's 56 permission is not taken (though it is not necessary in Karnataka State) prior to obtaining admitted finger prints of the accused, the prosecution case cannot be doubted. The evidence relating to recovery is totally independent of the evidence relating to comparison of finger prints. As aforementioned, the aspect of recovery in our considered opinion cannot be doubted at all inasmuch as it is proved beyond any doubt.
40. Having re-appreciated the material on record in its entirety, we conclude that the prosecution has proved its case beyond reasonable doubt. We are conscious of the legal position relating to the powers of the appellate Court while dealing with the appeal against the order of acquittal. The Appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. Criminal Procedure Code puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may 57 reach its own conclusion, both on question of fact and laws. Even though in an appeal against acquittal, the powers of the Appellate Court are as wide as that of the Trial Court and it can review, re-appreciate, reconsider the entire evidence brought on record, if the view taken by the Trial Court for acquitting the accused is possible or plausible, the appellate Court would not disturb such finding. In the matter on hand, on re-appreciation of the material, we are clear in our mind that the view taken by the Trial Court is neither a possible view nor plausible view. So also the view taken by the Trial Court is not reasonable and probable.
Since the judgment and order of acquittal passed by the Trial Court cannot be sustained under the facts and circumstances of the case, the same stands set aside. Accordingly, the following order is made: 58
ORDER
a) The appeal is allowed. The judgment and order of acquittal is set aside.
b) Both the accused-respondents are convicted for the offence under Section 449 r/w Section 34 of IPC and are sentenced to undergo imprisonment for seven years and to pay fine of Rs.10,000/- each.
c) Both the accused-respondents are convicted for the offence under Section 392 r/w 34 IPC and are sentenced to undergo imprisonment for seven years and to pay fine of Rs.10,000/- each.
d) Both the accused-respondents are convicted for the offence under Section 302 r/w Section 34 of IPC and are sentenced to undergo imprisonment for life and to pay fine of Rs.10,000/- each.
e) In default of payment of fine, the accused shall undergo imprisonment for two years under each of the aforementioned sections. 59
Substantive sentences shall run concurrently. We place on record the assistance rendered by Sri P.M.Nawaz, learned Amicus Curiae and in recognition thereof, the Registry is directed to pay Rs.7,000/- as honorarium to him.
We also place on record with admiration the efforts made by Sri G.M.Srinivasa Reddy, learned HCGP in assisting the Court by arguing on behalf of the prosecution. He has taken lot of pains to safeguard the interest of the State.
Sd/-
JUDGE Sd/-
JUDGE Rbv/ck/JT