Karnataka High Court
Chetan C Shetty vs State Of Karnataka By on 10 January, 2018
Bench: Ravi Malimath, H.B.Prabhakara Sastry
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 10TH DAY OF JANUARY, 2018
BEFORE
THE HON'BLE MR.JUSTICE RAVI MALIMATH
AND
THE HON'BLE DR.JUSTICE H B PRABHAKARA SASTRY
CRIMINAL APPEAL NO.933 OF 2012
BETWEEN:
CHETAN C. SHETTY
S/O D.CHANDRANATH SHETTY
AGED ABOUT 23 YEARS,
R/AT # 32, II CROSS,
ASHWATHNAGAR, RMV II STAGE,
BENGALURU.
PERMANENT ADDRESS:
# 4-B, SANJEEV CASTLE
TELECOM HOUSE ROAD,
PANDESHWARA,
MANGALURU. ...APPELLANT
(BY SRI.DINESH KUMAR K. RAO, FOR SRI. R.B. DESHPANDE,
ADVOCATES)
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AND:
STATE OF KARNATAKA BY
MALLESWARAM POLICE STATION,
BENGALURU. ... RESPONDENT
(BY SMT. NAMITHA MAHESH B.G. HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CR.P.C, PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION AND SENTENCE DATED
31.07.2012 PASSED IN S.C.NO.159 OF 2009 BY THE
PRESIDING OFFICER, FAST TRACK COURT-XIII, BENGALURU -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF THE INDIAN PENAL
CODE. APPPELLANT/ACCUSED IS SENTENCED TO UNDERGO
IMPRISONMENT FOR LIFE AND ALSO TO PAY A FINE OF
RS.25,000/- IN DEFAULT OF WHICH HE SHALL UNDERGO
SIMPLE IMPRISONMENT FOR A FURTHER PERIOD OF 6 MONTHS
FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
*****
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:-
JUDGMENT
PW.4 is the complainant. He is residing in a flat situated in the first floor of the property bearing No.31/1, 18th Cross, 8th Main, Malleshwaram. It is situated behind Pallavi Beauty Parlor. He is residing there along with his wife PW.5. Their two daughters go to college. The deceased is a close relative of 3 PW.5. That the deceased is not of a very sound mind and would therefore always stay at home when PWs.4 and 5 would go to do their work and the children would go to college. The complainant was working as an Assistant Controller in the Weights and Measures Department, of the State Government and his wife PW.5 was a Branch Manager in the Indian Bank, Malleshwaram. PWs.4 and 5 would leave home in the morning to attend to their respective office duties. They would return back only in the evening. Their daughters would return home after college. Therefore, from morning till evening, the deceased would be alone at home doing household work. That on 26.09.2008, as usual, PWs.4 and 5 left home for their work. The daughters also went to their college. At about 3.30 p.m. the daughters came back from their college and knocked the door of their house. There was no response. Therefore, they telephoned their mother through the mobile, who in turn contacted her husband, who thereafter came to the house at about 5.25 p.m. He opened the front door of the house with a key and having entered the house, he saw the deceased was lying with her face down in the bedroom. He sprinkled water 4 and tried to wake her up. She did not respond. He noticed that all the cupboards were open and the articles were scattered. He immediately informed the police control room, who came there at about 7.00 p.m. He gave a written complaint in terms of EX.P3, on the basis of which a case was registered in Crime No.241 of 2008 for the offence punishable under Section 302 of the Indian Penal Code against unknown persons. The Investigating Officer proceeded to the scene of offence along with the dog squad and also requested the fingerprint expert to come there. As spot panchanama was drawn, fingerprints were lifted, blood-stained articles were recovered, the computer UPS were seized, etc. A panchanama was drawn. The dead body was referred to the Victoria Hospital for postmortem and further investigation was taken up. After about a month and a half, the accused was apprehended at 80 feet road, Sanjay Nagar, Bengaluru on 09.11.2008. He gave his voluntary statement on the basis of which the mobile handset which was sold to him was recovered among various other articles. Based on the voluntary statement, gold articles were recovered from the Karawali 5 Credit Cooperative Society which were pledged by the sister of the accused. Thereafter a charge sheet was laid for the offence punishable under Section 302 of the Indian Penal Code against the accused.
2. In order to prove its case the prosecution examined 25 witnesses, marked 40 exhibits along with 33 material objects. The accused pleaded not guilty and claimed to be tried. By the impugned order, the accused was convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life, along with payment of fine of Rs.20,000/-, in default, to undergo simple imprisonment for a period of six months. Aggrieved by the same the present appeal is filed.
3. Learned counsel for the appellant contends that the order of the trial court is erroneous and liable to be interfered with. That the trial Court committed a perversity in holding that the prosecution has proved its case beyond all reasonable doubt. That there are substantial loopholes in the prosecution case which has been ignored by the trial Court. That the 6 evidence of the fingerprint expert - PW.24 cannot be accepted. That the fingerprints have not been accepted in a manner known to law. There is no material to indicate that the fingerprint was lifted in the presence of any panchayathdars or others. That the motive for the commission of the offence has not been proved. That the recovery has also not been established by the trial Court. Hence he pleads that the appeal be allowed by acquitting the accused.
4. On the other hand the learned Additional State Public Prosecutor disputes the same. She contends that substantial material has been placed in order to prove their case. That the fingerprints of the accused were found on the scene of offence. The same tallied with the specimen signature of the accused. Therefore, the presence of the accused on the scene of offence has been established. The blood stained articles such as the UPS and others also contain a proof of the fact that it was the accused alone who committed the murder for gain. Hence she pleads that the trial Court having rightly 7 considered the evidence of the prosecution, no interference is called for.
5. Heard learned counsels and examined the records.
6. PW.1 is the pancha to the spot mahazar in terms of EX.P1. PW.2 is the pancha to the inquest mahazar in terms of EX.P2. PW.3 is the neighbour of the complainant who was residing in the ground floor.
7. PW.4 is the complainant. He is working as an Assistant Controller in the Weights and Measures Department of the State Government. His wife PW.5 was working in the Indian Bank at Malleshwaram. He has stated that on the relevant date, he and his wife PW.5, as usual left home in the morning to attend to their respective duties. In the afternoon at about 4.30 p.m. his wife PW.5, telephoned him and told him that the door of the house is locked and the children are waiting therein. Therefore, immediately he went to his house. At about 5.00-5.30 p.m, he opened the door of the house with a key and went inside. There he found the deceased Radha lying on the floor in the master bedroom. He poured water on 8 her and tried to recover her. She did not respond. Thereafter he called the police who came there at about 7.00 p.m. and on narrating the incident, a complaint was registered and investigation was taken up. He has identified 25 items as missing from his house. Nothing worthwhile has been elicited in his cross examination to disbelieve his statement. The only cross-examination is to the extent with regard to the gold ornaments. We do not find any cross-examination by the accused so far as the offence under Section 302 is concerned.
8. PW.5 is the wife of PW.4. She has stated that on the date of the incident, she and her husband left home as usual to attend to their respective duties. The children also left home. At about 3.30 p.m., her daughter PW.13, telephoned her and told her that when she rang the doorbell of the house, nobody opened the door. Therefore, she contacted her husband PW.4 and intimated the same to him. Thereafter her husband went to their house at about 5.30 p.m. and about 15 minutes thereafter she also reached the house. Nothing 9 worthwhile has been elicited in her cross examination to disbelieve her statement.
9. PW.6 is the engineer who drew the sketch of the scene of offence.
10. The mobile of PW.7 was given for repair to PW.10 who is the mobile shop owner. Since the mobile was under
repair PW.10 had given a mobile hand set to PW.7 to use. We do not find any material to link either PW.7 or PW.10 to the offence under Section 302 of the Indian Penal Code.
11. PW.8 is a pancha for the scene of offence. PW.9 is the pancha for the seizure of the mobile in terms of EX.P7. PW.10 is the relative of PW.9 and owner of the mobile shop. He has turned hostile and not supported the case of the prosecution.
12. PW.11 is a dhobi. He has stated that he came to the apartment in question at about 12.30 in the afternoon. He rang the bell. Nobody responded. Thereafter in the evening when PW.4 came to the house, he also accompanied him 10 therein. He has stated in the evidence that when he came to the house, PW.4 opened the door of the house with a key and entered into the house. Nothing worthwhile has been elicited in his cross examination to disbelieve him.
13. PW.12 is the Bank Manager of Karawali Credit Cooperative Society. He has stated that the sister of the accused namely, Smt. Vachana, PW.15 had pledged certain gold articles with the bank.
14. PW.13 is the daughter of PWs.4 and 5 who was studying in college. She has stated in her evidence that after she returned home from the college, on the date of the incident, when she ranged the doorbell, nobody opened the door. Therefore she telephoned her mother PW.5 and informed her about the same. Her father came to the house at about 5.00 p.m. and opened the door of the house. When they all went inside, they found the dead body of the deceased. In the cross- examination she has stated that she knows the accused for quite sometime. That she had given her mobile to the accused.
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15. PW.14 is a gold appraiser who has valued MOs 9 to 32 which were pledged to the bank. PW.15 is the sister of the accused. She has stated that the gold articles belonged to her and she had pledged the articles to the concerned bank on 27.09.2008, namely a day after the incident. However, in the cross examination, it is elicited that there are no receipts or bills for having purchased the said articles on her behalf.
16. PW.16 is the doctor who conducted the post mortem over the deceased and submitted his report in terms of EX.P.16. He has noticed various injuries. He has stated that the death occurred due to smothering.
17. PW.17 is the neighbour and the wife of PW.3 who has turned hostile.
18. PW.18 is the owner of the garage. In his evidence he has stated that he saw the accused near his garage on the date of accident. That he was at a little distance away from the garage. Therefore, the prosecution relies on this evidence to prove the last seen theory of the accused near the house of the 12 deceased. He denied the suggestion that he has not seen the accused near his garage.
19. PW.19 is the PSI who brought the post mortem report. PW.20 is the PSI who arrested the accused on 09.11.2008. PWs.21 and 22 are the friends of the accused who have turned hostile. PW.23 is the constable who took the articles to the FSL.
20. PW.24 is the fingerprint expert. He has stated that on 26.09.2008 at about 6.00 p.m., the police telephoned him and asked him to come to the scene of offence. He went there. There were five articles that he examined namely, the cupboard, the computer UPS, an empty plastic box, a computer CPU as well as the front door. He found chance fingerprints over the cupboard and the UPS. He lifted the fingerprints from both these articles, sealed them and marked them as (a) and
(b) respectively. Thereafter on 09.11.2008 he was furnished with the specimen fingerprint of the accused herein. He examined the chance fingerprints as well as the specimen fingerprints sent to him and submitted his report in terms of 13 EX.P29 as well as yet another detailed report in terms of EX.P32. He has stated in detail the manner in which he examined all the finger prints. He has matched the fingerprint lifted by him at the scene of offence with the specimen signature. The detailed description can be found in his report. His ultimate opinion is that the fingerprints lifted from the scene of offence match with the specimen fingerprints of the accused sent to him by the Investigating Officer.
21. PW.25 is the Investigating Officer. He has narrated in detail the manner in which he conducted the investigation. After receipt of the complaint from PW.4, he conducted the spot panchanama, recovered the articles in terms of spot mahazar EX.P1, conducted the inquest in terms of EX.P2, and got the sketch prepared of the scene of offence in terms of EX.P4. The mobile was seized from PW.10 in terms of EX.P7. He recorded the voluntary statement of the accused after his arrest. He obtained details from the Karawali Cooperative Bank with regard to the pledging of the gold articles. He seized the gold articles from the bank in terms of EX.P9 and secured the loan 14 applications and other documents of the bank. After sending the body for the postmortem to the doctor-PW.16, he obtained his report in terms of EX.P16. The fingerprint expert report in terms of EX.P29 and EX.P32 were collected by him. The chance fingerprint found on the cupboards as well as the chance fingerprint found on the computer UPS were also collected by him. After the arrest of the accused, on 09.11.2008 he obtained his specimen signature and sent it to PW.24 for his opinion.
22. Based on these evidences, the trial Court was of the view that the prosecution has established its case beyond all reasonable doubt. That the prosecution having proved the fingerprints of the accused at the scene of offence, found him guilty of the offence punishable under Section 302. Even so far as the recoveries were concerned, the trial Court accepted the evidence.
23. The first contention of the appellant is that the prosecution has failed to prove that the death was homicidal. That the case of the prosecution is that the death is as a result 15 of the accused assaulting the deceased with the UPS on her head. However, the medical evidence in terms of the Doctor- PW.16 indicates that the death was due to smothering. On considering the reasons assigned by the Trial Court in holding that the death was homicidal, we do not find any error or perversity to take a different view. The submission is too feeble and opposed to the records. The material on record would clearly indicate that the death was homicidal. No other view is possible. Therefore, the argument of the appellant on this question cannot be accepted.
24.(a) The next contention is that the prosecution has failed to establish the last seen theory. The owner of the garage PW.18 has stated that he has seen the accused near his garage on the date of the incident at about 11.00 a.m. That his garage was situated near the residence of the deceased. It is herein that the defence counsel contends that the witness has not stated where exactly his garage is located and even otherwise if the accused was seen near his garage, the same 16 cannot be understood to mean that he was seen near the place of the incident.
(b). We have considered the evidence at length. PW.18 is the owner of the garage. He has stated that he sees a number of people going in front of his garage from morning till evening. The place where his garage is situated is very close to the apartment of the deceased. Since the apartment of the deceased is situated very close to the garage of this witness, he has seen the accused very clearly. Therefore, it was not necessary for the witness to narrate the exact distance in measurement between the apartment and the garage. Therefore, it would not be appropriate to hold that merely because the distance has not been stated, the evidence of PW.18 cannot be accepted. On the contrary, the witness has clearly stated that his garage is situated very near the place of incident.
25.(a) The further contention is that the fingerprints of the accused have not been taken in the manner known to law. In support whereof he placed reliance on Sections 4 and 5 of 17 the Identification of Prisoners Act, 1920. He therefore contends that the provision of Sections 4 & 5 of the Act have not been fulfilled since the prior permission of the Magistrate has not been obtained. The same is disputed by the learned State Public Prosecutor by placing reliance on the judgment dated 17th April 2013 in the case of STATE BY RURAL POLICE, SHIMOGA v. B.C. MANJUNATHA @ MANJU AND OTHERS with reference to Sections 4 and 5 of the said Act. It is contended that there is no violation of the said Sections.
(b). On considering the contentions, we are of the view that the judgment of this Court stands squarely applicable to the case on hand. The material on record would indicate that the Investigating Officer-PW.25 had taken the specimen signature of the accused and sent it to the fingerprint Expert- PW.24. The Division Bench in the aforesaid judgment have held that in terms of Section 4 of the said Act, the Police Officer could take the fingerprint of the accused in connection with an offence for which he has been accused. Therefore, it is not necessary that the same should only be taken with the 18 permission or in the presence of the Magistrate. Section 4 of the said Act clearly empowers the Police Officer to take such fingerprints. Therefore, following the aforesaid judgment, we are of the view that no fault could be found with the Investigation Officer in taking the fingerprint of the accused, without the permission of the Magistrate.
26.(a) The further contention is that the fingerprints taken on the cupboard as well as the UPS have not been taken in a manner known to law. In support whereof reliance is placed on guideline 1544 of the Karnataka Police Manual (Volume-II) 1998 which reads as follows:
" 1544 (i) xxxxxx
(ii) xxxxxx
(iii) xxxxxx
(iv) If latent prints are found on portable articles they should be seized under a detailed panchnama duly packed and labelled and sent to the Finger Print Bureau with a police officer with instructions regarding the care of the package during the journey."
It is therefore contended that of the two articles, the UPS-MO5 is a portable one. Therefore, it should have been seized under 19 a detailed panchnama and labeled and sent to the Finger Print Bureau. Admittedly, the same has not been done.
(b). The said contention is countered by the learned State Public Prosecutor, who contends that this was the earlier practice prevailing as in the year 1998. At that point of time, due to various reasons the fingerprints could not be lifted from the scene of offence by the finger print expert. Therefore, the articles which were found to contain the fingerprints were packed, labeled and sent to the Finger Print Bureau. At the Bureau, the concerned officer would examine the article and thereafter examine the fingerprints. However, much thereafter, the procedure in lifting the fingerprints has been fine-tuned. The same was necessitated in view of the number of crimes being committed and acquittals on the ground of the error in lifting the fingerprints. Therefore, a more specialised procedure is being adopted. At present, there are far more fingerprint experts than those in 1998. Therefore, when the Investigation Officer arrives at the scene of offence and finds that there are certain fingerprints that could be taken, he does not pack, label 20 and send the same to the Finger Print Bureau. On the contrary, the fingerprint expert is summoned to the scene of offence and it is he who lifts the fingerprint from the concerned article and not the Police Officer. Therefore, the question of packing and labeling and sending the article to the Finger Print Bureau is obsolete, which is not being followed by the police officers.
(c) On hearing learned counsels on this issue, we are of the view that no fault would lie with the Police, in following such a procedure. The ultimate object is to ensure that the fingerprint is extracted as early as possible and as genuinely as could be done. In the earlier situation, the article would be sent to the Finger Print Bureau and thereafter the fingerprints would be lifted. In such a process, necessarily there could be damage to the fingerprint or otherwise. To overcome such a lacuna, the fingerprint expert is summoned to the scene of offence and he lifts the same. The evidence would clearly indicate that the Investigation Officer summoned the fingerprint expert PW.24 to the scene of offence, who thereafter, admittedly, lifted the fingerprints from the concerned objects. 21 We find that the procedure adopted by the Investigation Officer as well as the fingerprint expert cannot be faulted. Furthermore, we do not find, so far as this issue is concerned, that any prejudice has occasioned to the accused, nor is it his contention. Therefore in the absence of any prejudice to the accused this ground is untenable.
27.(a) It is further contended that so far as the non- portable articles wherein fingerprints were lifted is concerned, the same would have to be taken only in the presence of panchayatdars. In support of such a contention, reliance is placed on guideline No.1547 of the said Police Manual, which reads as follows:
"1547 (i) xxxxx
(ii) If the articles on which latent prints are found are not portable, the expert, who in such circumstances should invariably be summoned, on arrival should examine them in the presence of panchayatdars and take photographs of such prints together with the object on which they are found. The objects on which such prints are found should be visible in photographs."22
(b). In the instant case, the fingerprints were lifted from two objects. One is the cupboard and the other is the UPS. The cupboard is a non-portable article. Therefore, the fingerprint expert would have to be summoned and in the presence of the panchayatdars the fingerprints should have been extracted. However, there is no material to indicate that any panchayatdar was present when the fingerprints were extracted so far as the cupboard is concerned.
(c). This is countered by the learned State Public Prosecutor to contend that Exhibit P1, the spot mahazar would indicate that the witnesses were present at the scene of offence. Therefore, the fingerprint has been lifted in the presence of the panchayatdars.
(d). On considering the contentions, we are unable to accept the plea of the learned State Public Prosecutor. The presence of panchas at the scene of offence has no nexus with they seeing the lifting of the fingerprints from the cupboard. The guideline would clearly indicate that panchayatdars have to be present when lifting the fingerprints from an article which is 23 not portable. Since, admittedly, there are no panchayatdars, when the fingerprints were lifted, so far as the cupboard is concerned, the plea of the defence on this ground requires to be accepted. Therefore, the evidence, so far as it relates to the fingerprints on the cupboard is concerned, being taken in a faulty manner, the same cannot be accepted. Therefore, such an evidence would not come to the aid of prosecution in support of its case.
28.(a) It is further, contended by the appellant that the procedure in law would be that once the fingerprint expert has lifted the samples, the same would have be returned to the Investigation Officer after completing the enquiry. Admittedly, the investigation officer was not in possession of the concerned articles. Further more, they do not even form part and parcel of the charge sheet. Therefore, the same would vitiate the trial. On the other hand, the learned State Public Prosecutor relies on guideline 1547(iii) of the said Police Manual which reads as follows:
"1547 (i) xxxx 24
(ii) xxxx
(iii) When sometimes such prints found on articles (non-portable) are beyond the reach of a camera, the prints should be lifted by means of lifter or other prescribed methods in the presence of panchas by the expert himself. The lifted chance prints should be preserved properly until it is photographed in the FPB and returned to the I.O. for its exhibition in the court of law, if necessary."
(b). On considering the contentions, we are of the view that the protection of the articles at the behest of the fingerprint expert does not violate the law. In fact, the guidelines postulate that the same would remain in the custody of the fingerprint expert and could be produced in the court of law, if found necessary. The procedure envisaged is that once the articles are sent to the fingerprint expert, he takes photographs of the same, enlarges it, compares it and does all that is necessary in order to come to a just and fair conclusion. The original is always retained in the custody of the fingerprint expert. However, the said custody is only until and unless the Court so demands its production. Therefore, to hold that the 25 original lifted fingerprints should always be returned to the Investigation Officer as a matter of course in law, is opposed to the very guidelines. Guidelines do not postulate such an action. On the contrary, the guidelines postulates absolute retention of the same with the concerned fingerprint expert. Therefore, such a contention too cannot be accepted.
29. So far as the report of PW.24, viz. the Fingerprint Expert is concerned, we have examined it in detail. The same would clearly indicate the comparison of specimen signature of the accused with that found on MO-5-the UPS. The fingerprints tally according to the expert. Nothing worthwhile has been elicited in the cross-examination to disbelieve it. Therefore, the evidence of the expert so far as matching of the fingerprints found on UPS and that of his specimen finger print has been proved by the prosecution. We have no hesitation to accept the findings recorded by the Trial Court on this issue. Even in the statement recorded under Section 313 of the accused is concerned, there is no explanation offered to him as to how his 26 fingerprints were found at the scene of offence. There is no explanation forthcoming for the same.
30. Guidelines are intended for effective implementation. If a guideline has been improved upon, the prosecution cannot be faulted. Ultimately, the object of the guidelines has to be understood. The guidelines are intended to aid a fair trial. That no prejudice should be caused to the prosecution or the defence. If the procedure adopted by the police either in following or not following the guideline is concerned, in that event, the accused would have to demonstrate a prejudice that has caused to him. In the absence of the accused satisfying the court with regard to any prejudice, the mere non-following of the guideline would therefore, become irrelevant. Therefore, it cannot be said that there was any miscarriage of justice merely because the guideline has not been followed.
31. He relies on the order of the Division Bench of this Court reported in 2017(4) KCCR 3252 in the case of THE REGISTRAR GENERAL, HIGH COURT OF KARNATAKA v. 27 VENKATESHA @ CHANDRA BIN VENKATASWAMY AND OTHERS with reference to paragraph 45 onwards. He contends that the Division Bench therein was of the view that the evidence of fingerprint expert was a created one and fabricated only after the arrest of the accused and therefore his evidence was not accepted. We have considered the judgment at length. The present case would differ on facts. In the reported judgment therein, the brass jug on which the fingerprint was taken was not produced by the prosecution and the same was suppressed. No reasons were explained by the prosecution as to why the same was not produced. However, in the instant case, the UPS on which the fingerprint was found, was marked as Exhibit MO-5. Therefore, on facts, the same could be distinguished with the aforesaid judgment. Therefore, the findings recorded therein would not be applicable to the case on hand.
32. For all the aforesaid reasons we are of the view that the prosecution has established its case beyond all reasonable doubt. It has proved the last seen theory. The fingerprints that were found at the scene of offence on MO-5 matched with 28 the specimen signature of the accused. There is sufficient material to indicate that as on the date of the offence, it was the accused, who entered into the house of the deceased and committed her murder. The findings recorded by the Trial Court are just and appropriate. We do not find any perversity in the appreciation of evidence by the Trial Court or that the same calls for any interference. For all the aforesaid reasons, the appeal being devoid of merit, is dismissed.
Sd/-
JUDGE Sd/-
JUDGE YKL/lnn