Karnataka High Court
The Registrar General vs Venkatesha @ Chandra Bin Venkataswamy on 20 July, 2017
Bench: Ravi Malimath, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 20TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRIMINAL REFERRED CASE NO.18 OF 2010
C/W
CRIMINAL APPEAL NO.733 OF 2011
Crl.RC.NO.18 OF 2010:
BETWEEN:
THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001. ... PETITIONER
(BY SRI H.N.NILOGAL, SPL.PP)
AND:
1. VENKATESHA @ CHANDRA BIN VENKATASWAMY
CHANNASANDRA,
BENGALURU RURAL DISTRICT.
2. MUNIKRISHNA @ KRISHNA BIN VENKATASWAMY
CHANNASANDRA,
BENGALURU RURAL DISTRICT.
3. NALLATHIMMA @ THIMMA BIN GURUBHOVI
PERIYAPATNA
MYSURU DISTRICT.
4. LAKSHMAMMA @ LAKSHMI
2
W/O DODDAHANUMA,
DANDUPALYA GRAMA HOSAKOTE TALUK,
BENGALURU. ... RESPONDENTS
(BY SRI HASHMATH PASHA, ADVOCATE)
THIS CRL.RC IS UNDER SECTION 366 (1) CR.P.C. FOR
CONFIRMATION OF DEATH SENTENCE AWARDED TO
ACCUSED (1) VENKATESHA @ CHANDRA UTP NO. 10175,
(2) MUNIKRISHNA @ KRISHNA UTP NO.10178, (3) NALLA
THIMMA UTP NO.10177 (4) LAKSHMAMMA UTP NO.10179,
BY JUDGMENT DATED 17.7.2010 / 30.9.2010 PASSED IN
S.C.NO.58/2005 ON THE FILE OF THE XXXIV ADDL.CITY
CIVIL AND SESSIONS JUDGE (SPL.COURT) CENTRAL
PRISON PREMISES, BENGALURU.
*****
Crl.A.NO.733 OF 2011:
BETWEEN:
1. VENKATESH @ CHANDRA
S/O VENKATASWAMY,
AGED ABOUT 36 YEARS,
R/O CHANNASANDRA,
BENGALURU RURAL DISTRICT.
2. MUNIKRISHNA @ KRISHNA
S/O VENKATASWAMY,
AGED ABOUT 29 YEARS,
R/O CHANNASANDRA,
BENGALURU RURAL DISTRICT. ... APPELLANTS
(BY SRI HASMATH PASHA, ADVOCATE)
3
AND:
STATE OF KARNATAKA
BY HUBBALLI POLICE STATION,
HUBBALLI. ... RESPONDENT
(BY SRI NILOGAL, SPL.PP)
THIS CRL.A IS FILED UNDER SECTION 374(2) OF THE
CR.P.C., PRAYING TO CALL FOR THE RECORDS AND SET
ASIDE THE ORDER DATED 17.7.2010/30.9.2010 PASSED BY
THE XXXIV ADDITIONAL SESSIONS JUDGE AND SPECIAL
JUDGE, CENTRAL PRISON PREMISES, PARAPPANA
AGRAHARA, BENGALURU IN S.C.NO.58 OF 2005 -
CONVICTING THE APPELLANTS/ ACCUSED FOR THE
OFFENCES PUNISHABLE UNDER SECTION 302 OF IPC. THE
APPELLANTS/ACCUSED ARE SENTENCED TO DEATH. THE
APPELLANT/ACCUSED SHALL BE HANGED BY NECK TILL
THEY ARE DEAD AND PAY A FINE OF RS.5,000/- EACH FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THE APPELLANTS/ACCUSED PRAYS THAT THEY BE
ACQUITTED.
THIS CRL.RC C/W CRL.A COMING ON FOR FINAL
HEARING THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED
THE FOLLOWING:
JUDGMENT
The XXXIVth Additional City and Sessions Judge (Special Court), Central Prison Premises, Bengaluru, has made a reference under Section - 366 (1) of CR.P.C., for confirmation of death sentence awarded on accused Nos.1 4 to 4, in S.C.No.58 of 2005 for the offences punishable under Section -302, read with Section-34 of IPC. It is numbered as Criminal Reference No.18 of 2010. Feeling aggrieved by the very same judgment dated 17.07.2010 in S.C.No.58 of 2005, and the order of sentence dated 30.09.2010, accused Nos.1 and 2 have preferred Criminal Appeal No.733 of 2011. Accused Nos.3 and 4, have not preferred any independent appeal. However, they are duly served with the copy of the reference.
2. The facts leading to the present proceedings are as follows:
One Dr.Prabhakar Vasudeva Joshi, was a resident of Durgadabail, Hubli city. He was running a clinic in a portion of his house. His brother by name, Sri.Neelakanta Joshi was staying in a rented house close by. He used to frequently visit Dr.Prabhakar and often stay overnight in his house. The son of Dr.Prabhakar Joshi(PW-5) was staying in Kohlapur.5
On 13.03.2000, as usual PW-5 rang up to his father Dr. Prabhakar Joshi and having failed to receive any response, requested the adjoining shop-owner to enquire about his father. He was informed that the house of Dr.Prabhakar was locked from outside; hence on 14.3.2000 at about 11.40 a.m., PW-5 came to the house of his father and found that the main door locked from outside. With the assistance of one of the adjacent shop-owner by name Nazeer- PW.9, he broke open the lock. On entering the house, he found his father Dr. Prabhakar Joshi as well his uncle Neelanta Joshi (hereinafter both will be referred to as 'deceased') lying dead. Their hands and feet were tied. A cellophane tape was found covered to their mouth. The dead bodies were emanating foul smell.
3. The matter was informed to the police. The Police Inspector of Hubli Town Police Station, PW-16 rushed to the spot. The dog squad as well as Finger Print Experts were secured. He reduced into writing the oral complaint of 6 PW-5 as per Ex-P3 and on its basis registered the FIR in Cr.No.69/2000 as per Ex-P14 and commenced the investigation. He conducted inquest over the dead bodies as per Ex-P4 and Ex-P5 and forwarded the dead bodies to K.M.C. Hospital for autopsy and thereafter conducted the spot mahazar as per Ex-P6 and seized the incriminating materials namely, M.Os. 8 to 22. In the meanwhile, the Finger Print Expert PW.17 Sri.Somarayappa, lifted three chance finger prints from the spot. In this regard, PW.16 drew up a mahazar as per Ex-P7. In the course of the investigation, PW.16 recorded the statements of the material witnesses. The further investigation was continued by PW.18, Sri.A.M.Patil, who forwarded the seized articles to FSL, Bengaluru. However, the investigating team could not detect the culprits nor they could gather any lead or clue into the twin murders for about an year.
4. That being the case, PW.15, Sri N.Chalapathy, Police inspector attached to Vijayanagar police station, 7 Bangalore came to know that some of the accused who were involved in Crime No.674 of 1999 of Vijayanagar Police Station had escaped from the prison at Chittoor. Having ascertained their hideouts, on 31.1.2001, PW.15 arrested accused Nos.1 to 4 and on the basis of the voluntary statement of accused Nos.1 to 4, he came to know about their involvement in various other offences, including the one under investigation in Hubli Town Police Station. On getting this information, the subsequent Investigating Officer, PW.20, Sri R.B.Naik moved an application to the Judicial Magistrate First Class, Hubli and obtained body warrants for the production of accused Nos.1 to 4. Accordingly, accused Nos.1 to 4 were produced before him on 9.4.2001.
5. PW.20 collected the specimen finger prints of accused Nos.1 to 4 and forwarded them to PW.19, Sri.Anke Gowda, a finger print expert, for comparison and examination. He recorded further statements of the 8 witnesses and on securing the opinion of, PW.19 as per Ex- P24 laid the charge-sheet against accused Nos.1 to 4 alleging commission of offences punishable under Sections- 392 and 302, read with Section-34 of IPC.
6. On hearing the learned counsel for the accused and the learned Special Public Prosecutor, the trial court framed charges against all the four accused under Sections- 392, 302 read with Section-34 of IPC. Accused Nos.1 to 4 denied the charges and claimed trial. In support of the above charges, the prosecution let in oral evidence of twenty witnesses examined as PW.1 to PW.20 and the documentary evidence produced by the prosecution came to be marked as Ex-P1 to Ex-P27 and the material objects at M.Os.1 to 41. The incriminating circumstances were denied by the accused during their examination under section 313 Cr.P.C. and they did not choose to enter into defense.
7. Among the witnesses examined by the prosecution, PW-1 Jamaluddin is the panch witness for the 9 seizure of the clothes of the deceased under the mahazar Ex-P1. Through this witness, the clothes of the deceased are marked as MOs.1 to 7. There is no cross-examination of this witness.
8. PW-2 Babu Rao Gururao Hanagal is a close acquaintance of the deceased. According to him, he had been to the house of the deceased on a Sunday and left the house at about 8.00 p.m. Two days thereafter, he came to know about the murder of the deceased. Since this witness failed to speak about the identification of the accused, he has been treated as hostile witness by the prosecution.
9. PW-3 Ashok Siddappa Naidu was an adjacent shop owner with whom PW-5, the son of Dr. Prabhakar Joshi is stated to have enquired about the deceased as he could not get the deceased on phone.
10. PW-4- Babu is a pan shop owner who has deposed about the condition of the dead bodies.
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11. PW-5 Vasudeva is the son of the deceased Prabhakar Joshi. According to him, on coming to know that the house of deceased Prabhakar Joshi was locked from outside and his father was not responding to his phone calls, he came to the house of the deceased and found his father and his uncle lying dead with their hands and feet tied and mouth covered with crepe tape. He has deposed about the complaint lodged by him as per Ex-P5 and also identified M.Os 1 to 12.
12. PW-6 Anand is a panch witness for the inquest mahazars Ex-P4 and Ex-P5; spot mahazar Ex-P6 and the mahazar relating to the lifting of the chance finger prints from the spot of occurrence as per Ex-P7. This witness has identified MOs. 8 to 22.
13. PW-7 Bhagyashri is the relative of the deceased who has spoken about the family background of the deceased.
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14. PW-8 Noorjan is the domestic help. According to her, she was attending to cooking and other sundry work in the house of the deceased Dr. Prabhakar Joshi. This witness is examined to speak to the fact that three days prior to the murder of the deceased, an unknown woman had enquired her about the occupants residing in the house of the deceased. She has identified accused No.4 during her evidence in the Court.
15. PW-9 Nazeer Ahamed is the adjacent shop owner who assisted PW-5 to break open the lock of the door of the house of Dr. Prabhakar Joshi. This witness has spoken about the conditions in which the dead bodies were found and the various articles found at the spot of occurrence.
16. PW-10 Gururaj is another shop owner who has deposed in line with PW-9 and PW-4 about the condition of the dead bodies.
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17. PW-11 is the police constable attached to Hubli Town Police Station, who collected the clothes of the deceased from K.M.C. hospital and produced them before the Investigating Officer.
18. PW-12 another police constable of Hubli Town Police Station, submitted the seized articles to FSL, Bengaluru.
19.PW-13 is the police constable, who transported the dead bodies to K.M.C. Hubli for autopsy.
20. PW-14 Dr. Kottrabasappa conducted the postmortem examination on the dead bodies and issued the the post-mortem reports as per Ex-P11 and Ex-P12. According to PW-14, on examination of the dead body of Dr. Neelakantha Joshi, he found that the body was bloated and decomposed. Face was blackened. Dark Colour fluid was exuding from nostrils. Scrotun bloated. Postmortem blebs seen over many places on the body. Both wrists were tightly 13 tied at the back with two rounds of jute thread and placed towards right hip. On removal of jute threads, there were ligature marks on the back of both wrists. Both ankles were tightly tied together with a white gauze piece cloth with fixed knot on front. Right eye and adjacent face was covered with two cotton pads. There was another cotton pad over the left eye and adjacent cheek. There was a ligature of white cotton cloth across the mouth, encircling face of five rounds with a knot in front, the portion over the mouth soaked in blood. On removal of the ligature, there was another ligature underneath of light brown colour elasto crepe bandage and wound with seven rounds. On removal of the elasto crepe bandage, there was a ligature mark all round the face with imprint marking of elastic crepe bandage. There was another ligature all round the upper portion of light brown coloured adhesive tape, situated 3cms below the neck.
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Similar description has been given with regard to the examination of Dr. Prahabkar Joshi and has stated that there was a light brown coloured plastic adhesive tape tightly strapped across the mouth and around the face of the deceased. PW-14 has certified that the cause of death was due to asphysia consequent upon compression over the respiratory passages and the time since death could be about 18 hours to maximum 48 hours at the time of commencing post mortem examination. The post-mortem examination was conducted between 4.00 p.m. to 5.00 p.m. on 14.3.2000.
21. PW-15 Sri.N. Chalapathy was the Police Inspector of Vijayanagar Police Station, Bengaluru at the relevant point of time. According to this witness, he arrested accused Nos.1 to 4 in Cr.No.674/1999 of Vijayanagar Police Station and on interrogating the accused, he came to know about their involvement in various offences throughout the State including the one registered in the Hubli Town Police Station 15 and hence he passed on this information to the Hubli Police Station. According to this witness, he recorded the voluntary statement of accused No.1, but it did not lead to any recovery.
22. PW-16 was the Police Inspector of Hubli Town Police Station. He received the complaint from PW-5 and registered the FIR as per Ex-P14 and conducted the inquest mahazars Ex-P4 and Ex-P5 and the spot mahazar Ex-P6 and the mahazar regarding the lifting of the chance finger prints as per Ex-P7.
23. PW-17 Somarayappa is the finger print expert, who lifted the chance finger prints from the spot of occurrence. His evidence will be discussed in detail in the course of this judgment.
24. PW-18 is the subsequent Investigating Officer, who seized the clothes of the deceased and sent the seized 16 articles for chemical examination to Forensic Science Laboratory, Bangalore.
25. PW-19 is another finger print expert, who is stated to have examined the chance finger prints with that of the specimen finger prints of the accused and issued his opinion as per Ex-P24. He has identified the developed photographs of chance finger prints at Ex-P16, Ex-P17 and Ex-P18 as well as the specimen finger prints sent for his examination at Ex-P21, Ex-P22 and Ex-P23.
26. PW-20 is the subsequent Investigating Officer, who arrested the accused persons and took their specimen finger prints and forwarded them to PW-19 for examination and opinion. According to him, he recorded the further statements of the witnesses and submitted the charge sheet against the accused persons.
27. Upon consideration of the above oral and documentary evidence and on hearing the learned Special 17 Public Prosecutor and the learned counsel for accused Nos. 1 to 4, the trial court held all the four accused persons guilty of the offences punishable under Sections-392 and 302 of IPC read with Section-34 of IPC. While imposing sentence, the trial court took note of the fact that the accused were members of a notorious gang and that they were involved in as many as 111 cases of murder for gain adopting similar modus-operandi, targeting old and helpless citizens and in the instant case, the accused persons having committed twin murders in an extremely brutal, diabolical, revolting and dastardly manner, the case falls within the category or "rarest of rare" case and found it appropriate to inflict death penalty on all the four accused.
28. This judgment and the order of sentence is under challenge in the above appeal.
29. We have heard the learned counsel Sri.Hasmath Pasha appearing for appellants/accused Nos.1 and 2 and the learned Special Public Prosecutor, Sri.H.N.Nilogal 18 appearing for the State in the above appeal as well as on the reference.
30. The principal submission of the learned counsel for the appellants is that the case of the prosecution is based entirely on circumstantial evidence. The trial court has taken into account three circumstances namely:-
i) the deceased was last seen alive;
ii) accused No.4 was seen enquiring with the
domestic help of the deceased(PW-8) about the number of occupants residing in the house of the deceased at the relevant time;
iii) The finger prints evidence in respect of accused Nos.1 to 3.
31. At the outset, the learned counsel pointed out that the first circumstance relied on by the trial court does not qualify as a circumstance incriminating the accused 19 persons in the above offences. The evidence adduced in support of this circumstance even if accepted, would at the most, go to show that the deceased were seen alive till 10.30 p.m. on 12.3.2000; but the said evidence does not establish that accused were last seen in the company of the deceased. Therefore, this evidence could not have been taken as a circumstance incriminating the accused in the murder of the deceased.
32. The second circumstance relied on by the prosecution is equally fallacious. In this regard, the learned counsel has referred to the testimony of PW.8, Noorjan and would submit that this witness has been examined to speak to the fact that three days prior to the incident in question, an unknown woman enquired her about the number of persons residing in the house of the deceased. It is the submission of the learned counsel that this piece of evidence, even if believed, would not establish any nexus between the accused and the death of the deceased. 20 Therefore, even this evidence should not have been treated as a circumstance incriminating the accused in the above offences.
33. Regarding to the last circumstance relied on by the prosecution, the learned counsel submitted that two official witnesses have come forward to state that the chance finger prints found at the spot of occurrence tallied with the finger prints of accused Nos.1 to 3. But the evidence on record clearly indicates that PW-7 who is said to have lifted the chance finger prints from the spot of occurrence has neither preserved them nor has he handed- over the said chance finger print either to the Investigating Officer or to PW-19 for examination and comparison. It is the submission of the learned counsel during trial, PW-17 himself has produced the developed photo-prints before the Court thereby indicating that until his examination before the court, PW-17 had retained the original as well as the developed prints of the chance finger prints with himself 21 and therefore PW-19 could not have subjected these chance finger-prints for examination as stated by him. It is the submission of the learned counsel that this lapse has dented the case of the prosecution beyond repair.
34. With regard to the specimen finger prints attributed to the accused, the learned counsel would submit that there is no clear and convincing evidence to demonstrate as to when and how the specimen finger prints of the accused were collected by the Investigating Officer. None of the witnesses have identified the finger prints produced before the Court as that of the accused. In this regard, the Investigating Officer has also failed to follow the procedure in collecting the specimen finger prints. The judicial precedents require that the finger prints of an under-trial prisoner or a convict can be taken only with the permission and in the presence of a Judicial Magistrate. In the instant case, none of these procedural safeguards have been followed. Therefore, the evidence in this regard ought 22 not to have been relied on by the trial court. In support of this argument, the learned counsel has placed reliance on the judgment of the Hon'ble Supreme Court in the case of PRAKASH VS. STATE OF KARNATAKA reported in 2014 AIR SCW 2354.
35. With regard to the evidentiary value of the opinion given by PW-19, the learned counsel submitted that apart from the above defects which go to the root of the case of the prosecution, the opinion given by PW-19 is not supported by any reasons or grounds in support of his opinion so as to render the same admissible in evidence. Therefore on this score also, the evidence of PW-19 could not have been given any credence. In support of this argument, the learned counsel has placed reliance on the judgment of the Hon'ble Supreme Court in the case of STATE OF HIMACHAL PRADESH VS. JAILAL AND OTHERS, (1999) 7 SCC 280.
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36. Regarding the death sentence awarded by the trial court, the learned counsel submitted that there was absolutely no material whatsoever before the trial court to come to the conclusion that the alleged offences could be considered as "rarest of rare" case. The trial court itself had rejected the application moved by the State seeking production of material with regard to the previous conviction of the accused. As a matter of fact, as on the date of passing the impugned judgment, none of the accused had suffered conviction in any of the cases registered against them. In the said circumstances, there was absolutely no basis for the trial court to come to the conclusion that the circumstances proved against the accused constituted "rarest of rare" case. It is the submission of the learned counsel that the evidence produced by the prosecution does not even make out a minor offence against the accused and therefore, the conviction recorded by the trial court as well as the 24 sentence imposed on the accused is liable to be set aside by this court in exercise of the appellate jurisdiction.
37. Meeting the above argument, the learned Special Public Prosecutor submitted that the trial court has appreciated the material produced before it in proper and legal perspective. The trial court has taken into account the expert evidence produced by the prosecution in proof of the fact that the chance finger prints of accused Nos.1 to 3 were found tallied with their specimen finger prints in the spot. There is no requirement under law that the finger prints of under-trial prisoners have to be obtained in the presence of the Magistrate. Section 4 of The Identification of Prisoners Act, 1920 as amended by Karnataka Act, 1975 empowers the police officer to take the finger prints of the suspects and the under-trials during investigation. The section reads as under:-
"4. Taking of measurements or photographs of unconvicted persons - Any person -25
(a) who has been arrested in connection with an offence punishable under section 95 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 been provided for under any law for the time being in force; or
(b) in respect of whom direction or order under Section 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."
38. Based on the above provision, the learned Special Public Prosecutor submitted that in the instant case the Investigating Officer has not committed any irregularity or illegality in obtaining the specimen finger prints of the accused. There is absolutely no reason to discard the finger 26 print evidence. He further submitted that the circumstances proved by the prosecution form a complete chain of incriminating the accused in the alleged offences establishing the ingredients of Sections 392 and 302 of Indian Penal Code and therefore the accused have been rightly convicted by the trial court.
39. The learned Special Public Prosecutor has further argued in support of the sentence awarded by the trial court contending that in the fact situation of the present case, the death penalty is well merited as it is proved in evidence that accused Nos.1 to 4 were involved in series of crimes. The trial court has taken into account 111 criminal cases registered against the very same accused to similar heinous offences. That apart the manner in which the accused have committed the murders of two elderly persons in most brutal and barbaric manner by tying their hands and legs and by suffocating them to death itself renders the case exceptional entailing maximum punishment. Thus, he prays 27 for dismissal of the appeal and for confirmation of the death sentence as per Section-366 of the Cr.P.C.
40. We have bestowed our careful thought to the rival submissions made at the Bar and have meticulously scanned and evaluated the material on record in the light of the principles enunciated in the decisions relied on by the learned defense counsel.
41. It is evident from the records that the prosecution has sought to prove its case by circumstantial evidence. Perusal of the impugned judgment reveals that the trial court has based the conviction on three circumstances. The first circumstance is that the deceased was last seen alive on 12.3.2000. In support of this circumstance, the trial court has accepted the evidence of PW.10. PW.10 was a tenant under of Prabhakar Joshi. According to him, on 12.3.2000 at about 10.30 p.m., he talked with deceased Prabhakar Joshi in his shop and 28 thereafter, he came to know about his murder on 14.3.2000.
42. For whatever reason the prosecution has examined PW-10, in our opinion, the evidence of PW-10 does not incriminate the accused in any manner. PW.10 has nowhere stated in his evidence that he saw any of the accused in the company of the deceased at any time on 12.3.2000 or immediately thereafter. In the absence of any evidence to show that the deceased was last seen in the company of the accused, the above evidence, in our opinion could not have been taken as a circumstance connecting the accused to the alleged offence. In our considered view, the evidence of PW-10 at the most would go to show that the deceased was last seen alive on 12.03.2000 at 10.30 p.m., and nothing more. Therefore, this evidence cannot be treated as a circumstance to determine the guilt of the accused for the offences charged against them. 29
43. The second circumstance relied on by the prosecution is based on the evidence of PW.8. According to the prosecution, PW.8 was working in the house of the deceased attending to cooking and other sundry work. According to PW-8, two or three days' prior to the murder of the deceased, while she was returning home after her work, an unknown woman enquired her as to how many people were residing in the house of the deceased and at that time, she informed the said woman that only two brothers were residing in the said house. PW-8 has further deposed that about one year after the incident, the police showed her the photo of the said woman in the police station and on seeing the photo, she identified the person shown in the photo as the very same woman who enquired her about two or three days prior to the incident. During her evidence, she identified accused No.4 in the court and this circumstance has been taken as one of the connecting link to prove the involvement of accused No.4 in the alleged offence. 30
44. It is shocking to note that the trial court has convicted accused No.4 solely on the basis of the evidence of PW.8. On going through the entire material on record, we do not find even a shred of evidence to show that PW-4 has acted in concert with accused Nos.1 to 3 in committing the above offences. In appreciating the evidence of PW-8, the trial court appears to have lost sight of the fact that the statement of PW-8 was recorded by the investigating officer during the inquest mahazar. It is significant to note that at the earliest point when she gave her statement before the Investigating Officer, she did not disclose anything about the alleged enquiry made by accused No.4. The material on record indicates that only after the arrest of accused Nos.1 to 4, the subsequent Investigating Officer claims to have recorded the further statement of PW-8 more than one year after the incident and during this statement for the first time, PW-8 appears to have disclosed about the alleged enquiries by accused No.4. This delay, in our opinion casts serious doubt on the veracity of the testimony of PW-8. The 31 facts and circumstances brought out in the evidence clearly indicate that the story of accused No.4 inquiring with PW-8 has taken shape only after the arrest of accused No1. to 4. Therefore, in the absence of any corroboration to the testimony of PW-8, we are not persuaded to accept her testimony in support of the circumstance pleaded by the prosecution. In this context, it is also relevant to note that except the oral statement of PW-8, the prosecution has not produced any corroborating evidence to show that accused No.4 was present at the spot of occurrence or near about at the time of the incident. Therefore, merely on the basis of the evidence of PW-8 that accused No.4 enquired her about the details of the occupants in the house of the deceased, it is preposterous to hold that accused No.4 was also one of the participants in the crime. The evidence adduced by the prosecution in proof of the above circumstance even if accepted at its face value would not lead to the inference of the guilt of accused No.4.
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45. The last circumstance relied on by the prosecution is the finger print evidence. The trial court has devoted much of the discussion on this issue, but on close examination of the entire evidence produced by the prosecution in support of this circumstance, we find that the evidence in this regard is far from satisfactory and falls short of legal requirement.
46. In proof of this circumstance, the prosecution has relied mainly on the evidence of PW.17 Sri.Somarayappa - a finger print expert who is said to have lifted the chance finger prints from the spot where the dead bodies were found and PW.19 another finger print expert Sri.H.A.Ankegowda who compared the chance finger prints with the specimen finger prints of the accused and gave his opinion. Since the fate of the appellants hangs on the credibility of the evidence of these witnesses, we have meticulously examined their evidence with all seriousness it deserves.
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47. It is relevant to note that at the commencement of his evidence by way of prefatory submissions, PW.17 has narrated the procedure generally followed in collecting the chance finger prints from the scene of occurrence. According to him, chance finger prints found at the spot are generally lifted on a cellophane tape and thereafter, they are transferred to a transparent plastic paper on which the crime number and the name of the police station would be written. Thereafter, the enlarged photos of the said chance finger prints would be taken and the same would be compared with the specimen finger prints and accordingly, opinion would be furnished to the investigating agency.
48. Coming to the specific role performed by him in this case, PW.17 has deposed that on 14.3.2000, he received an information from the control room about the murder of the deceased. Simultaneously, he received a requisition from the Hubli Town Police Station in Crime No. 69 of 2000 and therefore, he visited the spot at 12.30 p.m. 34 Here itself, it is relevant to note that the prosecution has not produced the requisition alleged to have been received by PW.17. Be that as it may, PW.17 has stated in his evidence that he searched for the finger prints on various articles found at the spot and in the process, he found a chance finger print on the rolled tape piece pasted on the mouth of the deceased Neelakanta Joshi. He collected the said finger print and marked it as 'Q'. He found another chance finger print on the rolled tape and marked it as 'Q1'. On the television monitor, he detected another chance finger print and he collected the same and marked it as 'Q2'. According to PW.17, after returning to the office, he verified the said 'Q', 'Q1' and 'Q2' with the finger prints available in the office. None of the chance finger prints lifted by him from the spot of occurrence tallied with the finger prints maintained in the office.
49. PW-17 has further deposed that on 12.7.2000, he handed over the charge to Sri. Ankegowda-PW.19 and also 35 handed over the "case duties" to PW.19 and submitted his attendance report before the Investigating officer. This attendance report is marked as Ex.P15. On perusal of Ex.P15, it is seen that the time of his visit to the spot is mentioned in Ex.P15 as 14.3.2000 at 9.30 a.m. But in his evidence before the Court, PW-17 has stated that he visited the spot at 12.30 p.m. Apart from the discrepancy, in his attendance report-Ex.P15, PW.17 has specifically stated that he developed three chance finger prints found on (i) rolled tape piece marked as 'Q', (ii) rolled tape marked as 'Q1' and (iii) TV glass marked as 'Q2' with his initial. Here again it is relevant to note that in his evidence before the court he has stated that he lifted one of the chance finger prints from the tape pasted on the mouth of the deceased. This is yet another serious contradiction in his evidence. That apart Ex.P15 does not bear any signature or the seal of either the SHO or the Investigating Officer for having received the same as stated by PW.17. Thus the very genuineness of Ex.P15 becomes questionable. 36
50. It is discernible from the evidence of PW-17 that he personally did not compare the chance finger prints with the specimen finger prints of the accused. According to him, he handed over the charge to PW-19 and while handing over the charge, he also handed over the 'case duties' to PW.19. He is not specific in his evidence as to whether he handed over the original chance finger prints lifted by him as per 'Q', 'Q1' and 'Q2' and the cellophane tape or the transparent paper on which the said chance finger prints to PW-19. But surprisingly, during his evidence, he has identified Ex.P16, Ex-P17, and Ex-P18 and has asserted that the said exhibits were the photographs of the chance finger prints taken from the spot. It is significant to note that these photographs were produced by PW-17 himself before the court on the date of his examination i.e., on 22.10.2005, making it evident that Ex.P16, Ex-P17 and Ex- P18 were very much in his possession as on that date. It is also the contention of the defence that Ex-P15, Ex-P16 and Ex-P17 were not produced before the court alongwith 37 charge-sheet and they were not the part of the documents furnished to the accused. Thus it can be gathered from the evidence of PW-17 that he did not hand over the developed photographs or the so-called chance finger prints namely Ex.P16, Ex-P17 and Ex-P18 to PW.19 as stated by him. This is another equally grave circumstance affecting the credibility of the evidence of PW-17.
51. Added to the above suspicious circumstance surrounding the chance finger prints in the cross- examination, PW-17 has admitted that the transparent paper on which he transferred the finger prints is not produced before the court. He has also admitted that he did not hand over the said transparent plastic paper to the Investigating Officer. It is significant to note that PW-17 himself has volunteered to produce the same before the Court. Thus it stands established from the evidence of PW- 17 that neither 'Q', 'Q1' and 'Q2' nor the developed photographs thereof namely Ex.P16, Ex-P17 and Ex-P18 38 were handed over to PW.19 for his examination and opinion.
52. In the above context, if the evidence of PW.19 is analysed, it is pertinent to note that PW.19 has stated in his evidence that on 12.7.2000, he took over the charge from PW.17. Interestingly, PW.19 states that the chance finger prints lifted from the house of the deceased namely 'Q', 'Q1' and 'Q2' were handed over to him by PW.17. This statement on the face of it is contrary to the statement of PW.17 as highlighted supra. Be that as it may, PW.19 states that he took photographs of 'Q', 'Q1' and 'Q2' and compared them with the specimen finger prints forwarded to him for his examination. According to him, Ex.P16, Ex- P17 and Ex-P18 are the developed photographs of the chance finger prints found at the spot. PW-19 asserts that he himself marked them as 'Q', 'Q1' and 'Q2' respectively and subjected them for examination and found Ex.P16 tallying with the specimen finger print of accused No.3, 39 Ex.P17 tallying with the specimen finger print of accused No.2, Ex.P18 tallying with the specimen finger print of accused No.1 and accordingly, he submitted his opinion as per Ex.P24.
53. With regard to the specimen finger prints sent for his examination, PW.19 has deposed that the ACP as well as the Police Inspector of Hubli Police Station had forwarded the specimen finger prints and he identified the same as Ex.P25, Ex-P26 and Ex-P27. Even in the cross-examination, PW.19 has maintained that he himself developed the photographs of the chance finger prints. As already discussed above, this evidence is inconsistent with the evidence of PW.17. Admittedly, the developed finger prints were produced by PW.17 during his examination before the court on 22.10.2005 and they were marked as Ex-P16, Ex- P17 and Ex-P18. The learned Special Public Prosecutor does not dispute the fact that Ex.P16, Ex-P17 and Ex-P18 were not part of the charge-sheet papers. PW.17 also has not 40 stated in his evidence that he handed over Ex.P16, Ex-P17 and Ex-P18 to PW.19. Except making a evasive statement that he handed over 'case duties' to PW.19, PW.17 has nowhere stated in his evidence that Ex.P16, Ex-P17 and Ex- P18 were handed over to PW.19. Added to it, it is also proved in evidence that the original 'Q', 'Q1' and 'Q2', the cellophane tape and the transparent plastic cover on which the chance finger prints were collected were not handed over to PW.19. Therefore, there was no occasion at all for PW.19 to compare Ex.P16, Ex-P17 and Ex-P18 with the specimen finger prints of the accused as stated by him.
54. In the absence of any evidence to show that PW.17 had entrusted the original chance finger prints or the developed photographs to the I.O. or to PW.19, the very basis of the prosecution case that the chance finger prints lifted from the spot of occurrence were subjected to finger print examination by PW.19 falls to the ground. The very fact that Ex.P16, Ex-P17 and Ex-P18 were retained by 41 PW.17 until they were produced by him before the court on 22.10.2005, the evidence of PW.19 that he examined and compared Ex.P16, Ex-P17 and Ex-P18 with the specimen finger prints of the accused at Ex.P25, Ex-P26 and Ex-P27 stands falsified. As a result, no reliance could be placed on the evidence of PW-17 and PW-19. Consequently, it has to be held that the prosecution has failed to prove this circumstance with any cogent and convincing evidence.
55. It is seen from the impugned judgment that the trial court has placed implicit reliance on the evidence of PW.17 and PW.19 and has proceeded on the basis that the chance finger prints found at the scene of offence tallied with the specimen finger prints of accused Nos.1 to 3 and based on this finding, the trial court has held accused Nos.1 to 4 guilty of the above offences. This conclusion, in our opinion is contrary to the evidence on record. When the basic facts constituting the circumstance are not proved, the question of drawing inference from the said circumstance 42 does not arise at all. Therefore the finding record by the Trial Court holding the accused guilty of the above offences based on the finger print evidence of PW-17 and PW-19 is perverse and cannot be sustained.
56. The above conclusion gets reinforced from the fact that the chance finger prints lifted from the spot were not preserved by PW.17 and the same were not handed over by him to the Investigating Officer or to PW.19. As rightly pointed out by the learned counsel for the appellants, the original chance prints said to have been lifted on the cellophane tape and transferred on the transparent paper are not produced before the court. In this context, the observation made by the Hon'ble Supreme Court in the case of MOHD. AMAN AND ANOTHER -vs- THE STATE OF RAJASTHAN (1997)10 SCC 44 while dealing with the identical fact situation may be apt to be extracted. It reads "The other related infirmity from which the prosecution case 43 suffers is that the brass jug, production of which would have been the best evidence in proof of the claim of its seizure and subsequent examination by the Bureau, was not produced and exhibited during trial for reasons best known to the prosecution and unknown to the Court." The glaring infirmities brought out in the evidence of PW-17 and PW-19 as highlighted above lead to the inevitable conclusion that the circumstance of the finger print evidence is created and fabricated by the prosecution only after the arrest of the accused.
57. Even with regard to the collection of the specimen finger prints relied on by the prosecution, we find that the evidence produced by the prosecution in this regard suffers from patent infirmities. In this context, it may be relevant to refer to the evidence of PW-20- the Investigating Officer. According to him, accused were produced before him under body warrant on 9.4.2001. In his Chief examination, he states that he arrested accused Nos.1 to 3 and obtained 44 their finger prints. His evidence is silent as to the manner in which he obtained the specimen finger prints. Except stating that he forwarded the said specimen finger prints to the finger print expert, he has not stated anything more than that. During trial, the specimen finger prints came to be marked as Ex-P25, Ex-P26 and Ex-P27 through PW-19. These finger prints are enclosed to the opinion given by PW- 19 at Ex-P24. Except the signature of PW-20, there is nothing in Ex-P25, Ex-P26 and Ex-P27 to indicate as to which of the finger prints therein relate to which of the accused. In the entire evidence, no witness has come forward to identify the finger prints found at Ex-P25, Ex-P26 and Ex-P27 as belonging to any of the accused. Under the said circumstances, the evidence of PW-19 that he compared the chance finger prints with the specimen finger prints of the accused at Ex-P25, Ex-P26 and Ex-P27 cannot be accepted at all.
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58. It is also significant to note that in his chief examination, PW-19 himself has stated that the specimen finger prints sent for his examination and comparison by the Investigating Officer were not clear and therefore, he subjected the specimen finger prints sent by the Investigating Officer in Cr.No.43/2000 of Hubli Town Police station. The Investigating Officer who collected the specimen finger prints in Cr.No.43/2000 is not examined. There is nothing on the entire record to indicate that Ex- P25, Ex-P26 and Ex-P27 which are stated to have been compared and examined by PW-19 have been identified by any of the witnesses as belonging to any of the accused. As a result, the opinion given by PW-19 based on the examination of Ex-P25, Ex-P26 and Ex-P27 has become meaningless as for the spacious reason that it cannot be related to any of the accused.
59. In this context, it may be apposite to refer to the observations made by the Hon'ble Supreme Court in the 46 case of PRAKASH -vs- STATE OF KARNATAKA, 2014 AIR SCW 2354, wherein it is observed as under:-
"Assuming Prakash's fingerprint was in fact obtained by D'Souza, it was clearly not given voluntarily, but perhaps unwittingly and in what seems to be a deceitful manner. To avoid any suspicion regarding the genuineness of the fingerprint so taken or resort to any subterfuge, the appropriate course of action for the Investigating Officer was to approach the Magistrate for necessary orders in accordance with section 5 of the Identification of Prisoners Act, 1920. In Mohd. Aman v. State of Rajasthan this Court referred to the possibility of the police fabricating evidence and to avoid an allegation of such a nature, it would be eminently desirable that fingerprints were taken under the orders of a Magistrate. We may add that this would equally apply to the creating evidence against a suspect. This is what this Court had to say:
"Even though the specimen fingerprints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take fingerprints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate."47
60. Notwithstanding the dictum laid down in the above decision, in the instant case, having regard to the huge time gap from the date of lifting the chance finger prints till it was subjected to examination, to dispel any doubt regarding the genuineness of the finger prints so taken or to avoid any suspicion of resorting to any subterfuge, it was all the more necessary for the prosecution to produce the original chance finger prints and the original specimen finger prints before the Court. It is not in dispute that in the instant case, the investigation gained momentum only after the arrest of the accused more than one year two months after the registration of the case. According to the prosecution, the chance finger prints were collected on 14.03.2000 and the specimen finger prints were obtained after the arrest of the accused on 9.04.2001. Therefore, the possibility of the specimen finger prints themselves being developed as a photograph of the chance finger prints cannot be ruled out. Therefore, non- 48 production of the original finger prints, in our opinion, in the fact situation of the present case is fatal to the case of the prosecution. On account of non- production of the original chance finger prints as well as non-identification of the specimen finger prints, the entire evidence adduced by the prosecution in support of the above circumstance is liable to be discarded.
61. Needless to say that the opinion of the finger print expert becomes admissible under Section 45 of the Evidence Act, provided that the opinion is supported by reasons and justifications. On this point, the Hon'ble Supreme Court in the case of STATE OF H.P. -vs- JAILAL AND Others, (1999)7 SCC 280 has observed as under:-
"An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this 49 criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration alongwith the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions."
(Underlining supplied)
62. In the instant case, the opinion of PW-19 at Ex- P24 does not contain any reasons or grounds in justification of his opinion. Even during his deposition, he has not delineated as to the eight points on which he found the questioned finger prints tallying with the specimen finger prints. Therefore, even on this score, the opinion evidence given by PW-19 cannot be ascribed any weight. As a result, we have no hesitation to hold that the circumstance of finger prints pressed into service by the prosecution has remained not proved.
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63. It is now well settled that in a case based on circumstantial evidence, the Court has to take the totality of the circumstances into consideration and come to the conclusion whether the facts established in evidence are consistent with the guilt of the accused. The chain of circumstances must be complete in all respect so as to leave no manner of doubt or reasonable ground consistent with the innocence of the accused and to show that within all human probability, the act must have been done by the accused and the accused alone. The facts and circumstances alleged by the prosecution must be proved by satisfactory evidence. They must be conclusive in nature. There should not be any missing links in constituting the chain of circumstances establishing the guilt of the accused.
64. In the instant case, on overall consideration of the entire evidence on record, we are of the firm opinion that the prosecution has failed to prove any of the circumstances pointing out the guilt of the accused for the offences 51 charged against them. Therefore, the conviction recorded by the court below and the consequent death penalty inflicted on the accused cannot be sustained. On re- appreciating of the entire evidence on record, we are of the clear opinion that the impugned order of conviction is perverse and is not based on legal evidence and therefore, cannot be sustained in law and on the facts of this case. The trial court appears to have been carried away by the fact that the accused were members of a notorious gangs who were involved in various heinous offences adopting similar modus-operandi and that the twin murders were committed in most brutal and dastardly manner. But, our criminal jurisprudence does not permit the court to convict a person on the ground that the accused before it are involved in similar offences or that they are convicted in large number of allied offences. A person has a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. "The heinousness of the crime or the cruelty in its execution 52 however abhorrent and hateful cannot reflect in deciding the guilt" of the accused as observed by the Supreme Court in the case of Dilavar Hussain -vs- State of Gujarat (1991) 1 SCC 253. In the instant case as the prosecution has not been able to prove even a single circumstance in establishing the complicity of accused Nos.1 to 3 in the death of the deceased, the impugned judgment and the order of sentence is liable to be set-aside.
65. We also deem it necessary to state that from the facts and circumstances of the case, it would appear that the investigation in the instant case is highly unprofessional, shoddy and lackadaisical. As already noted in the preceeding part of this judgment, soon after the incident, the Investigating Officer rushed to the spot of occurrence and conducted perfunctory investigation in a routine manner. The records reveal except conducting the mahazars and recording the statement of witnesses, no efforts were made to trace the culprits. For about one year, 53 the matter was kept in cold storage and it is only after the arrest of the accused in Cr.No.674/1999 of Vijayanagar Police Station, the Investigating Officer appears to have felt obligated to continue with the investigation. The nature of the evidence produced before the court clearly indicate till the arrest of the accused, there was not even a suspicion that the brutal murders of two elderly persons were committed by a members of a notorious gang who were in the habit of adopting similar modus-operandi in committing the crimes. But, after the arrest, all of a sudden, the investigation resumed and based on the finger print evidence, the accused persons were implicated in the incident; but, as already discussed above, this evidence has turned out to be a false and fabricated evidence. The manner in which the finger print evidence is brought on record indicate that the investigating agency has trumped up this evidence only after the arrest of the accused. The circumstances brought out in the evidence of PW-17 and PW-19 indicate that both these witnesses have obliged the 54 prosecution and have issued false certificates. It is distressing to note that the trial court has failed to advert its mind to the above aspects and has mechanically and casually passed the impugned judgment without application of mind. For all these reasons, the impugned judgment of conviction and order of sentence is liable to be set-aside.
66. Under Section 368 Cr.P.C., while hearing a reference under Section 366 Cr.P.C, the High Court is empowered to annul the conviction or to acquit the accused. As per the said provisions, even in the absence of independent appeal by the person sentenced to death, the High Court while dealing with the reference made by the Courts of Sessions for confirmation of sentence of death, is required to consider as to whether the conviction recorded is legal and justified and if the court finds that the judgment of conviction is perverse and illegal, the accused persons may be acquitted. Apart from the above provisions, the Honb'le Supreme Court in the Md. Sajjad alias Raju alias Salim vs State of West Bengal, AIR 2017 SC 642 has 55 reiterated the position of law that if on evaluation of a case, a conclusion is reached that no conviction of accused was possible, the benefit of that decision must be extended to the similarly situated co-accused even though he had not challenged the order by way of appeal.
67. In the case in hand, even though accused Nos.1 to 4 are convicted by the trial court and are sentenced to death penalty, accused Nos.3 and 4 have not preferred any appeal against the impugned judgment. But, on evaluation of the case, as we have come to the conclusion that the impugned judgment of conviction and consequent order of sentence is not sustainable on law and facts of the case, accused Nos.3 and 4 are also entitled for the benefit of this order. Hence, in the light of above legal position, and in view of the conclusions arrived at by us as above, we pass the following order:-
Criminal Appeal No.733 of 2011 is allowed. The impugned judgment of conviction dated 17.07.2010 and the 56 order of sentence dated 30.09.2010 in S.C.No.58 of 2005 on the file of the learned XXXIV Addl. City Civil and Sessions Judge (Special Judge), Central Prison Premises, Parappana Agrahara at Bengaluru, are set-aside and the appellants/ accused Nos.1 and 2 as well as accused Nos.3 and 4 are acquitted of the offences punishable under Section 302 r/w Section 34 of Indian Penal Code.
2. Consequently, Reference of the trial court registered in Crl.R.C.No.18 of 2010 fails and the same is hereby rejected.
3.The Registry is directed to communicate the operative portion of the order to the Jail Authority, where the accused are lodged, to set them at liberty in this case, if they are not required in any other case/cases.
Sd/- Sd/-
JUDGE JUDGE
*mn/bss/jj/-