Patna High Court
The State vs Karu Gope And Anr. on 12 May, 1953
Equivalent citations: AIR1954PAT131, 1953(1)BLJR488
JUDGMENT Reuben C.J. 1. This judgment will govern Death Reference No. 37 of 1952 and Criminal Appeals 538 and 539 of 1952. The two appellants have been convicted under Section 302/34, I P. C. by the Sessions Judge of Patna and sentenced to death. 2. The case arises out of a murder which took place in the night of the 27th/28th February, 1951, in 'mahalla' Mithapur in the Patna Municipality at a distance of one and a half miles south of Police Station Kotwali. The victims of the murder were one Anand Prakash Sahu and his wife. The murder was discovered in the morning by a Goala boy Bajendra Gope (P. W. 2), aged ten years, who went as usual to sell milk at the door. The residence occupied by the deceased couple consists of one room with a verandah, to the north of it and an 'angan' to its south. Pushing open the verandah door the boy went to the door of the room and pushed that door open also. He called, but got no reply. A small child came out of the room and he asked her where her mother was. The child pointed and the boy noticed a lot of blood scattered about. Feeling afraid he ran away and informed his father Chotan Gope (P. W. 3). By the time Chotan came, the news had got round and on his arrival Chotan found among others present Sahbir Sah (P. W. 1). who is married to the sister of Anand Prakash. In the room were the dead bodies of Anand Prakash and his wife, both with their throats cut. The Police were informed over the telephone and at 8-45 a.m, at the spot Sahbir Sah lodged a first information report of murder against "unknown" with a faint suggestion that one Mahabir Sahu might have something to do with the occurrence. "I also learnt from other persons that Anand Prakash had a servant named Mahabir Sao who had been at home since 8 days. I have heard that he came yesterday and is absent at present." 3. Sub-Inspector Krishna Bihari Karan (P. W. 25), officer-in-charge of the Kotwali Police Station, instituted the case and took up investigation. He found nothing for particular note in the verandah. In the room there were marks of blood on a 'chouki' which was in the south-eastern corner of the room. There was blood also on the blanket which was on the 'chouki'. On the floor immediately north of the 'chouki' was the dead body of Anand Prakash's wife. Anand Prakash himself was found lying dead on a 'khatia' in the northwest corner of the room. Glass bangles of Anand Prakash's wife were broken and the broken bits were scattered about near her dead body. An iron safe just near the northern door of the room was open and the keys of the safe were lying near it. Scattered on the floor were papers, several of them blood stained. Also lying on the floor was a 'hasua' (a pasi's knife), Ex. XVI. It was also blood stained. That day the Sub-Inspector seized only a few things from the room, among them the blood stained 'hasua' (vide seizure list Ex. 13). He seized more blood stained articles in a later visit on 8-3-1951, among them a piece of paper which bore on it a blood stained print of a bare right foot (vide seizure list Ex. 14). These two articles which I have particularly mentioned furnish the main evidence against one of the appellants Bhorik Gope. The evidence against the Other appellant Karu Gope is furnished by two blood-stained impressions discovered on the wall of the room by B. N. Sinha (P. W. 11), Senior Finger Print Expert to the Government of Bihar, on 4-4-1951. I shall come to these items of evidence presently. 4. The inquest on the dead bodies was held as usual & they were then examined by Dr. B. K. Prasad, who is one of the medical officers at the Police Hospital, Patna. The doctor found ante-mortem incised wounds on the throats of the two deceased persons and the correctness of his opinion that death was due to these injuries is not challenged. There is, therefore, no doubt that these two persons were murdered and the only question is whether there is sufficient evidence to connect the two appellants with the crime. 5. As a result of the indication given by Sahbir Sahu in the first information report suspicion fell on Mahabir. Investigation was, therefore, made in his village Firozi in the jurisdiction of Police Station Jehanabad, district Gaya. He and a number of his associates were arrested, among them the two appellants. Only Mahabir and the two appellants were put on their trial. The oral evidence given by the prosecution to connect these three men with the occurrence has not been believed by the Sessions Judge. There being no other evidence against Mahabir he was acquitted. As against the other two the following circumstantial evidence has been accepted by the Judge. The impression of the right little finger of Bhorik tallies with a finger print said to have been found on the 'hasua' Ext. XVI and an impression of his right foot is said to tally with the blood stained foot impression on the paper. The impressions of the left thumb and the left palm of Kara tally with two impressions in blood said to have been found on the northern wall of the room in which the murder occurred. 6. Exhibit 2 is an enlargement of the impression said to have been found on the 'hasua'. The photo was taken by U. N. Ghose (P. W. 5), photographer attached to the Criminal Investigation Department of Bihar. He took it on 28-2-1951. The 'hasua' was made over to him for the purpose by P. Banerji (P. W. 10), a finger-print expert attached to the Criminal Investigation Department of Bihar, who got it that very day from the investigating Sub-Inspector (vide the receipt Ext. 8). It has been pointed out that the 'hasua' was not shown to the photographer for identification in Court. There is, however, sufficient evidence, as I have indicated, to connect the enlargement Ext. 2 with the impression on the 'hasua' in question. This cannot be said about the enlargement Ext. 3 which is said to be an enlargement of the photo of the bloody foot print seised from the room of the deceased Anand Prakash on 8-3-1951. All that the photographer Ghose says about this photograph is: "I took photos of papers having foot prints. This is a negative of this footprint (Ext. IV) and this is the enlarged photo of this negative (Ext. 3) ........I got the paper containing the foot-print (Ext. 3)." Neither the investigating officer nor any of the officers of the Criminal Investigation Department tells us how the paper containing the footprint came into the possession of photographer Ghose for this purpose, and there is no evidence to identify the paper with the paper that was seized on the 8th of March. That paper is said to have been sent to the Chemical Examiner and the Chemical Examiner's report with the paper has disappeared. It is, therefore, not possible to connect with the occurrence the paper from which the enlargement Ext. 3 has been prepared and this document is of no value as connecting Bhorik with the occurrence. A copy of the Chemical Examiner's report was tendered in Court, but was rightly rejected by the Sessions Judge. Under Section 510, Criminal P. C. it is the original report that may be used as evidence without formal proof and not a copy of such a report. The stain on the sickle has been found by the Chemical Examiner to be human blood. 7. Exhibits 2/1 and 2/2 are enlargements of photos taken of the impressions on the wall of the room. They were prepared by the photographer Ghose who went to the spot on the 4th April in order to take the photograph. The photograph was taken in the presence of the Senior Finger Print Expert R. N. Sinha and the investigating officer K. B. Karan (P. W. 25). The impressions were seen 'in situ' by the Sessions Judge (vide his note of memorandum of local inspection at page 52 of the paper book) and were then scraped by Assistant Sub-Inspector Rajmani Lal (P. W. 26) who himself took them to the Chemical Examiner for chemical analysis. The result of the chemical analysis was that they were both found to contain blood and the print on the eastern side of the door corresponding to the enlargement Ext. 2(1) was found to contain human blood. The blood in the other impression, which was a very small one, was found to have disintegrated and so its origin could not be determined. In view of the evidence set out there is no difficulty in connecting the enlargements 2(1) and 2(2) with the impressions on the wall of the room of Anand Prakash. Great stress has been laid on the fact that the impressions were not discovered till the 4th of April. It appears from the evidence, however, that they could only be seen in the light of a flood lamp as the room was badly lit. In this connection our attention was drawn to the fact that photographer Ghose took some photographs on the 23th of February at the spot & it is suggested that he did have a flood lamp with him that day. This cannot be correct because Ghose himself deposes : "I could not take photos inside this house as the light was not sufficient, but I took some photos of some footprints on the ground of the room of the house." The question of insufficient light could not have arisen if a flood light was available. All that happened on the first day probably was that the photographer took, photographs of footprints in portions of the room which were better lit than the remainder of the room. Suggestions have been made to the Finger Print Expert R. N. Sinha in the course of cross-examination about the possibility of transferring finger impressions on the walls of the house in order to falsely implicate a suspected person & it is urged that the appellant Kara was a prisoner and prints of his fingers and palms had bean taken when the discovery was made. It is in evidence, however, that from the very first the investigating officer put the room in which the occurrence had taken place under seal and throughout the investigation he had a constable continually on duty guarding the room. There is, therefore, no reason to think that the impressions found on the wall were impressions fraudulently placed there in order to implicate Karu Gope. 8. The question was raised before the Sessions Judge as to whether a conviction can be based upon the unsupported testimony of a finger-print expert. There is no rule of law on the point; it is merely a matter of caution whether a Court will act on such unsupported evidence or not. The correct principle was defined by S. K. Ghose J. in -- 'Harendra Nath Sen v. Emperor', AIR 1931 Cal 441 at p. 442 (A) : "I do not think that it can be laid down as a rule of law, that it is unsafe to base a conviction on the uncorroborated testimony of a fingerprint expert. The true rule seems to me to be one of caution, that is to say, the Court must not take the expert's opinion for granted, but it must examine his evidence in order to satisfy itself that there can be no mistake, & the responsibility is all the greater when there is no other evidence to corroborate the expert." Before their Lordships the cases of -- 'Eazari Hajam v. Emperor', AIR 1922 Pat 73 (B) and --'Basgit Singh v. Emperor', AIR 1928 Pat 129 (C), were cited as authorities for the proposition that it is not safe to rely merely on a critical inspection of a finger-print made by an expert. The case in -- 'AIR 1922 Pat 73 (B)' relates to a period before the coming into force of the Identification of Prisoners Act, 1920, (Act S3 of 1920), which authorised the taking of the comparison in Court. Buck-nill J. who delivered the leading judgment criticised in strong terms the taking of a thumb-print for such a purpose. That decision, therefore, is not in point. The case in -- 'AIR 1928 Pat 129 (C)' is not inconsistent with the view which I have just expressed. Jwala Prasad J. who delivered the leading judgment cited with approval the observation of their Lordships of the Madras High Court in -- 'Public Prosecutor v. Virammal, AIR 1923 Mad 178 (D) to the effect that a Court cannot refuse to convict a person on the evidence of a finger-print expert merely on the ground that it is unsafe to base a conviction upon such evidence. He concluded his examination of the authorities thus: "As to the probative value of the opinion of an expert on finger prints, it must have the same value as the opinion of any other expert, such as a medical officer, etc. In each case the evidence is only a guide to the Court to direct its attention to judge of its value. The Court is at liberty to use its own discretion and to come to a conclusion either in affirmance or differing from the view taken by the expert. In this view it may be said that, as has been held repeatedly in a number of cases, that it is not safe to convict an accused upon the sole testimony of an expert. The danger of such a conviction has also been indicated in the decision of the Madras High Court referred to above. Each case, however, must depend on its own circumstances." I, therefore, proceed to examine the evidence of the expert. 9. Exhibits 11 and 11(1) are the reports of the finger-print expert. Each of them is drawn up in a printed report form which runs thus: "Finger-print marked ..... tallies/tally with the specimen ..... Thumb impression ...... marked ..... finger-print on ..... bearing number ...... Finger-print marked ..... blurred for a definite report. Officer-in-charge, Finger-print Bureau C. I. D. Bihar, Patna." The opinion in each case has been given by filling up the blanks in the first paragraph of the form and drawing a line across the second paragraph. Through carelessness in printing the paper book the cancellation of the second paragraph was overlooked and it was printed as it stands. The mistake caused a little confusion as this paragraph is obviously inconsistent with the opinion given in the first paragraph. The confusion caused by the misapprehension was only removed after we had verified the facts from the original reports. In the reports beyond stating the fact of the tallying of the impressions in question the expert has said nothing. I think it would be better if in such reports reasons for the opinion expressed are given. This should be a simple matter as the expert must keep some note on the points where he finds tallying at the time when he makes his examination of the documents for the purpose of expressing his opinion. The setting out of the reasons at length will help to clarify his ideas and it will furnish a valuable guide to the parties and to the Court in testing the value to be attached to that opinion. It would also be fairer to the person against whom the opinion is to be used that the reasons for that opinion are definitely expressed. As matters now stand, the lawyer for the accused does not know till the witness is actually in the witness-box what his reasons are and he has to be prepared without further notice to cross-examine the witness. 10. In the witness-box the witness has given 11 reasons for identifying the finger-print on the 'hasua' with the finger-print of Bhorik and 9 reasons for identifying the enlarged photograph Ext. 3 with the impression of the right foot of the accused Bhorik. The enlargement Ext. 3 and the 'enlargement of the finger-print on the 'hasua' are both blurred, and although I have tried to follow the reasons given by the expert I have found it difficult to do so. Even accepting, though as I have mentioned there is no evidence on the point, that the enlargement Ext. 3 is an enlarged photograph of the bloody foot-print found at the scene of the murder, I do not think that it would be safe on this evidence to hold that the presence of Bhorik has been established. 11. So far as Karu is concerned, I would take the contrary view. Both the impressions on which his conviction depends were distinct impressions. There is no doubt of their identity and although the marking in red ink might have been a little more accurate than it is, it is possible to follow the reasons given by the expert for expressing the view that the tyro sets of impressions tally with each other. The expert gives as many as 14 reasons for identifying the left thumb-impression of Karu with the enlargement Ext. 2/1 of one of the impressions on the wall. The other impression was a small one. But nevertheless the expert gave as many as 8 points in respect of which it tallied with the impression of the left palm of Karu. There has been some discussion as to the different standards adopted by different finger-print bureau in the matter of the identification of finger-prints. The expert tells us that according to the patna finger-print bureau 7 points of similarity are sufficient to identify two prints; whereas some other bureau are satisfied with merely four points of similarity and others require as many as 12. The question as to what would be a safe standard to adopt hardly arises in the present case where the expert has found so many points of similarity in two different impressions. I would merely observe that I do not think, the establishment of identity by a comparison of finger-prints can be reduced to a mere numerical counting of similarities. A bald statement such as appears in the evidence of the expert that point No. 1 is a bifurcation downwards and point No. 4 is a bifurcation upwards is by itself unconvincing. There may be a bifurcation upwards at corresponding points in the two impressions under comparison, but the configuration may be so different at these points mat there is no doubt about the two impressions being of different persons. The fact is that a perusal of the opinion of the expert must be accompanied by a visual study of the two impressions which are under comparison. Regarded in this manner it becomes obvious that the probabilities of a difference at each point of comparison are so great that the chances of tallying very rapidly become infinite-simally small when comparison is made at a number of points. Hence tallying at a comparatively few points may be sufficient to establish, identity. 12. Having read the evidence of the expert in the manner in which I have indicated, I feel satisfied that the two impressions on the wall of the room in which the murder took place were the impressions of Karu, accused. He is a man of another district altogether and gives no explanation of his presence in Patna. In fact he denies that he came to Patna at all. The inference, therefore, seems justified that his presence in the room was connected with the occurrence that led up to the death of Anand Prakash and his wife. It has properly been urged on behalf of the accused persons that even if their presence in the room on that particular night is established it does not follow that they can be held responsible for the murder. They are persons who were strangers to Anand Prakash and his wife. The prosecution does not suggest a motive for murder. The circumstantial evidence indicates that several persons came into the room that night. For instance, in addition to the person who left the impression of his bare foot on the paper there was somebody wearing crepe-soled footwear and somebody else wearing an ordinary shoe (vide seizure list Ext. 14), Apparently, a number of persons came into the room. The open safe and the papers scattered about indicate that the motive was theft rather than murder. It, therefore, might be that in the course of the occurrence some of the trespassers killed Anand Prakash and his wife. In the absence of direct evidence it is not possible to be certain that Karu Gope took part in the murder. 13. The question which next arises is whether the conviction of Karu Gope can be altered to one under another section, and if so, what section. Under Section 423 Criminal P. C. an alteration is possible. But there is a difference of opinion as to whether an appellate Court's power of altering the section is governed by the provisions of Sections 236, 237 and 238, Criminal P. C. I answered this question in the negative, --"Kalloo Sonar v. Emperor', Criminal Rev. No. 103 of 194S, D/- 4-2-47 (Pat) (E). It is not necessary for me to repeat the reasons which I have given there for holding that the Legislature deliberately omitted to place a restriction on the appellate Court's power of altering the section. The guiding principle in exercising that power, as I have there observed, must be that the accused is not prejudiced by the alteration, and in considering whether the accused is likely to be prejudiced or not Sections 236, 237 and 238 furnish valuable guidance. The appropriate section in the present case would appear to be Section 460. Penal Code. But that section requires lurking house-trespass or house- breaking. Admittedly house-trespass was committed that night and in defending themselves against the charge of murder the accused persons were at the same time doing all that was necessary to meet a charge of house-trespass. Whether that trespass was lurking house-trespass or house-breaking was a question that was not under consideration. Although, therefore it appears unlikely that Anand Prakash and his wife would have gone to sleep that night without securing their doors against intrusion and that Karu Gope and his companions entered except by way of house-breaking, it would be unfair to him to come to a finding against him on this profit. In the circumstances, he can only be convicted of an offence under the second part of Section 451, I. P. C. namely, house-trespass in order to the committing of theft. 14. For the reasons given I would allow the appeal of Bhorik Gope, set aside his conviction and sentence and acquit him. I would alter the conviction of Karu Gope to one under Section 451, I. P. C. and sentence him to rigorous imprisonment for seven years. The reference under Section 374, Criminal P. C. will be discharged. Choudhary, J.
15. I agree.