Karnataka High Court
G. N. Sampath Kumar vs State Of Karnataka on 22 February, 2024
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CRL.A No. 1291 of 2020
C/W CRL.A No. 1297 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024 R
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1291 OF 2020
C/W
CRIMINAL APPEAL NO.1297 OF 2018
IN CRL.A. NO.1291/2020:
BETWEEN:
K.Pooja
W/o Late Mahendra,
Aged 24 years,
Maruthi Extension,
II Stage, Malur Town,
Kolar District - 577 501.
Digitally signed ...Appellant
by SRIDEVI S
Location: (By Sri K.B.Monesh Kumar, Adv.)
HIGH COURT
OF
KARNATAKA AND:
State of Karnataka
By Malur Police Station,
Rep. by State Public Prosecutor,
High Court of Karnataka,
Bengaluru - 560 001.
...Respondent
(By Sri Vijayakumar Majage, SPP-II)
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NC: 2024:KHC:7533-DB
CRL.A No. 1291 of 2020
C/W CRL.A No. 1297 of 2018
This Criminal Appeal filed under Section.374(2) Cr.P.C.,
praying to set aside the judgment of conviction dated
27.06.2018 and sentence dated 28.06.2018 passed by the I
Additional Sessions Judge at Kolar in S.C.No.103/2016,
convicting the appellant/accused no.2 for the offence p/u/s 302
r/w 34 of IPC and etc.
IN CRL.A. NO.1297/2018:
BETWEEN:
G.N.Sampath Kumar
S/o Narayanappa,
Aged about 20 years,
R/o Gottipura Village,
Jadigenahalli Hobli,
Hosakote Taluk,
Bangalore Rural District.
...Appellant
(By Sri Hashmath Pasha, Sr. Adv. for
Sri Nasir Ali, Adv.)
AND:
State of Karnataka
By Malur Police Station,
Kolar District.
Rep. by Learned State Public Prosecutor
...Respondent
(By Sri Vijayakumar Majage, SPP-II)
This Criminal Appeal filed under Section.374(2) Cr.P.C.,
praying to set aside the judgment and order of conviction dated
27.06.2018 and sentence dated 28.06.2018 passed by the I
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CRL.A No. 1291 of 2020
C/W CRL.A No. 1297 of 2018
Additional Sessions Judge at Kolar in S.C.No.103/2016,
convicting the appellant/accused no.1 for the offence p/u/s 302
r/w 34 of IPC and etc.
Date on which the appeals were 11.12.2023
reserved for judgment
Date on which the judgment was 22.02.2024
pronounced
These Criminal Appeals having been heard & reserved,
coming on for pronouncement this day, Sreenivas Harish
Kumar J., pronounced the following:
JUDGMENT
The judgment of conviction in S.C.No.103/2016 on the file of I Additional
Sessions Judge, Kolar, has given rise to these two appeals. Criminal Appeal No.1297/2018 is preferred by accused No.1 and Criminal Appeal No.1291/2020 is preferred by accused No.2. They were tried for the offence punishable under Section 302 read with Section 34 of IPC and each of them has stood sentenced to life imprisonment and fine -4- NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 of Rs.10,000/- each with default imprisonment for a period of one year.
2. The prosecution case in brief is that because of illicit relationship between both the accused, they killed Mahendra, the husband of accused No.2. The incident occurred on the intervening night of 09.01.2016 and 10.01.2016 when the parents of the deceased had been to Bengaluru. PW1, the father of Mahendra gave a report of the incident as per Ex.P1 to the police based on which FIR came to be registered. The investigation resulted in both the accused being charge sheeted for the offence under section 302 of IPC.
3. PW1 to 18 are the witnesses examined, Exs.P1 to 36 are the documents and MOs.1 to 15 are the material objects got marked by the prosecution to establish its case. -5-
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4. The case is based on circumstantial evidence. The trial court has found all the links in the chain of circumstances being proved to record conviction against the accused.
5. We have heard the arguments of Sri Hashmath Pasha, learned senior counsel appearing on behalf of Sri Nasir Ali, learned advocate for the appellant in Criminal Appeal No.1297/2018, Sri K.B.Monesh Kumar, learned advocate for the appellant in Criminal Appeal No.1291/2020 and Sri Vijayakumar Majage, learned State Public Prosecutor-II for the respondent/State.
6. The incident occurred in the house of PW1, when he and his wife had come over to Bengaluru. Only accused No.2 and her husband were present in the house. There is no dispute regarding this. While arguing the learned counsel for the accused did not dispute the presence of accused No.2 in the house. But the fact in issue is -6- NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 whether the third man who gained entry into the house during late hours of night was accused No.1.
7. The trial court has found the circumstances namely, (i) place of occurrence (ii) recovery of blood stained clothes of accused No.1 and 2 (iii) recovery of weapons, (iv) arrest of accused 1 and 2 (v) medical evidence (vi) FSL report, and (vii) explanation to be offered by accused No.2 under section 106 of the Indian Evidence Act, being proved.
8. Before reassessing the evidence one line of argument of Sri Hashmath Pasha needs to be addressed. His argument was that in a case based on circumstantial evidence, every circumstance must be proved beyond reasonable doubt. We are not inclined to accept this argument to be commendable.
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9. Proof beyond reasonable doubt does not mean providing infallible or absolute proof. It is hardly possible. According to Section 3 of the Indian Evidence Act the term 'proved' takes the meaning that the Court after considering the matters before it believes in existence of a fact or considers the existence of a fact so probable that a prudent man under the circumstances of the particular case acts upon the supposition that it (fact) exists. The term 'prove' indicates the degree of certainty to treat a fact as proved. The prosecution is supposed to produce such kind of materials on which the court can reasonably act to reach the supposition that a fact exists. The Supreme Court in the case of STATE OF UTTAR PRADESH V. KRISHNA GOPAL AND ANOTHER [(1988) 4 SCC 302] has held that proof beyond reasonable doubt though of a higher standard, however cannot be of absolute standard. The -8- NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 observation of the Hon'ble Supreme Court is extracted below:
25. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt.
Though this standard is a higher standard, there is, howev er, no absolute standard. What degree of probability amounts to `proof' is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another a learned author says:
"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defend ant did the prohibited act with the specified state of mind are generally dependent. A juror may feel d oubt whether to credit -9- NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 an alleged confession, and doubt whether to inter guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent p eople who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."
Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it is must be free from an over- emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. I t must grow out of the evidence in the case.
(emphasis supplied)
10. The above proposition was reiterated in a later judgment of the Supreme Court in the case of
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 KRISHNAN AND ANOTHER V. STATE REP. BY INSPECTOR OF POLICE [AIR 2003 SC 2978].
11. As far back in 1972, the Hon'ble Supreme Court in the case of HIMACHAL PRADESH ADMINISTRATION V. OM PRAKASH [AIR 1972 SC 975] has made the meaning of the expression 'proof beyond reasonable doubt' in the following words:
6. ................... The benefit of doubt to which the accused is entitled is reasonable doubt, the doubt which rational thinking men will reasonably, honesty and conscientiously entertain and not the doubt of a timid mind which fights shy-though unwittingly it may be-or is afraid of the logical consequence, if that benefit was not given. Or as one great Judge said it is "not the d oubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism". It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether. I t is for this reason the phrase has been criticised. Lord Goddard C.J. in Rex v. Kritz(1) said that when in explaining to the juries what the prosecution has to ,establish "a Judge begins to use the words "'reasonable doubt" and to try to explain what is a reasonable doubt and what is not, he is much more likely to confuse the jury than if he tells them in plain language "It is the duty of the prosecution to satisfy-you of the prisoner's guilt". What in effect this approach amounts to is that the greatest possible care should be taken by the Court in convicting an accused who is presumed to be innocent till the contrary is clearly established which burden is always in the accusatory system, on the prosecution. The mere fact that there is only a remote possibility in favour of the accused is itself sufficient to establish the case beyond 'reasonable doubt. This then is the approach.
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12. Very impressively, Justice V.R.Krishna Iyer in INDER SINGH AND ANOTHER V. THE STATE (DELHI ADMINISTRATION) [(1978) 4 SCC 161], writes:
2. Credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is, too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many, guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction.
Why fake up? Because the court asks for
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 manufacture to make truth look true? No, we must be realistic.
3. We are satisfied that the broad features of the case, the general trend of the testimony and the convincing array of facts which are indisp utable, converge to the only conclusion that may be reasonably drawn, namely, that the accused are guilty. Theoretical possibilities may not shake up, fancied weaknesses may not defeat, when verdicts are rested on sure foundations. Stray chances of innocence haunting the corridors of the court cannot topple concurrent findings of guilt.
(emphasis supplied)
13. In a case based on circumstantial evidence, it is now a established principle that all the links in the chain of circumstances must be established. But many are under the impression that every circumstance must be proved beyond reasonable doubt. This is not the requirement. Circumstantial evidence means a fact on which an inference is to be founded. Evidence which proves
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 or tends to prove the factum probandum indirectly by means of certain inferences or deductions to be drawn from its existence and their connection with factum probentia is circumstantial evidence. [Commentary on law of evidence by Woodroffe & Amir Ali]. If the decision is based on inferences considering the evidence provided in connection with a fact constituting a circumstance, it is enough to provide primary evidence in regard to that fact. This position is made clear by the Supreme Court in the case of M.G.AGARWAL V. STATE OF MAHARASHTRA [AIR 1963 SC 200] it is held:
18. There is another point of law which must be considered before dealing with the evidence in this case. The prosecution case against accused No.1 rests on circumstantial evidence. The main charge of conspiracy under section 120B is sought to be established by the alleged cond uct of the conspirators and so far as accused No.1 is concerned, that rests on circumstantial
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 evidence alone. It is a well established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doub t. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. I n regard to the proof of basic or primary facts the Court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is p roved, the question arises whether that fact leads to the inference of guilt of the accused person
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. It is in the light of this legal position that the evidence in the present case has to be appreciated.
(emphasis supplied)
14. The above decision makes it very clear that in order to prove a basic or primary fact, evidence in the ordinary way may be provided and at the stage of examining whether a primary fact is proved or not, there is no scope for giving benefit of doubt. It is only at the end the cumulative effect of the entire evidence brought on record in regard to all the circumstances must indicate that there is no scope for doubting the prosecution case for any reason. In other words analysis of the entire evidence on all the circumstances must take to a conclusion that the
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 proof brought on record by the prosecution is free from doubt.
15. Of the circumstances pointed out by the trial court as noted above, the place of occurrence cannot be considered a circumstance, and it is not disputed also. Medical evidence and FSL report are only corroborative to the evidence on main circumstances.
16. Now the evidence may be put to analysis sequentially in the following way.
16.1 PW1 is the father of Mahendra, the deceased. His testimony is that when he and his wife were in Bengaluru, he received a call from his relative, Ravi and came to know about the murder of his son. Immediately he came to Malur with his wife, first son and first son's parents'-in-law. Having noticed injuries on the head and the neck of his deceased son, he enquired his second
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 daughter-in-law i.e., the second accused, who told him that a stranger barged into the house, assaulted her husband with a rod, cut his neck and ran away. He has stated that he noticed dots of blood in the face of accused No.2. Entertaining suspicion on accused No.2, he made a report to police as per Ex.P1.
16.2 PW9 - Ananda Murthy is the father of the first daughter-in-law of PW1. His oral evidence is that PW1 and his wife had visited his house in Bengaluru at 6.00 p.m. on 09.01.2016. In the midnight, around 1.30 a.m., he received a call from Ravi and came to know of some brawl having taken place in the house of PW1 at Malur. He passed on this information to PW1 and PW7 - Rajamma (wife of PW1). They all came over to Malur around 3.30 a.m.
17. The evidence given by PW1 and PW9 cannot be disbelieved. Though it was argued by
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 Sri Monesh Kumar that link in the evidence of PW1 and PW9 is not available because of non examination of Ravi, it has to be stated that the evidence of PW1 cannot be disbelieved for that reason. PW17, the then PSI of Malur Police Station, has stated to have received a complaint as per Ex.P1 at 3.30 a.m. on 10.01.2016, and his evidence to this effect has not been controverted in the cross-examination. Therefore the first inference to be drawn from the evidence of PW1 is that accused No.2 was very much present in the house at the time when the incident occurred. The incriminatory evidence attributable to her will be discussed later.
18. To connect accused No.1 with the incident, the prosecution examined PW2 and PW3, but they did not support. PW2 and PW3 were said to be the tenants of PW1, and through them, it was sought to be established that they heard a
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 shout in the house of PW1 when they were sleeping, and when they came down the stairs, they saw a person running away towards Modern School with a club in his hand. Then they went inside the house of PW1 and saw the dead body of Mahendra in a pool of blood. They asked accused No.2 as to what happened and came to know from her that a stranger had come and killed her husband. PW2 and PW3 do not support these aspects. Even if they had supported, they would not have stated that they saw accused No.1, in as much as what the prosecution wanted to prove from them was that they saw one person running away, not that they saw accused No.1. The oral evidence of PW2 and PW3 in whatever manner it has come does not have much consequence. Therefore the main circumstances to be examined are,
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(i) Recovery of blood stained clothes of both the accused,
(ii) Seizure of weapons,
(iii) Silence of accused No.2 and applicability of Section 106 of Evidence Act, and
(iv) Motive
19. PW1, PW4 and PW5 have supported the drawing up of Ex.P2 under which blood stained bed sheet, MO3, was seized. PW2 may not have supported the drawing up of spot mahazar, yet the evidence of PW1, PW4 and PW5 can be acted upon. They speak about seizing blood stained and unstained granite scrapings. The evidence on spot mahazar is not disputable.
20. Recovery of blood stained clothes of both the accused is an important circumstance. The trial court has held this circumstance being proved. Its findings are that PW4, PW10 and PW11
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 have supported the prosecution, and based on their evidence as also Ex.P.33, the disclosure statement made by accused No.2 which has relevancy according to section 27 of the Evidence Act, seizure of the blood stained clothes of accused No.2, viz., a nighty (MO8) and a petticoat (MO13) would get established. In regard to seizure of the clothes of accused No.1, it is held that he himself produced his clothes - a T-shirt, a vest, an underwear and a knicker as per MO4 to MO7 respectively before the police and this is testified by PW4, PW10 and PW11.
21. The argument of Sri Hashmath Pasha and Monesh Kumar on the seizure of clothes of both the accused is that the testimonies of PW4, PW10 and PW11 may appear to be supporting, but the same cannot be acted upon for three reasons, firstly that PW11 is a relative of PW1. Secondly, the evidence shows that both the accused were in
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 the police station on 10.01.2016, but the date of arrest is shown as 12.01.2016. According to the investigator, the voluntary statements of the accused were obtained on 12.01.2016. It was the argument of Sri Hashmath Pasha in this regard that the evidence given by PW18, a police constable shows that he saw both the accused in the police station on 10.01.2016; if it was so, there is no explanation as to why their voluntary statements were not obtained immediately after securing them to the police station. And if their voluntary statements had been obtained before 12.01.2016, no credence can be attached to recoveries as they were not in police custody from 10.01.2016 to 12.01.2016. Thirdly, the seizure of the clothes of accused No.2 was not in accordance with section 100(4) of Cr.P.C, in the sense that non availability of locals to witness the mahazar should have been recorded by the investigator.
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 Thus the seizure under Ex.P5 stood vitiated, they argued.
22. The obtaining picture from the evidence is this: PW17 was the Sub-Inspector of Police who adduced evidence in regard to registration of FIR as per Ex.P29 after receiving written report of incident from PW1 as per Ex.P1. Since the investigating officer, M.Raghavendra died on 18.10.2016, PW17 was further examined to prove the investigation conducted by Raghavendra. PW17 stated that the investigating officer obtained voluntary statements of both the accused on 12.01.2016. And during that time, accused No.2 made a disclosure as per Ex.P33 that she would produce her blood stained clothes. After making the disclosure statement, accused No.2 led the police to her house where the incident had occurred, and produced her blood stained clothes viz., a nighty (MO8) and a petticoat (MO13). He
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 has stated about seizure of these clothes by the investigating officer by drawing mahazar as per Ex.P5 in the presence of panchas. PW18 who typed the mahazars on the laptop stated first that accused No.2 produced her clothes on 12.01.2016 in the police station, and when he was cross examined by the public prosecutor treating him partly hostile, he admitted the suggestion that accused No.2 produced her clothes on 12.01.2016 at the house of PW1. He has stated in the cross- examination that the police officers did not take accused No.2 to the police station on that day, the meaning of which is that she was not taken to police station on 10.01.2016. It was further elicited from him that he saw both the accused in the police station after 10.01.2016.
23. PW15 has given evidence that he traced accused No.1 near ITC factory, Hosakote and from there he brought him to police station and
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 produced before the CPI. PW14 and PW16 have given evidence that on the instructions of the investigating officer they went in search of accused No.2 and found her in the house of her grand mother, and from there they brought accused No.2 to the police station.
24. It is true that the evidence of PW4 gives an impression that all the four mahazars Exs.P2, P5, P6 and P7 were drawn on the same day. Ex.P2 is the spot mahazar and it was drawn on 10.01.2016 about which there is no dispute. Based on the evidence of PW4 much was argued by Sri Hashmath Pasha and Monesh Kumar that the seizure of clothes was also made on 10.01.2016. But this inference cannot be drawn based on the testimony of PW4 alone. The evidence given by PW15 with regard to production of accused No.1 and, PW14 and PW16 with regard to production of accused No.2 on 12.01.2016 has not been
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 controverted in the cross-examination. Even though accused No.2 was very much available on 10.01.2016 at the time when spot mahazar was drawn and especially when PW1 suspected the involvement of accused No.2 in the murder of his son, it is not known why she was not arrested on the same day. It would only point out the lapse on the part of the investigator and for that reason seizure of her clothes on 12.01.2016 cannot be disbelieved. Actually PW4 has not given the date of drawing of all the four mahazars. In the examination-in-chief he has stated that Mahendra died in the month of January, 2016 and he had been to the house of PW1 on the date of incident. According to him all the mahazars were drawn on the same day. But the testimonies of PW10 and PW11 make it very clear that Ex.P5 was drawn on 12.01.2016 in connection with seizing the blood stained clothes of accused No.2. PW17 has stated that it is only after the arrest of accused No.2 on
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 12.01.2016 and obtaining of her voluntary statements, her clothes were seized. It is to be stated here that PW4 was examined nearly two years after the incident. If he was not able to remember the date of mahazars and stated in such a way that all the mahazars were drawn on the same day, it cannot be said that the clothes of accused No.2 were seized before her arrest and it was not pursuant to the disclosure that she made in her voluntary statement. It may also be stated that PW4 may have stumbled in giving the dates, but establishes the fact of seizure of clothes of accused No.2 in his presence and other panch witnesses. PW10, PW11 and PW17 have stated that the clothes were seized on 12.01.2016 and their evidence has not been controverted in any manner.
25. If it is assumed for arguments sake that both the accused were kept in the police station on
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 10.01.2016 till 12.01.2016 without formally arresting them, it can be stated that they were in police custody. What amounts to custody is made clear by the Supreme Court in the case of STATE OF A.P. V. GANGULA SATYA MURTHY [(1997)1 SCC 272], it is held:
19. The other reasoning based on Section 26 of the Evidence Act is also fallacious. I t is true any confession made to a police officer is inadmissible under Section 25 of the Act and that ban is further stretched through Section 26 to the confession made to any other person also if the confessor was then in police custody. Such "custody"
need not necessarily be post-arrest custody. The word "custody" used in Section 26 is to be understood in pragmatic sense. If any accused is within the ken of surveillance of the police during which his movements are restricted then it can be regarded as custodial surveillance for the purpose of the Section. If he makes any confession durin g that period to any person be he not a police officer, such confession would also be
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 hedged within the banned contours outlined in Section 26 of the Evidence Act.
(emphasis supplied)
26. Sri Hashmath Pasha referred to section 100 (4) of Cr.P.C. to argue that since the seizure of clothes of accused No.2 was not made in the presence of at least two respectable inhabitants of the locality, no importance can be given to seizure of clothes of accused No.2 by drawing panchanama as per Ex.P5. In regard to this argument, it is to be stated that section 100 of Cr.P.C. cannot be made applicable, for it was not a search made by the police officer pursuant to issuance of search warrant. Seizure was pursuant to disclosure made by accused No.2 when she gave her voluntary statement before the police officer after arrest. To this kind of seizure, having the presence of local inhabitants may not be necessary, however to rule out any possibility of manipulation, it is a rule of caution to have the presence of independent
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 panch witnesses. While dealing with this kind of situation, the Hon'ble Supreme Court in the case of MUKESH AND ANOTHER V. STATE (NCT OF DELHI) AND OTHERS [(2017) 6 SCC 1] has observed as below:
"448. While the prosecution has been able to prove the recoveries made at the behest of the accused, the defence counsel repeatedly argued in favour of discarding the recoveries made, on the ground that no independent witnesses were examined while effecting such recoveries and preparing seizure memos.
449. The above contention of the defence counsel urges one to look into the specifics of Section 27 of the Evidence Act. As a matter of fact, need of examining independent witnesses, while making recoveries pursuant to the disclosure statement of the accused is a rule of caution evolved by the Judiciary, which aims at protecting the right of the accused by ensuring transparency and credibility in the investigation of a criminal case. In the present case, PW 80 SI Pratibha Sharma has deposed in her cross-examination that no independent
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 person had agreed to become a witness and in the light of such a statement, there is no reason for the courts to doub t the version of the police and the recoveries made.
450. When recovery is made pursuant to the statement of the accused, seizure memo prepared by the investigating officer need not mandatorily be attested by independent witnesses. In State (Govt. of NCT of Delhi) 60 v. Sunil , it was held that non-attestation of seizure memo by independent witnesses cannot be a ground to disbelieve recovery of articles' list consequent upon the statement of the accused. It was further held that there was no requirement, either under Section 27 of the Evidence Act or under Section 161 CrPC to obtain signature of independent witnesses. If the version of the police is not shown to be unreliable, there is no reason to doubt the version of the police regarding arrest and contents of the seizure memos."
(emphasis supplied)
27. Sri Monesh Kumar referred to another judgment of the Supreme Court in the case of SUBRAMANYA V. STATE OF KARNATAKA
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 (CRIMINAL APPEAL NO.242/2022) where a procedure for recording disclosure statement of an accused under Section 27 of the Evidence Act has been evolved. It is observed that the investigating officer should secure two independent witnesses to the police station and the accused should be asked whether he is desirous of making a statement in relation to the place where the weapons are hidden. Referring to this judgment Sri Monesh Kumar argued that since this procedure was not followed while obtaining the statement of accused No.2, the seizure of her clothes cannot be acted upon. But this argument cannot be accepted. The reason is that the Hon'ble Supreme Court has made it very clear that if such a procedure is adopted, it lends credence to the statement made by the accused. Moreover in the cited case, the factual position narrated in para 77 shows that none of the witnesses had deposed the exact statement made by the appellant/accused in
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 regard to discovery under Section 27 of the Evidence Act. In the case before us, the evidence of the witnesses is cogent. In any case for that matter, it is highly impossible to expect the witnesses speak in exactitude, it is enough if they speak cogently to a particular relevant fact. It may also be stated that if the investigators adopt the mode as evolved by the Hon'ble Supreme Court, it may help prosecution.
27.1 Therefore there cannot be any fuss in the seizure of the clothes of accused No.2.
28. So far as the seizure of the clothes of accused No.1 is concerned it was not based on voluntary statement. He himself produced his blood stained clothes before the police in the station. The argument of Sri Hashmath Pasha was that it was highly impossible to believe that accused No.1 was wearing the blood stained clothes for two days. This cannot be the sole
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 reason for disbelieving the testimonies of the independent witnesses, viz., PW4, PW10 and PW11, who have clearly testified the fact of seizing the clothes of accused No.1 by drawing the mahazar as per Ex.P7. It can also be stated that it lay within the knowledge of accused No.1 to explain as to why he was wearing the blood stained clothes till 12.01.2016. So far this circumstance is concerned, it may be stated that the evidence is sufficient enough to be believed and acted upon.
29. Seizure of weapons, a club (MO1) and a knife (MO10) is another circumstance which the trial court has held to have been proved. Again the testimonies PW4, PW10, PW11 and PW17 have a bearing on this circumstance. Ex.P6 is the mahazar drawn in this regard. PW17 has stated that consequent to voluntary statement of accused No.1 - Raghavendra, the CPI got a mahazar Ex.P6
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 drawn up and seized MO1 and MO10. This evidence of PW17 is not controverted in his cross- examination. PW4, PW10 and PW11 have also given a vivid account that accused No.1 himself took them and the police to a vacant plot situate near Modern School, took out a knife and a club from a shrub and, produced before the police. Except giving suggestion to these witnesses that accused No.1 did not produce the weapons, nothing worth mentioning here was elicited from them. But the argument by Sri Hashmath Pasha was that this seizure was inadmissible because the voluntary statement was obtained when accused No.1 was not in police custody. He has founded this argument because of some ambiguity in the date of arrest of accused No.1 about which we have dealt with already while discussing evidence on the circumstance of seizure of blood stained clothes of both the accused. The conclusion to be drawn is that seizure of weapons at the instance of
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 accused No.1 was consequent to disclosure of the fact of concealment of the weapons made by him in his voluntary or confession statement while being in police custody. Though the trial court has not given elaborate reasons on this circumstance, in our opinion the conclusion arrived at by the trial court is correct.
30. Comparison of chance palm print found on the wall with the palm print of accused No.1 is another circumstance which the trial court has relied upon and held to be proved. Placing reliance on the evidence given by PW12, the trial court has opined that PW12 being a finger print expert did not have any reason to depose that the chance print matched with the palm print of accused No.1. Refuting the argument of the defence counsel before the trial court that the evidence of PW12 and his opinion regarding matching of the palm prints was worth rejection as
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 the chance prints were not lifted in accordance with Section 5 of the Identification of Prisoners Act, 1920, it has held that in view of the judgments of the Supreme Court in MOHAMMED AMAN V. STATE OF RAJASTHAN [AIR 1997 SC 2960], SHANKARIA V. STATE OF RAJASTHAN [1978(3) SCC 435] AND STATE OF BOMBAY V. KATHI KALU OGHAD [AIR 1961 SC 1808], there was no bar for the police officials to take the palm prints of the accused for the purpose of investigation and therefore held that the chance print found on the wall was that of accused No.1.
31. In our opinion this finding of the trial court does not appear to be incorrect. The evidence in this regard is only corroboratory. PW12 is a finger print expert. His testimony is that after receiving a phone call from Police Control Room he visited the place of occurrence at 3.30am on 10.01.2016. Inspecting the spot he
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 found palm prints on the table situated inside the house and also on the wall near the dead body of Mahendra. He took photographs of the palm prints. He gave a marking 'A' to the palm print found on the wall and 'B' to the palm print found on the table. He also collected palm prints of Mahendra, the deceased and Pooja the second accused on white papers. Returning to his office he compared the palm prints marked A and B with the palm prints of deceased and accused No.2. The palm print in photograph B tallied with the palm print of deceased Mahendra. He compared the palm print in photograph A with the palm prints available in his office bureau (palm prints records), but there was no matching. On 14.01.2016, the CPI of Malur circle sent the finger prints and palm prints of accused No.1 for comparison with palm print A. On comparison of the both, he noticed that the right palm print of accused No.1 tallied with blood stained palm print
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 A. In this regard he gave reports as per Ex.P17 and P18. The reports contain the reasons for his conclusions. Ex.P19 is the compared charting information. When PW12 was examined for the first time, the photographs that he took were not marked and for this reason, he was recalled for further examination-in-chief on 13.09.2017 by making an application under Section 311 of Cr.P.C. In his further examination in chief, the photographs Exs.P21 and P22 were marked along with the CD of the photographs as per MO15. Suffice it to say that the cross examination does not contain anything more than questions relating to his expertise in the field and there is no question having the effect of dislodging his opinion.
32. Sri Hashmath Pasha sought to reject the testimony of PW12 for these reasons. His first line of argument was that no panchanama was drawn
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 when PW12 took the photographs at the scene of occurrence and thereby his testimony lacks credence. Secondly the palm print of accused No.1 was not obtained in accordance with Section 5 of the Identification of Prisoners Act, 1920 and thirdly that the photographs Exs.P21 and 22 and their CD-MO15 being secondary evidence could not have been acted upon by the trial court for want of the certificate under Section 65B of the Indian Evidence Act.
33. The reply of Sri Vijayakumar Majage was that PW12 has not been discredited in the cross examination. There is no suggestion at least that there were no palm prints on the table and on the wall. It was not necessary to draw the mahazar while lifting the palm prints. He submitted that lifting the palm print of accused No.1 was in accordance with Section 4 of the Identification of Prisoners Act, 1920. It was not necessary that
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 finger prints or palm prints should always be lifted following the procedure envisaged under Section 5. In regard to non production of certificate under Section 65B of the Indian Evidence Act, his reply was that since PW12 himself snapped the photographs, and he himself came to court to depose, production of certificate was not necessary.
34. Before giving a finding whether the evidence in this regard is worth acceptance or not, it is necessary to refer to a decided case of the Supreme Court cited by Sri Hashmath Pasha.
35. In HARI OM ALIAS HERO V. STATE OF UTTAR PRADESH [(2021) 4 SCC 345], the question that arose was whether criminal liability could be fastened on the accused with the help of finger print expert's opinion. The facts and circumstances therein clearly indicate that a police constable by name Dharmendra Singh lifted the
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 finger prints from the house of the deceased. The finger prints were picked from the glasses allegedly used by the accused for drinking water. The report did not show the method applied for lifting the finger prints. Dharmendra Singh was also not examined. The lifted finger prints were also not properly preserved. In these circumstances the Hon'ble Supreme Court expressed an opinion that it was not safe to rely upon the opinion of the finger print expert. So it is clear that applicability of Section 5 of the Identification of Prisoners Act, 1920 did not emerge for discussion. With great respect we hold that this decision is of no help to accused No.1.
36. In the case of SHANKARIA V. STATE OF RAJASTHAN (supra), a decision followed by the trial court, a specific question as to applicability of Section 5 of the Identification of Prisoners Act, 1920 has been discussed. It is clearly held that
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 the police were competent under Section 4 of the said Act to take the specimen finger prints of the accused.
37. Dealing with akin situation, the Division Bench of the High Court of Madras in the case of MANICKAM V. STATE BY THE INSPECTOR OF POLICE, CHITHODE POLICE STATION, ERODE DISTRICT [2009 SCC ONLINE MAD 1409] has held in clear words that:
34. There is no law which prohibits the Investigating Officer from lifting the Finger Print of the accused for comparison during the course of investigation of the case. In fact, the provisions found under Section 5 of the Identification of Prisoners Act, 1920, and Section 311-A, Cr.P.C. speak only about the powers of the learned Judicial Magistrate, when he is approached by the Investigating Officer concerned for a suitable direction to the accused to co-
operate by giving his finger print or signature or sample hand-writing as the case may be. It is to be noted that those
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 provisions do not put an embargo on the Investigating Officers from acting on their own for lifting the finger print, signature or handwriting of the accused during the course of Investigation. The Supreme Court has not laid down that the Investigating Officer should mandatorily invoke the provision under Section 5 of the Identification of Prisoners Act, 1920, whenever he resorts to lift the finger print of the accused for the purpose of Investigation of the case.
(emphasis supplied)
38. Given a close reading to Sections 4 and 5 of the said Act, a marked distinction can be noticed. If the Act necessitated obtaining of measurements in accordance with Section 5 only there was no necessity of having Section 4. Section 4 allows a police officer to take the measurements in the prescribed manner of a person arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards. Section 3 deals with
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 taking of the measurements and photographs of a convicted person. Therefore it is explicit from Section 4 that finger prints of only an arrested, not convicted may be taken by a police officer during investigation. Section 5 comes into operation in a circumstance where a person refuses to allow his measurements to be taken by a police officer. In that event he may be produced before the Magistrate to obtain a direction to such person to give his measurements. Therefore the argument of Sri Hashmath Pasha cannot be accepted.
39. PW12 is an expert. His report contains the reasons for his conclusions that chance print 'A' was that of accused No.1 and there are no reasons to discard his uncontroverted testimony just because mahazar was not drawn. The police could have drawn a mahazar at that time, but merely because it was not drawn, the testimony of PW12 and his report is not liable to be rejected.
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 He has stated that one Kempanna was present at the time of lifting or photographing the chance print. It was argued by Sri Hashmath Pasha and Sri Monesh Kumar that Kempanna should have been examined. It was not necessary because Kempanna was the Assistant of PW12.
40. Production of certificate under Section 65B of the Indian Evidence Act was not required inasmuch as it is the clear evidence of PW12 that he himself took photographs of the palm prints found on the table and the wall and developed the prints. Certificate is not necessary in a situation like this. Cogent evidence on the circumstances being available, it can be concluded that this circumstance is also proved.
41. Ex.P30 is the FSL report which was marked with consent of learned counsel for accused No.1. That means the defence does not dispute the contents of Ex.P.30 which clearly
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 states that the A group human blood was detected in item No.1-blood stained granite stone powder, item No.3 - a bed sheet, items No.4 and 5 - the clothes of accused No.2, items No.7, 8, 11, 12, 13 and 14 the clothes of accused No.1, and item Nos.9 and - 10 a neelagiri club and a knife respectively. The FSL report is corroborative to other evidence.
42. The prosecution version in regard to motive is that since there was illicit relationship between both the accused, they thought the deceased to be an hurdle in their way and they decided to eliminate him. The trial court has given a finding that though the prosecution has not been able to prove the motive, the absence of proof does not break the chain of link in the circumstances since it is hardly possible to prove the illicit relationship. Both the counsel for the accused argued that in a case based on
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 circumstantial evidence, motive is required to be proved or otherwise the link in the chain does not become complete.
43. On this point it is to be stated that direct evidence is seldom available for proving illicit relationship. It is only inferential from other proved facts. Motive prompts a person to develop an intention to commit crime. Since motive is a mental process, it is difficult to obtain proof, especially when the illicit relationship is projected to be a background for murder. Though proof is not made available, it cannot be said that a crime is not committed without a motive. In this case PW1, the father-in-law of accused No.2 has stated about illicit relationship based on the information given to him by the police. Sri Monesh Kumar argued that since PW1 has admitted in the cross examination that accused No.2 and the deceased had cordial relationship, illicit relationship between
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 both the accused cannot be suspected. It is true that PW1 has given an answer like this in the cross examination. For that reason alone inference cannot be drawn that there was no illicit relationship. The evidence clearly discloses that she was very much present in the house when PW1 and others returned to Malur soon after getting information of murder of the deceased. She told PW1 at that time that some stranger came and assaulted her husband. Apparently this answer appears to be falsehood. It is not her statement that a stranger broke open the door and entered the house to commit robbery. The attending circumstances did not disclose any attempt to commit theft or robbery. Or there must be some other reason for accused No.1 going to the house of the deceased during late night. There is no explanation either by accused No.1 or accused No.2 when they were examined under Section 313 of Cr.P.C. Accused No.2 has not stated that she
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 did not know accused No.1 at all. The blood stains found on their clothes clearly point to their involvement in commission of crime. When there is no other possible explanation, the only probable inference that can be drawn is that there might exist illicit relationship between the accused. Therefore motive can be inferred from these attending circumstances.
44. The trial court has applied Section 106 of the Indian Evidence Act to draw adverse inference against accused No.2 especially. The findings are that accused No.2 was very much present in the house at the time of occurrence and the fact as regards the death of her husband unnaturally lay within her special knowledge. When she offered no explanation, adverse inference is required to be drawn against her.
45. But Sri Monesh Kumar placed reliance on judgment of the Supreme Court in the case of
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 STATE OF PUNJAB VS. KEWAL KRISHAN [CRIMINAL APPEAL NO.2128/2014] to argue that Section 106 of the Evidence Act cannot be applied when the prosecution has failed to discharge its primary burden of proving the case beyond reasonable doubt. This is a well established preposition. No adverse inference can be drawn against an accused for failing to offer an explanation under Section 106 of the Evidence Act unless the initial burden is discharged by the prosecution. In the cited case the Hon'ble Supreme Court found that the incriminating circumstances were not proved and the chain did not become complete. In the present case, it is not so. The discussion made above clearly shows all the links in the chain of circumstances being proved with cogent evidence. The burden was very much on accused No.2 to explain as to how her clothes got stained with blood. If she was innocent of the crime, chances of her clothes
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 getting stained with blood were very remote or even impossible. It is not even brought out that she rushed to the rescue of her husband when accused No.1 or some stranger attacked him, in which event there was such a possibility. Looked in this view, her silence is a factor to be considered against her. Therefore in a situation like this, Section 106 of the Evidence Act can certainly be applied to draw an inference about her complicity in the commission of crime.
46. Now if the entire evidence is put to analysis, it can very well be concluded that primary evidence brought on record in regard to every circumstance completes the chain without paving way to entertain a reasonable doubt in any form at the end. To be stated, the report of the experts on palm prints matching and blood group detected on the seized clothes fortify the evidence on the main circumstances. The accused stand
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 inescapably amid the sphere of circumstances. Hence both the appeals are dismissed confirming the judgment of the trial court.
Sd/-
JUDGE Sd/-
JUDGE SD,KMV List No.:1 Sl No.:2
47. After pronouncement of the judgment Sri Hashmath Pasha, learned senior counsel submits that the trial court has directed accused No.1 and 2 to pay an amount of Rs.1,00,000/- to PW1 towards compensation. Since both the accused are in custody they have no money to compensate PW1. He also submits that accused No.1 was a student at the time when the incident
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018 occurred and he has no property also. Therefore he requests for waiving the compensation imposed on the accused.
48. Sri Vijay Kumar Majage, learned SPP-II submits that unless the parents of the deceased are suitably compensated, the ends of justice will not meet.
49. Taking note of the fact that both the accused are in custody since the date of their arrest and that they were unemployed, even if there is a direction to pay compensation, they may not be able to pay the amount. In that event no purpose will be served. In this view, instead of directing both the accused to pay compensation, the District Legal Services Authority, Kolar is hereby directed to suitably compensate PW1 by holding necessary enquiry. To this effect the order of the trial court stands modified.
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NC: 2024:KHC:7533-DB CRL.A No. 1291 of 2020 C/W CRL.A No. 1297 of 2018
50. Both the accused are entitled to set off for the period they have already spent in jail.
Sd/-
JUDGE Sd/-
JUDGE SD,KMV List No.: 1 Sl No.: 2