Karnataka High Court
The Registrar General vs Venkatesha @ Chandra on 5 July, 2017
Bench: Ravi Malimath, John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 5th DAY OF JULY, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR.JUSTICE JOHN MICHAEL CUNHA
CRL.RC.NO.9 OF 2010
c/w
Crl.A.No.152 of 2011
c/w
Crl.A.No.1031 of 2011
IN CRL.RC.NO.9 OF 2010
BETWEEN:
THE REGISTRAR GENERAL
HIGH COURT OF KARNATAKA
BENGALURU-560001 ... PETITIONER
(By Sri: H N NILOGAL SPL PP)
AND:
1. VENKATESHA @ CHANDRA
S/O VENKATASWAMY,
AGED 36 YEARS,
DINNUR COLONY, KADUGODI
BANGALORE RURAL
2. MUNIKRISHNA @ KRISHNA
2
S/O VENKATASWAMY
AGED 29 YEARS,
DINNUR COLONY, KADUGODI,
BANGALORE RURAL
3. NALLA THIMMA @ THIMMA
S/O MR.GORABOVI,
AGED 31 YEARS,
PERIYAPATNA,
MYSURU DISTRICT. ... RESPONDENTS
(By SRI: HASMATH PASHA A/W
SRI: TEJAS N., ADVS FOR R1 & R2
SRI: I.S.PRAMOD CHANDRA, ADV FOR R3)
THE CRIMINAL REFERRED CASE IS REGISTERED AS
REQUIRED UNDER SECTION 366(1) CR.P.C. FOR
CONFIRMATION OF DEATH SENTENCE AWARDED TO
ACCUSED 1) VENKATESH @ CHANDRA, UTP NO.10175, 2)
MUNIKRISHNA @ KRISHNA, UTP NO.10178 3) NALLA
THIMMA, UTP NO.10177 BY JUDGMENT DATED
30.6.2010/30.9.2010 PASSED IN S.C.NO.59/2005 ON THE
FILE OF THE XXXIV-ADDL CITY CIVIL & SESSIONS JUDGE
(SPL. COURT), CENTRAL PREMISES, BENGALURU.
IN CRL.A.NO.152 OF 2011
BETWEEN:
1. MR.VENKATESH @ CHANDRA
S/O MR.VENKATASWAMY,
AGED 41 YEARS,
R/O DINNUR COLONY, KADUGODI DELETED VIDE
BANGALORE (R) DISTRICT COURT ORDER
DATED
28.10.2015
2. MR. MUNIKRISHNA @ KRISHNA
S/O MR. VENKATASWAMY
AGED 35 YEARS,
3
R/O DINNUR COLONY, KADUGODI,
BANGALORE (R) DISTRICT
3. MR. NALLATHIMMA @ THIMMA
S/O MR.GORABOVI,
AGED 36 YEARS,
R/O PIRIYAPATTNA,
MYSURU DISTRICT. ... APPELLANTS
(By Sri: I S PRAMOD CHANDRA, ADV FOR A3
APPELLANTS NOS. 1 AND 2 ARE DELETED VIDE
COURT ORDER DATED 28.10.2015)
AND:
STATE OF KARNATAKA
BY HUBBALLI POLICE
THROUGH THE
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU ... RESPONDENT
(By Sri: H.N. NILOGAL, SPP)
THIS CRL.A. FILED U/S.374(2) CR.P.C BY THE ADV.,
FOR THE APPELLANTS PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND
SENTENCE DATED 30.06.2010 AND 30.09.2010 PASSED BY
THE XXXIV ADDL. CITY CIVIL AND S.J. (SPL. COURT), IN
THE PREMISES OF CENTRAL PREISON, PARAPPANA
AGRAHARA, BANGALORE, IN S.C.NO.59/2005 -
CONVICTING THE APPELLANT/ACCUSED NO.3 FOR THE
OFFENCE P/U/S 302 AND 459 OF IPC. THE
APPELLANT/ACCUSED NO.3 IS SENTENCED TO UNDERGO
TO DEATH. HE SHALL BE HANGED BY NECK TILL HE IS
DEAD AND TO PAY FINE OF RS.5,000/- FOR THE OFFENCE
P/U/S 302 OF IPC. FURTHER THE APPELLANT/ACCUSED
NO.3 IS SENTENCED TO UNDERGO LIFE IMPRISONMENT
AND TO PAY FINE OF RS.10,000/- FOR THE OFFENCE P/U/S
4
459 OF IPC. THE APPELLANT/ACCUSED NO.3 IS PRAYS
THAT HE BE ACQUITTED.
IN CRL.A.NO.1031 OF 2011
BETWEEN:
1. VENKATESH @ CHANDRA
S/O VENKATASWAMY
AGED ABOUT 36 YEARS
R/O DINNUR COLONY
KADUGODI,
BANGALORE RURAL.
2. MUNIKRISHNA @ KRISHNA
S/O VENKATASWAMY
AGED ABOUT 29 YEARS
R/O DINNUR COLONY,
KADUGODI ,
BANGALORE RURAL. ... APPELLANTS
(By SRI: HASMATH PASHA A/W
SRI: TEJAS N. ADVOCATES)
AND:
STATE OF KARNATAKA
BY HUBLI POLICE STATION,
HUBLI.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR) ... RESPONDENT
(By Sri: H.N.NILOGAL, SPP)
THE CRL.A. FILED U/S.374 (2) CR.P.C BY THE ADV.,
FOR THE APPELLANTS/ACCUSED NO.1 AND 2 PRAYING
THAT THIS HON'BLE COURT MAY BE PLEASED TO SET
5
ASIDE THE JUDGMENT DT.30.6.10/30.9.10 PASSED BY THE
XXXIV ADDL. CITY CIVIL & S.J. (SPL. COURT), CENTRAL
PRISON, PARAPPANA AGRAHARA, BANGALORE IN
S.C.NO.59/05 - CONVICTING THE APPELLANTS/ACCUSED
FOR THE OFFENCE P/U/S 302, 459 OF IPC. THE
APPELLANTS/ACCUSED NO.1 AND 2 ARE SENTENCED TO
DEATH. THEY SHALL BE HANGED BY NECK TILL THEY ARE
DEAD AND PAY A FINE OF RS.5,000/- EACH, FOR THE
OFFENCE P/U/S 302 OF IPC AND THE
APPELLANTS/ACCUSED NO.1 AND 2 ARE SENTENCED TO
IMPRISONMENT FOR LIFE AND PAY A FINE OF RS.10,000/-
FOR THE OFFENCE P/U/S 459 OF IPC; THE
APPELLANT/ACCUSED PRAYS THAT THEY BE ACQUITTED.
THIS CRL.RC A/W CRL.A.NO.152 OF 2011 &
CRL.A.NO.1031 OF 2011 COMING ON FOR HEARING THIS
DAY, JOHN MICHAEL CUNHA J., DELIVERED THE
FOLLOWING:
JUDGMENT
Criminal Referred Case.No.9 of 2010 is registered on the basis of the reference made by the XXXIV City Civil and Sessions Judge (Special Court), Central Prison, Parapanna Agrahara, Bengaluru, under Section 366(1) of Cr.P.C. seeking confirmation of the sentence of death awarded on respondent Nos.1 to 3(hereinafter referred to as 'accused Nos.1 to 3') for the offences punishable under sections 459 & 302 Indian Penal Code as per the order dated 30.9.2010 in S.C.No.59/2005.
6
2. Feeling aggrieved by the very same judgment dated 30.06.2010 and the order of sentence dated 30.09.2010 accused Nos.1 and 2 have preferred Crl.A.No.1031/2011 and accused No.3 has preferred Crl.A.No.152/2011 under Section 374(2) Cr.P.C.
3. As the legality and correctness of the judgment of conviction and order of sentence is questioned by accused Nos.1 to 3, the above appeals are required to be considered first and depending upon the findings that may be recorded therein, the reference is required to be answered.
4. We have heard the learned counsel appearing for the respective appellants/accused Nos.1 to 3 and the learned Addl. Special Public Prosecutor for respondent - State in all the above three proceedings.
5. The facts leading to the above proceedings are that one Mallikarjuna S. Dekani was running a business in Machineries and Oil Seals in a shop owned by him at Coen Road, Hubli. He was aged about 83 years. He used to sleep 7 in the same shop. On 19.2.2000, in the morning, not sighting the said Mallikarjuna Dekani in the shop, the neighbouring shop owner viz., PW-10 Pramod informed another adjacent shop owner PW-6 Prakash and both of them knocked the door of the shop. Having failed to elicit any response, they informed the son of the aforesaid Mallikarjuna viz., PW-1- Srikanth, who rushed to the spot alongwith his wife Alaka(PW-4). They in-turn informed the police and the police also arrived to the spot. When PW-1, PW-4, PW-6 and PW-10 alongwith the police entered the shop, they found the aforesaid Mallikarjuna Dekani lying in between the racks, his hands and legs tied with cloth and his mouth gagged with cloth piece. There were injuries on his forehead and back of his neck; he was unconscious. Immediately, he was shifted to K.M.C Hospital, Hubli, whereafter, he was taken to Shivakrupa Hospital, Hubli and was treated as inpatient for about 40 days. Even during this period, he did not regain consciousness and there was no sign of improvement and hence, he was shifted to 8 Padmashri Hospital, Bengaluru, where he died on 12.05.2000.
6. The report regarding the incident was lodged by PW-1 on 19.2.2000, based on which, PW-13-PSI of Town Police Station, Hubli registered a case in Cr.No.43 of 2000 for the offences punishable under sections 448 and 307 Indian Penal Code against unknown persons. He conducted the spot mahazar in the presence of PW-2 and another panch witness and seized the blood stains from the spot of occurrence and also the T-Shirt and the cloth with which the injured was tied. The further investigation was continued by PW-11. However, no clue of the perpetrators of the crime was available to the police.
7. That being the case, on 31.1.2001, PW-9-the PSI of Vijayanagar Police Station, Bengaluru arrested accused No.1 in Cr.No.353/1999. On 31.1.2001, he received an information that accused No.1 along with the other accused in the aforesaid crime escaped from Chittoor Jail where they were lodged. On credible information about the hideout of 9 accused No.1, at about 9.00 p.m., on 31.1.2001, accused Nos.1 to 3 were apprehended in the outskirts of Echanur village. On recording their voluntary statement, PW-9 came to know about the involvement of accused Nos.1 to 3 in various crimes including the one registered by PW-13 in Cr.No.43/2000. On receiving this information, PW-14, the subsequent Investigating Officer secured the records from PW-9 viz., the copies of the voluntary statements and the panchanamas and made an application to the JMFC, Hubli to secure the presence of accused Nos.1 to 3 by issue of body warrant. On 10.4.2001, accused Nos.1 to 3 were produced before the JMFC, Hubli and were handed over to the custody of PW-14. Based on the voluntary statement of accused Nos.1 to 3, PW-14 recovered a knife M.O.8, another knife M.O.9 at the instance of accused Nos.1 and 2 and an iron rod M.O.10 at the instance of accused No.3. In the course of the investigation, he recorded the statement of Finger Print Expert PW-15 Sri. H.A. Ankegowda and laid the charge sheet against four accused persons for the offences 10 punishable under sections 392, 307, 448 and 302 Indian Penal Code.
8. Upon hearing the accused and their counsels, the trial court framed charges for the offences punishable under sections 448, 392, 302 r/w 34 Indian Penal Code and recorded the evidence of 19 witnesses and admitted in evidence 26 documents as Exs-P1 to P26 and material objects M.O.1 to M.O.10 and based on this evidence found accused Nos.1 to 3 guilty of the offences punishable under section 302 and Section 459 of Indian Penal Code; whereas accused No.4 was acquitted of all the charges.
9. While imposing the sentence, the trial court having noted that accused Nos.1 to 3 were guilty of committing a heinous offence and that they were involved in various similar offences in as many as 111 cases and were members of an organised gang, who adopted similar modus-operandi, was of the opinion that the offence committed by accused Nos. 1 to 3 fall within the category of 11 "rarest of rare cases" and accordingly imposed death sentence on accused Nos.1 to 3.
10. Accused Nos.1 to 3 are now before this Court challenging the above judgment of conviction and the order of sentence.
11. We have heard the learned counsel for the appellants and the learned Special Public Prosecutor for the State.
12. The learned counsel for the appellants have raised multipronged contentions. Leading the argument on behalf of the appellants, Sri. Hasmath Pasha, the learned counsel submits that accused Nos. 1 to 3 are convicted for the offence punishable under section 459 Indian Penal Code, without there being any charge for the said offence. Learned counsel points out that the charge was framed for the offence under Section 448 Indian Penal Code, which is an independent offence and therefore, the conviction of the accused for the offence under Section 459 Indian Penal Code is patently illegal. Even with regard to the charge 12 under Section 302 Indian Penal Code is concerned, it is the argument of the learned counsel that there is no evidence whatsoever to show that any of the accused inflicted injuries on the deceased with an intention to cause death. The medical evidence does not establish that the deceased died due to injuries. The facts on record indicate that the deceased died about 83 days after his admission into the hospital due to infection of lungs, which is purely a medical complication, which cannot even remotely be connected to the injuries suffered by the deceased. Therefore, in the absence of any proof of the ingredients of the offence of murder, the conviction of the appellants under Section 302 Indian Penal Code is patently illegal and cannot be sustained.
13. Strongly commenting on the approach adopted by the trial court in appreciating the evidence, the learned counsel for the appellants have taken us through the entire oral and documentary evidence and have emphasized that the case of the prosecution is rested on two incriminating circumstances namely;
13
(i)chance finger prints of the accused found at the spot of occurrence;
(ii)the recovery of weapons at the instance of the accused;
14. In regard to the first circumstance namely the chance finger prints found at the spot, it is the submission of the learned counsel that the F.I.R. was registered at 1.00 p.m. PW-13 who registered the FIR has stated that after registration of the FIR, he proceeded to the spot and commenced the investigation; whereas PW-12 -the Finger Print Officer who is stated to have lifted the chance finger prints from the spot of occurrence has stated that he visited the spot of occurrence at about 10.45 a.m. on the same day i.e., on 19.1.2000. The attendance report submitted by him at Ex-P9 indicates that he visited the spot at 10.45 a.m., but, surprisingly, in the said document the crime number of the case registered by PW.13 also finds place. If infact PW.12 had visited the spot prior to the registration of the F.I.R. as stated by him, the crime number would not have 14 been written in Ex.P9 which goes to show that Ex.P9 has not come into existence on 19.1.2000 as sought to be made out by the prosecution.
15. Further, placing reliance on the decisions in (i). MAHMOOD -vs- STATE OF UTTAR PRADESH, (1976) 1 SCC 542, (ii). MOHD. AMAN AND ANOTHER etc., -vs- THE STATE OF RAJASTHAN WITH BABU KHAN -vs- THE STATE OF RAJASTHAN, (1997) 10 SCC 44 (iii). PRAKASH -vs- STATE OF KARNATAKA, (2014) 12 SCC 133, the learned counsel has built up an argument that the evidence produced by the prosecution in proof of the above circumstance suffers from glaring defects and infirmities. The formalities that are required to be followed while lifting the chance finger prints from the scene of occurrence has not been followed. No panchanama has been prepared; the articles on which the said chance finger prints are said to have been found are neither seized nor produced before the court. The original chance finger print is not produced before the court. The photographs or the negatives thereof are also not on record. These defects not only weaken the circumstantial 15 evidence relied on by the prosecution but also raises serious doubt about the very existence of the said chance finger prints as contended by the prosecution. Further the learned counsel points out that no witnesses have come forward to identify the said chance finger prints and it is not proved by the prosecution that the said chance finger prints were that of accused Nos.1 to 3. Though PW.12 has stated that he lifted the chance finger prints in a cellophane tape, there is no material to show that the said cellophane tape containing the chance finger prints is either preserved or entrusted to the Investigating Officer. All these infirmities render the evidence relating to chance finger prints highly suspicious and unreliable.
16. Dilating on the above point, the learned counsel submits that according to the prosecution, after the arrest of the accused, the specimen finger prints were obtained in the Police Station. Even in this regard, the procedure adopted by the Investigating Officer is contrary to section 5 of The Identification of Prisoners Act, 1920 which mandates that the specimen finger prints of a convict or an under-trial 16 can be obtained by the Police Officer only with prior order of the Magistrate. In support of this argument, learned counsel has referred to the case of PRAKASH vs STATE OF KARNATAKA reported in (2014) 12 SCC 133, wherein the Hon'ble Supreme Court has held that "to obviate any suspicion regarding the circumstances in which the specimen finger print was taken, it is eminently desirable that the finger prints are taken before or under the order of a Magistrate." It is the submission of the learned counsel that in the instant case, the prosecution having failed to adhere to this mandatory requirement, the evidence relating to the specimen finger prints could not have been relied on by the trial court.
17. Further, the learned counsel submits that the evidence of the finger print expert is only an opinion evidence which could have been relied on by the trial court only if the same was supported by valid reasons in justification thereof. Whereas, in the instant case, though PW-15 has come forward to say that he furnished the opinion as per Ex-P22, except the bald opinion, no reasons 17 are appended either to the said report nor has PW-15 spoken about any grounds in justification of the opinion given by him as per Ex-P22. On this point, the learned counsel has referred to the pronouncement of the Hon'ble Supreme Court in the case of STATE OF H.P. vs JAI LAL AND OTHERS, (1999)7 SCC 280 at para 18.
18. Regarding the second circumstance relied on by the prosecution viz., the recovery of the weapon, the learned counsel submits that the evidence produced by the prosecution in this regard does not in any way incriminate the accused in the alleged offence. The voluntary statements attributed to the accused are not produced before the Court. Though during the evidence, the copies of the voluntary statement were marked subject to the production of the original or the certified copies thereof, the records do not disclose that the prosecution has either produced the original or the certified copy thereof. Therefore, in the absence of any disclosure statement, recovery of weapons is rendered meaningless as held by the Hon'ble Supreme Court in the case of BHIMAPPA JINNAPA 18 NAGANUR -vs- STATE OF KARNATAKA, AIR 1993 SC 1469. Hence, this circumstance also does not enure to the benefit of the prosecution to substantiate the charges levelled against the accused.
19. Alternatively, the learned counsel submits that even assuming that the weapons were recovered at the instance of the accused, in the absence of any convincing evidence to show that the said weapons were used for causing the injuries which resulted in the death of the deceased, the said recovery cannot be connected to the accused so as to hold them guilty for the offence under Section 302 Indian Penal Code.
20. Referring to the medical evidence relied on by the trial court, the learned counsel submits that in the instant case undisputedly, the death has taken place 83 days after the deceased suffered the injuries. The Doctors who treated the deceased have not been examined. P.W.19, the Doctor who examined the deceased on the date of his admission in K.M.C. Hospital, has unequivocally stated that 19 the injuries sustained by the deceased could not have been caused by M.Os. 8 and 9, namely, by the knives recovered at the instance of accused Nos.1 and 2. Thus the prosecution is not left with any acceptable evidence to connect the said injuries to the death of the deceased. Consequently, the evidence on record is not sufficient to establish the charges leveled against the accused. Hence, the impugned judgment of conviction is liable to be set- aside at the hands of this court.
21. On the question of the death sentence awarded on the accused, the learned counsel submits that there was absolutely no material before the trial court to treat the alleged offence as falling within the category of "rarest of rare" cases. The trial court relied on statistical information furnished by the prosecution, even though the application moved by the prosecution to produce the records relating to the previous conviction of the accused was rejected by it. As a result, there was no basis for the trial court to form an opinion that the accused were members of a gang and that they were involved in similar heinous offences so as to 20 render them liable for the death sentence. The learned counsel further submits that the quality of evidence produced by the prosecution is not even adequate to convict them for a minor offence. Under the said circumstance, the death sentence awarded by the trial court cannot be sustained and the same may be set at naught. Sri.I.S. Pramod Chandra, the learned counsel for the appellant in Crl.A No.152/2011 has argued in line with the above submissions and has prayed for setting aside the impugned judgment and the sentence imposed by the court below.
22. Meeting the above arguments, the learned Special Public Prosecutor appearing for the State would submit that it is not mandatory under law to take the specimen finger prints of the under trial prisoners or the convict in the presence of the Magistrate. In view of section 4 of The Identification of Prisoners Act 1920, as amended by Karnataka Act 29 of 1975, the police officers are empowered to take the finger prints during investigation. The section reads as under:
21
"4. Taking of measurements or photographs of unconvicted persons :- Any person
a) Who has been arrested in connection with an offence punishable under section 96 of the Karnataka Police Act, 1963, or in connection with an offence punishable with rigorous imprisonment for a term of one year or upward or in connection with an offence for the commission of which on a second or subsequent occasion enhanced penalties have 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."
23. Based on the above provision, the learned Special Public Prosecutor submits that in the instant cases, the Investigating Officer has not committed any irregularity or illegality in obtaining the specimen finger prints of the accused and the same is legally admissible in evidence. 22
24. With regard to the collection of the chance finger prints from the sport of occurrence, the learned Special Public Prosecutor submits that PW.12, the finger print expert visited the spot immediately on receiving the information of the incident, as part of the routine procedure. PW.12 has spoken about this fact which is reflected in Ex- P9. The evidence of PW.12 in this regard has not been discredited in the cross-examination and no circumstances are brought out to falsify his evidence. Under the said circumstance, merely on the ground that case number has been mentioned in Ex-P9, his evidence cannot be discarded.
25. Referring to the evidence of PW-12, learned Special Public Prosecutor points out that the chance finger prints lifted by PW.12 was developed by him as per Exs-P10 and Ex-P11. The developed photographs Exs-P10 and P11 have been compared by PW.15 in arriving at the conclusion that the said finger prints tallied with the specimen finger prints of accused Nos.1 and 3 and accordingly, he issued his opinion as per Ex-P22. Even though Ex-P22 does not 23 contain the reasons or grounds in support of the opinion given by PW-15, yet in his evidence before the court, PW.15 has clearly narrated the reasons and the grounds in justification of the opinion. Even the said evidence has not been challenged in the cross examination. Therefore, it does not lie in the mouth of the appellants now to contend that the said opinion cannot be relied on by the prosecution.
26. With regard to the infirmities pointed out by the learned counsel for the appellants, the learned Special Public Prosecutor submits that the said discrepancies do not affect the opinion evidence given by PW.15 before the court below. On the other hand, the above evidence conclusively establishes that on the date of incident accused nos.1 to 3 had been to the spot of occurrence and had left their finger prints, which directly connects them to the incident in question.
27. The learned Special Public Prosecutor further submits that the above evidence coupled with recovery of the weapons at the instance of the accused completes the 24 chain of circumstances unerringly pointing out the involvement of accused Nos.1 to 3 in the offence. The medical opinion is also clear and definite that the deceased died on account of the injuries. The cause of death is certified as "respiratory failure as a result of lungs infection consequent upon the injuries sustained". The prosecution has proved that the primary cause for the death were the injuries suffered by the deceased. In the wake of this evidence, the trial court was justified in convicting accused Nos. 1 to 3, hence the impugned judgment does not call for interference by this Court. The learned Special Public Prosecutor has also argued in support of the death sentence imposed by the court below and has sought for confirmation of the death sentence.
28. We have bestowed our careful thought to the submissions made on both sides and have scrutinized the oral and documentary evidence available on record. In the light of the submissions made by the parties, the points that arise for consideration are:
25
i) Whether the judgment of the trial court suffers from perversity or illegality warranting interference by this court?
ii) Whether the sentence of death awarded by the court below deserves to be confirmed?
29. The records reveal that the prosecution has rested its case only on two circumstances. The first circumstance relied on by the prosecution is the finger print evidence. Though the learned counsel for the appellants have seriously contended that the evidence produced by the prosecution regarding the lifting of chance finger prints from the spot of occurrence is surrounded by suspicion, yet on going through the records, we find that in Ex-P2, viz., the Panchanama prepared on 19.2.2000, there is a specific mention that the Finger Print Officers had come to the spot and had collected the finger prints from the spot. In proof of Ex-P2, the prosecution has examined PW-2 who has stood by the contents of the said panchanama prepared between 2.00 p.m. - 3.00 pm on 19.2.2000. The evidence of PW-2 26 with regard to his presence at the time of preparation of Ex- P2 and the contents thereof have not been challenged in the cross-examination. In fact there is no cross-examination of PW-2 at all. As a result, we have to accept the contents of the said Ex-P2, which are also duly corroborated by the evidence of PW-13.
30. Thus to begin with, we have to proceed on the premise that the finger print experts had come to the spot and had collected the finger prints from the spot. In this context, if the evidence of PW-2 and the contents of Ex-P2 are analyzed in the backdrop of the evidence of PW-12, it is relevant to note that PW-12 has clearly stated before the trial court that on getting the information from the Police control room on 19.02.2000, he proceeded to the spot about 10.45 a.m. and searched for the finger prints and found two chance finger prints on a steel plate and on a steel tumbler. He has specifically stated that he lifted the said chance finger prints and marked them as Q and Q1 and after returning to his office, he compared the chance finger prints with the finger prints maintained in the office and 27 found that none of those finger prints tallied with the finger prints at Q and Q1 and accordingly he submitted a report in this regard as per Ex-P9.
31. Here-itself, it is relevant to note that in Ex-P9, it is specifically mentioned that PW-12 received the intimation from control room. Further, in Ex.P9 the time of the receipt of the information or the message is noted as 19.02.2000, at 10.45 a.m. In column No.9 of Ex.P9 it is stated that "two chance finger print mark is developed on a steel plate and a steel tumbler respectively, are lifted with my initials". Thus the contents of Ex.P9 lend suitable corroboration to the ocular testimony of Pw.2 and 12, thereby establishing that two chance finger prints were collected by PW.12 from the spot of occurrence on 19.02.2000.
32. But the crucial question that remains for determination is "whether the chance finger prints collected by PW.12 are proved to be that of the accused and whether the same were subjected to finger print examination and comparison with the specimen finger prints of the 28 accused?". To determine this question, we have carefully examined the evidence of PW-12 with reference to Ex.P9. At the threshold, it needs to be noted that though PW-12 has stated that he had submitted a report Ex.P9 to his superior officers, Ex-P9 does not contain any date on which the said report was submitted nor does it bear any initial or seal of the authorities for having received the same. There is nothing in the entire evidence of the prosecution to suggest that either the Investigating Officer or any of the superior officers of PW.12 received Ex.P9 at any point of time, as stated by PW.12. We find the evidence of PW.12 in this regard evasive and slippery. He has omitted to state as to whom and when did he submit this report. If the above evidence of PW-12 is analyzed in the back drop of the evidence of PW.15 who is said to have compared Ex-P10 and Ex-P11 with the specimen finger prints of the accused at Exs-P14, P15 and P16, it is relevant to note that PW-15 is specific in his evidence that on 10.4.2001, the Investigating Officer requested him to examine the finger prints of three persons and to compare them with the chance finger prints. 29 He has further stated that in respect of this, PW-12, namely Shri.Somarayappa, had already lifted and developed the chance finger prints. This statement implies that the finger prints lifted by PW-12 were examined by him. But PW-12 has nowhere stated in his evidence that he either entrusted the original chance finger prints or the developed finger prints at Exs-P10 and 11 to the Investigating Officer or to PW-15 at any point of time. Under the said circumstance, a serious doubt arises as to how Exs-P10 and P11 could come into the hands of PW-15. The Investigating Officer, PW-14 has nowhere stated in his evidence that in the course of investigation, either PW-12 or any other person produced Exs-P10 and P11 before him or that he entrusted Exs.P10 and P11 to PW.15 for examination and comparison. As a result, the very basis of the prosecution case that the chance finger prints lifted from the spot of occurrence were subjected to finger print examination is rendered doubtful.
33. The above conclusion gets reinforced from the fact that during his examination PW.12 himself has produced Exs-P10 and P11. If he had entrusted the said developed 30 prints Exs-P10 and P11 either to the Investigating Officer or to PW-15, he could not have produced them before the court. Undisputedly, Ex-P10 and P11 were not the part of the charge sheet. Therefore it stands established that Exs- P10 and P11 were with PW-12 till they were produced before the Court on 22.10.2005. Therefore, PW-15 could not have subjected them to examination and comparison as stated by him.
34. Be that as it may, PW-15 has stated in his evidence that he compared the chance finger prints at Q and Q1 with the specimen finger prints of the accused at Exs-P14 to P16 and found that the finger prints of accused Nos.1 and 3 tallying with the finger prints at Exs-P17 and P18. Regarding the marking of the Exs-P17 and 18, the learned Special Public Prosecutor has clarified that the very same Exs-P10 and P11 were remarked as Exs-P17 and 18. Yet, in the absence of any convincing evidence to show that the chance finger prints lifted from the spot of occurrence were handed over to PW.15 for examination and comparison, the opinion of PW.15 looses its meaning and 31 efficacy. The very fact that Exs-P10 and P11 were retained by PW-12 until they were produced before the court, the evidence of PW-15 that he examined and compared Exs-P10 and Ex-P11 with the specimen finger prints Ex-P14 to P16 stands falsified. As the prosecution has failed to prove that Exs. P10 and P11 relate to the chance finger prints lifted from the spot and the same were subjected to finger print examination, the evidence of PW.15 cannot be given any credence.
35. It is seen from the impugned judgment that the trial court has believed the evidence of PW.12 and PW.15 and has proceeded on the basis that the chance finger prints found at the scene of offence tallied with the specimen finger prints of the accused. This finding in our opinion is contrary to the evidence on record. As already discussed above, the evidence does not show that the chance finger prints were preserved by PW.12 and the same were handed over to the Investigating Officer or to PW.15. As rightly pointed out by the learned counsel for the appellants, the original chance prints said to have been 32 lifted on the cellophane tape are not before the court. Notwithstanding the judicial dictum laid down in the decision referred above which require the prosecution to produce the original finger prints, 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 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 19.02.2000 and the specimen finger prints were obtained after the arrest of the accused on 10.04.2001. Therefore, the possibility of the specimen finger prints themselves being developed as a photograph of the chance finger prints cannot be ruled out. Therefore the non-production of the original finger prints, in 33 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, the entire evidence relating to the above circumstance has rendered susceptible to doubt.
36. Coming to the evidentiary value of the testimony of PW.15 is concerned, he is examined as an expert witness. The law postulates that a person who renders an opinion should possess a special knowledge and expertise in the subject on which he is called upon to give his opinion. In other words, he must be an expert in the field and has to be qualified in that discipline of studies. Yet, an expert is not a witness of fact and his evidence assumes the character of the opinion evidence and therefore he is required to furnish reasons or the grounds in support of his opinion which could be tested in the cross examination. Section 45 of the Evidence Act makes the opinion of an expert admissible in evidence provided the opinion is backed by reasons and justifications. On this point the Hon'ble Supreme Court in 34 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 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)
37. In the instant case, as pointed out by the learned counsel for the appellants, Ex.P22 does not contain any reasons or grounds justifying the opinion given by the PW15. Even in his evidence except stating that the questioned finger prints and the specimen finger prints tallied on eight points, PW.15 has not delineated as to which 35 of those eight points on which he found the questioned finger prints tallied with the specimen finger prints. Therefore, even on this score the opinion evidence given by PW-15 cannot be ascribed any weight. As a result we do not have any hesitation to hold that the first circumstance relied on by the prosecution has not been proved in the manner known to law.
38. In view of the above conclusion, any further discussion on the second circumstance relied on by the prosecution may not assume any significance. However, as the prosecution has pressed into service the recovery of the weapons as yet another circumstance connecting the accused to the crime in question, we have scrutinized the material produced by the prosecution in proof of this circumstance. On this aspect, we are of the opinion that the evidence adduced by the prosecution is far from satisfactory and does not satisfy the basic legal requirements in proof of this circumstance. As already stated above, the so-called voluntary statements attributed to accused Nos.1 to 3 are not produced in evidence. Even 36 though xerox copies of the voluntary statements were marked as Exs-P14 to Ex-P16, subject to the production of the originals thereof, no attempt has been made by the prosecution to produce either the original or certified copies thereof. No panch witnesses have been examined to prove the recovery. Under the said circumstance, the recovery attributed to accused Nos.1 to 3 cannot be used as a piece of evidence within the meaning of Section-27 of the Evidence Act. Even if the said recovery evidence is treated as admissible under Section 8 of the Evidence Act, in our opinion, the case of the prosecution does not improve as the prosecution has not produced any acceptable evidence to show that the injuries sustained by the deceased were caused by the use of weapons MOs.8 to 10 purported to have been recovered at the instance of accused Nos.1 to 3. The medical opinion adduced by the prosecution does not establish that the injuries found on the deceased were caused by any of the weapons- MOs.8 to 10. In this context it may be relevant to refer to the postmortem report at Ex- 37 P7, wherein the injuries found on the deceased are noted as under:-
1. "Old healed Scar present over the Right side of the forehead measuring 12cms x 0.5cms.
2. Another old healed scar present 3 cm to the right of the Injury No.1 Measuring 6 cm x 0.5 cm.
3. Abrasion present middle of the outer aspect of the right elbow joint measuring 1cm x 1cm.
4. Abrasion present over the Medial side of the right knee measuring 3cm x 2cm.
5. Infected wound present over the lower inner aspect of the left fore arm measuring 12cm x 2cm.
6. Infected wound present over the back of the left fore arm measuring 6cm x 2cm.
7. Infected wound present over the left gluetial region measuring 6cm x 2cm (Bedsores).
8. Infected wound present over the right lateral malleolous measuring 3cm x 2cm."38
These injuries do not correspond to the injuries described by PW-1 and PW-2 in their evidence before the court. These witnesses have stated that when they saw the deceased on 19.2.2000 in the shop, they noticed injury on the head and back of the neck. Neither PW.1 and PW.2 nor any other witnesses have spoken about the various other injuries described in the postmortem report-Ex.P17. Therefore, in the absence of any evidence to show that the injuries found on the body of the deceased were inflicted with the weapons seized from the possession of the accused, the accused cannot be held responsible either for the death of the deceased or for the injuries suffered by him as noted in Ex.P17.
39. The facts and circumstances brought out in the evidence of the prosecution witnesses indicate that deliberate attempt has been made to trump up evidence by fabricating the theory of chance finger prints, after the arrest of the accused in other criminal cases. The facts discussed above clearly indicate that from the date of the registration of the FIR till the accused were apprehended for 39 more than one year two months, there were no clue about the perpetrators of the crime. It is only after the arrest of the accused, the Investigating Agency appears to have created the evidence of chance finger prints and based on the said circumstance, charges have been foisted against the accused. But as the prosecution has failed to prove any of these circumstances, the trial court was not justified in convicting the accused for the offence punishable under sections 459 and 302 of Indian Penal Code.
40. Thus on overall consideration of the facts and circumstances of the case and in the light of the evidence discussed above, we are of the considered opinion that the prosecution has failed to prove the complicity of accused Nos.1 to 3 in the death of the deceased. The prosecution has failed to establish that accused Nos.1 to 3 had barged into the shop of the deceased on 19.2.2000 and had inflicted injuries which resulted in his death. The primary circumstance relied on by the prosecution that the accused had left their chance finger prints at the spot of occurrence has remained unsubstantiated with any cogent and 40 convincing evidence. The opinion evidence relied on by the prosecution is not proved in accordance with law. The evidence led in by the prosecution is not sufficient to hold that finger prints found at the spot were that of the accused.
41. On going through the impugned judgment, we find that the trial court has believed the opinion evidence of PW-12 and PW-15 and has found the accused guilty of the offences charged against them. But on re-appreciation of the evidence, we find that the evidence of PW-12 and PW- 15 suffers from the basic infirmities and irreconcilable defects. The prosecution has failed to prove that the chance finger prints lifted from the spot of occurrence related to any of the accused persons. The opinion given by PW-12 and PW15 does not satisfy the legal requirements. There is no corroboration to the testimony of PW-12 and PW-15 and therefore the said evidence could not have been relied by the court below in deciding the culpability of the accused. The prosecution has also failed to prove that the weapons recovered at the instance of the accused were 41 used for the commission of the offence. The medical evidence does not establish that the deceased died on account of the injuries inflicted upon him. Therefore, we are unable to concur with the findings recorded by the court below. In our considered opinion, the trial court has not appreciated the evidence in proper legal perspective. The chain of circumstances are not proved. The findings recorded by the court below are not based on legal evidence. The impugned judgment, therefore, is perverse and illegal and cannot be sustained. The prosecution has failed to prove the guilt of the accused beyond reasonable doubt. As a result, the impugned judgment of conviction and the order of sentence is liable to be set-aside and accused Nos.1 to 3 deserve to be acquitted of all the charges framed against them.
42. In view of the above conclusion, the confirmation of death sentence awarded by the court below does not survive for consideration. Accordingly, Crl.R.C.No.9 of 2010 is liable to be rejected as it does not survive for consideration.
42
43. It is noticed that in the certified copy appended to Crl.A.No.152 of 2011, the operative portion of the order reads that the accused Nos.1 to 3 are convicted for the offences punishable under sections 449, 450, 456, 457, 458, 459, 460 and 302 read with section 34 of Indian Penal Code, whereas the operative portion of the order appended to Crl.A.No.1031 of 2011 and the Crl.R.C.No.9 of 2010 recites that accused Nos.1 to 3 are convicted for the offences punishable under sections 302 and 459 of IPC. While imposing the sentence, the Trial Court has inflicted death penalty on accused Nos.1 to 3 for the offences punishable under sections 302 and 459 of IPC and again for the offences punishable under section 459 of IPC, the very same accused are sentenced to life imprisonment and a fine of Rs.10,000/-.
44. From the records of the court below, it is clear that the accused persons were charged for the offences punishable under sections 448, 392, 302 r/w. section 34 of IPC and are found guilty of the offences punishable under 43 sections 302 and 459 r/w. section 34 of IPC. As the findings recorded by the court below are reversed and the conviction is set-aside, the accused Nos.1 to 3 are entitled to be acquitted of all the offences charged against them. However, to obviate any legal objection on account of mentioning of sections 449, 450, 456, 457, 458 and 460 in the certified copy enclosed to Crl.A.No.152 of 2011, these provisions stand deleted.
45. Accordingly, we pass the following:-
ORDER Criminal Appeal No.152 of 2011 and Criminal Appeal No.1031 of 2011 are allowed.
2. The impugned judgment of conviction dated 30.06.2010 and the order of sentence dated 30.09.2010, on the file of the learned XXXIV Addl. City Civil and Sessions Judge (Special Judge), Central Prison, Parappana Agrahara at Bengaluru in S.C.No.59 of 2005 are set-aside. The appellants/accused Nos.1 to 3 are acquitted of the offences punishable under Sections 302 and 459 read with Section 34 of Indian Penal Code.44
3. Consequently, Crl.R.C.No.9 of 2010 is rejected as does not survive for consideration.
4. The sentence of death awarded on the appellants/accused Nos.1 to 3 for the offences punishable under Sections 302 and 459 of IPC and a fine of Rs.5,000/- each as well as the sentence of life imprisonment and the fine of Rs.10,000/-
each awarded for the offence under section 459 of IPC is hereby set aside.
5. The appellants / accused nos.1 to 3 are ordered to be set at large forthwith in this case, if they are not required in any other case/cases.
6. The office is directed to intimate the operative portion of this order to the Superintendent of Prisons, where appellants / accused nos.1 to 3 are lodged.
Sd/- Sd/-
JUDGE JUDGE
JJ/mn/bss/-