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2012 DIGILAW 7 (KAR)

Lokesh v. State of Karnataka

2012-01-03

MOHAN M.SHANTANAGOUDAR, V.SURI APPA RAO

body2012
JUDGMENT MOHAN SHANTANAGOUDAR, J.—Crl. A. Nos. 1374/2007 and 1884/2007 are directed against the judgment dated 30.7.2007 passed In S.C. No. 158/2001 on the file of the Presiding Officer, Past Track Court, Ramanagaram, whereby the appellants i.e., accused Nos. 1 and 2 respectively are found guilty of the offences punishable under Sections 302 and 380 IPC read with Section 34 IPC and both of them are convicted and sentenced to rigorous imprisonment for life with fine of Rs. 5,000/- each, in default of payment of fine to undergo R.I. for 1 year for the offence under Section 302 read with 34 of IPC and to undergo R.I. for two years and to pay fine of Rs. 2,000/- each in default of payment of fine to undergo R.I. for six months each for the offence under Section 380 read with 34 IPC. Aggrieved by the judgment of conviction and order of sentence passed against the appellants, both the appellants have filed these two appeals. 2. The case of the prosecution in brief is as follows: The deceased Gowamma, daughter of P.W. 6 was unmarried. Accused No. 1 is the nephew of P.W. 6. Accused No. 2 is the younger brother of P.W. 6. On 5.12.2000 when P.W. 6, mother of the deceased left her house in order to attend a function at Bangalore, the deceased Gowrarnma was alone in the house at Chakkere Village, Channapatna Taluk, Bangalore Rural District, Accused No. 1 had seen P.W. 6 leaving for Bangalore. Accused Nos. 1 and 2 after coming to know of the fact that the deceased Gowramma was alone in the house, developed common intention of commission of murder of Gowramma in order to enrich themselves with gold ornaments kept in the almirah. When this being so, at about 12.30 p.m. on the same day, both of them entered into the house of P.W. 6. Accused No. 1 slapped the deceased Gowramma and later accused 1 and 2 strangulated her with rope in the dining hall. Thereafter, both the accused removed gold chain and other gold bangles wore by the deceased. They have taken the almirah key M.O.14 which was kept in the trunk of the deceased and opened the almirah and committed theft of jewellery which were kept in the almirah. P.W. 1 brother of the deceased has deposed that he received a telephonic message from his wife about the murder of Gowramma. They have taken the almirah key M.O.14 which was kept in the trunk of the deceased and opened the almirah and committed theft of jewellery which were kept in the almirah. P.W. 1 brother of the deceased has deposed that he received a telephonic message from his wife about the murder of Gowramma. He immediately rushed to the house of his parents at Chakkere Village and found the dead body of the deceased with ligature mark on the neck. He immediately rushed to the Channapatna Rural Police Station and lodged the complaint as per Ex. P1. The same was registered as Crime No. 196/2000 for the offence punishable under Section 302 IPC. After the Inspector of Police took up investigation and after completion of investigation, he filed charge sheet against the accused for the offence punishable under Sections 302 and 380 IPC read with Section 34 IPC. The Trial Court framed charges under Section 302 and 380 read with Section 34 IPC. The plea of the accused is one of total denial. In order to bring home the guilt of the above said charges, the prosecution examined P.Ws. 1 to 17 and marked the documents at Exs. P1 to P37 and M.Os. 1 to 15. Considering the evidence of the prosecution witnesses and the seizure of the material objects, the trial Court found the accused guilty of the offences for which they were charged and passed the above order of conviction and sentence, Being aggrieved by the order of conviction and sentence, both the accused filed separate appeals. 3. We have heard the learned Counsel for the appellants and the learned High Court Government Pleader and we have been taken through the impugned judgment. 4. The learned Counsel for the appellants submitted that there is absolutely no evidence on record to connect accused No. 2 to the crime. The prosecution alleged that accused No. 2 was arrested four months after the offence and recovered M.O. 12-bangles basing on his confessional statement. The panch witnesses examined by the prosecution to prove the seizure from accused No. 2 does not support the prosecution case about the seizure of M.O.12. 5. The learned HCGP fairly conceded that the prosecution has not made out a case against accused No. 2. The panch witnesses examined by the prosecution to prove the seizure from accused No. 2 does not support the prosecution case about the seizure of M.O.12. 5. The learned HCGP fairly conceded that the prosecution has not made out a case against accused No. 2. He further submitted that there is ample circumstantial evidence against Al to connect him to the crime and hence, there are no grounds to interfere with the judgment of conviction and sentence passed against A1. 6. Admittedly, there are no eye witnesses to the incident. The prosecution has solely relied on the circumstantial evidence available against the accused, As there are no incriminating circumstances available against A2 with regard to the seizure of M.O.12, based on which the prosecution has tried to connect A2 with the crime, we are of the considered view that the prosecution has failed to prove the chain of any circumstances to connect A2 math the crime and therefore, he is entitled for acquittal. 7. So far as accused No. 1 is concerned, it is not in dispute that the death of the deceased Gowramma was homicidal. The medical evidence produced by the prosecution and the evidence of P.W. 12, the Medical Officer who conducted autopsy on the dead body of the deceased indicates that the death of the deceased was as a result of mechanical asphyxia due to strangulation, Ex. P32 P.M report, Ex. P3l Inquest report and the evidence of the panch witnesses (P.Ws. 4 and 15) clearly inquest that the death of the deceased was due to asphyxia, thus the prosecution could able to prove that the death of the deceased Gowramma was homicidal. 8. The next point for consideration is whether Accused No. I is responsible for causing the death of the deceased. As already stated, there are no direct eye witnesses to the incident. The prosecution has relied on the following circumstantial evidence to connect Al with the crime: 1. Recovery of M.Os. 1 to 11, 18 and 14 i.e., gold ornaments, rope and keys of the almirah. 2. The evidence of P.W. S finger print expert, who has compared the finger chance prints of Al with that of the original finger prints of A1. 3. Ex. P29 certificate furnished by P.W. 9. 4. The prosecution has further relied on the last seen theory and also the motive for committing the offence. 9. 2. The evidence of P.W. S finger print expert, who has compared the finger chance prints of Al with that of the original finger prints of A1. 3. Ex. P29 certificate furnished by P.W. 9. 4. The prosecution has further relied on the last seen theory and also the motive for committing the offence. 9. So far as the recovery of M.Os. 1 to 11, 13 and 14, the prosecution has examined P.Ws. 5 and 8. Both the witnesses have supported the case of the prosecution with regard to the seizure of M.Os. 1 to 11, 13 and 14 based on the confessional statement of Accused No. 1. 10. P.W. 5 has stated in his evidence that on 11.12.2000, when the police came to the Village along with A1, he was sitting in front of the house of Ramakrishnaiah along with Puttaswamy, Rainkrishnaiah and Krishnegowda. The police requested them to accompany the police in order to recover the gold ornaments and other properties shown by Al, and therefore, they agreed to act as panch witnesses. Thereafter, Al led them and the police to the backyard of the house of Chandregowda and picked up the rope piece measuring about 2 1/2 ft. in length kept in the fence situated in between the properties of Chandregowda and Chaimamrna. He has also stated that about 7 ft, away from the fence, there was a manure pit situated in the property of Chandregowda and Al picked up two keys of the Almirah, one key bearing No. 70. The police therefore, seized the rope piece and two keys under a mahazar in his presence under Ex. P19 mahazar. He has stated that the other panch witnesses Puttaswamy, Ramakrishnaiah and Krishnegowda also attested Ex. P19 panchanama. 11. P.W. 8 Krishnegowda has stated in his evidence that at about 4 or 4½ years back at about 1.30 p.m. when he was sitting in front of the house of one Ramakrishnaiah, A1 came along with the police and police told that Al would produce gold chain of the deceased and requested them to come along with the A1, who therefore accompanied the police and A1 and led them to the house of one Mariyappa, father of the deceased and from there to the fence near the house of Mariyappa and Channamma. From the fence, A1 took out the rope piece having length of 2½ feet and from there, within a distance of 5 ft. there was a manure pit from which Al removed a bunch of two keys and gave it to the police. The police seized them under the mahazar and obtained the signature of P.W. 8. He has further stated that A1 further led them to the backyard, of A2 and from the haystack, he removed a plastic cover and gave it to the police. It contained gold ornaments covered with handkerchief, Along with gold ornaments they found cash of Rs. 2,600/- of Rs. 100/- denomination. The police therefore, seized the gold ornaments and cash under the mahazar Ex. P22 which was attested by him. 12. Though P.Ws. 5 and 8 were subjected to lengthy cross-examination, nothing material is elicited from them to discard their evidence with regard to the seizure of M.Os. 1 to 11, 13 and 14 based on the confessional statement of A1. 13. The prosecution examined P.Ws. 2 and 3, the neighbours of the deceased to prove that Al was last seen wandering near the house of the deceased at the odd hour of 1.00 p.m. Both P.Ws. 2 and 3 though turned hostile to the prosecution, they have clearly stated in their evidence that on the date of the murder of the deceased. They saw Al passing through by the side of her house at 1.00 p.m. P.W. 2 further stated that when she enquired as to why he was wandering in that place, Al informed her that he was searching for the cock. She further stated that on the same day, the mother of the deceased was making huge cry stating that her daughter had died. P.W. 2 further stated that except Al, she has not seen any other person. 14. P.W. 3 Savithramma, in her evidence has stated that on the date of death of the deceased Gowramma at about 1 or 1.30 p.m., while she was sitting in front of her house, she saw Al running. When she asked as to why he came running, he told her that he was searching his cock and went towards his house. At about 6.00 p.m. she came to know about the death of the deceased, She has further stated that she saw Al running alone. 15. The prosecution, has examined P.W. 9 Dy. When she asked as to why he came running, he told her that he was searching his cock and went towards his house. At about 6.00 p.m. she came to know about the death of the deceased, She has further stated that she saw Al running alone. 15. The prosecution, has examined P.W. 9 Dy. S.P. attached to the S.P. Office, Bangalore Rural District, who is the finger print expert. He has stated in his evidence that on 6.12.2000, the Control Room received a message from the Police Inspector, Channapatna Rural Circle reporting the murder and requesting for finger print expert to visit the scene of offence. The S.P. deputed him to visit the scene of offence. Accordingly on the same day at about 11.00 a.m. he visited the scene of offence searched the articles and chance finger print on the almirah as Ex. P23. With reference to the chance finger print at the spot, he verified in his office the finger print of the suspect and same was not traced. After a week the Police Inspector has sent the suspected finger prints containing finger and foot prints. Four sheets containing suspected finger prints and foot prints were compared which were marked as Exs. P24 to P27. The chance prints were compared with that of finger prints bearing Exs. P24 and 25 and found that it was similar to that of the right middle finger of the suspected A1 Lokesh. Therefore, he issued Ex. P29 finger print report. 16. P.Ws. 14 who is the I.O. in this case has stated in his evidence that on 6.12.2000 he took up investigation. He visited the scene of offence at. about 7.15 a.m. He conducted spot mahazar and prepared Ex. P2 in the presence of the witnesses. He summoned P.Ws. 4, 5 and others. In their presence, he conducted Inquest over the dead body of the deceased. On the same day, he recorded the statements of P.Ws. 2, 3 and 6. He also recorded the further statement of P.W. 1 who lodged the complaint Ex. P1, He has sent a message to the dog squad and finger print bureau. The finger print expert arrived and collected information, so also the finger prints available on the almirah. After inquest he sent the dead body for autopsy. P.W. 12 Medical Officer conducted the autopsy and issued P.M. report. P1, He has sent a message to the dog squad and finger print bureau. The finger print expert arrived and collected information, so also the finger prints available on the almirah. After inquest he sent the dead body for autopsy. P.W. 12 Medical Officer conducted the autopsy and issued P.M. report. He has further stated in his evidence that on 11.12.2000, the PSI attached to Channapatna Rural P.S. produced Al Lokesh before him. He arrested him and interrogated him and recorded his voluntary statement. Al volunteered that he would show the place where he has hidden the gold ornaments, keys and rope piece used for murdering the deceased. He also volunteered that he would show the gold ornaments. The accused thereafter led him and his staff and the panch witnesses to the backyard of Puttaswamy and late Channamma of Chakkere Village and from the hidden place near by a tree, the accused produced the rope piece (plastic) measuring 2 1/2 ft. in length and about 5 ft, away from the hidden place, there was manure pit and from there, Al produced key bunch comprising of two keys. He seized the rope piece and key bunch under mahazar in the presence of P.Ws. 5, 7 and 8, Thereafter on the same day, Al further led them and panch witnesses to the backyard of late Ningegowda and he took them to the nearby haystack and from there he brought the plastic paper which was folded and inside the said plastic cover there was handkerchief and Al produced certain gold ornaments, in all there were eleven items and cash of Rs. 2,600/-. He seized 12 items and one kerchief and also plastic paper in the presence of P.Ws. 5 and 11 and other panch witnesses. He has further stated in his evidence that on 13.12.2000, he received post mortem report as per Ex. P32. On 16.2.2001 he received Ex. P29 report and after that, he made attempts to trace A2 who was absconding. Alter completion of investigation, he laid charge sheet. 17. The learned Counsel for the appellants submitted that the evidence of P.W. 9 and the report Ex. P29 given by him are vague and without any details with regard to the comparison of the finger prints. It is further submitted that the I.O. has not obtained the permission of the concerned Magistrate to take the finger print of Al. 17. The learned Counsel for the appellants submitted that the evidence of P.W. 9 and the report Ex. P29 given by him are vague and without any details with regard to the comparison of the finger prints. It is further submitted that the I.O. has not obtained the permission of the concerned Magistrate to take the finger print of Al. Therefore, the evidence of P.W. 9 and the report at Ex. P29 cannot be relied upon, Admittedly the evidence available on record indicates that the prosecution has not obtained any permission from the Magistrate as required under Section 5 of the Identification of Prisoners Act. 1920. It is an admitted fact that during the course of investigation, the I.O. has obtained the finger prints of Al and sent the letter Ex. P28 to the finger print expert with that of the chance print collected by the finger print expert for comparison of the finger prints at the time of his visit to the scene of offence, immediately after the incident. 18. The learned counsel for the appellants In support of his contention placed reliance in the case of Mohd. Aman and another vs. The State of Rajasthan, reported in 1997 (2) All India Criminal Law Reporter 547, wherein the Hon’ble Supreme Court held that even though the specific finger prints of the accused had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with the Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take finger prints of the accused but to the dispel any suspension as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate. 19. Admittedly, in the instant case, the prosecution has not obtained the permission of the Magistrate and finger prints of Al were not taken before the Magistrate in accordance with Section 5 of the Identification of Prisoners Act. 20. It is submitted by the learned HCGP that finger prints under Exs. P24 and 25 were taken during investigation, but not after A1 was remanded to judicial custody. 20. It is submitted by the learned HCGP that finger prints under Exs. P24 and 25 were taken during investigation, but not after A1 was remanded to judicial custody. During the course of recording his statement under Section 313 Cr.P.C. the Trial Court has pot a specific question to Al about the finger prints taken under Exs. P24 to P27 by the I.O. and another specific question is put to Al about the comparison of the finger prints by P.W. 9 and the report given by P.W. 9, for which the accused has simply denied and has not stated specifically that the finger prints said to have been obtained by the police under Ex. P29 do not belong to him. 21. The learned Counsel for the appellants further placed reliance on another decision in the case of Hukam Singh vs. State of Rajasthan, reported in (1977) 2 SCC 99 . The Supreme Court held that the last circumstance on which the reliance was placed on behalf of the prosecution was the presence of finger prints of the appellant on mirror Ex. 1, In the evidence it was admitted by one of the prosecution witnesses that the appellant was on visiting terms with his family and it is therefore possible that during one of his visits, the appellant might have touched the mirror Ex. 1 and left his finger prints on it. 22. Relying on the above decision, the learned Counsel for the appellants submitted that A1 is in the habit of attending household duties in the house of P.W. 6. Therefore, there is every possibility of touching the mirror. Therefore it is a strange circumstance which cannot be treated as incriminating circumstance. 23. P.W. 6 mother of the deceased has admitted in her evidence that Al and A2 used to visit their house. Al used to attend the household duties and he is accessible to the house of the deceased. Therefore the finger print found on the almirah cannot be treated as a incriminating circumstance. The evidence of P.W. 6 clearly indicates that Al is allowed to attend to household duties at her house and he was not authorised or permitted to handle with the almirah where the gold ornaments were kept. Therefore the finger print found on the almirah cannot be treated as a incriminating circumstance. The evidence of P.W. 6 clearly indicates that Al is allowed to attend to household duties at her house and he was not authorised or permitted to handle with the almirah where the gold ornaments were kept. In her evidence she has clearly stated that she gave almirah keys to the deceased while leaving the house, with strict instructions not to give the keys to any unknown persons. 24. The learned Counsel for the appellants further submitted that the evidence of P.W. 9 is an expert evidence and not the evidence of fact. The certificate of P.W. 9 at Ex. P29 is In advisory character. On this context, he has placed reliance in the case of State of H.P. vs. Jai Lal and others, reported In 1999 SCC (Crl) 1184. The Supreme Court held that an expert Is not a witness of fact. His witness is really of an advisory character. The duty of an expert evidence is to furnish the Judge with necessary scientific criteria for attesting the accuracy of the conclusions so as to enable the Judge to form his judgment by application of this criteria to the facts proved by the evidence. 25. Admittedly, the evidence of P.W. 9 and the certificate Ex. P29 issued by him does not contain the details of scientific analysis for testing the accuracy of the conclusions, with the reasons arrived by the expert in identifying the ridges found on the chance print and the suspect print of the culprit produced by the I.O. Admittedly, the evidence of an expert is to help the Court to come to a definite conclusion with the aid of other independent witness so as to form a definite conclusion about the accuracy and the conclusions arrived at by the expert: in analysing and the basis for the report. Exs. P24 to 27 do not contain the specific ridge marks etc., on the basis of which he has analysed the suspected finger prints of the accused furnished by the I.O. Therefore, we are of the view that the evidence of P.Ws. 9 and Ex. P29 report are not conclusive and accurate and the finger prints of the accused and the chance print found on the almirah cannot be taken into consideration to connect Al to the crime. 26. 9 and Ex. P29 report are not conclusive and accurate and the finger prints of the accused and the chance print found on the almirah cannot be taken into consideration to connect Al to the crime. 26. Even if the evidence of P.W. 9 and Ex. P29 report is excluded from, the evidence, there is evidence of P.Ws. 5, 8 and 14 which clearly indicate that on the basis of the confessional statement given by Al, M.Os. 1 to 11 and 14 and 15 which were found missing were seized. The incriminating circumstances available against the accused in the evidence of P.Ws. 5, 8 and 14 were also put to the accused during the recording the statement under Section 313 Cr.P.C. but the accused has not given any satisfactory explanation as to how he got the possession of the properties belonging to the deceased and P.W. 6. 27. In the case of Gulab Chand vs. State of Madhya Pradesh, reported In AIR 1995 SC 1598 , the Hon’ble Supreme Court held that there Is no plausible explanation for lawful possession of ornaments of deceased by accused immediately after murder. Presumption under Illustration A of Section 114 of the Evidence Act is that the accused not only committed murder, but committed robbery of ornaments, which are an integral part of the same transaction in the matter on hand. 28. The learned Counsel for the appellants further submitted that merely because the ornaments and other materials were seized on the basis of the confessional statement given by A1, he cannot be convicted for the offence of murder. At the most, he can be convicted for the offence punishable under Section 380 or 411 IPC. 29. In addition to the evidence with regard to the seizure of M.Os.1 to 11, 13 and 14, the evidence of the prosecution witnesses P.Ws. 6, 2 and 3 dearly discloses that before leaving the house, A1 and A2 came and enquired with P.W. 6 as to whether she was attending the function at Bangalore on the next day. When she told them that she would be attending the function, the accused had conspired to commit the offence. 30. The learned Counsel for the appellants submitted that P.W. 6 has not stated before the police about At and A2 enquiring her as to whether she would be leaving to Bangalore on the next day. Though P.Ws. When she told them that she would be attending the function, the accused had conspired to commit the offence. 30. The learned Counsel for the appellants submitted that P.W. 6 has not stated before the police about At and A2 enquiring her as to whether she would be leaving to Bangalore on the next day. Though P.Ws. 2 and 8 did not support the prosecution ease, they have clearly staled in their evidence that on the date of the death of the deceased Gowramma, both of them have seen A1 wandering near the house of the deceased. When they enquired him as to why he was moving there at that odd hour, they were told that he was searching for his cock. On the same day, they came to know about the death of the deceased. The prosecution thus established the presence of Al near the house of the deceased soon before the death of the deceased, The fact that the prosecution recovered M.Os. 1 to 11, 13 and 14 which includes rope, keys of the almirah belonging to P.W. 6 in which gold ornaments were kept and which were found missing after breaking open the almirah by the police, clearly indicates that after committing the murder of the deceased, Al has opened the almirah and committed robbery. The ornaments belonging to the deceased and other ornaments belonging to P.W. 6 were seized based on the confessional statement of A1. The prosecution thus was able to prove beyond reasonable doubt the complete chain of circumstances and events definitely pointing towards Al for commission of the crime in this ease. The trial Court was therefore justified in convicting Al for the offence under Sections 302 and 380 IPC. Accordingly, Crl. A. No. 1384/2007 filed by accused No. 1 is dismissed. The judgment of conviction and sentence passed against Al is confirmed. Crl. A. No. 1374/2007 filed by accused No. 2 is allowed. The order of conviction and sentence dated 30.7.2007 passed by the Presiding Officer, Fast Track Court, Ramanagaram, in S.C. No. 158/2001 against accused No. 2 is set aside. Fine amount, If any, paid by accused No. 2 shall be refunded to him. 31. The bail bonds stand cancelled.