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2017 Supreme(Kar) 1045
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RAVI MALIMATH, JOHN MICHAEL CUNHA, JJ.
The Registrar General High Court of Karnataka, Bengaluru - Petitioner
Vs.
Venkatesh @ Chandra S/o Venkataswamy & Ors. - Respondents
Criminal Referred Case No.18 of 2010 C/W Criminal Appeal No.733 of 2011
Decided On : 20-07-2017
For the Petitioner: Sri H.N. Nilogal, SPL.PP.
For the Respondent:Sri Hashmath Pasha, Advocate.
Headnote:CODE OF CRIMINAL PROCEDURE, 1973 [C.A. No. 2/1974] - Section 374(2), 368, 366 - Appeal against conviction - Death sentence - Relief to non-appealing accused - Out of four only two accused preferring appeal against death sentence - Appellants accused acquitted by High Court - Held, Under Sectiion 368 of Cr. P.C., while hearing reference under Section 366 of Cr. P.C., High Court is empowered to annul conviction or to acquit accused. As per said provisions, even in absence of independent appeal by person sentenced to death, High Court while dealing with reference made by the Court of Session for confirmation of sentence of death, is required to consider as to whether conviction recorded is legal and justified and if court finds that judgment of conviction is perverse and illegal, accused persons may be acquitted. If on evaluation of a case, a conclusion is reached that no conviction of accused was possible, benefit of that decision must be extended to similarly situated co-accused even though he had not challenged the order by way of appeal.
INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Sections 3, 6 - Murder - Circumstantial evidence as to last seen evidence - Accused persons, members of notorious gang allegedly committed twin murders in brutal and barbaric manner - Dead bodies found in locked house of deceased with hands, feet and mouth tied - Tenant of deceased last seeing them alive, nowhere mentioning about seeing any of accused with deceased before or immediately after incident - Last seen evidence cannot be taken as circumstance connecting accused to alleged offence - Evidence of last seen witness at the most can show that deceased was last seen alive on date of incident and nothing more - Guilt of accused cannot be determined on basis of last seen evidence.
INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Sections 3, 45 - Expert evidence - Non-production of fingerprints - Huge time gap between date of lifting fingerprints from place of incident and its examination - Prosecution required to produce original chance fingerprints and original specimen fingerprints before Court, to dispel any doubt regarding its genuineness - Chance fingerprints collected in 2000 and specimen fingerprints obtained after arrest of accused in 2001 - Possibility of specimen fingerprints themselves being developed as photograph of chance fingerprints, not ruled out - Opinion of finger print expert not containing any reasons or grounds of justification of his opinion - Non-production of original fingerprints fatal to case of prosecution - Expert evidence held, unreliable. AIR 1999 SC 3318, Rel. on.
INDIAN PENAL CODE, 1860 [C.A. NO. 45/1860] - Section 302 - Murder - Circumstantial evidence - Accused persons, members of notorious gang allegedly committed twin murders in brutal and barbaric manner - Witness, domestic help stated that accused enquired her about details of occupants in house of deceased - Domestic help identifying photo of accused shown by police, as very same person who enquired her about deceased - Witness disclosed about alleged enquiries by accused first time after delay of one year, casting serious doubt on veracity of her testimony - Testimony of domestic help was not corroborated by other material, hence not credible.
The XXXIVth Additional City and Sessions Judge (Special Court), Central Prison Premises, Bengaluru, has made a reference under Section - 366 (1) of CR.P.C., for confirmation of death sentence awarded on accused Nos.1 to 4, in S.C.No.58 of 2005 for the offences punishable under Section 302, read with Section 34 of IPC. It is numbered as Criminal Reference No.18 of 2010. Feeling aggrieved by the very same judgment dated 17.07.2010 in S.C.No.58 of 2005, and the order of sentence dated 30.09.2010, accused Nos.1 and 2 have preferred Criminal Appeal No.733 of 2011. Accused Nos.3 and 4, have not preferred any independent appeal. However, they are duly served with the copy of the reference.
2. The facts leading to the present proceedings are as follows:
One Dr. Prabhakar Vasudeva Joshi, was a resident of Durgadabail, Hubli city. He was running a clinic in a portion of his house. His brother by name, Sri. Neelakanta Joshi was staying in a rented house close by. He used to frequently visit Dr. Prabhakar and often stay overnight in his house. The son of Dr. Prabhakar Joshi (PW-5) was staying in Kohlapur.
On 13.03.2000, as usual PW5 rang up to his father Dr. Prabhakar Joshi and having failed to receive any response, requested the adjoining shop-owner to enquire about his father. He was informed that the house of Dr. Prabhakar was locked from outside; hence on 14.3.2000 at about 11.40 a.m., PW-5 came to the house of his father and found that the main door locked from outside. With the assistance of one of the adjacent shop-owner by name Nazeer- PW.9, he broke open the lock. On entering the house, he found his father Dr. Prabhakar Joshi as well his uncle Neelanta Joshi (hereinafter both will be referred to as ‘deceased’) lying dead. Their hands and feet were tied. A cellophane tape was found covered to their mouth. The dead bodies were emanating foul smell.
3. The matter was informed to the police. The Police Inspector of Hubli Town Police Station, PW-16 rushed to the spot. The dog squad as well as Finger Print Experts were secured. He reduced into writing the oral complaint of PW-5 as per Ex.P3 and on its basis registered the FIR in Cr.No.69/2000 as per Ex.P14 and commenced the investigation. He conducted inquest over the dead bodies as per Ex.P4 and Ex.P5 and forwarded the dead bodies to K.M.C. Hospital for autopsy and thereafter conducted the spot mahazar as per Ex.P6 and seized the incriminating materials namely, M.Os. 8 to 22. In the meanwhile, the Finger Print Expert PW.17 Sri. Somarayappa, lifted three chance finger prints from the spot. In this regard, PW.16 drew up a mahazar as per Ex.P7. In the course of the investigation, PW.16 recorded the statements of the material witnesses. The further investigation was continued by PW.18, Sri. A.M. Patil, who forwarded the seized articles to FSL, Bengaluru. However, the investigating team could not detect the culprits nor they could gather any lead or clue into the twin murders for about an year.
4. That being the case, PW.15, Sri N. Chalapathy, Police inspector attached to Vijayanagar police station, Bangalore came to know that some of the accused who were involved in Crime No.674 of 1999 of Vijayanagar Police Station had escaped from the prison at Chittoor. Having ascertained their hideouts, on 31.1.2001, PW.15 arrested accused Nos.1 to 4 and on the basis of the voluntary statement of accused Nos.1 to 4, he came to know about their involvement in various other offences, including the one under investigation in Hubli Town Police Station. On getting this information, the subsequent Investigating Officer, PW.20, Sri R.B. Naik moved an application to the Judicial Magistrate First Class, Hubli and obtained body warrants for the production of accused Nos.1 to 4. Accordingly, accused Nos.1 to 4 were produced before him on 9.4.2001.
5. PW.20 collected the specimen finger prints of accused Nos.1 to 4 and forwarded them to PW.19, Sri. Anke Gowda, a finger print expert, for comparison and examina
