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2017 Supreme(Kar) 1469
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RAVI MALIMATH, JOHN MICHAEL CUNHA, JJ.
The Registrar General High Court Of Karnataka Bengaluru-560001 - Petitioner
Versus
Venkatesha @ Chandra S/o Venkataswamy - Respondent
CRL.RC.No.9 of 2010 c/w Crl.A.No.152 of 2011 c/w Crl.A.No.1031 of 2011
Decided on : 05-07-2017
Advocate Appeared:
For the Petitioner: Sri H N Nilogal SPL PP
For the Respondent: Sri Hasmath Pasha A/W Sri Tejas N., Sri I.S.Pramod Chandra, Advs
Headnote:INDIAN EVIDENCE ACT, 1872 - Section 27 - Recovery - Prosecution not producing in evidence voluntary statements attributed to accused - Not examining panch witnesses to prove recovery - Such recovery cannot be used as a piece of evidence.
INDIAN EVIDENCE ACT, 1872 - Section 45 - Expert evidence - Preservation and handing over of chance finger prints found to be doubtful - Expert not delineating as to which points on which he found questioned finger prints tallied with specimen finger prints - His opinion cannot be ascribed any weight. 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 justification.
INDIAN PENAL CODE, 1860 - Sections 448, 392 & 302 r/w Section 34 -Conviction and imposition of death sentence - Whether justified - Prosecution base on circumstantial evidence - Evidence not showing that chance finger prints were preserved and they handed over to either IO or finger print expert - Thus, those finger prints being subjected to examination rendered doubtful - Original finger prints lifted from spot not produced before court - Finger print expert not delineating as to which of points on which he found questioned finger prints tallied with specimen finger prints - His evidence cannot be given being satisfactory, not meeting basic legal requirement s- Injuries as found in PM report not corresponding to those described by witnesses before Court - Prosecution case found to be a deliberate attempt to trump up evidence - Prosecution held to have failed to prove complicity of accused - Judgment of conviction set aside - Issue of confirmation of death sentence therefore would not survive - State appeal was rejected.
1. 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.
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 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 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 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 se
