IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 17TH DAY OF OCTOBER, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL REFERRED CASE NO.1 OF 2011 c/w CRIMINAL APPEAL NO.4 of 2011 IN CRIMINAL REFERRED CASE NO.1 OF 2011 BETWEEN:
THE REGISTRAR GENERAL HIGH COURT OF KARNATAKA BENGALURU-560001. ... PETITIONER (By SRI: VIJAYAKUMAR S. MAJAGE, ADDITIONAL SPECIAL PUBLIC PROSECUTOR) AND:
1. HARISH @ AMBI @ GOOLI S/O NARAYANAPPA, AGED ABOUT 20 YEARS R/AT KADADENAHALLI VILLAGE, MALUR TALUK.
2. MURALI @ APPI @ MADHU S/O SEETHARAMA AGED: 21 YEARS R/AT KADADENAHALLI VILLAGE MALUR TALUK. ... RESPONDENTS (By SRI: HASHMATH PASHA, ADVOCATE FOR R1 & R2) THIS CRIMINAL REFERRED CASE IS REGISTERED AS REQUIRED UNDER SECTION 366 CR.P.C FOR THE CONFIRMATION OF DEATH SENTENCE AWARDED TO ACCUSED 1) HARISH @ AMBI @ GOOLI S/O NARAYANAPPA, 20 YEARS 2) MURALI @ APPI @ MADHU S/O SEETHARAM, 21 YEARS, BOTH ARE RESIDING AT KADADENAHALLI VILLAGE, MALUR TALUK BY THE II-ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR BY JUDGMENT OF CONVICTION DATED 09.12.2010 AND 13.12.2010 IN S.C.NO.28 OF 2009.
***** IN CRIMINAL APPEAL NO.4 OF 2011 BETWEEN:
1. HARISH @ AMBI @ GOOLI S/O NARAYANAPPA, AGED ABOUT 20 YEARS, 2. MURALI @ APPI @ MADHU S/O SEETHARAM, AGED ABOUT 21 YEARS, BOTH ARE RESIDENTS OF KADADENAHALLI VILLAGE, MALUR TALUK, KOLAR DISTRICT. ... APPELLANTS (By SRI: HASHMATH PASHA, ADVOCATE) AND:
THE STATE OF KARNATAKA BY MALUR POLICE REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUIDLING, BENGALURU-560001 ... RESPONDENT (By SRI: VIJAYAKUMAR S. MAJAGE, ADDITIONAL SPECIAL PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL IS FILED U/S.374(2) CR.P.C BY THE ADVOCATE FOR THE APPELLANTS PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 9.12.2010/13.12.2010 PASSED BY THE II ADDITIONAL SESSIONS JUDGE, KOLAR, IN S.C.NO.28 OF 2009 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 302 AND 397 READ WITH SECTION 34 OF INDIAN PENAL CODE. THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A TERM OF SEVEN YEARS , FOR THE OFFENCE PUNISHABLE UNDER SECTION 397 READ WITH SECTION 34 OF INDIAN PENAL CODE. THE APPELLANTS/ACCUSED SHALL BE HANGED TILL THEIR DEATH, FOR THE OFFENCE PUNISHABLE UNDER SECTION 302 READ WITH SECTION 34 OF INDIAN PENAL CODE. THE APPELLANTS/ACCUSED PRAYS THAT THEY BE ACQUITTED.
THIS CRIMINAL REFERRED CASE AND CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, RAVI MALIMATH, J., DELIVERED THE FOLLOWING:
J U D G M E N T The case of the prosecution is that on 27.09.2008, at about 11.45 a.m., the accused entered into the house of the deceased situated at Maruthi Extension, 2nd Stage, Rajendra Layout, Malur Town, Kolar District. The deceased was staying in the first floor. The accused assaulted the deceased Anuradha with a sharp edged razor on her neck and committed her murder. Based on the complaint lodged by PW-1, a case was registered against three accused for the offences punishable under sections 302, 397 read with Section 34 of Indian Penal Code. The investigation was taken up. A charge-sheet was filed. The accused pleaded not guilty and claimed to be tried.
2. In order to prove its case, the prosecution examined 28 witnesses and marked Exs-P1 to PW-36(a) as well as nine material objects. By the impugned judgment, accused Nos.1 and 2 were convicted for the offence punishable under section 302 of Indian Penal Code and sentenced to death. They were also sentenced to undergo rigorous imprisonment for seven years for the offence punishable under section 397 r/w Section 34 IPC. On a reference being made by the trial court under Section 366(1) Cr.P.C., Crl.R.C.No.1 of 2011 has been registered. Both the accused have filed Crl.A.No.4 of 2011.
3. The learned counsel for the appellants contends that the trial court has committed an error in convicting the accused. That the entire case of the prosecution is based on circumstantial evidence. There are no eye-witnesses. In order to prove its last seen theory, the prosecution relied upon the evidence of PW-2. However, her evidence is not trustworthy. The recoveries said to have been made at the behest of the accused have not been established. The palm prints of accused No.1 said to have been lifted from the compound wall of the house of the deceased has also not been established in the manner of law. On these infirmities, the trial court has misread the evidence. It has wrongly come to the conclusion that the prosecution has proved its case. Hence, he pleads that the appeal be allowed by acquitting the accused.
4. On the other hand, the learned Additional Special Public Prosecutor disputes the same. He contends that substantial evidence has been let in by the prosecution to establish its case beyond all reasonable doubt. That the accused have been identified by the witnesses. That the recoveries have been made at the behest of the accused. That even the palm prints of accused No.1 have been proved. PW-2 has clearly identified accused No.2 on the date of the offence. Hence, he pleads that the appeal be dismissed by confirming the judgment of conviction and sentence passed by the trial court.
Heard learned counsels and examined the records.
5. Initially, the case was registered against three accused. Accused No.3 is one Yogesh, who was a minor. Therefore, his case was referred to the Juvenile Justice Board for trial and therefore the trial court proceeded so far as remaining two accused are concerned.
5(a).PW-1 is the sister-in-law of the deceased. She has stated that they were residing in Maruthi Extension of Malur Town in the ground floor alongwith her family. In the first floor, her brother, his wife and their daughter were residing. They had a child by name Pooja, who was studying SSLC at that point of time. She has stated that on 27.09.2008, the deceased Anuradha came down at about 9.30 a.m. in order to purchase milk. At about 10.30 a.m., PW-6 a mason was seen by PW-2 entering the house. He came down 15 minutes later. Thereafter, PW-2 saw three persons going up and on enquiry, PW-2 was informed that they had come to repair the geyser. After some time, PW-1 saw the accused jumping over the compound wall leaving the building. Since the deceased did not come down for quite some time, PW-1 went upstairs so see her. The door was locked from the outside. She saw that the deceased had fallen down in front of the bathroom in a pool of blood with an injury on her neck. There was blood in the bath room also. Immediately, she shouted. There was nobody there since the husband of the deceased had been to work and their daughter had been to school. Based on these averments, the complaint was lodged before PSI- PW-24 of Malur Police Station.
5(b) PW-2 is the mother-in-law of the deceased. She is the mother of PW-1. She has also narrated that the deceased alongwith her husband and daughter were living in the first floor and she alongwith her daughter and son-in- law were staying in the ground floor. That on 27.09.2008, three persons were going upstairs at about 11.00 a.m. She was reading a book. At that time, when they were climbing the stairs, she enquired as to why they are going upstairs.
They told her that they had come to repair the geyser. About an hour later, they came down. Since the deceased did not come down stairs, she alongwith PW-1 went to the first floor. The house was locked from the outside. After going inside, they saw the deceased had fallen in a pool of blood. Her eyes were open. Immediately, she informed her son as well as the police. She has identified one person who was having one big eye and one small eye and that his name is Yogesh. She has also identified accused No.1. In the cross-examination, she has reiterated that she has not seen three persons earlier.
5(c) The prosecution relies on the evidence of these two witnesses in order to show that the accused have been identified by PW-2. The evidence of PW-2 would indicate that she saw three persons climbing the stairs to go to the first floor. The only person she has identified is one among them, whom she describes as having one big eye and one small eye. She has identified him as Yogesh viz., the third accused, who is undergoing trial before the Juvenile Court.
However, the material on record does not indicate that this Yogesh is the person who had one big eye and one small eye. Infact, she pointed out to Murali-accused No.2 and says that his name is Yogesh and he has one big eye and one small eye. PWs-1 and 3 are the witnesses who have narrated that Yogesh is the person who came to their house on a number of occasions to do the electrical and other works. He is not a stranger to the family. The electrical work was done in the house. PW-2 being a lady aged about 80 years was always in the house. Therefore, it has to be presumed that she could very well identify Yogesh as the person who would always come to the house. On the contrary, she has failed to identify the accused. While pointing out towards Murali viz., accused No.2, she has stated that his name is Yogesh. In her examination-in-chief, she has stated that the person whom she saw climbing up the stairs was the person with one big eye and one small eye. The evidence does not indicate that Murali had one big eye and one small eye. Therefore, based on this evidence, it cannot be said that accused No.2- Murali has been identified by PW-2 as the person who entered the first floor of the house. Therefore, the identification of accused No.2 has not been established by the prosecution. So far as identifying accused No.1-Harish is concerned, there is no evidence let in by the prosecution at all. No witness has seen him going upstairs and leaving the first floor of the house. The entire case of the prosecution is identification of accused No.2 by PW-2. In view of the finding recorded hereinabove, the prosecution has failed to prove that accused No.2 is the person who entered and left the first floor of the house.
6. The other circumstance relied upon by the prosecution is so far as recovery of the material objects is concerned. The material objects recovered by the prosecution are in terms of M.Os.4 to 6. M.O.4 is one gold chain measuring 24 inches. M.O.5 is one chain measuring 12.5 inches and M.O.6 is another chain measuring 12.5 inches.
7. PW-3 is the husband of the deceased. He is the one who constructed the house on the first floor. He has stated that his wife was the President of Sree Shakti Sangha. That about 12.45 p.m. on 27.09.2008, he received a telephone call that his wife has been murdered. Immediately, he came to his house by bicycle. In the house, he saw the dead-body of his wife. He was told that three persons had gone upstairs on the pretext of repairing the geyser and had committed the murder of his wife. He observed an injury over the neck and blood was present in the hall as well as in the bathroom. So far as the material objects are concerned, he has stated that he did not see the chain in the neck, but he saw M.O.2 viz., two gold thalis with kondi, three gundus, two karimani and two red coral rounds below the dead- body. At the behest of I.O.-PW-27, he was taken to the house of PW-12 Nagamma. Therein, he acted as a pancha to Exs-P3 to P6 mahazar. He has identified the jewelleries as that belonging to his wife. However, so far as PW-12 is concerned, she has turned hostile. She has denied conducting of the panchanamas as well as the seizure. She has also denied her statement vide Ex-P9. The other pancha to the recovery viz., PW-9 Somashekar has also turned hostile. Therefore, the prosecution has failed to show that the recoveries effected have been proved. Even though PW- 3 has identified the jewelleries in his evidence, the panchas to the mahazar have turned hostile. They have not supported the case of the prosecution. In the absence of the receivers supporting the case of the prosecution, it cannot be accepted that the prosecution has proved its case so far as the recoveries of the ornaments is concerned.
8. The third circumstance relied upon by the prosecution is with regard to the palm prints of accused No.1-Harish. It is their case that when the expert visited the scene of offence, he has lifted the palm prints of accused No.1. The same was found on the compound wall of the house of the deceased. The evidence of PW-28 M.S. Balakrishna Chetty has been relied upon by the prosecution to prove his report. PW-28 has stated that his staff viz., Somashekar and Ravikumar had secured one blood stained print on the compound wall wherein the accused had jumped the compound wall. A photograph was taken. A computer scan was done. The palm prints of the three accused persons viz., Harish, Murali and Yogesh were obtained. On comparison, it was found that the blood- stained left hand palm print tallied with that of accused No.1-Harisha. That PW-28 compared the finger prints of all the three accused persons sent by the police and handed over the report and photographs. That they were obtained from the smooth surface of the compound wall. He has reiterated that the first impression taken from the compound wall was marked as Ex-P25 and was shown as “Q”. The enlarged picture of “Q” was identified as “A” and was marked as Ex-P26. Similarly, two palm prints sent by the concerned Malur police station pertaining to accused Harisha of both left and right hand is marked as Exs-P27 and P28. That he has not taken the Exhibits marked as Exs-
P25 and P26. The opinion was furnished by Somashekar. He has forwarded the opinion and no new opinion is furnished by him. That he does not have personal knowledge about the palm print sent to him through his subordinate. That he does not have personal knowledge whether the palm print was pressed over the compound wall or not. That he has gone through only the palm print sent to him by his subordinate. He cannot even identify the age of the palm print.
9. It is based on this evidence that the prosecution tries to establish the fact that the palm print found on the compound wall have been proved to be that of Harish- accused No.1. The person who lifted the palm print from the compound wall and submitted a report is Somashekar. He has not been examined by the prosecution. PW-28 is not the person who has either lifted the palm print or who has prepared the report. Apparently, he has only looked into and forwarded the report. He had no role to play in the same. Therefore, if the prosecution intended to prove that the palm print were that of accused No.1-Harish, then it was the concerned person alone, who should have been examined. They had not done so. On the contrary, they have examined a witness whose only job was to forward the said report. Therefore, the plea of the prosecution that the palm print have been proved to that belonging to accused No.1-Harish cannot be accepted.
10. Even otherwise, we have taken a step further and looked into the opinion of the finger print expert in terms of Ex-P24. The same does not contain any reasons or justification for submitting the opinion. It is relevant to notice that the report would have to indicate various aspects with regard to the finger prints that have been lifted in comparison with that of the accused, the manner in which the finger prints have been lifted, the identification and similarities etc., The Hon’ble Supreme Court of India in the case of PRAKASH vs. STATE OF KARNATAKA reported in 2014 AIR SCW 2354 has clearly narrated the entire law pertaining to the finger print evidence. The manner in which the same has to be dealt with, has been considered in detail in paragraphs 39 to 55. Thereto was a case where neither the original positive print or photograph were produced for consideration. Hereto is a case where the original positive print have not been produced for consideration. Therefore, even in terms of the report–Ex.P24, the same does not confirm with the law pertaining to the finger print evidence as enunciated by the Supreme Court in the aforesaid judgment.
11. The further case of the prosecution pertains to the recovery of the mobile phone in terms of M.O.1. PW-5 is the owner of a CD shop. He has stated that four days prior to the seizure, accused No.2-Murali had sold Samsung mobile phone M.O.1 to him, for which, he has paid Rs.1,800/-. The receipt for the said sale is in terms of Ex-P35. The receipt would indicate that it is in the name of Radha and the same was produced after the seizure of M.O.1. Therefore, such evidence cannot be accepted.
12. The further contention is with regard to seizure of M.O.7- a razor at the behest of accused No.1. It is submitted that based on the voluntary statement made by accused No.1, a razor was recovered from a bush. That said razor is sought to have been taken from the shop of P.W.7-Muniswamappa. However, PW-7 has turned hostile. He does not support the case of the prosecution so far as sale of the razor or otherwise. He does not support the case of the prosecution with regard to the lifting of the razor which is said to have been recovered at the behest of accused No.1. Therefore, even in so far as recovery of the weapon is concerned, the prosecution has failed to establish its case.
13. For all these reasons, we do not find any ground to support the order of conviction. The accused have not been identified. The recoveries have not been proved. The palm prints have not been established by the prosecution.
The recovery of the weapon has also not been proved. The material witnesses have turned hostile. None of them have supported the case of the prosecution. Under these circumstances, we are of the view that the trial court has misread the material while convicting the accused. The prosecution has failed to establish its case beyond all reasonable doubt. There are substantial loopholes in the prosecution case that have not been explained. The witnesses for the recovery of razor M.O.7, for recovery of mobile phone M.O.1 as well as recovery of gold ornaments in terms of M.Os.4 to 6 have all turned hostile. Therefore, it cannot be said that the prosecution has established its case beyond all reasonable doubt. Hence, we are of the view that the appellants are entitled for an acquittal. Consequently, we pass the following order:-
Crl.A.No.4 of 2011 is allowed. The judgment of conviction dated 09.12.2010 and the order of sentence dated 13.12.2010 passed by the II Additional District & Sessions Judge, Kolar, is set-aside. The appellants-accused No.1- Harish @ Ambi @ Gooli and accused No.2-Murali @ Appi @ Madhu are acquitted of the offences punishable under sections 302, 397 read with Section 34 of Indian Penal Code. The appellants/accused Nos.1 and 2 shall be set at liberty forthwith in this case, if not required in any other case.
In view of the acquittal of the appellants/accused Nos.1 and 2, Crl.R.C.No.1 of 2011 is dismissed.
Registry is directed to communicate the operative portion of the order to the Jail Authorities, Hindalga Jail, Belgaum, where the appellants/accused Nos.1 and 2 are lodged.
Sd/- Sd/-
JUDGE JUDGE *mn/-.