Karnataka High Court
K Pooja vs State Of Karnataka on 22 February, 2024
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CRL.A No. 1291 of 2020
C/W CRL.A No. 1297 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2024 R
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1291 OF 2020
C/W
CRIMINAL APPEAL NO.1297 OF 2018
IN CRL.A. NO.1291/2020:
BETWEEN:
K.Pooja
W/o Late Mahendra,
Aged 24 years,
Maruthi Extension,
II Stage, Malur Town,
Kolar District - 577 501.
Digitally signed ...Appellant
by SRIDEVI S
Location: (By Sri K.B.Monesh Kumar, Adv.)
HIGH COURT
OF
KARNATAKA AND:
State of Karnataka
By Malur Police Station,
Rep. by State Public Prosecutor,
High Court of Karnataka,
Bengaluru - 560 001.
...Respondent
(By Sri Vijayakumar Majage, SPP-II)
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CRL.A No. 1291 of 2020
C/W CRL.A No. 1297 of 2018
This Criminal Appeal filed under Section.374(2) Cr.P.C.,
praying to set aside the judgment of conviction dated
27.06.2018 and sentence dated 28.06.2018 passed by the I
Additional Sessions Judge at Kolar in S.C.No.103/2016,
convicting the appellant/accused no.2 for the offence p/u/s 302
r/w 34 of IPC and etc.
IN CRL.A. NO.1297/2018:
BETWEEN:
G.N.Sampath Kumar
S/o Narayanappa,
Aged about 20 years,
R/o Gottipura Village,
Jadigenahalli Hobli,
Hosakote Taluk,
Bangalore Rural District.
...Appellant
(By Sri Hashmath Pasha, Sr. Adv. for
Sri Nasir Ali, Adv.)
AND:
State of Karnataka
By Malur Police Station,
Kolar District.
Rep. by Learned State Public Prosecutor
...Respondent
(By Sri Vijayakumar Majage, SPP-II)
This Criminal Appeal filed under Section.374(2) Cr.P.C.,
praying to set aside the judgment and order of conviction dated
27.06.2018 and sentence dated 28.06.2018 passed by the I
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CRL.A No. 1291 of 2020
C/W CRL.A No. 1297 of 2018
Additional Sessions Judge at Kolar in S.C.No.103/2016,
convicting the appellant/accused no.1 for the offence p/u/s 302
r/w 34 of IPC and etc.
Date on which the appeals were 11.12.2023
reserved for judgment
Date on which the judgment was 22.02.2024
pronounced
These Criminal Appeals having been heard & reserved,
coming on for pronouncement this day, Sreenivas Harish
Kumar J., pronounced the following:
JUDGMENT
The judgment of conviction in
S.C.No.103/2016 on the file of I Additional
Sessions Judge, Kolar, has given rise to these two
appeals. Criminal Appeal No.1297/2018 is
preferred by accused No.1 and Criminal Appeal
No.1291/2020 is preferred by accused No.2. They
were tried for the offence punishable under Section
302 read with Section 34 of IPC and each of them
has stood sentenced to life imprisonment and fine
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of Rs.10,000/- each with default imprisonment for
a period of one year.
2. The prosecution case in brief is that
because of illicit relationship between both the
accused, they killed Mahendra, the husband of
accused No.2. The incident occurred on the
intervening night of 09.01.2016 and 10.01.2016
when the parents of the deceased had been to
Bengaluru. PW1, the father of Mahendra gave a
report of the incident as per Ex.P1 to the police
based on which FIR came to be registered. The
investigation resulted in both the accused being
charge sheeted for the offence under section 302
of IPC.
3. PW1 to 18 are the witnesses examined,
Exs.P1 to 36 are the documents and MOs.1 to 15
are the material objects got marked by the
prosecution to establish its case.
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4. The case is based on circumstantial
evidence. The trial court has found all the links in
the chain of circumstances being proved to record
conviction against the accused.
5. We have heard the arguments of Sri
Hashmath Pasha, learned senior counsel appearing
on behalf of Sri Nasir Ali, learned advocate for the
appellant in Criminal Appeal No.1297/2018, Sri
K.B.Monesh Kumar, learned advocate for the
appellant in Criminal Appeal No.1291/2020 and Sri
Vijayakumar Majage, learned State Public
Prosecutor-II for the respondent/State.
6. The incident occurred in the house of
PW1, when he and his wife had come over to
Bengaluru. Only accused No.2 and her husband
were present in the house. There is no dispute
regarding this. While arguing the learned counsel
for the accused did not dispute the presence of
accused No.2 in the house. But the fact in issue is
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whether the third man who gained entry into the
house during late hours of night was accused No.1.
7. The trial court has found the
circumstances namely, (i) place of occurrence (ii)
recovery of blood stained clothes of accused No.1
and 2 (iii) recovery of weapons, (iv) arrest of
accused 1 and 2 (v) medical evidence (vi) FSL
report, and (vii) explanation to be offered by
accused No.2 under section 106 of the Indian
Evidence Act, being proved.
8. Before reassessing the evidence one line
of argument of Sri Hashmath Pasha needs to be
addressed. His argument was that in a case based
on circumstantial evidence, every circumstance
must be proved beyond reasonable doubt. We are
not inclined to accept this argument to be
commendable.
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9. Proof beyond reasonable doubt does not
mean providing infallible or absolute proof. It is
hardly possible. According to Section 3 of the
Indian Evidence Act the term 'proved' takes the
meaning that the Court after considering the
matters before it believes in existence of a fact or
considers the existence of a fact so probable that a
prudent man under the circumstances of the
particular case acts upon the supposition that it
(fact) exists. The term 'prove' indicates the
degree of certainty to treat a fact as proved. The
prosecution is supposed to produce such kind of
materials on which the court can reasonably act to
reach the supposition that a fact exists. The
Supreme Court in the case of STATE OF UTTAR
PRADESH V. KRISHNA GOPAL AND ANOTHER
[(1988) 4 SCC 302] has held that proof beyond
reasonable doubt though of a higher standard,
however cannot be of absolute standard. The
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observation of the Hon'ble Supreme Court is
extracted below:
25. A person has, no doubt, a profound
right not to be convicted of an offence
which is not established by the evidential
standard of proof beyond reasonable doubt.
Though this standard is a higher standard,
there is, howev er, no absolute standard.
What degree of probability amounts to
`proof' is an exercise particular to each
case. Referring to the interdependence of
evidence and the confirmation of one piece
of evidence by another a learned author
says:
"The simple multiplication rule does
not apply if the separate pieces of
evidence are dependent. Two events
are dependent when they tend to
occur together, and the evidence of
such events may also be said to be
dependent. In a criminal case,
different pieces of evidence directed to
establishing that the defend ant did the
prohibited act with the specified state
of mind are generally dependent. A
juror may feel d oubt whether to credit
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an alleged confession, and doubt
whether to inter guilt from the fact
that the defendant fled from justice.
But since it is generally guilty rather
than innocent p eople who run away,
the two doubts are not to be
multiplied together. The one piece of
evidence may confirm the other."
Doubts would be called reasonable if they
are free from a zest for abstract
speculation. Law cannot afford any favourite
other than truth. To constitute reasonable
doubt, it is must be free from an over-
emotional response. Doubts must be actual
and substantial doubts as to the guilt of the
accused person arising from the evidence,
or from the lack of it, as opposed to mere
vague apprehensions. A reasonable doubt is
not an imaginary, trivial or a merely
possible doubt; but a fair doubt based upon
reason and common sense. I t must grow out
of the evidence in the case.
(emphasis supplied)
10. The above proposition was reiterated in a
later judgment of the Supreme Court in the case of
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KRISHNAN AND ANOTHER V. STATE REP. BY
INSPECTOR OF POLICE [AIR 2003 SC 2978].
11. As far back in 1972, the Hon'ble Supreme
Court in the case of HIMACHAL PRADESH
ADMINISTRATION V. OM PRAKASH [AIR 1972
SC 975] has made the meaning of the expression
'proof beyond reasonable doubt' in the following
words:
6. ................... The benefit of doubt to which
the accused is entitled is reasonable doubt,
the doubt which rational thinking men will
reasonably, honesty and conscientiously
entertain and not the doubt of a timid mind
which fights shy-though unwittingly it may
be-or is afraid of the logical consequence, if
that benefit was not given. Or as one great
Judge said it is "not the d oubt of a
vacillating mind that has not the moral
courage to decide but shelters itself in a
vain and idle scepticism". It does not mean
that the evidence must be so strong as to
exclude even a remote possibility that the
accused could not have committed the
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offence. If that were so the law would fail to
protect society as in no case can such a
possibility be excluded. It will give room for
fanciful conjectures or untenable doubts and
will result in deflecting the course of justice
if not thwarting it altogether. I t is for this
reason the phrase has been criticised. Lord
Goddard C.J. in Rex v. Kritz(1) said that
when in explaining to the juries what the
prosecution has to ,establish "a Judge begins
to use the words "'reasonable doubt" and to
try to explain what is a reasonable doubt
and what is not, he is much more likely to
confuse the jury than if he tells them in
plain language "It is the duty of the
prosecution to satisfy-you of the prisoner's
guilt". What in effect this approach amounts
to is that the greatest possible care should
be taken by the Court in convicting an
accused who is presumed to be innocent till
the contrary is clearly established which
burden is always in the accusatory system,
on the prosecution. The mere fact that there
is only a remote possibility in favour of the
accused is itself sufficient to establish the
case beyond 'reasonable doubt. This then is
the approach.
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12. Very impressively, Justice V.R.Krishna
Iyer in INDER SINGH AND ANOTHER V. THE
STATE (DELHI ADMINISTRATION) [(1978) 4
SCC 161], writes:
2. Credibility of testimony, oral and
circumstantial, depends considerably on a
judicial evaluation of the totality, not
isolated scrutiny. While it is necessary that
proof beyond reasonable doubt should be
adduced in all criminal cases, it is not
necessary that it should be perfect. If a case
is proved too perfectly, it is argued that it is
artificial; if a case has some flaws, inevitable
because human beings are prone to err, it is
argued that it is, too imperfect. One wonders
whether in the meticulous hypersensitivity to
eliminate a rare innocent from being
punished, many, guilty men must be
callously allowed to escape. Proof beyond
reasonable doubt is a guideline, not a fetish
and guilty man cannot get away with it
because truth suffers some infirmity when
projected through human processes. Judicial
quest for perfect proof often accounts for
police presentation of fool-proof concoction.
Why fake up? Because the court asks for
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manufacture to make truth look true? No, we
must be realistic.
3. We are satisfied that the broad
features of the case, the general trend of the
testimony and the convincing array of facts
which are indisp utable, converge to the only
conclusion that may be reasonably drawn,
namely, that the accused are guilty.
Theoretical possibilities may not shake up,
fancied weaknesses may not defeat, when
verdicts are rested on sure foundations.
Stray chances of innocence haunting the
corridors of the court cannot topple
concurrent findings of guilt.
(emphasis supplied)
13. In a case based on circumstantial
evidence, it is now a established principle that all
the links in the chain of circumstances must be
established. But many are under the impression
that every circumstance must be proved beyond
reasonable doubt. This is not the requirement.
Circumstantial evidence means a fact on which an
inference is to be founded. Evidence which proves
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or tends to prove the factum probandum indirectly
by means of certain inferences or deductions to be
drawn from its existence and their connection with
factum probentia is circumstantial evidence.
[Commentary on law of evidence by Woodroffe &
Amir Ali]. If the decision is based on inferences
considering the evidence provided in connection
with a fact constituting a circumstance, it is
enough to provide primary evidence in regard to
that fact. This position is made clear by the
Supreme Court in the case of M.G.AGARWAL V.
STATE OF MAHARASHTRA [AIR 1963 SC 200] it
is held:
18. There is another point of law which must
be considered before dealing with the
evidence in this case. The prosecution case
against accused No.1 rests on circumstantial
evidence. The main charge of conspiracy
under section 120B is sought to be
established by the alleged cond uct of the
conspirators and so far as accused No.1 is
concerned, that rests on circumstantial
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evidence alone. It is a well established rule
in criminal jurisprudence that circumstantial
evidence can be reasonably made the basis
of an accused person's conviction if it is of
such a character that it is wholly
inconsistent with the innocence of the
accused and is consistent only with his guilt.
If the circumstances proved in the case are
consistent either with the innocence of the
accused or with his guilt, then the accused is
entitled to the benefit of doub t. There is no
doubt or dispute about this position. But in
applying this principle, it is necessary to
distinguish between facts which may be
called primary or basic on the one hand and
inference of facts to be drawn from them on
the other. I n regard to the proof of basic or
primary facts the Court has to judge the
evidence in the ordinary way, and in the
appreciation of evidence in respect of the
proof of these basic or primary facts there is
no scope for the application of the doctrine
of benefit of doubt. The Court considers the
evidence and decides whether that evidence
proves a particular fact or not. When it is
held that a certain fact is p roved, the
question arises whether that fact leads to
the inference of guilt of the accused person
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or not, and in dealing with this aspect of the
problem, the doctrine of benefit of doubt
would apply and an inference of guilt can be
drawn only if the proved fact is wholly
inconsistent with the innocence of the
accused and is consistent only with his guilt.
It is in the light of this legal position that
the evidence in the present case has to be
appreciated.
(emphasis supplied)
14. The above decision makes it very clear
that in order to prove a basic or primary fact,
evidence in the ordinary way may be provided and
at the stage of examining whether a primary fact
is proved or not, there is no scope for giving
benefit of doubt. It is only at the end the
cumulative effect of the entire evidence brought on
record in regard to all the circumstances must
indicate that there is no scope for doubting the
prosecution case for any reason. In other words
analysis of the entire evidence on all the
circumstances must take to a conclusion that the
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proof brought on record by the prosecution is free
from doubt.
15. Of the circumstances pointed out by the
trial court as noted above, the place of occurrence
cannot be considered a circumstance, and it is not
disputed also. Medical evidence and FSL report
are only corroborative to the evidence on main
circumstances.
16. Now the evidence may be put to analysis
sequentially in the following way.
16.1 PW1 is the father of Mahendra, the
deceased. His testimony is that when he and his
wife were in Bengaluru, he received a call from his
relative, Ravi and came to know about the murder
of his son. Immediately he came to Malur with his
wife, first son and first son's parents'-in-law.
Having noticed injuries on the head and the neck
of his deceased son, he enquired his second
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daughter-in-law i.e., the second accused, who told
him that a stranger barged into the house,
assaulted her husband with a rod, cut his neck and
ran away. He has stated that he noticed dots of
blood in the face of accused No.2. Entertaining
suspicion on accused No.2, he made a report to
police as per Ex.P1.
16.2 PW9 - Ananda Murthy is the father
of the first daughter-in-law of PW1. His oral
evidence is that PW1 and his wife had visited his
house in Bengaluru at 6.00 p.m. on 09.01.2016.
In the midnight, around 1.30 a.m., he received a
call from Ravi and came to know of some brawl
having taken place in the house of PW1 at Malur.
He passed on this information to PW1 and PW7 -
Rajamma (wife of PW1). They all came over to
Malur around 3.30 a.m.
17. The evidence given by PW1 and PW9
cannot be disbelieved. Though it was argued by
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Sri Monesh Kumar that link in the evidence of PW1
and PW9 is not available because of non
examination of Ravi, it has to be stated that the
evidence of PW1 cannot be disbelieved for that
reason. PW17, the then PSI of Malur Police
Station, has stated to have received a complaint as
per Ex.P1 at 3.30 a.m. on 10.01.2016, and his
evidence to this effect has not been controverted
in the cross-examination. Therefore the first
inference to be drawn from the evidence of PW1 is
that accused No.2 was very much present in the
house at the time when the incident occurred. The
incriminatory evidence attributable to her will be
discussed later.
18. To connect accused No.1 with the
incident, the prosecution examined PW2 and PW3,
but they did not support. PW2 and PW3 were said
to be the tenants of PW1, and through them, it
was sought to be established that they heard a
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shout in the house of PW1 when they were
sleeping, and when they came down the stairs,
they saw a person running away towards Modern
School with a club in his hand. Then they went
inside the house of PW1 and saw the dead body of
Mahendra in a pool of blood. They asked accused
No.2 as to what happened and came to know from
her that a stranger had come and killed her
husband. PW2 and PW3 do not support these
aspects. Even if they had supported, they would
not have stated that they saw accused No.1, in as
much as what the prosecution wanted to prove
from them was that they saw one person running
away, not that they saw accused No.1. The oral
evidence of PW2 and PW3 in whatever manner it
has come does not have much consequence.
Therefore the main circumstances to be examined
are,
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(i) Recovery of blood stained clothes of
both the accused,
(ii) Seizure of weapons,
(iii) Silence of accused No.2 and
applicability of Section 106 of
Evidence Act, and
(iv) Motive
19. PW1, PW4 and PW5 have supported the
drawing up of Ex.P2 under which blood stained bed
sheet, MO3, was seized. PW2 may not have
supported the drawing up of spot mahazar, yet the
evidence of PW1, PW4 and PW5 can be acted upon.
They speak about seizing blood stained and
unstained granite scrapings. The evidence on spot
mahazar is not disputable.
20. Recovery of blood stained clothes of both
the accused is an important circumstance. The
trial court has held this circumstance being
proved. Its findings are that PW4, PW10 and PW11
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have supported the prosecution, and based on
their evidence as also Ex.P.33, the disclosure
statement made by accused No.2 which has
relevancy according to section 27 of the Evidence
Act, seizure of the blood stained clothes of accused
No.2, viz., a nighty (MO8) and a petticoat (MO13)
would get established. In regard to seizure of the
clothes of accused No.1, it is held that he himself
produced his clothes - a T-shirt, a vest, an
underwear and a knicker as per MO4 to MO7
respectively before the police and this is testified
by PW4, PW10 and PW11.
21. The argument of Sri Hashmath Pasha and
Monesh Kumar on the seizure of clothes of both
the accused is that the testimonies of PW4, PW10
and PW11 may appear to be supporting, but the
same cannot be acted upon for three reasons,
firstly that PW11 is a relative of PW1. Secondly,
the evidence shows that both the accused were in
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the police station on 10.01.2016, but the date of
arrest is shown as 12.01.2016. According to the
investigator, the voluntary statements of the
accused were obtained on 12.01.2016. It was the
argument of Sri Hashmath Pasha in this regard
that the evidence given by PW18, a police
constable shows that he saw both the accused in
the police station on 10.01.2016; if it was so,
there is no explanation as to why their voluntary
statements were not obtained immediately after
securing them to the police station. And if their
voluntary statements had been obtained before
12.01.2016, no credence can be attached to
recoveries as they were not in police custody from
10.01.2016 to 12.01.2016. Thirdly, the seizure of
the clothes of accused No.2 was not in accordance
with section 100(4) of Cr.P.C, in the sense that
non availability of locals to witness the mahazar
should have been recorded by the investigator.
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Thus the seizure under Ex.P5 stood vitiated, they
argued.
22. The obtaining picture from the evidence
is this: PW17 was the Sub-Inspector of Police who
adduced evidence in regard to registration of FIR
as per Ex.P29 after receiving written report of
incident from PW1 as per Ex.P1. Since the
investigating officer, M.Raghavendra died on
18.10.2016, PW17 was further examined to prove
the investigation conducted by Raghavendra.
PW17 stated that the investigating officer obtained
voluntary statements of both the accused on
12.01.2016. And during that time, accused No.2
made a disclosure as per Ex.P33 that she would
produce her blood stained clothes. After making
the disclosure statement, accused No.2 led the
police to her house where the incident had
occurred, and produced her blood stained clothes
viz., a nighty (MO8) and a petticoat (MO13). He
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has stated about seizure of these clothes by the
investigating officer by drawing mahazar as per
Ex.P5 in the presence of panchas. PW18 who
typed the mahazars on the laptop stated first that
accused No.2 produced her clothes on 12.01.2016
in the police station, and when he was cross
examined by the public prosecutor treating him
partly hostile, he admitted the suggestion that
accused No.2 produced her clothes on 12.01.2016
at the house of PW1. He has stated in the cross-
examination that the police officers did not take
accused No.2 to the police station on that day, the
meaning of which is that she was not taken to
police station on 10.01.2016. It was further
elicited from him that he saw both the accused in
the police station after 10.01.2016.
23. PW15 has given evidence that he traced
accused No.1 near ITC factory, Hosakote and from
there he brought him to police station and
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produced before the CPI. PW14 and PW16 have
given evidence that on the instructions of the
investigating officer they went in search of accused
No.2 and found her in the house of her grand
mother, and from there they brought accused No.2
to the police station.
24. It is true that the evidence of PW4 gives
an impression that all the four mahazars Exs.P2,
P5, P6 and P7 were drawn on the same day. Ex.P2
is the spot mahazar and it was drawn on
10.01.2016 about which there is no dispute.
Based on the evidence of PW4 much was argued by
Sri Hashmath Pasha and Monesh Kumar that the
seizure of clothes was also made on 10.01.2016.
But this inference cannot be drawn based on the
testimony of PW4 alone. The evidence given by
PW15 with regard to production of accused No.1
and, PW14 and PW16 with regard to production of
accused No.2 on 12.01.2016 has not been
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controverted in the cross-examination. Even
though accused No.2 was very much available on
10.01.2016 at the time when spot mahazar was
drawn and especially when PW1 suspected the
involvement of accused No.2 in the murder of his
son, it is not known why she was not arrested on
the same day. It would only point out the lapse on
the part of the investigator and for that reason
seizure of her clothes on 12.01.2016 cannot be
disbelieved. Actually PW4 has not given the date
of drawing of all the four mahazars. In the
examination-in-chief he has stated that Mahendra
died in the month of January, 2016 and he had
been to the house of PW1 on the date of incident.
According to him all the mahazars were drawn on
the same day. But the testimonies of PW10 and
PW11 make it very clear that Ex.P5 was drawn on
12.01.2016 in connection with seizing the blood
stained clothes of accused No.2. PW17 has stated
that it is only after the arrest of accused No.2 on
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12.01.2016 and obtaining of her voluntary
statements, her clothes were seized. It is to be
stated here that PW4 was examined nearly two
years after the incident. If he was not able to
remember the date of mahazars and stated in such
a way that all the mahazars were drawn on the
same day, it cannot be said that the clothes of
accused No.2 were seized before her arrest and it
was not pursuant to the disclosure that she made
in her voluntary statement. It may also be stated
that PW4 may have stumbled in giving the dates,
but establishes the fact of seizure of clothes of
accused No.2 in his presence and other panch
witnesses. PW10, PW11 and PW17 have stated
that the clothes were seized on 12.01.2016 and
their evidence has not been controverted in any
manner.
25. If it is assumed for arguments sake that
both the accused were kept in the police station on
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10.01.2016 till 12.01.2016 without formally
arresting them, it can be stated that they were in
police custody. What amounts to custody is made
clear by the Supreme Court in the case of STATE
OF A.P. V. GANGULA SATYA MURTHY [(1997)1
SCC 272], it is held:
19. The other reasoning based on Section
26 of the Evidence Act is also fallacious. I t
is true any confession made to a police
officer is inadmissible under Section 25 of
the Act and that ban is further stretched
through Section 26 to the confession made
to any other person also if the confessor
was then in police custody. Such "custody"
need not necessarily be post-arrest custody.
The word "custody" used in Section 26 is to
be understood in pragmatic sense. If any
accused is within the ken of surveillance of
the police during which his movements are
restricted then it can be regarded as
custodial surveillance for the purpose of the
Section. If he makes any confession durin g
that period to any person be he not a police
officer, such confession would also be
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hedged within the banned contours outlined
in Section 26 of the Evidence Act.
(emphasis supplied)
26. Sri Hashmath Pasha referred to section
100 (4) of Cr.P.C. to argue that since the seizure
of clothes of accused No.2 was not made in the
presence of at least two respectable inhabitants of
the locality, no importance can be given to seizure
of clothes of accused No.2 by drawing panchanama
as per Ex.P5. In regard to this argument, it is to
be stated that section 100 of Cr.P.C. cannot be
made applicable, for it was not a search made by
the police officer pursuant to issuance of search
warrant. Seizure was pursuant to disclosure made
by accused No.2 when she gave her voluntary
statement before the police officer after arrest.
To this kind of seizure, having the presence of
local inhabitants may not be necessary, however to
rule out any possibility of manipulation, it is a rule
of caution to have the presence of independent
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panch witnesses. While dealing with this kind of
situation, the Hon'ble Supreme Court in the case of
MUKESH AND ANOTHER V. STATE (NCT OF
DELHI) AND OTHERS [(2017) 6 SCC 1] has
observed as below:
"448. While the prosecution has been able to
prove the recoveries made at the behest of
the accused, the defence counsel repeatedly
argued in favour of discarding the recoveries
made, on the ground that no independent
witnesses were examined while effecting such
recoveries and preparing seizure memos.
449. The above contention of the defence
counsel urges one to look into the specifics of
Section 27 of the Evidence Act. As a matter of
fact, need of examining independent
witnesses, while making recoveries pursuant
to the disclosure statement of the accused is
a rule of caution evolved by the Judiciary,
which aims at protecting the right of the
accused by ensuring transparency and
credibility in the investigation of a criminal
case. In the present case, PW 80 SI Pratibha
Sharma has deposed in her
cross-examination that no independent
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person had agreed to become a witness and
in the light of such a statement, there is no
reason for the courts to doub t the version of
the police and the recoveries made.
450. When recovery is made pursuant to the
statement of the accused, seizure memo
prepared by the investigating officer need not
mandatorily be attested by independent
witnesses. In State (Govt. of NCT of Delhi)
v. Sunil , it was held that non-attestation of
seizure memo by independent witnesses
cannot be a ground to disbelieve recovery of
articles' list consequent upon the statement
of the accused. It was further held that there
was no requirement, either under Section 27
of the Evidence Act or under Section 161
CrPC to obtain signature of independent
witnesses. If the version of the police is not
shown to be unreliable, there is no reason to
doubt the version of the police regarding
arrest and contents of the seizure memos."
(emphasis supplied)
27. Sri Monesh Kumar referred to another
judgment of the Supreme Court in the case of
SUBRAMANYA V. STATE OF KARNATAKA
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(CRIMINAL APPEAL NO.242/2022) where a
procedure for recording disclosure statement of an
accused under Section 27 of the Evidence Act has
been evolved. It is observed that the investigating
officer should secure two independent witnesses to
the police station and the accused should be asked
whether he is desirous of making a statement in
relation to the place where the weapons are
hidden. Referring to this judgment Sri Monesh
Kumar argued that since this procedure was not
followed while obtaining the statement of accused
No.2, the seizure of her clothes cannot be acted
upon. But this argument cannot be accepted. The
reason is that the Hon'ble Supreme Court has
made it very clear that if such a procedure is
adopted, it lends credence to the statement made
by the accused. Moreover in the cited case, the
factual position narrated in para 77 shows that
none of the witnesses had deposed the exact
statement made by the appellant/accused in
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regard to discovery under Section 27 of the
Evidence Act. In the case before us, the evidence
of the witnesses is cogent. In any case for that
matter, it is highly impossible to expect the
witnesses speak in exactitude, it is enough if they
speak cogently to a particular relevant fact. It
may also be stated that if the investigators adopt
the mode as evolved by the Hon'ble Supreme
Court, it may help prosecution.
27.1 Therefore there cannot be any fuss
in the seizure of the clothes of accused No.2.
28. So far as the seizure of the clothes of
accused No.1 is concerned it was not based on
voluntary statement. He himself produced his
blood stained clothes before the police in the
station. The argument of Sri Hashmath Pasha was
that it was highly impossible to believe that
accused No.1 was wearing the blood stained
clothes for two days. This cannot be the sole
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reason for disbelieving the testimonies of the
independent witnesses, viz., PW4, PW10 and
PW11, who have clearly testified the fact of seizing
the clothes of accused No.1 by drawing the
mahazar as per Ex.P7. It can also be stated that it
lay within the knowledge of accused No.1 to
explain as to why he was wearing the blood
stained clothes till 12.01.2016. So far this
circumstance is concerned, it may be stated that
the evidence is sufficient enough to be believed
and acted upon.
29. Seizure of weapons, a club (MO1) and a
knife (MO10) is another circumstance which the
trial court has held to have been proved. Again
the testimonies PW4, PW10, PW11 and PW17 have
a bearing on this circumstance. Ex.P6 is the
mahazar drawn in this regard. PW17 has stated
that consequent to voluntary statement of accused
No.1 - Raghavendra, the CPI got a mahazar Ex.P6
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drawn up and seized MO1 and MO10. This
evidence of PW17 is not controverted in his cross-
examination. PW4, PW10 and PW11 have also
given a vivid account that accused No.1 himself
took them and the police to a vacant plot situate
near Modern School, took out a knife and a club
from a shrub and, produced before the police.
Except giving suggestion to these witnesses that
accused No.1 did not produce the weapons,
nothing worth mentioning here was elicited from
them. But the argument by Sri Hashmath Pasha
was that this seizure was inadmissible because the
voluntary statement was obtained when accused
No.1 was not in police custody. He has founded
this argument because of some ambiguity in the
date of arrest of accused No.1 about which we
have dealt with already while discussing evidence
on the circumstance of seizure of blood stained
clothes of both the accused. The conclusion to be
drawn is that seizure of weapons at the instance of
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accused No.1 was consequent to disclosure of the
fact of concealment of the weapons made by him
in his voluntary or confession statement while
being in police custody. Though the trial court has
not given elaborate reasons on this circumstance,
in our opinion the conclusion arrived at by the trial
court is correct.
30. Comparison of chance palm print found
on the wall with the palm print of accused No.1 is
another circumstance which the trial court has
relied upon and held to be proved. Placing
reliance on the evidence given by PW12, the trial
court has opined that PW12 being a finger print
expert did not have any reason to depose that the
chance print matched with the palm print of
accused No.1. Refuting the argument of the
defence counsel before the trial court that the
evidence of PW12 and his opinion regarding
matching of the palm prints was worth rejection as
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the chance prints were not lifted in accordance
with Section 5 of the Identification of Prisoners
Act, 1920, it has held that in view of the
judgments of the Supreme Court in MOHAMMED
AMAN V. STATE OF RAJASTHAN [AIR 1997 SC
2960], SHANKARIA V. STATE OF RAJASTHAN
[1978(3) SCC 435] AND STATE OF BOMBAY V.
KATHI KALU OGHAD [AIR 1961 SC 1808], there
was no bar for the police officials to take the palm
prints of the accused for the purpose of
investigation and therefore held that the chance
print found on the wall was that of accused No.1.
31. In our opinion this finding of the trial
court does not appear to be incorrect. The
evidence in this regard is only corroboratory.
PW12 is a finger print expert. His testimony is
that after receiving a phone call from Police
Control Room he visited the place of occurrence at
3.30am on 10.01.2016. Inspecting the spot he
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found palm prints on the table situated inside the
house and also on the wall near the dead body of
Mahendra. He took photographs of the palm
prints. He gave a marking 'A' to the palm print
found on the wall and 'B' to the palm print found
on the table. He also collected palm prints of
Mahendra, the deceased and Pooja the second
accused on white papers. Returning to his office
he compared the palm prints marked A and B with
the palm prints of deceased and accused No.2.
The palm print in photograph B tallied with the
palm print of deceased Mahendra. He compared
the palm print in photograph A with the palm
prints available in his office bureau (palm prints
records), but there was no matching. On
14.01.2016, the CPI of Malur circle sent the finger
prints and palm prints of accused No.1 for
comparison with palm print A. On comparison of
the both, he noticed that the right palm print of
accused No.1 tallied with blood stained palm print
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A. In this regard he gave reports as per Ex.P17
and P18. The reports contain the reasons for his
conclusions. Ex.P19 is the compared charting
information. When PW12 was examined for the
first time, the photographs that he took were not
marked and for this reason, he was recalled for
further examination-in-chief on 13.09.2017 by
making an application under Section 311 of Cr.P.C.
In his further examination in chief, the
photographs Exs.P21 and P22 were marked along
with the CD of the photographs as per MO15.
Suffice it to say that the cross examination does
not contain anything more than questions relating
to his expertise in the field and there is no
question having the effect of dislodging his
opinion.
32. Sri Hashmath Pasha sought to reject the
testimony of PW12 for these reasons. His first line
of argument was that no panchanama was drawn
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when PW12 took the photographs at the scene of
occurrence and thereby his testimony lacks
credence. Secondly the palm print of accused No.1
was not obtained in accordance with Section 5 of
the Identification of Prisoners Act, 1920 and
thirdly that the photographs Exs.P21 and 22 and
their CD-MO15 being secondary evidence could not
have been acted upon by the trial court for want of
the certificate under Section 65B of the Indian
Evidence Act.
33. The reply of Sri Vijayakumar Majage was
that PW12 has not been discredited in the cross
examination. There is no suggestion at least that
there were no palm prints on the table and on the
wall. It was not necessary to draw the mahazar
while lifting the palm prints. He submitted that
lifting the palm print of accused No.1 was in
accordance with Section 4 of the Identification of
Prisoners Act, 1920. It was not necessary that
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finger prints or palm prints should always be lifted
following the procedure envisaged under Section 5.
In regard to non production of certificate under
Section 65B of the Indian Evidence Act, his reply
was that since PW12 himself snapped the
photographs, and he himself came to court to
depose, production of certificate was not
necessary.
34. Before giving a finding whether the
evidence in this regard is worth acceptance or not,
it is necessary to refer to a decided case of the
Supreme Court cited by Sri Hashmath Pasha.
35. In HARI OM ALIAS HERO V. STATE OF
UTTAR PRADESH [(2021) 4 SCC 345], the
question that arose was whether criminal liability
could be fastened on the accused with the help of
finger print expert's opinion. The facts and
circumstances therein clearly indicate that a police
constable by name Dharmendra Singh lifted the
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finger prints from the house of the deceased. The
finger prints were picked from the glasses
allegedly used by the accused for drinking water.
The report did not show the method applied for
lifting the finger prints. Dharmendra Singh was
also not examined. The lifted finger prints were
also not properly preserved. In these
circumstances the Hon'ble Supreme Court
expressed an opinion that it was not safe to rely
upon the opinion of the finger print expert. So it is
clear that applicability of Section 5 of the
Identification of Prisoners Act, 1920 did not
emerge for discussion. With great respect we hold
that this decision is of no help to accused No.1.
36. In the case of SHANKARIA V. STATE OF
RAJASTHAN (supra), a decision followed by the
trial court, a specific question as to applicability of
Section 5 of the Identification of Prisoners Act,
1920 has been discussed. It is clearly held that
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the police were competent under Section 4 of the
said Act to take the specimen finger prints of the
accused.
37. Dealing with akin situation, the Division
Bench of the High Court of Madras in the case of
MANICKAM V. STATE BY THE INSPECTOR OF
POLICE, CHITHODE POLICE STATION, ERODE
DISTRICT [2009 SCC ONLINE MAD 1409] has
held in clear words that:
34. There is no law which prohibits the
Investigating Officer from lifting the Finger
Print of the accused for comparison during
the course of investigation of the case. In
fact, the provisions found under Section 5 of
the Identification of Prisoners Act, 1920,
and Section 311-A, Cr.P.C. speak only about
the powers of the learned Judicial
Magistrate, when he is approached by the
Investigating Officer concerned for a
suitable direction to the accused to co-
operate by giving his finger print or
signature or sample hand-writing as the
case may be. It is to be noted that those
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provisions do not put an embargo on the
Investigating Officers from acting on their
own for lifting the finger print, signature or
handwriting of the accused during the
course of Investigation. The Supreme Court
has not laid down that the Investigating
Officer should mandatorily invoke the
provision under Section 5 of the
Identification of Prisoners Act, 1920,
whenever he resorts to lift the finger print
of the accused for the purpose of
Investigation of the case.
(emphasis supplied)
38. Given a close reading to Sections 4 and 5
of the said Act, a marked distinction can be
noticed. If the Act necessitated obtaining of
measurements in accordance with Section 5 only
there was no necessity of having Section 4.
Section 4 allows a police officer to take the
measurements in the prescribed manner of a
person arrested in connection with an offence
punishable with rigorous imprisonment for a term
of one year or upwards. Section 3 deals with
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taking of the measurements and photographs of a
convicted person. Therefore it is explicit from
Section 4 that finger prints of only an arrested, not
convicted may be taken by a police officer during
investigation. Section 5 comes into operation in a
circumstance where a person refuses to allow his
measurements to be taken by a police officer. In
that event he may be produced before the
Magistrate to obtain a direction to such person to
give his measurements. Therefore the argument
of Sri Hashmath Pasha cannot be accepted.
39. PW12 is an expert. His report contains
the reasons for his conclusions that chance print
'A' was that of accused No.1 and there are no
reasons to discard his uncontroverted testimony
just because mahazar was not drawn. The police
could have drawn a mahazar at that time, but
merely because it was not drawn, the testimony of
PW12 and his report is not liable to be rejected.
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He has stated that one Kempanna was present at
the time of lifting or photographing the chance
print. It was argued by Sri Hashmath Pasha and
Sri Monesh Kumar that Kempanna should have
been examined. It was not necessary because
Kempanna was the Assistant of PW12.
40. Production of certificate under Section
65B of the Indian Evidence Act was not required
inasmuch as it is the clear evidence of PW12 that
he himself took photographs of the palm prints
found on the table and the wall and developed the
prints. Certificate is not necessary in a situation
like this. Cogent evidence on the circumstances
being available, it can be concluded that this
circumstance is also proved.
41. Ex.P30 is the FSL report which was
marked with consent of learned counsel for
accused No.1. That means the defence does not
dispute the contents of Ex.P.30 which clearly
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states that the A group human blood was detected
in item No.1-blood stained granite stone powder,
item No.3 - a bed sheet, items No.4 and 5 - the
clothes of accused No.2, items No.7, 8, 11, 12, 13
and 14 the clothes of accused No.1, and item
Nos.9 and - 10 a neelagiri club and a knife
respectively. The FSL report is corroborative to
other evidence.
42. The prosecution version in regard to
motive is that since there was illicit relationship
between both the accused, they thought the
deceased to be an hurdle in their way and they
decided to eliminate him. The trial court has given
a finding that though the prosecution has not been
able to prove the motive, the absence of proof
does not break the chain of link in the
circumstances since it is hardly possible to prove
the illicit relationship. Both the counsel for the
accused argued that in a case based on
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circumstantial evidence, motive is required to be
proved or otherwise the link in the chain does not
become complete.
43. On this point it is to be stated that direct
evidence is seldom available for proving illicit
relationship. It is only inferential from other
proved facts. Motive prompts a person to develop
an intention to commit crime. Since motive is a
mental process, it is difficult to obtain proof,
especially when the illicit relationship is projected
to be a background for murder. Though proof is
not made available, it cannot be said that a crime
is not committed without a motive. In this case
PW1, the father-in-law of accused No.2 has stated
about illicit relationship based on the information
given to him by the police. Sri Monesh Kumar
argued that since PW1 has admitted in the cross
examination that accused No.2 and the deceased
had cordial relationship, illicit relationship between
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both the accused cannot be suspected. It is true
that PW1 has given an answer like this in the cross
examination. For that reason alone inference
cannot be drawn that there was no illicit
relationship. The evidence clearly discloses that
she was very much present in the house when PW1
and others returned to Malur soon after getting
information of murder of the deceased. She told
PW1 at that time that some stranger came and
assaulted her husband. Apparently this answer
appears to be falsehood. It is not her statement
that a stranger broke open the door and entered
the house to commit robbery. The attending
circumstances did not disclose any attempt to
commit theft or robbery. Or there must be some
other reason for accused No.1 going to the house
of the deceased during late night. There is no
explanation either by accused No.1 or accused
No.2 when they were examined under Section 313
of Cr.P.C. Accused No.2 has not stated that she
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did not know accused No.1 at all. The blood stains
found on their clothes clearly point to their
involvement in commission of crime. When there
is no other possible explanation, the only probable
inference that can be drawn is that there might
exist illicit relationship between the accused.
Therefore motive can be inferred from these
attending circumstances.
44. The trial court has applied Section 106 of
the Indian Evidence Act to draw adverse inference
against accused No.2 especially. The findings are
that accused No.2 was very much present in the
house at the time of occurrence and the fact as
regards the death of her husband unnaturally lay
within her special knowledge. When she offered no
explanation, adverse inference is required to be
drawn against her.
45. But Sri Monesh Kumar placed reliance on
judgment of the Supreme Court in the case of
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STATE OF PUNJAB VS. KEWAL KRISHAN
[CRIMINAL APPEAL NO.2128/2014] to argue
that Section 106 of the Evidence Act cannot be
applied when the prosecution has failed to
discharge its primary burden of proving the case
beyond reasonable doubt. This is a well
established preposition. No adverse inference can
be drawn against an accused for failing to offer an
explanation under Section 106 of the Evidence Act
unless the initial burden is discharged by the
prosecution. In the cited case the Hon'ble
Supreme Court found that the incriminating
circumstances were not proved and the chain did
not become complete. In the present case, it is
not so. The discussion made above clearly shows
all the links in the chain of circumstances being
proved with cogent evidence. The burden was very
much on accused No.2 to explain as to how her
clothes got stained with blood. If she was
innocent of the crime, chances of her clothes
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getting stained with blood were very remote or
even impossible. It is not even brought out that
she rushed to the rescue of her husband when
accused No.1 or some stranger attacked him, in
which event there was such a possibility. Looked
in this view, her silence is a factor to be
considered against her. Therefore in a situation
like this, Section 106 of the Evidence Act can
certainly be applied to draw an inference about her
complicity in the commission of crime.
46. Now if the entire evidence is put to
analysis, it can very well be concluded that
primary evidence brought on record in regard to
every circumstance completes the chain without
paving way to entertain a reasonable doubt in any
form at the end. To be stated, the report of the
experts on palm prints matching and blood group
detected on the seized clothes fortify the evidence
on the main circumstances. The accused stand
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inescapably amid the sphere of circumstances.
Hence both the appeals are dismissed confirming
the judgment of the trial court.
Sd/-
JUDGE
Sd/-
JUDGE
SD,KMV
List No.:1 Sl No.:2
47. After pronouncement of the judgment
Sri Hashmath Pasha, learned senior counsel
submits that the trial court has directed accused
No.1 and 2 to pay an amount of Rs.1,00,000/- to
PW1 towards compensation. Since both the
accused are in custody they have no money to
compensate PW1. He also submits that accused
No.1 was a student at the time when the incident
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occurred and he has no property also. Therefore
he requests for waiving the compensation imposed
on the accused.
48. Sri Vijay Kumar Majage, learned SPP-II
submits that unless the parents of the deceased
are suitably compensated, the ends of justice will
not meet.
49. Taking note of the fact that both the
accused are in custody since the date of their
arrest and that they were unemployed, even if
there is a direction to pay compensation, they may
not be able to pay the amount. In that event no
purpose will be served. In this view, instead of
directing both the accused to pay compensation,
the District Legal Services Authority, Kolar is
hereby directed to suitably compensate PW1 by
holding necessary enquiry. To this effect the order
of the trial court stands modified.
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50. Both the accused are entitled to set off
for the period they have already spent in jail.
Sd/-
JUDGE
Sd/-
JUDGE
SD,KMV
