In the instant case also, as observed above, neither
PW-5 - Investigating Officer nor PW-6 - Fingerprint expert,
has, anywhere, stated as to from which spot or from which
article the 'Chance Fingerprint' was lifted, and by whom and in
what manner. The person who is said to have lifted the
Fingerprint was not examined by the prosecution for the
reasons best known to it. The alleged 'Chance Fingerprint'
and also the article from which it might have been lifted also
have not been produced before the Court. In such a
circumstance, it is not safe to rely upon the mere report of the
Fingerprint expert that the 'Chance Fingerprint' given to him
for examination was corresponding to the fingerprint of the
accused and proceeding to convict the accused. {Para 26}
27. In such a circumstance, when there are several
gaps in the case of the prosecution as to the description of the
place and the article from which the fingerprint was lifted, as
to who lifted the Fingerprint, as to the manner adopted in
lifting the fingerprints and also in the absence of seizing and
producing the article from which the Fingerprint was said to
have been lifted, the same would make it unsafe to rely upon the
report given upon the examination of such an alleged Fingerprint by the Fingerprint expert.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
CRIMINAL REVISION PETITION No.911 OF 2012
BETWEEN:
Thippeswamy @ Kunta Vs State by Challakere Police,
BEFORE
Dr. JUSTICE H.B. PRABHAKARA SASTRY
DATED: 6TH DAY OF JULY, 2022
This Criminal Revision Petition is filed under Section 397 r/w.
401 of the Code of Criminal Procedure, 1973, praying to set aside
the judgment of conviction passed in C.C.No.898/2010 dated
09-01-2012 on the file of the JMFC at Challakere, in
Crl.A.No.31/2012 dated 10-07-2012 on the file of the District and
Sessions Judge at Chitradurga, against the petitioner, and acquit
the petitioner by allowing this petition in the interest of justice.
This Criminal Revision Petition, having been heard through
physical hearing/video conferencing hearing and reserved on
30-06-2022, coming on for pronouncement of orders, this day, the
Court made the following:
O R D E R
The present petitioner was accused in C.C.No.898/2010,
in the Court of the Judicial Magistrate First Class at
Challakere, (hereinafter for brevity referred to as “the Trial
Court”), who, by the judgment of conviction and order on
sentence dated 09-01-2012 of the Trial Court, was convicted
for the offences punishable under Sections 457 and 380 of the
Indian Penal Code, 1860 (hereinafter for brevity referred to as
“the IPC”) and was sentenced accordingly.
Aggrieved by the same, the accused preferred an appeal
in Criminal Appeal No.31/2012, in the Court of the Principal
District and Sessions Judge at Chitradurga, (hereinafter for
brevity referred to as the “the Sessions Judge’s Court”),
which, after hearing both side, dismissed the appeal,
confirming the impugned judgment of conviction and order on
sentence passed by the Trial Court in C.C.No.898/2010. It is
challenging the judgments passed by both the Trial Court as
well the Sessions Judge’s Court, the accused/revision
petitioner has preferred the present revision petition.
2. The summary of the case of the prosecution in the
Trial Court was that, on the date 03-06-2010, during night,
the accused by removing the tiles of the roof of the house of
CW-1 - Nagaraj, situated at I Cross, near Veerabhadra Lodge
on Bellary Road, Challakere, entered into the said house and
committed theft of silver articles and cash kept in the Almirah
and that on the date 13-06-2010 at 11:00 a.m., CW-7 to
CW-11, conducted a raid and apprehended the accused. The
Investigating Officer recovered several of the stolen articles
from the accused, including the one which were stolen in the
instant case, as such, charge sheet was filed against the
accused for the offences punishable under Sections 457, 380
and 75 of the IPC.
3. The accused appeared in the Trial Court and
contested the matter through his counsel. The accused
pleaded not guilty. As such, in order to prove the alleged guilt
against the accused, the prosecution got examined in all seven
(7) witnesses from PW-1 to PW-7, got marked documents
from Exs.P-1 to P-6 and produced Material Objects from MO-1
to MO-3. However, neither any witness was examined nor
any documents were got marked on behalf of the accused.
4. The respondent - State is being represented by the
learned High Court Government Pleader.
5. The Trial Court and the learned Sessions Judge’s
Court’s records were called for and the same are placed before
this Court.
6. Learned counsel for the accused/revision petitioner
and learned High Court Government Pleader for the
respondent - State are physically appearing in the Court.
7. Heard the arguments from both side. Perused the
materials placed before this Court including the impugned
judgments passed by both the Courts and also the Trial Court
and learned Sessions Judge’s Court’s records.
8. For the sake of convenience, the parties would be
henceforth referred to as per their rankings before the Trial
Court.
9. After hearing the learned counsels for the parties, the
only point that arise for my consideration in this revision
petition is:
Whether the concurrent finding recorded by the
Trial Court as well as the Sessions Judge’s Court that,
the accused has committed the alleged offences
punishable under Sections 457 and 380 of the Indian
Penal Code, 1860, warrants any interference at the
hands of this Court?
10. The learned counsel for the revision petitioner, in his
argument submitted that, he would not deny or dispute the
alleged incident of theft in the house of PW-1, however, his
only contention is that, the alleged recovery at the instance of
the accused, is not proved. He further submitted that, mere
tallying of a 'Chance Fingerprint' cannot be the sole basis for
conviction of the accused.
In his support, he relied upon a judgment of the Hon’ble
Apex Court in the case of Digamber Vaishnav & Anr. Vs. State
of Chhattisgarh reported in Law Finder Doc Id#1385623
and a judgment of the Division Bench of this Court in the case
of Mallappa Basappa Ihole Vs. The State of Karnataka
reported in Indian Kanoon -http://indiankanoon.org/doc/
141408122/.
11. Learned High Court Government Pleader for the
respondent, in his brief argument, submitted that, the
recovery of the articles at the instance of the accused has
been established. The accused has failed to give any
explanation as to how come the stolen articles at MO-1 to
MO-3 came into his possession.
Stating that the Fingerprints recovered from the spot
would scientifically establish the involvement of the accused in
the commission of the crime, learned High Court Government
Pleader relied upon a judgment of the Hon’ble Apex Court in
the case of B.A. Umesh Vs. Registrar General, High Court of
Karnataka reported in (2011) 3 Supreme Court Cases 85.
12. PW-1 (CW-1) – Nagaraju, S/o. Channappa is the
complainant in the case. In his evidence, he has stated that
on the night of the date 03-06-2010, a theft had taken place
in his house. The robbers had entered the house by opening
the tiles of the roof and had stolen a silver plate, two silver
cups (kumkuma Battalu – PÀÄAPÀĪÀÄ §lÖ®Ä) and one small silver pitcher (pot like) (kalasha – "PÀ¼À±À"). They were costing
together a sum of `7,800/-. The accused, by breaking open
the Almirah, had taken those articles. He has stated that in
that connection, he has lodged a complaint with the Police as
per Ex.P-1. Thereafter, the Police had visited the spot and
drawn a scene of offence panchanama as per Ex.P-2. Though
the witness has identified the alleged stolen articles at MO-1
to MO-3 in the Court, but specifically stated that, he does not
know as to who had stolen them and from whose possession
those articles were recovered.
Since this witness did not speak anything about the
involvement of the accused in the alleged crime, the
prosecution got him treated as hostile and cross-examined
him. In his cross-examination, the witness admitted that
MO-1 to MO-3 were seized in his presence but stated that he
was not aware as to whether the accused present in the Court
was the one who was shown to him by the Police as the
accused in the Police Station and that MO-1 to MO-3 were
seized in his presence from the possession of the accused in
the Police Station.
13. PW-2 (CW – 2) - G.V. Manjunatha has stated that
the scene of offence panchanama as per Ex.P-2 was drawn in
his presence. He has also stated that the tiles of the roof of
the house were removed and the articles inside the house
were scattered here and there.
14. PW-3 (CW-4) - Manjunatha, S/o. Veerabhadrappa
has stated that the Police had summoned him stating that
they had caught hold of a thief and certain articles were to be
recovered from his possession. Accordingly, in his presence,
the Police seized MO-1 to MO-3. However, he specifically
stated that the Police had not shown him any person as the
thief.
15. PW-4 (CW-10) – Niranjana Murthy, the Head
Constable has stated that, based on suspicion, on the date
13-06-2010, he apprehended the accused in the Bus Stand at
a place called Ullarty. He brought him to the Police Station
and on enquiry with that person, they came to know that he
had committed theft in the present case and also involved in a
chain snatching case.
16. PW-5 (CW-13) – H.S. Ananda Murthy, the then
Police Sub-Inspector of complainant Police Station has stated
that, on the date 04-06-2010, he received a complaint in this
case and after registering it, submitted the First Information
Report. On the same day, he requested the Dog Squad,
Chitradurga, to visit the place. Accordingly, the Dog Squad
visited the place. Fingerprint experts lifted few Fingerprints
from the place. He has also stated that he drew a
panchanama in the spot. He has further stated that the F.T.B.
gave him the information that the Fingerprint taken from the
spot corresponds to the left thumb Fingerprint of the present
accused whose Fingerprint was available in the H.S.R. He has
further stated that based on suspicion, joined by his team, he
apprehended the accused on the date 13-06-2010 and
produced him before CW-11, who recorded his (accused's)
voluntary statement and based upon the said statement,
CW-11 followed the accused to his (accused’s) wife’s house at
Chikka Ullarty village and seized MO-1 to MO-3 produced by
the accused. The witness further stated that since he was
further entrusted with the investigation in the matter, he
recorded the statements of CW-1 and after completion of
investigation, filed charge sheet against the accused in the
Court. He has identified the Material Objects seized at MO-1
to MO-3; complaint at Ex.P-1, scene of offence panchanama
at Ex.P-2, First Information Report at Ex.P-4 and report of
Fingerprint Unit at Ex.P-5.
17. PW-6 (CW-12) - B. Ismail, the then Police Sub-
Inspector in Fingerprint Unit, Davanagere, has stated that he
examined the 'Chance Fingerprints' collected from the staff of
the Fingerprint Unit, Chitradurga. He further stated that at
the request of the Superintendent of Police, Chitradurga, he
examined the said Fingerprints and noticed that the said
'Chance Fingerprint' was tallying with the left thumb
Fingerprint of the present accused - Thippeswamy @ Kunta
Tippe S/o. Gadi Boraiah, whose Fingerprints were stored in
their computer system with respect to few other crimes of
different Police Stations. In that regard, he has submitted his
report as per Ex.P-5. He has also identified the copy of the
Fingerprint of all the ten fingers of the accused at Exs.P-6 and
P-7, stating that those Fingerprints of the accused were stored
in their computer system. He was subjected to a detailed
cross-examination.
18. From the above evidence, it is clear that the
evidence of PW-1 that, on the night of the date 03-06-2010,
an incident of theft in his house took place wherein the
culprits are said to have stolen a silver plate, two silver cups,
one silver small pitcher ('pot' like) has not been specifically
denied or disputed. The evidence of PW-5 also goes to show
that, in that regard, on the very next morning i.e. on the
date 04-06-2010, PW-1 had lodged a complaint with them as
per Ex.P-1.
19. The evidence of PW-2 would further go to show that,
while acting as a pancha to the scene of offence panchanama
at Ex.P-2, he noticed that, in the place of offence, which was
the house of the complainant, few tiles of the roof were taken
away and several of the articles inside the house including the
sarees were found scattered and the door of the Almirah was
found opened. Thus, the evidence of PW-1, PW-2 and PW-5
on this aspect establishes beyond doubt that, on the night of
the date 03-06-2010, an incident of lurking house-trespass
had taken place wherein three silver articles were found
stolen. Since PW-1 has identified the alleged stolen articles, at
MO-1 to MO-3 stating that, they were the silver articles stolen
from his house, it also stands established that the stolen
articles were MO-1 to MO-3 and they were silver articles.
20. The next question would be whether it was the
accused and accused alone who had committed the alleged
offence of lurking House trespass and theft.
Admittedly, the entire case of the prosecution is based
upon the circumstantial evidence. The sole circumstance
based upon which the prosecution accuses that it was the
accused and accused alone who has committed the alleged
offences is, the tallying of all the 'Chance Fingerprints' with
that of the accused's and alleged recovery of MO-1 to MO-3 at
the instance of the accused.
21. PW-5 - the Investigating Officer has stated that
when he visited the spot after registering the crime, he had
also summoned the Dog Squad. He further stated that the
said Dog Squad and also the personnel from F.T.B. also
visited the place and F.T.P. had collected some Fingerprints for
investigation (the witness at one place has called as "F.T.B."
and in another place has stated as "F.T.P."). He has also
stated that, on the date 05-06-2010, the F.T.B. gave him
some information stating that the Fingerprint collected was
tallying with the left thumb of the accused, who was in the
old H.S.R. of his Station. Admittedly, this witness, no where
in his evidence has stated as to who had summoned F.T.P. to
the spot to search for 'Chance Fingerprints' and to collect
them. He has not stated as to who lifted the 'Chance
Fingerprints' and from which particular location of the spot and
in what manner. Thus, there are no details as to the manner
and method adopted in identifying the 'Chance Fingerprints'
and method of collecting the 'Chance Fingerprints' and the
source from where the alleged 'Chance Fingerprints' were
collected. Though PW-6 - Fingerprint Expert has stated about
developing the said Fingerprints and tallying the same with
that of the left thumb Fingerprint of the accused, but when
the very collection of the 'Chance Fingerprints' itself is not safe
to believe, it’s further development or enlarging and
comparison would go to the background.
22. It is in this connection, the learned counsel for the
revision petitioner (accused) is relying upon the Division Bench
decision of this Court in Mallappa Basappa Ihole's case
(supra), wherein a Division Bench of this Court, in a similar
circumstance of alleged comparison of the 'Chance
Fingerprints' was pleased to observe that it was not proper to
accept the Fingerprint expert’s report at Ex.P-14 and the
annexures appended thereto for several reasons, including the
reason that the evidence of the Fingerprint expert was not
specific with regard to its date and time when he lifted the
alleged ‘Chance Fingerprint’. Secondly, the said 'Chance
Fingerprint' was not produced before the Court. Thirdly, the
Beer bottle from which the 'Chance Fingerprint' was said to
have been lifted was not seized. Lastly, the evidence of the
Fingerprint expert was silent as to the manner in which he
lifted the 'Chance Fingerprint'.
23. In the case of Digamber Vaishnav & Anr.Vs. State
of Chhattisgarh (supra), with respect to offences under
Sections 302 read with Section 34 and Section 394 read with
Section 34 of the IPC, wherein also, the evidence of
Fingerprint expert was one of several aspects involved, the
Hon’ble Apex Court was pleased to observe that, the expert
who examined the articles at the place of occurrence and
found some Fingerprints, was not examined. The person
who took the sample Fingerprints also was not examined.
There was no explanation as to why the articles were just left
at the scene after developing the Fingerprints and why they
were not seized and sent for analysis on the same day.
Further, no prints were found on the doors or the steel almirah
to substantiate the robbery. Hence, it opined that the process
of lifting the Fingerprints was suspicious.
24. In HARI OM ALIAS HERO VS. STATE OF UTTAR
PRADESH reported in (2021) 4 Supreme Court Cases 345,
where the offences involved were of dacoity, killing four
persons and attempt of throttling a child and the evidence
collected by the Investigating Officer was said to have
included Fingerprints and the opinion of the Fingerprint expert,
the Hon’ble Apex Court, under Section 45 of the Indian
Evidence Act, 1872, reiterated that the opinion of the
Fingerprint expert is not a substantive evidence and as such,
the opinion can only be used to corroborate some items of
substantive evidence which are otherwise on record. It was
further observed by the Hon’ble Apex Court that, the presence
of Fingerprints at the scene of crime was not material, when
there was no clarity in the process adopted by the
investigating machinery for lifting fingerprints from the scene
of crime and further analysis made thereafter.
25. In the case of B.A. Umesh Vs. Registrar General,
High Court of Karnataka (supra), which was relied upon by
the learned High Court Government Pleader for the
respondent, in a case involving the offences punishable under
Sections 376, 302 and 392 of the IPC, where the evidence
collected also included the Fingerprints, the Hon'ble Apex
Court, after observing that the Fingerprints lifted from crime
scene was by a Fingerprint expert by adopting the proper
procedure of taking the sample and also perusing the report
of the Fingerprint expert, held that, the Fingerprint of the
accused found on the handle of the almirah lying in the room
which was scientifically established beyond doubt that, the
accused was present in the room where the incident had
occurred and that along with the evidence of other witnesses
established that, it was the accused who committed the crime.
26. In the instant case also, as observed above, neither
PW-5 - Investigating Officer nor PW-6 - Fingerprint expert,
has, anywhere, stated as to from which spot or from which
article the 'Chance Fingerprint' was lifted, and by whom and in
what manner. The person who is said to have lifted the
Fingerprint was not examined by the prosecution for the
reasons best known to it. The alleged 'Chance Fingerprint'
and also the article from which it might have been lifted also
have not been produced before the Court. In such a
circumstance, it is not safe to rely upon the mere report of the
Fingerprint expert that the 'Chance Fingerprint' given to him
for examination was corresponding to the fingerprint of the
accused and proceeding to convict the accused.
27. In such a circumstance, when there are several
gaps in the case of the prosecution as to the description of the
place and the article from which the fingerprint was lifted, as
to who lifted the Fingerprint, as to the manner adopted in
lifting the fingerprints and also in the absence of seizing and
producing the article from which the Fingerprint was said to
have been lifted, the same would make it unsafe to rely upon the
report given upon the examination of such an alleged Fingerprint by
the Fingerprint expert.
28. The second major point of contention is the alleged
recovery of the Material Objects at MO-1 to MO-3, at the
instance of the accused.
Admittedly, in the instant case, it is only PW-3 and PW-7
who have spoken about the alleged recovery of the articles at
MO-1 to MO-3. PW-3 was a person working in a Bakery. He
has stated that while he was going near Taluk office, the Police
summoned him and requested him to be a pancha for a
seizure panchanama. In his presence, the Police seized MO-1
to MO-3. Further, this witness categorically stated in his
examination-in-chief that the Police had not shown him the
accused stating that he was the one who had committed the
theft. In his cross examination, he has stated that, he was
taken to a place called Kelagalahatti near Chikka ullarti. The
Police Sub-Inspector (PW-7) and himself had been there.
However, this witness has not stated whether the accused had
led them to the said place or whether those three articles were
produced by the accused in the said place. Therefore, the
evidence of PW-3 is not safe to believe.
29. The other witness, who speaks about the recovery is
PW-7, who is the Investigating Officer. He has stated that
after the accused was produced before him on 13-06-2010, he
recorded his voluntary statement. The witness stated that
since the accused stated before him that he had kept the
stolen silver articles in his mother-in-law’s house, these people
went to the said house and seized those silver articles by
drawing the panchanama as per Ex.P-3.
The said evidence of PW-7, even if it is taken at its face
value, no where mentions as to what exactly the words
accused has stated before him in his alleged voluntary
statement.
Secondly, this witness who is a Police Sub-Inspector,
has, no where stated in his evidence that, the accused had led
them to his mother-in-law’s house, from where the silver
articles are alleged to have been seized.
Thirdly, the witness has not stated at which place the
alleged house of mother-in-law of the accused was located.
Fourthly, the witness has not stated whether the panchas
had accompanied them to the said place.
Lastly, the witness has not stated, at whose instance,
the silver articles were given to their possession, under the
seizure panchanama. Was it at the instance of the accused, or
was it at the direction of this witness or was it voluntarily by
the inmates of the said house, is not clear. Therefore, being
the Investigating Officer, the witness has not given the basic
necessary and essential details of the alleged recovery, as
such, the evidence of PW-7 also does not inspire confidence to
believe in them.
30. In the said circumstance, when the Fingerprint
expert's report regarding tallying of the fingerprints does not
inspire confidence to believe upon and the alleged recovery is
also not established by the prosecution, the major links in the
chain of events are to be held as disappearing, as such, in a
criminal case, where it is purely based upon the circumstantial
evidence every link of the chain of events is required to be
established by the prosecution. The absence of linkage of
major events like alleged recovery and matching of
fingerprints leave a major lacuna in the case of the
prosecution. In such a case, it is not safe to convict the
accused for the alleged offences.
31. However, both the Trial Court and the Sessions
Judge's Court did not appreciate the evidence on the
Fingerprints and the recovery in their proper perspective, on
the other hand, accepting the contention of the relevant
witnesses, without properly analysing them, both the Courts
have hastily jumped to a conclusion, which resulted in holding
the accused guilty of the alleged offences. Since the said
finding is now proved to be a perverse and erroneous one,
interference by this Court in the impugned judgments of both
the Courts is warranted and the prosecution has to be held
that, it failed to prove the alleged guilt against the accused
beyond all doubts.
Accordingly, I proceed to pass the following:
O R D E R
[i] The Criminal Revision Petition stands
allowed;
[ii] The impugned judgment of conviction
and order on sentence dated 09-01-2012, passed
by the Court of the Judicial Magistrate First Class,
at Challakere, in C.C.No.898/2010, holding the
present petitioner (accused) guilty for the offences
punishable under Sections 457 and 380 of the
Indian Penal Code, 1860, which was further
confirmed by the judgment and order dated
10-07-2012, passed by the Principal District and
Sessions Judge at Chitradurga, in Criminal Appeal
No.31/2012, are hereby set aside;
[iii] The revision petitioner (accused) -
Thippeswamy @ Kunta Thippaga, S/o. Gadi
Boraiah, Aged about 47 years, Chikkaullarthy,
residing at Rahimnagar, Challakere Taluk,
Chitradurga District. Pincode: 54401, stands
acquitted of the offences punishable under Sections
457 and 380 of the Indian Penal Code, 1860;
[iv] However, the order of the Trial Court
making absolute the order regarding interim
custody of MO-1 to MO-3 stands, without any
interference.
Registry to transmit a copy of this order to both the Trial
Court and also the Sessions Judge’s Court along with their
respective records immediately.
Sd/-
JUDGE
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