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CASE NO.: Appeal (crl.)  306 of 2008

PETITIONER: B. Vishwanath

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 13/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NOS.   306  OF 2008 (Arising out of S.L.P. (Crl.) Nos.6893-6894 of 2007)

DR. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in these appeals is to the order passed by a  learned Single Judge of the Karnataka High Court. Before we  deal with the appeals in detail, it is necessary to highlight  certain disturbing features. 3.      The appeal filed by the appellant was disposed of on  1.7.2006. There was no indication in the order as to whether  the appeal was dismissed or allowed. Only certain directions  were given to the Secretary, Home Department and Director  General of Police to strictly comply with the observations that  the Investigating Officers were to refer the blood stained  articles and blood samples of the victim/accused, as the case  may be, to the Medical College Hospital in the District or in the  neighbouring District which have Forensic Science Laboratory  to give report regarding the blood group.  It was further  directed that the Police Manual needs to be suitably amended  to incorporate the suggested procedure for mandatory  compliance in the protocol of investigation.

4.      When it was pointed out to the learned Judge that there  was no result of the appeal, the matter was listed under the  heading "For being spoken to" and on 31.3.2007 it was  observed that for the reasons and discussions made, the order  of conviction and sentence is confirmed and appeal is  dismissed. To say the least, the procedure adopted is clearly  not appropriate.

5.      Coming to the facts of the case, the only thing that needs  to be observed is that the impugned judgment and order of  the High Court has one characteristic i.e. brevity. It has no  other characteristic. It does not even refer to the various  aspects and briefly refers to the evidence of the witnesses. 6.      It needs no emphasis that the Appellate Court exercising  appellate powers has not only to consider various points but  objectively and critically analyse the evidence. That has not  been done in the present case.

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7.      The case of the prosecution was that on 27.9.2000 at  about 8.30 P.M. the accused trespassed into the house and  assaulted his sister-in-law PW1 with sickle and also assaulted  his mother PW2 with sickle.

8.      The Trial Court framed charges against the appellant for  offences punishable under Sections 307, 427 and 448 of the  Indian Penal Code, 1860 (in short ’IPC’).

9.      The accused pleaded innocence. However, on  consideration of thee evidence, the Trial Court found the  appellant guilty of offence punishable under Sections 307,  posed 427 and 448 IPC. Different sentences were imposed  which were directed to run concurrently.

10.     The accused-appellant preferred an appeal before the  High Court. As noted above, the High Court dismissed the  appeal. The only discussion about the merits of the case made  by the High Court is in the following words:

"The case of the prosecution is that on  27.9.2000 at 8.30 p.m. the accused trespassed  into the house, assaulted his sister-in-law PW- 1 with sickle and also assaulted his mother  P.W.-2 with sickle. 2.      The wound certificate of P.W. 1 discloses  hat an incised wound on the right hand, leniar  abrasion on the back of trunk over the region  of left scapula and leniar abrasion on the right  scapula region. 3.      The wound certificate of P.W.2 discloses  incised wound on the occipital region of scalp  and tenderness at the left clavicle resulting in  fracture of left clavicle and first metatarsal  bone. 4.      P.W. 1 and 2 testified to the overt acts of  the accused in causing injuries on them. P.W.  3 is an eye witness and sister of P.W.1.  She  supports the prosecution version. The wound  certificate and evidence of the doctor also  corroborate the version of P.Ws I and 2."

11.     The observations on the procedure to be followed read as  follows:  

"In some of crimes, the blood stains on  incriminating articles serve as corroborative  piece of evidence to prove the guilt of the  accused by establishing that the blood group  of the stains tally with that of blood group of  the victim or the accused as the case may be.  In such cases, it is necessary that I.O. should  send blood stained articles and also the blood  sample of the person with whom the blood  stains on the articles is to be connected. In my  career as a Judge in innumerable cases, I have  come across that the investigation done in this  regard is wholly incomplete. The blood samples  of the victim or the accused as the case may be  is not sent along with blood stained articles, to  prove the connectivity. I have also found that  in the post mortem report, there is no mention  of blood group of the deceased. This type of lop  sided investigation virtually renders a valuable  scientific corroborative evidence incomplete

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and ineffective. I have also found that for  determination of the blood group of the stains,  the articles are sent to FSL at Bangalore for  determination of the blood group. The District  Hospital Laboratory is quite competent to give  medical opinion regarding the blood group.  The reference of the articles of FSL, Bangalore  does result in delay in placing complete  evidence before the Court. In most of the  cases, at the time of evidence, the FSL reports  are produced by the prosecution. In order to  avoid delay, it is expedient that I.O. should  refer the blood stained articles and blood  samples of the victim/accused as the case may  be to the Medical College hospitals in the  district or in the neighbouring District which  have Forensic Science Laboratory to give report  regarding the blood group.

The Home Secretary and Director General  of Police should issue necessary instructions  to the Superintendent of Police of the Districts  and S.H.Os of the police stations for strict  compliance of the above observations  regarding blood stained articles. It is further  directed that the Police manual be suitably  amended to incorporate the suggested  procedure for mandatory compliance in the  protocol of investigation."

12.     Next comes the order dated 31.3.2007.  Same reads as  follows:

"ORDERS ON FOR BEING SPOKEN TO

       For the reasons and discussions made  above, the order of conviction and sentence is  confirmed & appeal is dismissed."                

14.     The manner in which the appeal has been dealt with is  not a correct way to deal with the appeal. No serious attempt  appears to have been done by the High Court to appreciate the  rival stand and/or to analyse the evidence in its proper  perspective.  Above being the situation, we set aside the  impugned judgment of the High Court and remit the matter to  the High Court for fresh consideration and disposal in  accordance with law.  

15.     The appeals are allowed.