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Murder – No last seen theory proved – No Test Identification was conducted -Gold not proved as that of victim – material witness not examined – Blood stains and finger prints not compared as that off deceased and as that of accused – Prosecution totally failed to establish circumstantial evidence to bring the accused for conviction – Apex court held that Though the murder was committed way back in 1990, scientific methods for investigation were available even at that time but not made use of. We must express our unhappiness on this state of affairs. – acquitted the accused = Prakash …..Appellant Versus State of Karnataka …Respondent = 2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41415

  

Murder – No last seen theory proved – No Test Identification was conducted -Gold not proved as that of victim – material witness not examined – Blood stains and finger prints not compared as that off deceased and as that of accused – Prosecution totally failed to establish circumstantial evidence to bring the accused for conviction – Apex court held that Though the  murder  was  committed  way  back  in  1990,  scientific methods for investigation were available even at that time but not made  use of. We must express our unhappiness on this state of affairs. – acquitted the accused =

 

Two questions immediately arise in this context: Firstly, why is it

 that Swamy was not examined by  the  Investigating  Officer  since  he  was

 expected to be at Gangamma’s residence on 5th  November,  1990? 

Secondly, why is it that no Test Identification Parade  was held to

 determine whether Prakash was actually the person  who  was  seen  by  PW-6

 Gangamma and by Ammajamma? 

 

there is no  evidence  that  Prakash

 was with Gangamma thereafter and on the contrary  there  is  evidence  that

 some of her relatives (which may or may not include Prakash) were with  her

 at about 8.30 p.m. We would be stretching  the  last  seen  theory  to  the

 vanishing point if we were to apply it to the facts of this case.

We are not satisfied with the conclusion  of  the  High  Court  that

since the clothes of Prakash were blood stained  and  the  stains  bore  the

same blood group as  that  of  Gangamma,  the  circumstance  could  be  used

Prakash. A serological comparison of the blood of Gangamma and  Prakash  and

the blood stains on his clothes was necessary and that was absent  from  the

evidence of the prosecution.

 Even if we were to assume that the procedure followed by  the  Trial

Court was incorrect, in the absence of any identification of  the  ornaments

as  belonging  to  Gangamma,  the  High  Court  could  not  have  definitely

concluded that they did belong to Gangamma.  In  any  event,  even  assuming

that the ornaments belonged to Gangamma, at best, Prakash  would  be  guilty

of having received stolen property but could  certainly  not  be  guilty  of

having murdered Gangamma.

It was brought to our  notice  that  the  steel  rod  used  to  kill

Gangamma was recovered at the instance of Prakash.  This was hidden under  a

stone slab and it contained blood stains.  The  Investigating  Officer  made

no effort to ascertain whether the blood stains on the steel rod were  those

of Gangamma nor was any effort made  to  ascertain  whether  the  steel  rod

contained any fingerprints  which  matched  with  those  of  Prakash.  This,

coupled with the fact that the blood stained crowbar seized at the place  of

occurrence, was  not  sent  for  a  chemical  examination,  raises  a  grave

suspicion that the investigation was not fair and the benefit of this  doubt

must go to Prakash.[28]

It is true that the relevant circumstances should not be  looked  at

in a disaggregated manner but collectively. Still,  this  does  not  absolve

the prosecution from proving each relevant fact.

           “In a case of circumstantial evidence, each circumstance must be

           proved beyond reasonable doubt by independent evidence  and  the

           circumstances so proved, must  form  a  complete  chain  without

           giving room to any other hypotheses  and  should  be  consistent

           with only the guilt of the accused.”[29]

Conclusion

73.     None of  the  circumstances  relied  upon  by  the  prosecution  and

accepted by the High Court point to the probability of  Prakash’s  guilt  or

involvement in the murder of Gangamma. Consequently, we  allow  this  appeal

and set aside the judgment and order of the High Court  and  acquit  Prakash

of the murder of Gangamma.

74.     Though the  murder  was  committed  way  back  in  1990,  scientific

methods for investigation were available even at that time but not made  use

of. We must express our unhappiness on this state of affairs. At least  from

now onwards, the prosecution must lay stress on  scientific  collection  and

analysis of  evidence,  particularly  since  there  are  enough  methods  of

arriving at clear conclusions based on evidence gathered.

2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41415
RANJANA PRAKASH DESAI, MADAN B. LOKUR

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1682 OF 2005

Prakash …..Appellant

Versus

State of Karnataka …Respondent

 

J U D G M E N T

Madan B. Lokur, J.
1. The substantial issues raised in this appeal, in which the
conviction is based on circumstantial evidence, primarily relate to the
presence of the convict at the place and time of the murder of Gangamma,
the analysis of the fingerprint evidence recovered from the place of
incident and the recovery of blood stained clothes of the convict and the
ornaments of the deceased at his instance. On all issues, we find in favour
of the convict and conclude that that none of the circumstances that have
been found against him by the High Court and which have led to his
conviction have been satisfactorily proved. The conviction must, therefore,
be set aside.
The facts
2. On 5th November, 1990 the appellant Prakash, ordinarily a resident
of Nagenahalli village in Doddaballapur taluk of Bangalore district was
searching for Gangamma’s house in Bangalore. While doing so, he met PW-6
(also named Gangamma) and asked her for directions. Since PW-6 did not
know the way to Gangamma’s house, she took Prakash to PW-7 Ammajamma’s
house, and requested her to take Prakash to Gangamma’s house.
3. Ammajamma then took Prakash to Gangamma’s house. On reaching
there, Prakash informed Gangamma that Swamy (son of her brother PW-3 Hucha
Basappa) and he had come from the village and he enquired from Gangamma
whether Swamy had reached. Gangamma informed him that Swamy had not come
to her house and asked him (Prakash) to disclose his identity. Thereupon,
Prakash introduced himself and Ammajamma left them and returned home. This
happened at about 1.00 p.m. on 5th November, 1990.
4. In the evening, Gangamma would normally visit PW-1 Revamma’s house,
across the road, for watching TV. When Gangamma did not come in the evening
on 5th November, 1990 Revamma sent her grandson Lohith aged about 5 years
to Gangamma’s house to call her. Gangamma then came with Lohith to
Revamma’s house and informed her that she could not watch TV at her house
as usual since some relatives from her village had come to her house and
she had to cook food for them. Soon thereafter, Gangamma left and returned
to her house. According to the First Information Report (FIR) this was at
about 8.00 p.m. on 5th November, 1990.
5. On the next day, at about 5.30 p.m. Revamma had gone to a medical
shop where she learnt that Gangamma had been murdered in her house.
Thereupon, she went to Gangamma’s house and found a crowd had gathered over
there. She entered Gangamma’s house and saw the dead body with her clothes
and other articles lying scattered about. She then sent word through PW-4
Muniyappa and others to Gangamma’s brother PW-3 Hucha Basappa about the
incident.
6. Revamma was advised by some people in the crowd to lodge a
complaint with the police. Therefore, she went to the police station and
lodged a complaint about the incident at about 7.30 p.m. and an FIR was
registered.
7. The Investigating Officer PW-25 D’Souza soon reached the place of
occurrence, that is, Gangamma’s house. The dog squad, a fingerprint expert
and a photographer also reached there a little later. On a requisition made
by the Investigating Officer, PW-12 Ramachandra the photographer took
photographs of the dead body and the crime scene. He also took a
photograph of a passbook MO-13 lying at the scene of the incident. The
fingerprint expert PW-20 Nanaiah examined nine articles in the premises and
found some fingerprints on a plastic cover containing the inscription
‘Canara Bank’. Nanaiah took the plastic cover [Exh. P-18] with him for a
detailed examination.
8. The Investigating Officer seems to have taken the fingerprint of
Gangamma and that was later given to Nanaiah who compared the fingerprint
with the chance print on Exh. P-18 and concluded that they were not
identical. He issued a certificate in this regard on 9th November, 1990.
9. While the Investigating Officer was at the place of occurrence,
Hucha Basappa (Gangamma’s younger brother) arrived and he revealed that he
suspected Prakash’s involvement in the crime since he was informed that
Prakash had visited Gangamma’s house.
10. According to the prosecution, on 11th November, 1990 at about 4.45
p.m. Prakash was apprehended and produced before the Investigating
Officer.[1] He was then arrested and searched and on his personal search
some cash was recovered as also a receipt dated 7th November, 1990 issued
by Vijayalakshmi Financiers. Prakash’s clothes, that is, his shirt, dhoti
and shawl were found to be blood stained and they too were seized by the
Investigating Officer. Prakash made a voluntary disclosure to the
Investigating Officer wherein he stated that some ornaments of the deceased
were taken by him and pledged with Vijayalakshmi Financiers; some ornaments
were sold elsewhere and some ornaments were hidden near his father-in-law’s
house. Prakash took the Investigating Officer to the places mentioned by
him and the ornaments were seized.
11. Prakash also took the Investigating Officer to a place from where
he took out a steel rod concealed beneath a stone slab. The steel rod was
found to be blood stained and was seized by the Investigating Officer in
the presence of panch witnesses. It was allegedly used to murder Gangamma.
12. As a part of the investigations, a sample of Prakash’s blood was
drawn and given to the Investigating Officer who sealed it in a bottle.
This was then sent to the Forensic Science Laboratory for examination.
13. On 14th November, 1990 the Investigating Officer took Prakash’s
fingerprints and sent them to the fingerprint bureau for comparison. On
9th January, 1991 the fingerprint expert, Nanaiah received the fingerprints
and he gave a certificate on 11th January, 1991 to the effect that the
fingerprint sent to him matched with the chance prints found on the plastic
cover [Exh. P-18] found at the place of occurrence. Later, an enlarged
photoprint of the chance fingerprint Exh. P-18 was made as Exh. P-19 and an
enlarged photoprint of the fingerprint of Prakash obtained by the
Investigating Officer on 14th November, 1990 was made being Exh. P-20. On
18th March, 1991 Nanaiah marked several identical characteristics on both
enlarged photographs and gave an opinion [Exh. P-21(a)] that two
fingerprints “shall never be identical unless they are derived from the
same finger of the same person.”
14. On these broad facts Prakash was charge-sheeted for having murdered
Gangamma and for having stolen her cash and ornaments valued at about Rs.
25,000/-.
15. The Trial Court, by its judgment and order dated 21st January, 1999
acquitted Prakash. The acquittal was set aside in appeal by the High Court
of Karnataka by its judgment and order dated 6th July, 2005.[2] It is under
these circumstances that this appeal is before us.
Relevant circumstances
16. Both the Trial Court and the High Court proceeded on the basis that
the case is one of circumstantial evidence. Both the Courts mentioned the
following five relevant circumstances:-
1. Prakash was found in Gangamma’s house on the relevant day,
that is, 5th November, 1990.

2. The fingerprint expert, Nanaiah found Prakash’s fingerprint
on a plastic cover beaing the inscription ‘Canara Bank’ [Exh
P-18]. This was taken by Nanaiah for comparison and on a
comparison having been made, the fingerprints thereon matched
the fingerprints of Prakash.

3. Prakash’s clothes were blood-stained when he was arrested on
11th November, 1990 and the blood-stains tallied with the
blood group of Gangamma.

4. Gangamma’s ornaments were recovered by D’Souza at the
instance of Prakash after his arrest.

5. The weapon of offence, that is, a steel rod was discovered at
the instance of Prakash from the place where it was
concealed.
17. The High Court also mentioned two other circumstances, namely, that
Gangamma met with a homicidal death and that Prakash absconded after
committing the crime.
Presence of Prakash in Gangamma’s house
18. Both the Courts referred to the evidence of Revamma, Muniyappa, PW-
6 Gangamma and Ammajamma in this regard.
19. There is no doubt that Revamma did not at all see Prakash at
Gangamma’s house. Her evidence is only to the effect that Gangamma did not
come to watch TV with her on the evening of 5th November, 1990 because she
had some relatives in her house and she had to cook food for them. These
relatives were not identified or named except that she stated that
Gangamma’s nephew Swamy would be coming and that she had to feed him.
20. Similarly, Muniyappa also did not identify or name any of
Gangamma’s relatives in her house. All that he says is that when he was at
his shop he observed that some relatives had come to Gangamma’s house and
she had given food to them. He stated that he closed his shop at 8.30 p.m.
or so and went home. The evidence of Muniyappa only discloses that
Gangamma was alive till about 8.30 p.m. on 5th November, 1990 and was in
the company of more than one person.
21. PW-6 Gangamma also does not add to the case of the prosecution.
She says that Prakash had approached her for directions to Gangamma’s house
and that she took Prakash to Ammajamma’s house. She did not accompany
Prakash or Ammajamma to Gangamma’s house. Prakash was produced before this
witness about 5 or 6 days after the incident when he was brought to her
shop by the police and she identified him as the person whom she had met in
the afternoon of 5th November, 1990.
22. The only witness who actually saw Prakash with Gangamma was
Ammajamma. She narrated the conversation between Prakash and Gangamma and
the fact that Gangamma did not know Prakash and had asked him to identify
himself. The conversation she heard reveals that Swamy was expected to
come to Gangamma’s house. This witness left midway during the conversation
between Prakash and Gangamma and did not actually see Prakash enter her
house.
23. A few days after the incident, Ammajamma was called to the police
station and she saw Prakash sitting over there and identified him.
24. On the basis of the evidence of these four witnesses, it can at
best be said that Prakash was at Gangamma’s house at about 1.00 p.m. on 5th
November, 1990 and that according to him Swamy was also to arrive at
Gangamma’s residence. The whereabouts of Prakash from 1.00 p.m. onwards are
not known. It can also be said that Gangamma gave dinner to her relatives
at about 8.30 p.m. but these relatives cannot be identified. Prakash may or
may not be one of them. It cannot, therefore, be definitely concluded that
Prakash was being served dinner by Gangamma at about 8.30 p.m. on 5th
November, 1990 or that he stayed in her house thereafter. But it is clear
that even if Prakash was there, he was not alone with Gangamma when she
served dinner.
25. Two questions immediately arise in this context: Firstly, why is it
that Swamy was not examined by the Investigating Officer since he was
expected to be at Gangamma’s residence on 5th November, 1990? There is
absolutely no answer forthcoming from the State in this regard. The
involvement of Prakash in the incident came about only because Hucha
Basappa informed the Investigating Officer on the night of 5th November,
1990 that he was not on talking terms with Prakash and that he had given a
complaint against him when Prakash tried to assault Hucha Basappa. This is
all the more reason for the Investigating Officer to have questioned Swamy
who was expected to be at Gangamma’s house on 5th November, 1990.
26. Secondly, why is it that no Test Identification Parade was held to
determine whether Prakash was actually the person who was seen by PW-6
Gangamma and by Ammajamma?
27. Two types of pre-trial identification evidence are possible and
they have been succinctly expressed in Marcouix v. The Queen[3] by the
Supreme Court of Canada in the following words:
“An important pre-trial step in many criminal prosecutions is
the identification of the accused by the alleged victim. Apart
from identification with the aid of a photograph or photographs,
the identification procedure adopted by the police officers will
normally be one of two types: (i) the showup—of a single
suspect; (ii) the line-up-presentation of the suspect as part of
a group.”
28. With reference to the first type of identification evidence, the
Court quotes Professor Glanville Williams from an eminently readable and
instructive article in which he says:

“… if the suspect objects [to an identification parade] the
police will merely have him “identified” by showing him to the
witness and asking the witness whether he is the man. Since this
is obviously far more dangerous to the accused than taking part
in a parade, the choice of a parade is almost always
accepted.”[4]
29. With reference to the second type of identification evidence,
Professor Glanville Williams says:
“Since identification in the dock is patently unsatisfactory,
the police have developed the practice of holding identification
parades before the trial as a means of fortifying a positive
identification…… The main purpose of such a parade from the
point of view of the police is to provide them with fairly
strong evidence of identity on which to proceed with their
investigations and to base an eventual prosecution. The
advantage of identification parades from the point of view of
the trial is that, by giving the witness a number of persons
from among whom to choose, the prosecution seems to dispose once
and for all the question whether the defendant in the dock is in
fact the man seen and referred to by the witness.”[5]

 

A similar view was expressed by the Canadian Supreme Court in Mezzo v. The
Queen.[6]
30. An identification parade is not mandatory[7] nor can it be claimed
by the suspect as matter of right.[8] The purpose of pre-trial
identification evidence is to assure the investigating agency that the
investigation is going on in the right direction and to provide
corroboration of the evidence to be given by the witness or victim later in
court at the trial.[9] If the suspect is a complete stranger to the
witness or victim, then an identification parade is desirable[10] unless
the suspect has been seen by the witness or victim for some length of
time.[11] In Malkhan Singh v. State of M.P.[12] it was held:
“The identification parades belong to the stage of
investigation, and there is no provision in the Code of Criminal
Procedure which obliges the investigating agency to hold, or
confers a right upon the accused to claim a test identification
parade. They do not constitute substantive evidence and these
parades are essentially governed by Section 162 of the Code of
Criminal Procedure. Failure to hold a test identification parade
would not make inadmissible the evidence of identification in
court. The weight to be attached to such identification should
be a matter for the courts of fact.”
31. However, if the suspect is known to the witness or victim[13] or
they have been shown a photograph of the suspect or the suspect has been
exposed to the public by the media[14] no identification evidence is
necessary. Even so, the failure of a victim or a witness to identify a
suspect is not always fatal to the case of the prosecution. In Visveswaran
v. State[15] it was held:
“The identification of the accused either in test identification
parade or in Court is not a sine qua non in every case if from
the circumstances the guilt is otherwise established. Many a
time, crimes are committed under the cover of darkness when none
is able to identify the accused. The commission of a crime can
be proved also by circumstantial evidence.”

 
32. What happened in the present case?  Both PW-6 Gangamma and by
Ammajamma saw Prakash for the first time on the afternoon of 5th November,
1990 and they had seen him, if at all, briefly if not fleetingly. It is
true that these witnesses had identified Prakash when he was produced
before them on his apprehension about five or six days after the incident
and also while he was in the dock in court, but the circumstances under
which the dock identification took place are not quite satisfactory
inasmuch as both the witnesses entered the witness box almost 41/2 years
after they are said to have first seen Prakash only briefly and without any
identification parade having been conducted.
33. Given the law laid down by this Court, it would have been more
appropriate for the Investigating Officer to have conducted an
identification parade so that it becomes an effective “circumstance
corroborative of the identification of the accused in court”.[16] However,
that was not done. The Trial Court was of the view that the evidence on
record did not inspire confidence as far as fixing the identity of the
suspect as Prakash is concerned. The Trial Court took into account the long
lapse of time between the incident and the identification of Prakash in
court, the absence of any distinguishing features of Prakash, the brief
time for which the witnesses saw him and the fact that he was a total
stranger to the witnesses. The High Court was satisfied that Prakash was
suitably identified but completely overlooked the fact that even if the
Trial Court had come to an erroneous conclusion, at best, it placed Prakash
at the place of occurrence at 1.00 p.m. and not later. We are of the
opinion that given the facts of the case, it would have been more
appropriate for an identification parade to have been conducted, but its
absence in this case is not necessarily fatal, there being other reasons
also for not accepting the case set up by the prosecution. However, the
absence of an identification parade certainly casts a doubt about Prakash’s
presence at Gangamma’s house on 5th November, 1990.
34. Even assuming Prakash was present at Gangamma’s house on 5th
November, 1990 at about 1.00 p.m. it does not necessarily follow that he
was also present at about 8.30 p.m. that day. Thus, we find that not only
is there an absence of some degree of certainty and a doubt about Prakash’s
presence at Gangamma’s house on 5th November, 1990 but also an absence of
certainty and a doubt whether he was there at 1.00 p.m. and at 8.30 p.m.
35. There does not seem to be any reason at all for Prakash to have
gone alone to Gangamma’s house. He did not know where she lived and even
she did not know who he was. It is difficult to imagine that Prakash would
leave his house in Nagenahalli village to visit Gangamma’s house for the
purpose of stealing some ornaments, as suggested by the prosecution – theft
of ornaments being the alleged motive. This presumes that Gangamma had
ornaments which were worth stealing and it also presumes that Prakash knew
of the existence of these ornaments.
36. Given the evidence before us, we find it very difficult to accept
with certainty the case of the prosecution that Prakash alone was with
Gangamma on the fateful night of 5th November, 1990. The view taken by the
Trial Court giving Prakash the benefit of doubt is certainly a plausible
view and in the absence of any perversity in the view taken, we are of the
opinion the High Court ought not to have upset the conclusion arrived at.
37. We may also mention that from the decision of the High Court it is
clear that it has proceeded merely on the basis of probabilities. The High
Court held that Prakash was probably present in Gangamma’s house on 5th
November, 1990 and that in all probability he was the relative who was
having dinner at Gangamma’s house. In a case of circumstantial evidence,
there has to be some degree of trustworthiness and certainty about the
existence of the circumstances – mere probabilities are certainly not
enough.[17] In our opinion, this is an unsatisfactory way of dealing with
the issue and we cannot uphold the view taken by the High Court in this
regard.
38. In view of the above, it is not necessary for us to labour on the
questions raised on the applicability of the last seen theory. There is a
clear doubt whether Prakash was with Gangamma; if he was, then it was at
about 1.00 p.m. on 5th November, 1990; there is no evidence that Prakash
was with Gangamma thereafter and on the contrary there is evidence that
some of her relatives (which may or may not include Prakash) were with her
at about 8.30 p.m. We would be stretching the last seen theory to the
vanishing point if we were to apply it to the facts of this case.
Fingerprint Evidence
39. The witnesses relevant for the purposes of the fingerprint evidence
as a relevant circumstance are Ramachandra (the photographer) and Nanaiah
(the fingerprint expert).
40. Ramachandra stated that he had taken a photograph of the bank pass
book belonging to Gangamma. He also produced in court the negative of a
photograph taken by him [marked as MO-13(a)] of Prakash’s fingerprint on
the pass book. No positive print or photograph was developed from the
negative. In his cross examination, Ramachandra could not say if the
fingerprint in the negative was that appearing on the pass book.[18] In
other words, there was nothing in MO-13(a) to relate it to the pass book.
The testimony of Ramachandra with regard to the fingerprints of Prakash on
the bank pass book is, therefore, inconsequential.
41. Nanaiah stated that he had obtained from the scene of occurrence a
hand print on a plastic cover bearing the inscription ‘Canara Bank’. The
plastic cover was marked as Exh.P-18 and an enlarged photograph of this was
marked as Exh. P-19. According to Nanaiah, he compared the fingerprints
on Exh. P-19 with the fingerprint of Prakash on Exh. P-20 and found that it
tallied. How did Exh.P-20 come into existence? We have been left wondering
as there is no answer to this question, nor is there anything to show that
Exh. P-20 contained a fingerprint of Prakash. Even the testimony of the
Investigating Officer D’Souza is silent on this aspect.
42. The High Court accepted that Exh. P-20 contained Prakash’s
fingerprint in view of an admission made by him in his statement recorded
under Section 313 of the Code of Criminal Procedure. The High Court
relied, rather selectively, on a part of the statement given by Prakash in
his examination under Section 313 of the Code of Criminal Procedure. The
question put to Prakash and the answer given read as under:
“Q: PW-20 C.K. Nanaiah, Finger Print expert and Dy. S.P. states
that on 6.11.1990 he was called to the scene of occurrence amd
he visited there, examined the articles found at the place
between 8-30 and 9-45 p.m. and got a chance print on a plastic
cover found there, which is at Ex. P-18 and on comparison it was
identical with your right middle finger print and issued a
certificate as per Ex. P-13. What do you say?
Ans: On 7th date Inspector D’Souza given me a cover to
hold the same.”

 
43. The High Court took into account only the latter part of the answer
given by Prakash, namely, that he held a cover. From this, the High Court
concluded that “The fact that the fingerprint of the accused was found on
Ex. P-18 (sic Ex. P-20) is accepted by the accused himself.” In doing so,
the High Court ignored the first part of Prakash’s statement that this
happened on 7th November, 1990. If any credibility is to be given to Exh.P-
20 then it must be held that Prakash was arrested on 7th November, 1990 but
that is not the case of the prosecution. We have, therefore, to proceed on
the basis that Prakash was in fact apprehended and arrested on 11th
November, 1990 and proceeding on that basis, there cannot be any question
of his being given a cover to hold by the Investigating Officer on 7th
November, 1990 for the purpose of obtaining his fingerprint. The ultimate
conclusion is that there is absolutely no evidence on record to show how
Exh. P-20 which is said to be the admitted fingerprint of Prakash came into
existence. In the absence of any admitted fingerprint, there is nothing to
show that the handprint or the fingerprints on Exh. P-18 was that of
Prakash.
44. In Hanumant Govind Nargundkar v. State of M.P[19] it was held:
“It is settled law that an admission made by a person whether
amounting to a confession or not cannot be split up and part of
it used against him. An admission must be used either as a whole
or not at all.”
45. A similar view was expressed, rather expansively, in Narain Singh
v. State of Punjab[20] and Dadarao v. State of Maharashtra.[21]
46. Assuming Prakash’s fingerprint was in fact obtained by D’Souza, it
was clearly not given voluntarily, but perhaps unwittingly and in what
seems to be a deceitful manner. To avoid any suspicion regarding the
genuineness of the fingerprint so taken or resort to any subterfuge, the
appropriate course of action for the Investigating Officer was to approach
the Magistrate for necessary orders in accordance with section 5 of the
Identification of Prisoners Act, 1920. In Mohd. Aman v. State of
Rajasthan[22] this Court referred to the possibility of the police
fabricating evidence and to avoid an allegation of such a nature, it would
be eminently desirable that fingerprints were taken under the orders of a
Magistrate. We may add that this would equally apply to the creating
evidence against a suspect. This is what this Court had to say:
“Even though the specimen fingerprints of Mohd. Aman had to be
taken on a number of occasions at the behest of the Bureau, they
were never taken before or under the order of a Magistrate in
accordance with Section 5 of the Identification of Prisoners
Act. It is true that under Section 4 thereof police is competent
to take fingerprints of the accused but to dispel any suspicion
as to its bona fides or to eliminate the possibility of
fabrication of evidence it was eminently desirable that they
were taken before or under the order of a Magistrate.”

 
47. The Karnataka High Court has taken the view[23] that it is not
incumbent upon a police officer to take the assistance of a Magistrate to
obtain the fingerprints of an accused and that the provisions of the
Identification of Prisoners Act are not mandatory in this regard. However,
the issue is not one of the provisions being mandatory or not – the issue
is whether the manner of taking fingerprints is suspicious or not. In this
case, we do not know if Prakash’s fingerprint was taken on 7th November,
1990 as alleged by him or later as contended by the Investigating Officer,
or the circumstances in which it was taken or even the manner in which it
was taken. It is to obviate any such suspicion that this Court has held it
to be eminently desirable that fingerprints are taken before or under the
order of a Magistrate. As far as this case is concerned, the entire
exercise of Prakash’s fingerprint identification is shrouded in mystery and
we cannot give any credence to it.
48. We are also surprised that though a blood-stained crowbar was
seized from the place of occurrence and according to the Investigating
Officer, a blood-stained steel rod was recovered at the instance of
Prakash, neither of these material objects was sent for fingerprint
examination. The investigation was conducted in a rather unconcerned
manner, to say the least.
49. Learned counsel for Prakash made two subsidiary submissions,
namely, that the photographs taken by Ramachandra of the scene of incident
do not show the existence of the plastic cover Exh. P-18 and therefore,
according to him, the plastic cover was planted subsequently. We are not
prepared to accept this submission because it is nobody’s case that
Ramachandra took photographs of everything or every item found in the
residence of Gangamma.
50. It was also submitted that when Nanaiah took Exh. P-18 with him, no
mahazar or panchnama was drawn up and nobody was told that the plastic
cover bearing the inscription ‘Canara Bank’ was taken away by him for
examination. This is true and we are of the view that this was not
permissible and that there should have been some record of the plastic
cover having been taken by Nanaiah, especially since the Investigating
Officer was present at the spot. On the other hand, if the plastic cover
was taken away by Nanaiah without the knowledge of the Investigating
Officer and right under his nose, then it makes the position even worse for
the prosecution. Be that as it may, we do not doubt the bona fides of
Nanaiah since, in his testimony, he clearly stated that he had examined
nine articles and one of them was the plastic cover bearing the inscription
‘Canara Bank’ and that while carrying an object containing prints, there is
chance of damage to the prints if the object is not handled properly. It is
perhaps to avoid the possible damage that he took the plastic cover with
him.
51. Our attention was drawn to the Karnataka Police Manual and it
appears that Nanaiah followed the guidelines laid down therein and perhaps
acted in an overly cautious manner. Guideline No. 1543 provides as
follows:
“1543.    The opinion of the finger print expert is of paramount
importance in the investigation of various crimes.  The
following instructions should be followed regarding chance
finger and foot prints and their developments, preservation of
the scene, method of packing and other matters:

 
52. Guideline 1544 in the Manual contains various provisions and clause
(iv) and clause (v) are relevant for our purposes. They read as follows:
“1544.    i) to iii) xxx

iv) If latent prints are found on portable articles they should
be seized under a detailed panchanama duly packed and
labelled  and sent to the Finger Print Bureau with a police
officer with instructions regarding the care of the package
during the journey.

v) In sending the articles containing latent prints  to
the Bureau, proper attention must be given to their
package. The following essential points should be borne in
mind:
• It should be ensured that  no portion of the article where
prints may be found should get into contact with
anything  else and
• The articles should be securely packed in a suitable
container.”

Clause (iv) was clearly not followed when Nanaiah took the plastic cover
along with him and this is an extremely serious lapse. However, we give him
the benefit of doubt and assume that it is perhaps with clause (v) in mind
that Nanaiah took the plastic cover along with him.
53. While we completely disapprove of the manner in which Exh. P-18 was
taken away by Nanaiah (and the Investigating Officer did nothing about it),
the case of the prosecution does not get strengthened even if a valid
procedure was followed, since there is nothing on record to show that the
‘admitted’ fingerprints on Exh. P-20 were those of Prakash which could be
compared with the fingerprints on Exh. P-18 and the enlarged photograph
being Exh. P-19.
54. Assuming that Exh. P-20 was a valid piece of evidence validly
obtained, there is no explanation why it was kept by the Investigating
Officer from 14th November, 1990 till 9th January, 1991 when it was
received by Nanaiah. The Karnataka Police Manual highlights the importance
of keeping safe an article containing fingerprints. In view of its
importance, Nanaiah did not trust anyone with the plastic cover bearing the
inscription ‘Canara Bank’ [Exh. P-18] and carefully took it along with him
to avoid its getting damaged by getting into contact with anything else. On
the other hand, we have the Investigating Officer keeping Exh. P-20 with
him for almost two months and in circumstances that seem unclear. We cannot
rule out the possibility of Exh. P-20 getting damaged due to careless
handling.
55. We are of the opinion that there is no fingerprint evidence worth
it linking Prakash to the murder of Gangamma.
Blood Stained Clothes
56. The witnesses relevant for the recovery of blood stained clothes of
Prakash are PW-18 Savandaiah, PW-21 Shivanna and PW-24 Subanna.
57. Savandaiah and Subanna have given a very similar statement to the
effect that Prakash was apprehended on 11th November, 1990. They did not
state that at the time of his apprehension, he was wearing blood stained
clothes.
58. However, when Shivanna was called to the police station on 11th
November, 1990 he was told that it was for the purpose of witnessing a
search of Prakash. He stated that Prakash was wearing a shirt and a panche
and he noticed blood stains on both the apparels. On the personal search of
Prakash some cash was recovered and a receipt from Vijayalakshmi Financiers
was also recovered.
59. Learned counsel for Prakash sought to take advantage of two
discrepant statements made by Shivanna in his cross-examination. One
statement is to the effect that before Prakash was searched, the police
told Shivanna that he was carrying cash and a receipt. The question raised
by learned counsel was how was the police aware of the existence of cash
and a receipt on the person of Prakash without having conducted his
personal search. It was submitted by learned counsel that this reveals
that Prakash had already been searched by the police and Shivanna was
summoned only to complete the paper work. We make no comment on this.
60. The second discrepant statement was that Shivanna stated that the
police had kept Prakash’s clothes on the table. It was submitted, in other
words, that the blood stained clothes were already seized by the police and
kept on the table. We are not sure whether the actual statement made by
Shivanna has been lost in translation.
61. In any event, the recovery of the blood stained clothes of Prakash
do not advance the case of the prosecution. The reason is that all that the
prosecution sought to prove thereby is that the blood group of Gangamma was
AB and the blood stains on Prakash’s seized clothes also belong to blood
group AB. In our opinion, this does not lead to any conclusion that the
blood stains on Prakash’s clothes were those of Gangamma’s blood. There
are millions of people who have the blood group AB and it is quite possible
that even Prakash had the blood group AB. In this context, it is important
to mention that a blood sample was taken from Prakash and this was sent for
examination. The report received from the Forensic Science Laboratory
[Exh.P-27] was to the effect that the blood sample was decomposed and
therefore its origin and grouping could not be determined. It is,
therefore, quite possible that the blood stains on Prakash’s clothes were
his own blood stains and that his blood group was also AB.
62. Learned counsel for Prakash contended that the report of the
serologist was not put to him when he was examined under Section 313 of the
Code of Criminal Procedure. The High Court dealt with this issue in a
rather unsatisfactory manner. This is what the High Court had to say:
“Even assuming that the report of the Serologist had not been
put to the accused in his statement recorded under Section 313
Cr.P.C. the same cannot be said to be fatal to the prosecution,
more so, when the same had not prejudiced the accused in any
way. In fact, we put the said Serologist’s report Ex.P29 to the
learned counsel appearing for the respondent and sought for
their explanation in this regard and it is submitted that they
have nothing to say in that matter. That means, the respondent
has no explanation to offer in this regard.”
63. It is one thing to say that no prejudice was caused to Prakash by
not affording him an opportunity to explain the serological report. It is
quite another thing to put the report to his learned counsel in appeal and
give him (the learned counsel) an opportunity to explain the report of the
serologist. The course adopted by the High Court is clearly impermissible.
The law on the subject was laid down several decades ago by the
Constitution Bench in Tara Singh v. State[24] and is to the effect that an
accused must be given a chance to offer an explanation if the evidence is
to be used against him and the conviction is intended to be based upon it.
It follows that if the accused is not given an opportunity to explain the
circumstances against him in the testimony of the witnesses, then those
circumstances cannot be used against him, whether they prejudice him or
not. This is what the Constitution Bench said:
“It is important therefore that an accused should be properly
examined under section 342[25] and, as their Lordships of the
Privy Council indicated in Dwarkanath v. Emperor,[26] if a point
in the evidence is considered important against the accused and
the conviction is intended to be based upon it, then it is right
and proper that the accused should be questioned about the
matter and be given an opportunity of explaining it if he so
desires. This is an important and salutary provision and I
cannot permit it to be slurred over. I regret to find that in
many cases scant attention is paid to it, particularly in
Sessions Courts. But whether the matter arises in the Sessions
Court or in that of the Committing Magistrate, it is important
that the provisions of section 342 should be fairly and
faithfully observed.”
64. This was more clearly spelt out in Ajay Singh v. State of
Maharashtra[27] when this Court held:
“A conviction based on the accused’s failure to explain what he
was never asked to explain is bad in law.”

65. We are not satisfied with the conclusion of the High Court that
since the clothes of Prakash were blood stained and the stains bore the
same blood group as that of Gangamma, the circumstance could be used
Prakash. A serological comparison of the blood of Gangamma and Prakash and
the blood stains on his clothes was necessary and that was absent from the
evidence of the prosecution.
Ornaments of the deceased
66. According to the prosecution, Prakash had led the Investigating
Officer to various places from where some ornaments belonging to Gangamma
were recovered. The recovery witnesses were examined by the prosecution as
well as those persons from whom the ornaments were recovered. However, what
is of significance is that none of the recovered ornaments could be
connected to Gangamma. This is a serious lapse in investigation and the
mere recovery of some ornaments from some people does not lead to any
conclusion that the ornaments so recovered belonged to Gangamma.
67. At the stage of re-examination of Hucha Basappa, the prosecution
sought permission to examine him with regard to identification of the
ornaments said to belong to Gangamma. However, this was declined by the
Trial Judge who perused the statement of the witness recorded under Section
162 of the Code of Criminal Procedure which did not have anything with
regard to identification of the ornaments.
68. The High Court adversely commented on this and held that the Trial
Judge adopted a very strange procedure while declining to grant the request
of the prosecution to have the ornaments identified through Hucha Basappa.
According to the High Court, Hucha Basappa had stated in an earlier part of
his testimony in court that Gangamma had ornaments such as a gold chain,
silver waist belt, silver rings, ear studs etc. and that he had seen those
ornaments and could identify them if he saw them. Therefore, permission
should have been granted to the prosecution to further examine Hucha
Basappa and it was for the defence to have brought out any contradiction
between the statement made by the witness in court and the statement made
by him under Section 162 of the Code of Criminal Procedure. Having said
that, the High Court concluded that the ornaments belonged to Gangamma.
69. Even if we were to assume that the procedure followed by the Trial
Court was incorrect, in the absence of any identification of the ornaments
as belonging to Gangamma, the High Court could not have definitely
concluded that they did belong to Gangamma. In any event, even assuming
that the ornaments belonged to Gangamma, at best, Prakash would be guilty
of having received stolen property but could certainly not be guilty of
having murdered Gangamma.
Other issues
70. It was brought to our notice that the steel rod used to kill
Gangamma was recovered at the instance of Prakash. This was hidden under a
stone slab and it contained blood stains. The Investigating Officer made
no effort to ascertain whether the blood stains on the steel rod were those
of Gangamma nor was any effort made to ascertain whether the steel rod
contained any fingerprints which matched with those of Prakash. This,
coupled with the fact that the blood stained crowbar seized at the place of
occurrence, was not sent for a chemical examination, raises a grave
suspicion that the investigation was not fair and the benefit of this doubt
must go to Prakash.[28]
71. All that we need say is that the investigation in the case was very
cursory and it appears to us that the Investigating Officer had made up his
mind that Prakash had murdered Gangamma and the investigation was directed
at proving this conclusion rather the other way around with the
investigation leading to a conclusion that Prakash had murdered Gangamma.
72. It is true that the relevant circumstances should not be looked at
in a disaggregated manner but collectively. Still, this does not absolve
the prosecution from proving each relevant fact.
“In a case of circumstantial evidence, each circumstance must be
proved beyond reasonable doubt by independent evidence and the
circumstances so proved, must form a complete chain without
giving room to any other hypotheses and should be consistent
with only the guilt of the accused.”[29]
Conclusion
73. None of the circumstances relied upon by the prosecution and
accepted by the High Court point to the probability of Prakash’s guilt or
involvement in the murder of Gangamma. Consequently, we allow this appeal
and set aside the judgment and order of the High Court and acquit Prakash
of the murder of Gangamma.
74. Though the murder was committed way back in 1990, scientific
methods for investigation were available even at that time but not made use
of. We must express our unhappiness on this state of affairs. At least from
now onwards, the prosecution must lay stress on scientific collection and
analysis of evidence, particularly since there are enough methods of
arriving at clear conclusions based on evidence gathered.
……………………………………J
(Ranjana Prakash
Desai)
……………………………………J
(Madan B. Lokur)
New Delhi;
April 15, 2014

 

———————–
[1] Prakash says that he was arrested on 7th November, 1990
[2] Criminal Appeal No. 699 of 1999
[3] [1976] 1 SCR 763
[4] 1963 Criminal Law Review pp. 479,480
[5] Ibid. pp. 479,480
[6] [1986] 1 SCR 802
[7] Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284
[8] R. Shaji v. State of Kerala, (2013) 14 SCC 266
[9] Rameshwar Singh v. State of J&K, (1971) 2 SCC 715
[10] Mulla v. State of U.P., (2010) 3 SCC 508 , Kishore Chand v. State
of H.P., (1991) 1 SCC 286
[11] State of U.P. v. Boota Singh, (1979) 1 SCC 31
[12] (2003) 5 SCC 746
[13] Jadunath Singh v. State of U.P., (1970) 3 SCC 518
[14] R. Shaji
[15] (2003) 6 SCC 73
[16] R. Shaji
[17] Hargun Sunder Das Godeja v. State of Maharashtra, (1970) 1 SCC 724
[18] “In the negative photo produced by me today MO.13(a) there are no
marks to show that it was taken from that passbook.”
[19] 1952 SCR 1091
[20] (1963) 3 SCR 678
[21] (1974) 3 SCC 630
[22] (1997) 10 SCC 44
[23] State by Rural Police v. B.C. Manjunatha, ILR 2013 Karnataka 3156
[24] 1951 SCR 729
[25] Now Section 313 of the Code of Criminal Procedure
[26] AIR 1933 PC 124
[27] (2007) 12 SCC 341
[28] Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394 and State of
U.P. v. Arun Kumar Gupta, (2003) 2 SCC 202
[29] Lakhjit Singh v. State of Punjab, 1994 Supp (1) SCC 173

 

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