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Tuesday, April 15, 2014

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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