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 Rajasthan22 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.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1682 OF 2005
Prakash V State of Karnataka
Madan B. Lokur, J.
Citation;2014(2)crimes 207 SC
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 5 th
November, 1990.
Criminal Appeal No. 1682 of 2005
Page 2 of 36
Page 2
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 5 th 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
Criminal Appeal No. 1682 of 2005
Page 3 of 36
Page 3
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
Criminal Appeal No. 1682 of 2005
Page 4 of 36
Page 4
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.
1
Prakash says that he was arrested on 7th November, 1990
Criminal Appeal No. 1682 of 2005
Page 5 of 36
Page 5
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 11 th 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
Criminal Appeal No. 1682 of 2005
Page 6 of 36
Page 6
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 21 st
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.
2
Criminal Appeal No. 699 of 1999
Criminal Appeal No. 1682 of 2005
Page 7 of 36
Page 7
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.
Criminal Appeal No. 1682 of 2005
Page 8 of 36
Page 8
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 5 th November,
1990.
22.
The
only
witness
who
Gangamma was Ammajamma.
actually
saw
Prakash
with
She narrated the conversation
between Prakash and Gangamma and the fact that Gangamma
Criminal Appeal No. 1682 of 2005
Page 9 of 36
Page 9
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 5 th November, 1990 or that he
stayed in her house thereafter. But it is clear that even if Prakash
Criminal Appeal No. 1682 of 2005
Page 10 of 36
Page 10
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 5 th 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
Queen3 by the Supreme Court of Canada in the following words:
3
[1976] 1 SCR 763
Criminal Appeal No. 1682 of 2005
Page 11 of 36
Page 11
“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
4
5
1963 Criminal Law Review pp. 479,480
Ibid. pp. 479,480
Criminal Appeal No. 1682 of 2005
Page 12 of 36
Page 12
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
desirable10 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.”
6
7
8
9
10
[1986] 1 SCR 802
Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284
R. Shaji v. State of Kerala, (2013) 14 SCC 266
Rameshwar Singh v. State of J&K, (1971) 2 SCC 715
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
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. State15 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
13 Jadunath Singh v. State of U.P., (1970) 3 SCC 518
14 R. Shaji
15 (2003) 6 SCC 73
Criminal Appeal No. 1682 of 2005
Page 14 of 36
Page 14
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
16 R. Shaji
Criminal Appeal No. 1682 of 2005
Page 15 of 36
Page 15
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
Criminal Appeal No. 1682 of 2005
Page 16 of 36
Page 16
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 5 th 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 5 th 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
17 Hargun Sunder Das Godeja v. State of Maharashtra, (1970) 1 SCC 724
Criminal Appeal No. 1682 of 2005
Page 17 of 36
Page 17
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 5 th 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
Criminal Appeal No. 1682 of 2005
Page 18 of 36
Page 18
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
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.”
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 7 th November,
1990. If any credibility is to be given to Exh.P-20 then it must be
held that Prakash was arrested on 7 th 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
Criminal Appeal No. 1682 of 2005
Page 20 of 36
Page 20
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
19 1952 SCR 1091
20 (1963) 3 SCR 678
21 (1974) 3 SCC 630
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 Rajasthan22 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
22 (1997) 10 SCC 44
23 State by Rural Police v. B.C. Manjunatha, ILR 2013 Karnataka 3156
Criminal Appeal No. 1682 of 2005
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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
Criminal Appeal No. 1682 of 2005
made
two
subsidiary
Page 23 of 36
Page 23
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
Criminal Appeal No. 1682 of 2005
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Page 24
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
Criminal Appeal No. 1682 of 2005
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Page 25
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,
Criminal Appeal No. 1682 of 2005
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Page 26
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 11 th
November, 1990.
They did not state that at the time of his
apprehension, he was wearing blood stained clothes.
Criminal Appeal No. 1682 of 2005
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Page 27
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
Criminal Appeal No. 1682 of 2005
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Page 28
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.
Criminal Appeal No. 1682 of 2005
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Page 29
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. State24 and is to the effect
that an accused must be given a chance to offer an explanation if
24 1951 SCR 729
Criminal Appeal No. 1682 of 2005
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Page 30
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 34225 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
Maharashtra27 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
25 Now Section 313 of the Code of Criminal Procedure
26 AIR 1933 PC 124
27 (2007) 12 SCC 341
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
Criminal Appeal No. 1682 of 2005
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Page 32
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
Criminal Appeal No. 1682 of 2005
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Page 33
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
28 Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394 and State of U.P. v.
Arun Kumar Gupta, (2003) 2 SCC 202
Criminal Appeal No. 1682 of 2005
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Page 34
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
29 Lakhjit Singh v. State of Punjab, 1994 Supp (1) SCC 173
Criminal Appeal No. 1682 of 2005
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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
Criminal Appeal No. 1682 of 2005
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