Page 1 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

Criminal Appeal No. 1682 of 2005 Page 1 of 36

Page 2 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 5

th

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 3 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 5

th

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 4 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 9

th

November, 1990.

9. While the Investigating Officer was at the place of

Criminal Appeal No. 1682 of 2005 Page 4 of 36

Page 5 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 11

th

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 7

th

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 7

th

November, 1990

Criminal Appeal No. 1682 of 2005 Page 5 of 36

Page 6 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 14

th

November, 1990 the Investigating Officer took

Prakash’s fingerprints and sent them to the fingerprint bureau for

comparison. On 9

th

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 14

th

November, 1990 was made being

Exh. P-20. On 18

th

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 7 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 6

th

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, 5

th

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 8 3.Prakash’s clothes were blood-stained when he

was arrested on 11

th

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

5

th

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 9 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 5

th

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 actually saw Prakash with

Gangamma was Ammajamma. She narrated the conversation

between Prakash and Gangamma and the fact that Gangamma

Criminal Appeal No. 1682 of 2005 Page 9 of 36

Page 10 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 5

th

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 11 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

5

th

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 5

th

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:

3 [1976] 1 SCR 763

Criminal Appeal No. 1682 of 2005 Page 11 of 36

Page 12 “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 1963 Criminal Law Review pp. 479,480

5 Ibid. pp. 479,480

Criminal Appeal No. 1682 of 2005 Page 12 of 36

Page 13 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.”

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

Criminal Appeal No. 1682 of 2005 Page 13 of 36

Page 14 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 5

th

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 15 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 16 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 5

th

November, 1990.

34.Even assuming Prakash was present at Gangamma’s

house on 5

th

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 5

th

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 17 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 18 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 19 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.”

Criminal Appeal No. 1682 of 2005 Page 19 of 36

Page 20 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 7

th

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 11

th

November, 1990 and proceeding on that basis, there

Criminal Appeal No. 1682 of 2005 Page 20 of 36

Page 21 cannot be any question of his being given a cover to hold by the

Investigating Officer on 7

th

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

Criminal Appeal No. 1682 of 2005 Page 21 of 36

Page 22 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

22 (1997) 10 SCC 44

23 State by Rural Police v. B.C. Manjunatha, ILR 2013 Karnataka 3156

Criminal Appeal No. 1682 of 2005 Page 22 of 36

Page 23 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 7

th

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

Criminal Appeal No. 1682 of 2005 Page 23 of 36

Page 24 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 Page 24 of 36

Page 25 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 Page 25 of 36

Page 26 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 14

th

November, 1990 till 9

th

January,

Criminal Appeal No. 1682 of 2005 Page 26 of 36

Page 27 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 Page 27 of 36

Page 28 58. However, when Shivanna was called to the police station

on 11

th

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 Page 28 of 36

Page 29 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 Page 29 of 36

Page 30 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

24 1951 SCR 729

Criminal Appeal No. 1682 of 2005 Page 30 of 36

Page 31 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

25 Now Section 313 of the Code of Criminal Procedure

26 AIR 1933 PC 124

27 (2007) 12 SCC 341

Criminal Appeal No. 1682 of 2005 Page 31 of 36

Page 32 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 Page 32 of 36

Page 33 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 Page 33 of 36

Page 34 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 Page 34 of 36

Page 35 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 Page 35 of 36

Page 36 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 Page 36 of 36