Madan B. Lokur, J.— 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 bloodstained 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 none of the circumstances that have been found against him by the High Court Criminal Appeal No. 699 of 1999 and which have led to his conviction have been satisfactorily proved. The conviction must, therefore, be set aside.
The facts
2. On 5-11-1990 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. 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 5-11-1990.
3. 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 5-11-1990 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 5-11-1990.
4. 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. Revamma was advised by some people in the crowd to lodge a complaint with the police. Therefore, she went to the police station and lodged a complaint about the incident at about 7.30 p.m and an FIR was registered.
5. 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 (Ext. P-18) with him for a detailed examination. 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 Ext. P-18 and concluded that they were not identical. He issued a certificate in this regard on 9-11-1990. While the investigating officer was at the place of occurrence, Hucha Basappa (Gangamma's younger brother) arrived and he revealed that he suspected Prakash's involvement in the crime since he was informed that Prakash had visited Gangamma's house.
6. According to the prosecution, on 11-11-1990 at about 4.45 p.m Prakash was apprehended and produced before the investigating officer. He was then arrested and searched and on his personal search some cash was recovered as also a receipt dated 7-11-1990 issued by Vijayalakshmi Financiers. Prakash's clothes, that is, his shirt, dhoti and shawl were found to be bloodstained 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. Prakash also took the investigating officer to a place from where he took out a steel rod concealed beneath a stone slab. The steel rod was found to be bloodstained and was seized by the investigating officer in the presence of panch witnesses. It was allegedly used to murder Gangamma. 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.
7. On 14-11-1990 the investigating officer took Prakash's fingerprints and sent them to the Fingerprint Bureau for comparison. On 9-1-1991 the fingerprint expert, Nanaiah received the fingerprints and he gave a certificate on 11-1-1991 to the effect that the fingerprint sent to him matched with the chance prints found on the plastic cover (Ext. P-18) found at the place of occurrence. Later, an enlarged photoprint of the chance fingerprint Ext. P-18 was made as Ext. P-19 and an enlarged photoprint of the fingerprint of Prakash obtained by the investigating officer on 14-11-1990 was made being Ext. P-20. On 18-3-1991 Nanaiah marked several identical characteristics on both the enlarged photographs and gave an opinion [Ext. P-21(a)] that two fingerprints “shall never be identical unless they are derived from the same finger of the same person.”
8. 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.
9. The trial court, by its judgment and order dated 21-1-1999 acquitted Prakash. The acquittal was set aside in appeal by the High Court of Karnataka by its judgment and order dated 6-7-2005 Criminal Appeal No. 699 of 1999. It is under these circumstances that this appeal is before us.
Relevant circumstances
10. 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, 5-11-1990.
2. The fingerprint expert, Nanaiah found Prakash's fingerprint on a plastic cover bearing the inscription “Canara Bank” (Ext. P-18). This was taken by Nanaiah for comparison and on a comparison having been made, the fingerprints thereon matched the fingerprints of Prakash.
3. Prakash's clothes were bloodstained when he was arrested on 11-11-1990 and the bloodstains 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.
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
11. Both the courts referred to the evidence of Revamma, Muniyappa, PW 6 Gangamma and Ammajamma in this regard:
11.1 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 5-11-1990 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.
11.2 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 5-11-1990 and was in the company of more than one person.
11.3 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 5-11-1990.
11.4 The only witness who actually saw Prakash with Gangamma was Ammajamma. She narrated the conversation between Prakash and Gangamma and the fact that Gangamma did not know Prakash and had asked him to identify himself. The conversation she heard reveals that Swamy was expected to come to Gangamma's house. This witness left midway during the conversation between Prakash and Gangamma and did not actually see Prakash enter her house. A few days after the incident, Ammajamma was called to the police station and she saw Prakash sitting over there and identified him.
12. 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 5-11-1990 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 5-11-1990 or that he stayed in her house thereafter. But it is clear that even if Prakash was there, he was not alone with Gangamma when she served dinner.
13. Two questions immediately arise in this context:
13.1 Firstly, why is it that Swamy was not examined by the investigating officer since he was expected to be at Gangamma's residence on 5-11-1990? 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 5-11-1990 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 5-11-1990.
13.2 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?
14. Two types of pre-trial identification evidence are possible and they have been succinctly expressed in Marcoulx v. R. (1976) 1 SCR 763 (Can SC) by the Supreme Court of Canada in the following words:
“An important pre-trial step in many criminal prosecutions is the identification of the accused by the alleged victim. Apart from identification with the aid of a photograph or photographs, the identification procedure adopted by the police officers will normally be one of two types: (i) the show up—of a single suspect; (ii) the line-up presentation of the suspect as part of a group.”
14.1 With reference to the first type of identification evidence, the Court quotes Prof. 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.”
14.2 With reference to the second type of identification evidence, Prof. 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 amongst 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.”
14.3 A similar view was expressed by the Canadian Supreme Court in Mezzo v. R. (1986) 1 SCR 802 (Can SC)
15. An identification parade is not mandatory (2012) 9 SCC 284 nor can it be claimed by the suspect as a matter of right. (2013) 14 SCC 266 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. (1971) 2 SCC 715 If the suspect is a complete stranger to the witness or victim, then an identification parade is desirable (2010) 3 SCC 508, (1991) 1 SCC 286 unless the suspect has been seen by the witness or victim for some length of time. (1979) 1 SCC 31 In Malkhansingh v. State of M.P (2003) 5 SCC 746 it was held:
“7. … 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.”
16. However, if the suspect is known to the witness or victim (1970) 3 SCC 518 or they have been shown a photograph of the suspect or the suspect has been exposed to the public by the media (2013) 14 SCC 266 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 (2003) 6 SCC 73 it was held:
“11. … The identification of the accused either in a 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.”
17. What happened in the present case? Both PW 6 Gangamma and Ammajamma saw Prakash for the first time on the afternoon of 5-11-1990 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 4½ years after they are said to have first seen Prakash only briefly and without any identification parade having been conducted.
18. 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”. (2013) 14 SCC 266 However, that was not done. The trial court was of the view that the evidence on record did not inspire confidence as far as fixing the identity of the suspect as Prakash is concerned. The trial court took into account the long lapse of time between the incident and the identification of Prakash in court, the absence of any distinguishing features of Prakash, the brief time for which the witnesses saw him and the fact that he was a total stranger to the witnesses. The High Court was satisfied that Prakash was suitably identified but completely overlooked the fact that even if the trial court had come to an erroneous conclusion, at best, it placed Prakash at the place of occurrence at 1.00 p.m and not later. We are of the opinion that given the facts of the case, it would have been more appropriate for an identification parade to have been conducted, but its absence in this case is not necessarily fatal, there being other reasons also for not accepting the case set up by the prosecution. However, the absence of an identification parade certainly casts a doubt about Prakash's presence at Gangamma's house on 5-11-1990.
19. Even assuming Prakash was present at Gangamma's house on 5-11-1990 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 5-11-1990 but also an absence of certainty and a doubt whether he was there at 1.00 p.m and at 8.30 p.m
20. There does not seem to be any reason at all for Prakash to have gone alone to Gangamma's house. He did not know where she lived and even she did not know who he was. It is difficult to imagine that Prakash would leave his house in Nagenahalli Village to visit Gangamma's house for the purpose of stealing some ornaments, as suggested by the prosecution—theft of ornaments being the alleged motive. This presumes that Gangamma had ornaments which were worth stealing and it also presumes that Prakash knew of the existence of these ornaments.
21. 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 5-11-1990. 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 that the High Court ought not to have upset the conclusion arrived at.
22. 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 5-11-1990 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. (1970) 1 SCC 724 In our opinion, this is an unsatisfactory way of dealing with the issue and we cannot uphold the view taken by the High Court in this regard.
23. 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 5-11-1990; 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
24. The witnesses relevant for the purposes of the fingerprint evidence as a relevant circumstance are Ramachandra (the photographer) and Nanaiah (the fingerprint expert):
24.1 Ramachandra stated that he had taken a photograph of the Bank passbook 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 passbook. No positive print or photograph was developed from the negative. In his cross-examination, Ramachandra could not say if the fingerprint in the negative was that appearing on the passbook. In other words, there was nothing in MO 13(a) to relate it to the passbook. The testimony of Ramachandra with regard to the fingerprints of Prakash on the Bank passbook is, therefore, inconsequential.
24.2 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 Ext. P-18 and an enlarged photograph of this was marked as Ext. P-19. According to Nanaiah, he compared the fingerprints on Ext. P-19 with the fingerprint of Prakash on Ext. P-20 and found that it tallied. How did Ext. 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 Ext. P-20 contained a fingerprint of Prakash. Even the testimony of the Investigating Officer D'Souza is silent on this aspect.
25. The High Court accepted that Ext. P-20 contained Prakash's fingerprint in view of an admission made by him in his statement recorded under Section 313 of the Code of Criminal Procedure. The High Court relied, rather selectively, on a part of the statement given by Prakash in his examination under Section 313 of the Code of Criminal Procedure. The question put to Prakash and the answer given read as under:
“Q. PW20, C.K Nanaiah, Fingerprint expert and Dy. SP states that on 6-11-1990 he was called to the scene of occurrence and he visited there, examined the articles found at the place between 8.30 p.m and 9.45 p.m and got a chance print on a plastic cover found there, which is at Ext. P-18 and on comparison it was identical with your right middle fingerprint and issued a certificate as per Ext. P-13. What do you say?
Ans. On 7th date Inspector D'Souza given me a cover to hold the same.”
26. 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 Ext. P-18 (sic Ext. 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 7-11-1990. If any credibility is to be given to Ext. P-20 then it must be held that Prakash was arrested on 7-11-1990 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 11-11-1990 and proceeding on that basis, there cannot be any question of his being given a cover to hold by the investigating officer on 7-11-1990 for the purpose of obtaining his fingerprint. The ultimate conclusion is that there is absolutely no evidence on record to show how Ext. 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 Ext. P-18 was that of Prakash.
27. In Hanumant Govind Nargundkar v. State of M.P AIR 1952 SC 343, 1953 Cri LJ 129, 1952 SCR 1091 it was held: (AIR p. 350, para 23)
“23. … 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.”
A similar view was expressed, rather expansively, in Narain Singh v. State of Punjab (1964) 1 Cri LJ 730, (1963) 3 SCR 678 and Dadarao v. State of Maharashtra (1974) 3 SCC 630.
28. Assuming Prakash's fingerprint was in fact obtained by D'Souza, it was clearly not given voluntarily, but perhaps unwittingly and in what seems to be a deceitful manner. To avoid any suspicion regarding the genuineness of the fingerprint so taken or resort to any subterfuge, the appropriate course of action for the investigating officer was to approach the Magistrate for necessary orders in accordance with Section 5 of the Identification of Prisoners Act, 1920. In Mohd. Aman v. State of Rajasthan (1997) 10 SCC 44 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:
“8. … 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.”
29. The Karnataka High Court has taken the view ILR 2013 KAR 3156 that it is not incumbent upon a police officer to take the assistance of a Magistrate to obtain the fingerprints of an accused and that the provisions of the Identification of Prisoners Act are not mandatory in this regard. However, the issue is not one of the provisions being mandatory or not—the issue is whether the manner of taking fingerprints is suspicious or not. In this case, we do not know if Prakash's fingerprint was taken on 7-11-1990 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.
30. We are also surprised that though a bloodstained crowbar was seized from the place of occurrence and according to the investigating officer, a bloodstained 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.
31. The learned counsel for Prakash made two subsidiary submissions, namely, that the photographs taken by Ramachandra of the scene of incident do not show the existence of the plastic cover Ext. 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.
32. It was also submitted that when Nanaiah took Ext. P-18 with him, no mahazar or panchnama was drawn up and nobody was told that the plastic cover bearing the inscription “Canara Bank” was taken away by him for examination. This is true and we are of the view that this was not permissible and that there should have been some record of the plastic cover having been taken by Nanaiah, especially since the investigating officer was present at the spot. On the other hand, if the plastic cover was taken away by Nanaiah without the knowledge of the investigating officer and right under his nose, then it makes the position even worse for the prosecution. Be that as it may, we do not doubt the bona fides of Nanaiah since, in his testimony, he clearly stated that he had examined nine articles and one of them was the plastic cover bearing the inscription “Canara Bank” and that while carrying an object containing prints, there is chance of damage to the prints if the object is not handled properly. It is perhaps to avoid the possible damage that he took the plastic cover with him.
33. 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 1543 provides as follows:
“1543. The opinion of the fingerprint expert is of paramount importance in the investigation of various crimes. The following instructions should be followed regarding chance finger and footprints and their developments, preservation of the scene, method of packing and other matters:”
34. 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)-(iii) ***
(iv) If latent prints are found on portable articles they should be seized under a detailed panchnama duly packed and labelled and sent to the Fingerprint Bureau with a police officer with instructions regarding the care of the package during the journey.
(v) In sending the articles containing latent prints to the Bureau, proper attention must be given to their package. The following essential points should be borne in mind:
• It should be ensured that no portion of the article where prints may be found should get into contact with anything else and
• The articles should be securely packed in a suitable container.”
Clause (iv) was clearly not followed when Nanaiah took the plastic cover along with him and this is an extremely serious lapse. However, we give him the benefit of doubt and assume that it is perhaps with clause (v) in mind that Nanaiah took the plastic cover along with him.
35. While we completely disapprove of the manner in which Ext. 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 Ext. P-20 were those of Prakash which could be compared with the fingerprints on Ext. P-18 and the enlarged photograph being Ext. P-19.
36. Assuming that Ext. P-20 was a valid piece of evidence validly obtained, there is no explanation why it was kept by the investigating officer from 14-11-1990 till 9-1-1991 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” (Ext. 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 Ext. P-20 with him for almost two months and in circumstances that seem unclear. We cannot rule out the possibility of Ext. P-20 getting damaged due to careless handling.
37. We are of the opinion that there is no fingerprint evidence worth it linking Prakash to the murder of Gangamma.
Bloodstained clothes
38. The witnesses relevant for the recovery of bloodstained clothes of Prakash are PW 18, Savandaiah, PW 21, Shivanna and PW 24, Subanna. Savandaiah and Subanna have given a very similar statement to the effect that Prakash was apprehended on 11-11-1990. They did not state that at the time of his apprehension, he was wearing bloodstained clothes. However, when Shivanna was called to the police station on 11-11-1990 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 bloodstains on both the apparels. On the personal search of Prakash some cash was recovered and a receipt from Vijayalakshmi Financiers was also recovered.
39. The 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 the 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 the 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.
40. The second discrepant statement was that Shivanna stated that the police had kept Prakash's clothes on the table. It was submitted, in other words, that the bloodstained 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.
41. In any event, the recovery of the bloodstained 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 bloodstains on Prakash's seized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the bloodstains 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 (Ext. 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 bloodstains on Prakash's clothes were his own bloodstains and that his blood group was also AB.
42. The 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 CrPC 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 Ext. P-29 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.”
43. 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 AIR 1951 SC 441, (1951) 52 Cri LJ 1491, 1951 SCR 729 and is to the effect that an accused must be given a chance to offer an explanation if the evidence is to be used against him and the conviction is intended to be based upon it. It follows that if the accused is not given an opportunity to explain the circumstances against him in the testimony of the witnesses, then those circumstances cannot be used against him, whether they prejudice him or not. This is what the Constitution Bench said: (AIR p. 443, para 17)
“17. … It is important therefore that an accused should be properly examined under Section 342 and, as Their Lordships of the Privy Council indicated in Dwarkanath Varma v. King Emperor (1933) 37 LW 584, AIR 1933 PC 124, 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.”
44. This was more clearly spelt out in Ajay Singh v. State of Maharashtra (2007) 12 SCC 341 when this Court held:
“14. … A conviction based on the accused's failure to explain what he was never asked to explain is bad in law.”
45. We are not satisfied with the conclusion of the High Court that since the clothes of Prakash were bloodstained and the stains bore the same blood group as that of Gangamma, the circumstance could be used against Prakash. A serological comparison of the blood of Gangamma and Prakash and the bloodstains on his clothes was necessary and that was absent from the evidence of the prosecution.
Ornaments of the deceased
46. 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 mere recovery of some ornaments from some people does not lead to any conclusion that the ornaments so recovered belonged to Gangamma.
47. At the stage of re-examination of Hucha Basappa, the prosecution sought permission to examine him with regard to identification of the ornaments said to belong to Gangamma. However, this was declined by the trial Judge who perused the statement of the witness recorded under Section 162 of the Code of Criminal Procedure which did not have anything with regard to identification of the ornaments. 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.
48. Even if we were to assume that the procedure followed by the trial court was incorrect, in the absence of any identification of the ornaments as belonging to Gangamma, the High Court could not have definitely concluded that they did belong to Gangamma. In any event, even assuming that the ornaments belonged to Gangamma, at best, Prakash would be guilty of having received stolen property but could certainly not be guilty of having murdered Gangamma.
Other issues
49. 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 bloodstains. The investigating officer made no effort to ascertain whether the bloodstains 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 bloodstained 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. (1976) 4 SCC 394, (2003) 2 SCC 202
50. All that we need to say is that the investigation in the case was very cursory and it appears to us that the investigating officer had made up his mind that Prakash had murdered Gangamma and the investigation was directed at proving this conclusion rather the other way round with the investigation leading to a conclusion that Prakash had murdered Gangamma.
51. 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.
“6. 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.” 1994 Supp (1) SCC 173
Conclusion
52. 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.
53. Though the murder was committed way back in 1990, scientific methods for investigation were available even at that time but not made use of. We must express our unhappiness on this state of affairs. At least from now onwards, the prosecution must lay stress on scientific collection and analysis of evidence, particularly since there are enough methods of arriving at clear conclusions based on the evidence gathered.