Case: Prakash Vs. State Of Karnataka

if the evidence is to be used against him and the conviction is intended to be based upon it. It follows that if the accused is not given an opportunity to explain the circumstances against him in the testimony of the witnesses, then those circumstances cannot be used against him, whether they prejudice him or not. This is what the Constitution Bench said: “It is important therefore that an accused should be properly examined under section 342 [Now Section 313 of the Code of Criminal Procedure] and, as their Lordships of the Privy Council indicated in Dwarkanath v. Emperor, [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.” 64. This was more clearly spelt out in Ajay Singh v. State of Maharashtra [(2007) 12 SCC 341] when this Court held: “A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law.” 65. We are not satisfied with the conclusion of the High Court that since the clothes of Prakash were blood stained and the stains bore the same blood group as that of Gangamma, the circumstance could be used Prakash. A serological comparison of the blood of Gangamma and Prakash and the blood stains on his clothes was necessary and that was absent from the evidence of the prosecution. Ornaments of the deceased 66. According to the prosecution, Prakash had led the Investigating Officer to various places from where some ornaments belonging to Gangamma were recovered. The recovery witnesses were examined by the prosecution as well as those persons from whom the ornaments were recovered. However, what is of significance is that none of the recovered ornaments could be connected to Gangamma. This is a serious lapse in investigation and the mere recovery of some ornaments from some people does not lead to any conclusion that the ornaments so recovered belonged to Gangamma. 67. At the stage of re-examination of Hucha Basappa, the prosecution sought permission to examine him with regard to identification of the ornaments said to belong to Gangamma. However, this was declined by the Trial Judge who perused the statement of the witness recorded under Section 162 of the Code of Criminal Procedure which did not have anything with regard to identification of the ornaments. 68. The High Court adversely commented on this and held that the Trial Judge adopted a very strange procedure while declining to grant the request of the prosecution to have the ornaments identified through Hucha Basappa. According to the High Court, Hucha Basappa had stated in an earlier part of his testimony in court that Gangamma had ornaments such as a gold chain, silver waist belt, silver rings, ear studs etc. and that he had seen those ornaments and could identify them if he saw them. Therefore, permission should have been granted to the prosecution to further examine Hucha Basappa and it was for the defence to have brought out any contradiction between the statement made by the witness in court and the statement made by him under Section 162 of the Code of Criminal Procedure. Having said that, the High Court concluded that the ornaments belonged to Gangamma.69. Even if we were to assume that the procedure followed by the Trial Court was incorrect, in the absence of any identification of the ornaments as belonging to Gangamma, the High Court could not have definitely concluded that they did belong to Gangamma. In any event, even assuming that the ornaments belonged to Gangamma, at best, Prakash would be guilty of having received stolen property but could certainly not be guilty of having murdered Gangamma. Other issues 70. It was brought to our notice that the steel rod used to kill Gangamma was recovered at the instance of Prakash. This was hidden under a stone slab and it contained blood stains. The Investigating Officer made no effort to ascertain whether the blood stains on the steel rod were those of Gangamma nor was any effort made to ascertain whether the steel rod contained any fingerprints which matched with those of Prakash. This, coupled with the fact that the blood stained crowbar seized at the place of occurrence, was not sent for a chemical examination, raises a grave suspicion that the investigation was not fair and the benefit of this doubt must go to Prakash. [Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394 and State of U.P. v. Arun Kumar Gupta, (2003) 2 SCC 202] 71. All that we need say is that the investigation in the case was very cursory and it appears to us that the Investigating Officer had made up his mind that Prakash had murdered Gangamma and the investigation was directed at proving this conclusion rather the other way around with the investigation leading to a conclusion that Prakash had murdered Gangamma.72. It is true that the relevant circumstances should not be looked at in a disaggregated manner but collectively. Still, this does not absolve the prosecution from proving each relevant fact. “In a case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypotheses and should be consistent with only the guilt of the accused.” [Lakhjit Singh v. State of Punjab, 1994 Supp (1) SCC 173] Conclusion

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It cannot, therefore, be definitely concluded that Prakash was being served dinner by Gangamma at about 8.30 p.m. on 5th November, 1990 or that he stayed in her house thereafter. But it is clear that even if Prakash was there, he was not alone with Gangamma when she served dinner.25. Two questions immediately arise in this context: Firstly, why is it that Swamy was not examined by the Investigating Officer since he was expected to be atresidence on 5th November, 1990? There is absolutely no answer forthcoming from the State in this regard. The involvement of Prakash in the incident came about only because Hucha Basappa informed the Investigating Officer on the night of 5th November, 1990 that he was not on talking terms with Prakash and that he had given a complaint against him when Prakash tried to assault Hucha Basappa. This is all the more reason for the Investigating Officer to have questioned Swamy who was expected to be athouse 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 byis true that these witnesses had identified Prakash when he was produced before them on his apprehension about five or six days after the incident and also while he was in the dock in court, but the circumstances under which the dock identification took place are not quite satisfactory inasmuch as both the witnesses entered the witness box almost 41/2 years after they are said to have first seen Prakash only briefly and without any identification parade having been conducted.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 abouthouse on 5th November,we find that not only is there an absence of some degree of certainty and a doubt abouthouse 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.Given the evidence before us, we find it very difficult to accept with certainty the case of the prosecution that Prakash alone was with Gangamma on the fateful night of 5th November, 1990. The view taken by the Trial Court giving Prakash the benefit of doubt is certainly a plausible view and in the absence of any perversity in the view taken, we are of the opinion the High Court ought not to have upset the conclusion arrived at.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 inhouse on 5th November,1990 and that in all probability he was the relative who was having dinner athouse. 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. [Hargun Sunder Das Godeja v. State of Maharashtra, (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.38. In view of the above, it is not necessary for us to labour on the questions raised on the applicability of the last seen theory. There is a clear doubt whether Prakash was with Gangamma; if he was, then it was at about 1.00 p.m. on 5th November, 1990; there is no evidence that Prakash was with Gangamma thereafter and on the contrary there is evidence that some of her relatives (which may or may not include Prakash) were with her at about 8.30 p.m. We would be stretching the last seen theory to the vanishing point if we were to apply it to the facts of thisultimate 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 offar as this case is concerned, the entire exercise offingerprint identification is shrouded in mystery and we cannot give any credence toinvestigation was conducted in a rather unconcerned manner, to say theare not sure whether the actual statement made by Shivanna has been lost in translation.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 onseized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the blood stains onclothes were those ofblood. 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 onclothes were his own blood stains and that his blood group was also AB.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 unsatisfactoryIt 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 [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 orWe are not satisfied with the conclusion of the High Court that since the clothes of Prakash were blood stained and the stains bore the same blood group as that of Gangamma, the circumstance could be used Prakash. A serological comparison of the blood of Gangamma and Prakash and the blood stains on his clothes was necessary and that was absent from the evidence of theis 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 tothis 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 theThe High Court adversely commented on this and held that the Trial Judge adopted a very strange procedure while declining to grant the request of the prosecution to have the ornaments identified through Hucha Basappa. According to the High Court, Hucha Basappa had stated in an earlier part of his testimony in court that Gangamma had ornaments such as a gold chain, silver waist belt, silver rings, ear studs etc. and that he had seen those ornaments and could identify them if he saw them. Therefore, permission should have been granted to the prosecution to further examine Hucha Basappa and it was for the defence to have brought out any contradiction between the statement made by the witness in court and the statement made by him under Section 162 of the Code of Criminal Procedure. Having said that, the High Court concluded that the ornaments belonged to Gangamma.69. Even if we were to assume that the procedure followed by the Trial Court was incorrect, in the absence of any identification of the ornaments as belonging to Gangamma, the High Court could not have definitely concluded that they did belong to Gangamma. In any event, even assuming that the ornaments belonged to Gangamma, at best, Prakash would be guilty of having received stolen property but could certainly not be guilty of having murdered Gangamma.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. [Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394  and State of U.P. v. Arun Kumar Gupta, (2003) 2 SCCAll that we need say is that the investigation in the case was very cursory and it appears to us that the Investigating Officer had made up his mind that Prakash had murdered Gangamma and the investigation was directed at proving this conclusion rather the other way around with the investigation leading to a conclusion that Prakash had murdered Gangamma.72. It is true that the relevant circumstances should not be looked at in a disaggregated manner but collectively. Still, this does not absolve the prosecution from proving each relevanta 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[Lakhjit Singh v. State of Punjab, 1994 Supp (1) SCC