Case: Prakash Vs. State Of Karnataka

2. On 5th November, 1990 the appellant Prakash, ordinarily a resident of Nagenahalli village in Doddaballapur taluk of Bangalore district was searching forhouse 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 tohouse, she took Prakash to PW-7house, and requested her to take Prakash tohouse.3. Ammajamma then took Prakash tohouse. On reaching there, Prakash informed Gangamma that Swamy (son of her brother PW-3 Hucha Basappa) and he had come from the village and he enquired from Gangamma whether Swamy had reached. Gangamma informed him that Swamy had not come to her house and asked him (Prakash) to disclose his identity. Thereupon, Prakash introduced himself and Ammajamma left them and returned home. This happened at about 1.00 p.m. on 5th November, 1990.4. In the evening, Gangamma would normally visit PW-1house, across the road, for watching TV. When Gangamma did not come in the evening on 5th November, 1990 Revamma sent her grandson Lohith aged about 5 years tohouse to call her. Gangamma then came with Lohith tohouse and informed her that she could not watch TV at her house as usual since some relatives from her village had come to her house and she had to cook food for them. Soon thereafter, Gangamma left and returned to her house. According to the First Information Report (FIR) this was at about 8.00 p.m. on 5th November, 1990.5. On the next day, at about 5.30 p.m. Revamma had gone to a medical shop where she learnt that Gangamma had been murdered in her house. Thereupon, she went tohouse and found a crowd had gathered over there. She enteredhouse and saw the dead body with her clothes and other articles lying scattered about. She then sent word through PW-4 Muniyappa and others tobrother PW-3 Hucha Basappa about the incident.6. Revamma was advised by some people in the crowd to lodge a complaint with the police. Therefore, she went to the police station and lodged a complaint about the incident at about 7.30 p.m. and an FIR was registered.7. The Investigating Officer PW-25soon reached the place of occurrence, that is,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 ‘CanaraNanaiah took the plastic cover [Exh. P-18] with him for a detailed examination.8. The Investigating Officer seems to have taken the fingerprint of Gangamma and that was later given to Nanaiah who compared the fingerprint with the chance print on Exh. P-18 and concluded that they were not identical. He issued a certificate in this regard on 9th November, 1990.9. While the Investigating Officer was at the place of occurrence, Hucha Basappayounger brother) arrived and he revealed that he suspectedinvolvement in the crime since he was informed that Prakash had visitedhouse.10. According to the prosecution, on 11th November, 1990 at about 4.45 p.m. Prakash was apprehended and produced before the Investigating Officer. [Prakash says that he was arrested on 7th November, 1990] He was then arrested and searched and on his personal search some cash was recovered as also a receipt dated 7th November, 1990 issued by Vijayalakshmi Financiers.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 hishouse. Prakash took the Investigating Officer to the places mentioned by him and the ornaments were seized.11. Prakash also took the Investigating Officer to a place from where he took out a steel rod concealed beneath a stone slab. The steel rod was found to be blood stained and was seized by the Investigating Officer in the presence of panch witnesses. It was allegedly used to murder Gangamma.12. As a part of the investigations, a sample ofblood was drawn and given to the Investigating Officer who sealed it in a bottle. This was then sent to the Forensic Science Laboratory for examination.13. On 14th November, 1990 the Investigating Officer tookfingerprints and sent them to the fingerprint bureau for comparison. On 9th January, 1991 the fingerprint expert, Nanaiah received the fingerprints and he gave a certificate on 11th January, 1991 to the effect that the fingerprint sent to him matched with the chance prints found on the plastic cover [Exh. P-18] found at the place of occurrence. Later, an enlarged photoprint of the chance fingerprint Exh. P-18 was made as Exh. P-19 and an enlarged photoprint of the fingerprint of Prakash obtained by the Investigating Officer on 14th November, 1990 was made being Exh. P-20. On 18th March, 1991 Nanaiah marked several identical characteristics on both enlarged photographs and gave an opinion [Exh. P-21(a)] that two fingerprintsnever be identical unless they are derived from the same finger of the same person.On these broad facts Prakash was charge-sheeted for having murdered Gangamma and for having stolen her cash and ornaments valued at about Rs.25,000/-.15. The Trial Court, by its judgment and order dated 21st January, 1999 acquitted Prakash. The acquittal was set aside in appeal by the High Court of Karnataka by its judgment and order dated 6th July, 2005. [Criminal Appeal No. 699 of 1999] It is under these circumstances that this appeal is before us.

Court's reasoning:
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