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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  

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found against him by the High Court and which have led to his  

conviction have been satisfactorily proved. The conviction must,  

therefore, be set aside.  

The facts 2. On 5th November, 1990 the appellant Prakash, ordinarily a  

resident  of  Nagenahalli  village  in  Doddaballapur  taluk  of  

Bangalore  district  was  searching  for  Gangamma’s  house  in  

Bangalore. While doing so, he met PW-6 (also named Gangamma)  

and asked her for directions.  Since PW-6 did not know the way to  

Gangamma’s  house,  she  took  Prakash  to  PW-7  Ammajamma’s  

house, and requested her to take Prakash to Gangamma’s house.

3. Ammajamma then  took  Prakash  to  Gangamma’s  house.  

On  reaching  there,  Prakash  informed  Gangamma  that  Swamy  

(son of her brother PW-3 Hucha Basappa) and he had come from  

the village and he enquired from Gangamma whether Swamy had  

reached.  Gangamma informed him that Swamy had not come to  

her  house  and  asked  him  (Prakash)  to  disclose  his  identity.  

Thereupon,  Prakash  introduced  himself  and  Ammajamma  left  

them and returned home. This happened at about 1.00 p.m. on 5th  

November, 1990.  

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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 5th November, 1990  

Revamma  sent  her  grandson  Lohith  aged  about  5  years  to  

Gangamma’s  house  to  call  her.   Gangamma  then  came  with  

Lohith to Revamma’s house and informed her that she could not  

watch TV at her house as usual since some relatives from her  

village had come to her house and she had to cook food for them.  

Soon  thereafter,  Gangamma  left  and  returned  to  her  house.  

According to the First Information Report (FIR) this was at about  

8.00 p.m. on 5th November, 1990.

5. On the next day, at about 5.30 p.m. Revamma had gone to  

a  medical  shop  where  she  learnt  that  Gangamma  had  been  

murdered in her house.   Thereupon, she went to Gangamma’s  

house and found a crowd had gathered over there.  She entered  

Gangamma’s house and saw the dead body with her clothes and  

other articles lying scattered about.  She then sent word through  

PW-4 Muniyappa and others to Gangamma’s brother PW-3 Hucha  

Basappa about the incident.

6. Revamma was advised by some people in the crowd to  

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lodge a complaint with the police.   Therefore, she went to the  

police station and lodged a complaint about the incident at about  

7.30 p.m. and an FIR was registered.

7. The Investigating Officer PW-25 D’Souza soon reached the  

place of occurrence, that is, Gangamma’s house. The dog squad,  

a fingerprint expert and a photographer also reached there a little  

later. On a requisition made by the Investigating Officer, PW-12  

Ramachandra  the  photographer  took  photographs  of  the  dead  

body  and  the  crime  scene.   He  also  took  a  photograph  of  a  

passbook MO-13 lying at the scene of the incident. The fingerprint  

expert PW-20 Nanaiah examined nine articles in the premises and  

found  some  fingerprints  on  a  plastic  cover  containing  the  

inscription ‘Canara Bank’.  Nanaiah took the plastic cover [Exh. P-

18] with him for a detailed examination.

8. The  Investigating  Officer  seems  to  have  taken  the  

fingerprint of Gangamma and that was later given to Nanaiah who  

compared the fingerprint with the chance print on Exh. P-18 and  

concluded that they were not identical.  He issued a certificate in  

this regard on 9th November, 1990.

9. While  the  Investigating  Officer  was  at  the  place  of  

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occurrence,  Hucha  Basappa  (Gangamma’s  younger  brother)  

arrived and he revealed that he suspected Prakash’s involvement  

in  the  crime  since  he  was  informed  that  Prakash  had  visited  

Gangamma’s house.

10. According to the prosecution, on 11th November, 1990 at  

about 4.45 p.m. Prakash was apprehended and produced before  

the Investigating Officer.1  He was then arrested and searched  

and on his personal search some cash was recovered as also a  

receipt  dated  7th November,  1990  issued  by  Vijayalakshmi  

Financiers.  Prakash’s clothes, that is, his shirt, dhoti and shawl  

were found to be blood stained and they too were seized by the  

Investigating Officer.  Prakash made a voluntary disclosure to the  

Investigating Officer wherein he stated that some ornaments of  

the deceased were taken by him and pledged with Vijayalakshmi  

Financiers;  some  ornaments  were  sold  elsewhere  and  some  

ornaments were hidden near his father-in-law’s house. Prakash  

took the Investigating Officer to the places mentioned by him and  

the ornaments were seized.  

11. Prakash also took the Investigating Officer to a place from  

where he took out a steel rod concealed beneath a stone slab.  1  Prakash says that he was arrested on 7th November, 1990

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The steel rod was found to be blood stained and was seized by  

the Investigating Officer in the presence of panch witnesses. It  

was allegedly used to murder Gangamma.  

12. As a part of the investigations, a sample of Prakash’s blood  

was drawn and given to the Investigating Officer who sealed it in  

a bottle. This was then sent to the Forensic Science Laboratory for  

examination.

13. On  14th November,  1990  the  Investigating  Officer  took  

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

comparison.  On 9th January, 1991 the fingerprint expert, Nanaiah  

received the fingerprints and he gave a certificate on 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  fingerprints  “shall  never  be  identical  

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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  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,  2005.2 It  is  under  these circumstances that  this  

appeal is before us.

Relevant circumstances     16. Both the Trial Court and the High Court proceeded on the  

basis that the case is one of circumstantial evidence.  Both the  

Courts mentioned the following five relevant circumstances:-

1. Prakash  was  found  in  Gangamma’s  house  on  the relevant day, that is, 5th November, 1990.

2. The fingerprint expert, Nanaiah found Prakash’s  fingerprint  on  a  plastic  cover  beaing  the  inscription ‘Canara Bank’ [Exh P-18].  This was  taken  by  Nanaiah  for  comparison  and  on  a  comparison having been made, the fingerprints  thereon matched the fingerprints of Prakash.

2  Criminal Appeal No. 699 of 1999  

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3. Prakash’s  clothes were blood-stained when he  was arrested on 11th November, 1990 and the  blood-stains  tallied  with  the  blood  group  of  Gangamma.

4. Gangamma’s  ornaments  were  recovered  by  D’Souza  at  the  instance  of  Prakash  after  his  arrest.

5. The weapon of offence, that is, a steel rod was  discovered at the instance of Prakash from the  place where it was concealed.

17. The High Court also mentioned two other circumstances,  

namely,  that  Gangamma met with  a homicidal  death and that  

Prakash absconded after committing the crime.

Presence of Prakash in Gangamma’s house 18. Both  the  Courts  referred  to  the  evidence  of  Revamma,  

Muniyappa, PW-6 Gangamma and Ammajamma in this regard.

19. There is no doubt that Revamma did not at all see Prakash  

at  Gangamma’s house.  Her  evidence is  only to  the effect  that  

Gangamma did not come to watch TV with her on the evening of  

5th November, 1990 because she had some relatives in her house  

and she  had to  cook food  for  them.  These  relatives  were  not  

identified  or  named  except  that  she  stated  that  Gangamma’s  

nephew Swamy would be coming and that she had to feed him.   

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20. Similarly, Muniyappa also did not identify or name any of  

Gangamma’s relatives in her house.  All that he says is that when  

he was at his shop he observed that some relatives had come to  

Gangamma’s house and she had given food to them.  He stated  

that he closed his shop at 8.30 p.m. or so and went home.  The  

evidence of Muniyappa only discloses that Gangamma was alive  

till  about  8.30  p.m.  on  5th November,  1990  and  was  in  the  

company  of more than one person.

21. PW-6 Gangamma also  does  not  add to  the  case  of  the  

prosecution.   She  says  that  Prakash  had  approached  her  for  

directions to Gangamma’s house and that she took Prakash to  

Ammajamma’s  house.   She  did  not  accompany  Prakash  or  

Ammajamma  to  Gangamma’s  house.   Prakash  was  produced  

before this witness about 5 or 6 days after the incident when he  

was brought to her shop by the police and she identified him as  

the person whom she had met in the afternoon of 5th 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  

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did not know Prakash and had asked him to identify himself.  The  

conversation  she  heard  reveals  that  Swamy  was  expected  to  

come to Gangamma’s house. This witness left midway during the  

conversation  between  Prakash  and  Gangamma  and  did  not  

actually see Prakash enter her house.

23. A few days after the incident, Ammajamma was called to  

the police station and she saw Prakash sitting over there and  

identified him.

24. On the basis of the evidence of these four witnesses, it can  

at best be said that Prakash was at Gangamma’s house at about  

1.00  p.m.  on  5th November,  1990  and  that  according  to  him  

Swamy  was  also  to  arrive  at  Gangamma’s  residence.  The  

whereabouts of Prakash from 1.00 p.m. onwards are not known.  

It can also be said that Gangamma gave dinner to her relatives  

at  about  8.30  p.m.  but  these  relatives  cannot  be  identified.  

Prakash may or may not be one of them. It cannot, therefore, be  

definitely  concluded that  Prakash  was  being  served dinner  by  

Gangamma at about 8.30 p.m. on 5th November, 1990 or that he  

stayed in her house thereafter. But it is clear that even if Prakash  

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was there, he was not alone with Gangamma when she served  

dinner.  

25. Two questions  immediately  arise in  this  context:  Firstly,  

why  is  it  that  Swamy was  not  examined  by  the  Investigating  

Officer since he was expected to be at Gangamma’s residence on  

5th November, 1990?  There is absolutely no answer forthcoming  

from the State in this regard. The involvement of Prakash in the  

incident came about only because Hucha Basappa informed the  

Investigating Officer on the night of 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  at  

Gangamma’s house on 5th November, 1990.

26. Secondly, why is it that no Test Identification Parade  was  

held to determine whether Prakash was actually the person who  

was seen by PW-6 Gangamma and by Ammajamma?   

27. Two types of pre-trial identification evidence are possible  

and they have been succinctly expressed in  Marcouix v. The  

Queen3 by the Supreme Court of Canada in the following words: 3  [1976] 1 SCR 763

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“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

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A similar view was expressed by the Canadian Supreme Court in  

Mezzo v. The Queen.6  

30. An identification parade is not mandatory7 nor can it  be  

claimed by the suspect as matter of right.8 The purpose of pre-

trial identification evidence is to assure the investigating agency  

that  the investigation is  going on in  the right  direction and to  

provide corroboration of the evidence to be given by the witness  

or victim later in court at the trial.9   If the suspect is a complete  

stranger to the witness or victim, then an identification parade is  

desirable10 unless the suspect has been seen by the witness or  

victim for some length of time.11 In Malkhan Singh v. State of  

M.P.12 it was held:  

“The  identification  parades  belong  to  the  stage  of  investigation,  and  there  is  no  provision  in  the  Code  of  Criminal Procedure which obliges the investigating agency  to hold, or confers a right upon the accused to claim a test  identification  parade.  They do not  constitute substantive  evidence and these parades are essentially governed by  Section 162 of the Code of Criminal Procedure. Failure to  hold  a  test  identification  parade  would  not  make  inadmissible  the  evidence  of  identification  in  court.  The  weight to be attached to such identification should be a  matter for the courts of fact.”  

6  [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

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31. However, if the suspect is known to the witness or victim13  

or  they have been shown a photograph of  the  suspect  or  the  

suspect  has  been  exposed  to  the  public  by  the  media14 no  

identification  evidence  is  necessary.  Even  so,  the  failure  of  a  

victim or a witness to identify a suspect is not always fatal to the  

case of the prosecution. In Visveswaran v. State15 it was held:

“The  identification  of  the  accused  either  in  test  identification parade or in Court is not a sine qua non in  every case if from the circumstances the guilt is otherwise  established. Many a time, crimes are committed under the  cover  of  darkness  when  none  is  able  to  identify  the  accused. The commission of a crime can be proved also by  circumstantial evidence.”

32. What  happened  in  the  present  case?  Both  PW-6  

Gangamma and by Ammajamma saw Prakash for the first time  

on the afternoon of 5th November, 1990 and they had seen him, if  

at all, briefly if not fleetingly. It is true that these witnesses had  

identified Prakash when he was produced before  them on his  

apprehension about five or six days after the incident and also  

while he was in the dock in court, but the circumstances under  

which the dock identification took place are not quite satisfactory  

inasmuch as both the witnesses entered the witness box almost  13  Jadunath Singh v. State of U.P., (1970) 3 SCC 518 14  R. Shaji 15  (2003) 6 SCC 73

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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

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for  an  identification  parade  to  have  been  conducted,  but  its  

absence in this case is not necessarily fatal, there being other  

reasons  also  for  not  accepting  the  case  set  up  by  the  

prosecution.  However,  the absence of  an identification parade  

certainly casts a doubt about Prakash’s presence at Gangamma’s  

house on 5th November, 1990.

34. Even  assuming  Prakash  was  present  at  Gangamma’s  

house  on 5th November,  1990  at  about  1.00  p.m.  it  does  not  

necessarily follow that he was also present at about 8.30 p.m.  

that day. Thus, we find that not only is there an absence of some  

degree  of  certainty  and  a  doubt  about  Prakash’s  presence  at  

Gangamma’s house on 5th November, 1990 but also an absence  

of certainty and a doubt whether he was there at 1.00 p.m. and  

at 8.30 p.m.  

35. There does not seem to be any reason at all for Prakash to  

have gone alone to Gangamma’s house.  He did not know where  

she lived and even she did not know who he was.  It is difficult to  

imagine  that  Prakash  would  leave  his  house  in  Nagenahalli  

village to visit  Gangamma’s house for  the purpose of  stealing  

some  ornaments,  as  suggested  by  the  prosecution  –  theft  of  

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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 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.  

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 5th 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

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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 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  

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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.”

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Procedure.  The High Court relied, rather selectively, on a part of  

the statement given by Prakash in his examination under Section  

313  of  the  Code  of  Criminal  Procedure.  The  question  put  to  

Prakash and the answer given read as under:

“Q: PW-20 C.K. Nanaiah, Finger Print expert and Dy. S.P.  states  that  on  6.11.1990 he was  called  to  the  scene of  occurrence  amd he  visited  there,  examined  the  articles  found at the place between 8-30 and 9-45 p.m. and got a  chance print on a plastic cover found there, which is at Ex.  P-18 and on comparison  it  was identical  with  your  right  middle finger print and issued a certificate as per Ex. P-13.  What do you say? Ans: On  7th date  Inspector  D’Souza  given  me  a  cover to hold the same.”  

43. The High Court took into account only the latter part of the  

answer given by Prakash, namely, that he held a cover. From this,  

the High Court concluded that “The fact that the fingerprint of the  

accused was found on Ex. P-18 (sic  Ex. P-20) is accepted by the  

accused himself.” In doing so, the High Court ignored the first part  

of  Prakash’s  statement  that  this  happened  on  7th November,  

1990.  If any credibility is to be given to Exh.P-20 then it must be  

held that Prakash was arrested on 7th November, 1990 but that is  

not the case of the prosecution. We have, therefore, to proceed  

on the basis that Prakash was in fact apprehended and arrested  

on  11th November,  1990  and  proceeding  on  that  basis,  there  Criminal Appeal No. 1682 of 2005 Page 20 of 36

Page 21

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

Investigating Officer on 7th November,  1990 for  the purpose of  

obtaining his fingerprint.  The ultimate conclusion is that there is  

absolutely no evidence on record to show how Exh. P-20 which is  

said  to  be  the  admitted  fingerprint  of  Prakash  came  into  

existence.  In the absence of any admitted fingerprint, there is  

nothing to show that the handprint or the fingerprints on Exh. P-

18 was that of Prakash.

44. In Hanumant Govind Nargundkar v. State of M.P19 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 Punjab20 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

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any  suspicion  regarding  the  genuineness  of  the  fingerprint  so  

taken  or  resort  to  any  subterfuge,  the  appropriate  course  of  

action  for  the  Investigating  Officer  was  to  approach  the  

Magistrate for necessary orders in accordance with section 5 of  

the  Identification  of  Prisoners  Act,  1920.  In  Mohd.  Aman  v.  

State of Rajasthan22 this Court referred to the possibility of the  

police fabricating evidence and to avoid an allegation of such a  

nature,  it  would  be  eminently  desirable  that  fingerprints  were  

taken under the orders of a Magistrate.  We may add that this  

would equally apply to the creating evidence against a suspect.  

This is what this Court had to say:  

“Even  though  the  specimen  fingerprints  of  Mohd.  Aman  had to be taken on a number of occasions at the behest of  the  Bureau,  they were never  taken before  or  under  the  order of a Magistrate in accordance with Section 5 of the  Identification of Prisoners Act. It is true that under Section  4 thereof  police is  competent to take fingerprints  of  the  accused but to dispel any suspicion as to its bona fides or  to eliminate the possibility of fabrication of evidence it was  eminently desirable that they were taken before or under  the order of a Magistrate.”

47. The Karnataka High Court has taken the view23 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

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provisions of the Identification of Prisoners Act are not mandatory  

in this regard.  However,  the issue is  not one of  the provisions  

being mandatory  or  not  –  the issue is  whether  the manner  of  

taking fingerprints is suspicious or not.  In this case, we do not  

know if Prakash’s fingerprint was taken on 7th November, 1990 as  

alleged by him or later as contended by the Investigating Officer,  

or the circumstances in which it was taken or even the manner in  

which it was taken. It is to obviate any such suspicion that this  

Court has held it to be  eminently desirable that fingerprints are  

taken before or under the order of a Magistrate. As far as this  

case  is  concerned,  the  entire  exercise  of  Prakash’s  fingerprint  

identification  is  shrouded  in  mystery  and  we  cannot  give  any  

credence to it.  

48. We are also surprised that though a blood-stained crowbar  

was seized from the place of  occurrence and according to the  

Investigating Officer, a blood-stained steel rod was recovered at  

the  instance of  Prakash,  neither  of  these material  objects  was  

sent for fingerprint examination. The investigation was conducted  

in a rather unconcerned manner, to say the least.

49. Learned  counsel  for  Prakash  made  two  subsidiary  

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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  

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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  

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package.  The following essential points should be borne in  mind:          

• It  should be ensured that  no portion  of  the article  where prints may be found should get into contact  with anything  else and   

• The articles should be securely packed in a suitable  container.”

Clause (iv) was clearly not followed when Nanaiah took the plastic  

cover  along  with  him  and  this  is  an  extremely  serious  lapse.  

However, we give him the benefit of doubt and assume that it is  

perhaps  with  clause (v)  in  mind that  Nanaiah  took  the  plastic  

cover along with him.    

53. While we completely disapprove of the manner in which  

Exh.  P-18  was  taken  away  by  Nanaiah  (and  the  Investigating  

Officer did nothing about it), the case of the prosecution does not  

get strengthened even if  a valid procedure was followed, since  

there is nothing on record to show that the ‘admitted’ fingerprints  

on Exh. P-20 were those of Prakash which could be compared with  

the fingerprints on Exh. P-18 and the enlarged photograph being  

Exh. P-19.

54. Assuming that  Exh.  P-20  was  a  valid  piece  of  evidence  

validly obtained, there is no explanation why it was kept by the  

Investigating  Officer  from 14th November,  1990 till  9th January,  

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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 11th  

November,  1990.   They  did  not  state  that  at  the  time  of  his  

apprehension, he was wearing blood stained clothes.

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

on 11th November, 1990 he was told that it was for the purpose of  

witnessing  a  search  of  Prakash.  He  stated  that  Prakash  was  

wearing a shirt and a panche and he noticed blood stains on both  

the apparels. On the personal search of Prakash some cash was  

recovered and a receipt from Vijayalakshmi Financiers was also  

recovered.    

59. Learned counsel for Prakash sought to take advantage of  

two  discrepant  statements  made  by  Shivanna  in  his  cross-

examination.  One statement is to the effect that before Prakash  

was searched, the police told Shivanna that he was carrying cash  

and a receipt.  The question raised by learned counsel was how  

was the police aware of the existence of cash and a receipt on the  

person of Prakash without having conducted his personal search.  

It was submitted by learned counsel that this reveals that Prakash  

had  already  been  searched  by  the  police  and  Shivanna  was  

summoned  only  to  complete  the  paper  work.   We  make  no  

comment on this.  

60. The  second  discrepant  statement  was  that  Shivanna  

stated that the police had kept Prakash’s clothes on the table.  It  

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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.  

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62. Learned counsel for Prakash contended that the report of  

the serologist was not put to him when he was examined under  

Section 313 of the Code of Criminal Procedure.  The High Court  

dealt  with this  issue in  a rather  unsatisfactory manner.  This  is  

what the High Court had to say:

“Even assuming that the report of the Serologist had not  been put to the accused in his statement recorded under  Section 313 Cr.P.C. the same cannot be said to be fatal to  the  prosecution,  more  so,  when  the  same  had  not  prejudiced the accused in any way.  In fact, we put the said  Serologist’s report Ex.P29 to the learned counsel appearing  for the respondent and sought for their explanation in this  regard and it is submitted that they have nothing to say in  that  matter.   That  means,  the  respondent  has  no  explanation to offer in this regard.”

63. It  is  one  thing  to  say  that  no  prejudice  was  caused  to  

Prakash  by  not  affording  him  an  opportunity  to  explain  the  

serological report. It is quite another thing to put the report to his  

learned counsel in appeal and give him (the learned counsel) an  

opportunity  to  explain  the  report  of  the serologist.  The course  

adopted by the High Court is clearly impermissible.  The law on  

the  subject  was  laid  down  several  decades  ago  by  the  

Constitution Bench in Tara Singh v. State24 and is to the effect  

that an accused must be given a chance to offer an explanation if  

24  1951 SCR 729

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the  evidence  is  to  be  used  against  him and  the  conviction  is  

intended to be based upon it. It follows that if the accused is not  

given an opportunity to explain the circumstances against him in  

the testimony of the witnesses, then those circumstances cannot  

be used against him, whether they prejudice him or not. This is  

what the Constitution Bench said:

“It  is  important  therefore  that  an  accused  should  be  properly  examined  under  section  34225 and,  as  their  Lordships  of  the Privy  Council  indicated in  Dwarkanath  v. Emperor,26 if  a  point  in  the  evidence  is  considered  important  against  the  accused  and  the  conviction  is  intended to be based upon it, then it is right and proper  that the accused should be questioned about the matter  and  be  given  an  opportunity  of  explaining  it  if  he  so  desires. This is an important and salutary provision and I  cannot permit it to be slurred over. I regret to find that in  many  cases  scant  attention  is  paid  to  it,  particularly  in  Sessions  Courts.  But  whether  the  matter  arises  in  the  Sessions Court or in that of the Committing Magistrate, it is  important  that  the  provisions  of  section  342  should  be  fairly and faithfully observed.”

64. This was more clearly spelt out in Ajay Singh v. State of  

Maharashtra27 when this Court held:

“A  conviction  based  on  the  accused’s  failure  to  explain  what he was never asked to explain is bad in law.”  

65. We are not satisfied with the conclusion of the High Court  

that  since  the  clothes  of  Prakash  were  blood  stained  and  the  

stains  bore  the  same  blood  group  as  that  of  Gangamma,  the  25  Now Section 313 of the Code of Criminal Procedure 26  AIR 1933 PC 124 27  (2007) 12 SCC 341

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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  

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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  

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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

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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

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must lay stress on scientific collection and analysis of evidence,  

particularly since there are enough methods of arriving at clear  

conclusions based on evidence gathered.                

                                 ……………………………………J

            (Ranjana Prakash  Desai)

 ……………………………………J

            (Madan B. Lokur) New Delhi; April 15, 2014   

Criminal Appeal No. 1682 of 2005 Page 36 of 36