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Friday, January 10, 2014

Sections 363, 369, 376, 394, 302 and 201 of the Indian Penal Code, and Section 135(1) of the Bombay Police Act. - 6 years old child was raped murdered and her legs were chopped upto anklets for silver ornaments - Prosecution meshed up story of prosecution with all shorts of defects - all the case appears to be doubtful - sessions court awarded death sentence - High court set aside the order of sessions court and released accused under benefit of doubt - Apex court confirmed the same and with great pain gave directions to Home Department to frame guidelines to fasten accountability on erred prosecution agencies = State of Gujarat … Appellant Versus Kishanbhai Etc. … Respondents = 2014 ( JANUARY - VOL -1) JUDIS.NIC.IN/ S.C./ FILE NAME= 41139

Sections 363, 369, 376, 394,  302  and  201  of the Indian Penal Code, and Section 135(1) of the  Bombay  Police  Act. - 6 years old child was raped murdered and her legs were chopped upto anklets for silver ornaments - Prosecution meshed up story of  prosecution with all shorts of defects - all the case appears to be doubtful - sessions court awarded death sentence - High court set aside the order of sessions court and released  accused under benefit of doubt - Apex court confirmed the same and with great pain  gave directions to Home Department to frame guidelines to fasten accountability on erred prosecution agencies =
 It was alleged, that the accused had enticed Gomi with a “gola”  (crushed  ice,with sweet flavoured syrup), and thereupon had taken her  to  Jivi’s  field, where he raped her.  
He had murdered her by inflicting injuries on her  head and other parts of the body with bricks. 
In order to  steal  the  “jhanjris” (anklets) worn by her, he had chopped off her feet just  above  her  ankles. =
Prosecution failed to establish its case miserably = 

 Accordingly  we  direct,  the  Home
Department of every State Government, to formulate a  procedure  for  taking
action  against  all  erring  investigating/prosecuting  officials/officers.
All such erring officials/officers identified, as  responsible  for  failure
of a prosecution  case,  on  account  of  sheer  negligence  or  because  of
culpable lapses, must  suffer  departmental  action.   The  above  mechanism
formulated would infuse seriousness in the performance of investigating  and
prosecuting duties, and would ensure that investigation and prosecution  are
purposeful and decisive.  The instant direction shall also be  given  effect
to within 6 months.

22.   A copy of the instant judgment shall be transmitted  by  the  Registry
of this Court, to the Home Secretaries of all State  Governments  and  Union
Territories, within one week.  All the  concerned  Home  Secretaries,  shall
ensure  compliance  of  the  directions  recorded  above.   The  records  of
consideration, in compliance with the above direction, shall be maintained.

23.   We hope and trust the Home Department of the State  of  Gujarat,  will
identify the erring officers in the instant case, and will take  appropriate
departmental action against them,  as  may  be  considered  appropriate,  in
accordance with law.

24.   The instant criminal appeal is accordingly disposed of.

2014 ( JANUARY - VOL -1) JUDIS.NIC.IN/ S.C./ FILE NAME= 41139


                        IN THE SUPREME COURT OF INDIA


                      CRIMINAL APPEAL NO. 1485 OF 2008

State of Gujarat                                   … Appellant


Kishanbhai Etc.                                    … Respondents

                               J U D G M E N T

Jagdish Singh Khehar, J.

1.    A complaint was  lodged  at  Navrangpura  Police  Station,  Ahmedabad,
alleging the  kidnapping/abduction  of  a  six  year  old  girl  child  Gomi
daughter of Keshabhai Mathabhai Solanki and Laliben on 27.2.2003  at  around
6:00 p.m. by the accused Kishanbhai son of Velabhai  Vanabhai  Marwadi.
 It was alleged, that the accused had enticed Gomi with a “gola”  (crushed  ice,with sweet flavoured syrup), and thereupon had taken her  to  Jivi’s  field, where he raped her.  
He had murdered her by inflicting injuries on her  head
and other parts of the body with bricks. 
In order to  steal  the  “jhanjris” (anklets) worn by her, he had chopped off her feet just  above  her  ankles.
The aforesaid complaint was lodged, after the body of the deceased Gomi  was
found from Jivi’s field, at the instance of the accused Kishanbhai.  
On  the
receipt of the above complaint, the first  information  report  came  to  be
registered at Navrangpur Police Station, Ahmedabad.

2.  The prosecution version which emerged consequent upon the completion  of
the investigation  reveals,  that  the  family  of  the  deceased  Gomi  was
distantly related to the family of the accused Kishanbhai.  In  this  behalf
it would be pertinent to mention that  Baghabhai  Naranbhai  Solanki  was  a
resident of Gulbai Tekra, in the Navrangpura area of Ahmedabad.  He  resided
there, along with his  family.   For  his  livelihood,  Baghabhai  Naranbhai
Solanki was running a shop in the name of Mahakali  Pan  Centre.   The  said
shop was located near  his  residence.    Baghabhai  Naranbhai  Solanki  was
running the business of selling “pan  and  bidi”  in  his  shop.   Naranbhai
Manabhai Solanki, father of Baghabhai Naranbhai Solanki used to live in  the
peon’s quarters at Ambavadi in Ahmedabad.  Modabhai Manabhai Solanki,  uncle
of Baghabhai Naranbhai Solanki, had expired.  His  son  Devabhai’s  daughter
Laliben, was married to Keshabhai Mathabhai  Solanki.   Keshabhai  Mathabhai
Solanki  and  Laliben  were  residing  at  Shabamukhiwas,  Gulbai  Tekra  in
Ahmedabad.  Keshabhai Mathabhai Solanki and  Laliben  had  two  children,  a
daughter Gomi aged six years, and a son Himat aged three  years.   Laliben’s
sister-in-law (her husband’s, elder brother’s  wife)  Fuliben  Valabhai  was
residing near the residence of  Keshabhai  Mathabhai  Solanki  and  Laliben.
Kishanbhai the accused, is the brother of Fuliben,  and  was  residing  with
her.  It is therefore, that the family of the deceased as also the  accused,
besides being distantly related, were acquainted with one  another  as  they
were residing close to one another.

3.    Insofar as the occurrence is concerned, according to the  prosecution,
on 27.2.2003 Laliben, niece of Baghabhai, was confined to her residence,  as
she was expecting.  
At about 6:00  p.m.  her  daughter  Gomi,  then  aged  6
years, had wandered out of her house.  
The accused Kishanbhai then  aged  19
years, entice her by giving  her  a  “gola”.   
Having  enticed  her  he  had
carried Gomi to Jivi’s field.  On the way to Jivi’s field, he stole a  knife
with an 8 inch blade from Dineshbhai  Karsanbhai  Thakore  PW6,  a  “dabeli”
(bread/bun, with spiced  potato  filling)  seller.   Having  taken  Gomi  to
Jivi’s field he had raped her.  He had then killed her by  causing  injuries
on her head and other parts of the body with bricks.   In  order  to  remove
the “jhanjris” worn by her, he had amputated her legs with the knife  stolen
by him, from just above her ankles.  He had then covered her body  with  his
shirt, and had left Jivi’s field.  Kishanbhai the  accused,  then  took  the
anklets stolen by him to  Mahavir  Jewellers,  a  shop  owned  by  Premchand
Shankerlal.  He pledged the  anklets  at  the  above  shop,  for  a  sum  of
The accused Kishanbhai was confronted by Baghabhai  and  others
constituting the search party,  whilst  he  was  on  his  way  back  to  his
Kishanbhai, despite stating that he had not taken her away,  had
informed those searching for Gomi, that she could be at  Jivi’s  field.   On
the suggestion of Kishanbhai, the search party  had  gone  to  Jivi’s  farm,
where they found the body of Gomi.

4.     Based  on  the  aforesaid  fact  situation,  confirmed  through   the
investigation carried on by the Police, a charge-sheet  was  framed  against
the accused Kishanbhai under Sections 363, 369, 376, 394,  302  and  201  of
the Indian Penal Code, and Section 135(1) of the  Bombay  Police  Act.
above charge-sheet was filed before the Metropolitan Magistrate,  Ahmedabad.
 Since the offences involved could be tried only by a Court of Session,  the
Metropolitan Magistrate, committed the matter to the Court of  Session.   On
8.3.2004, the Sessions Court to which the matter came to  be  assigned,  for
trial, framed charges.  Since the accused Kishanbhai denied his  involvement
in the matter, the court permitted the prosecution to lead evidence.

5.  The prosecution examined 14 witnesses.  The  statement  of  the  accused
Kishanbhai was  thereafter  recorded  under  Section  313  of  the  Code  of
Criminal Procedure.  In his above statement, the accused  Kishanbhai  denied
his involvement.  Even though an opportunity was afforded to Kishanbhai,  he
did not lead any evidence in his  defence.
After  examining  the  evidence
produced by the  prosecution,  the  Trial  Court  vide  its  judgment  dated
18.8.2004, arrived at  the  conclusion  that  prosecution  had  successfully
proved its  case  beyond  reasonable  doubt.   By  a  separate  order  dated
18.8.2004 the Trial Court sentenced Kishanbhai to death by hanging,  subject
to confirmation of the said  sentence  by  the  High  Court  of  Gujarat  at
Ahmedabad (hereinafter referred to as the ‘High Court’)  under  Section  366
of the Code of Criminal Procedure.

6.  In the above view of the matter, the proceedings conducted by the  Court
of Session, were placed before the High Court at the behest of the State  of
Gujarat,  as  Confirmation  Case  No.  7  of  2004.
Independently  of  the
confirmation proceedings, the accused Kishanbhai, aggrieved by the  judgment
and order of sentence dated 18.8.2004, in Sessions Case  No.  346  of  2003,
filed Criminal Appeal No. 1549 of 2004 before the High Court.

7.    The criminal appeal filed by the accused Kishanbhai  was  accepted  by
the High Court.  Kishanbhai was acquitted  by  giving  him  the  benefit  of
doubt.  The Confirmation Case No. 7 of 2004 was turned down in view  of  the
judgment of acquittal rendered by the High  Court  while  allowing  Criminal
Appeal no. 1549 of 2004.

8.  Dissatisfied with the order passed by  the  High  Court,  the  State  of
Gujarat approached this Court  by  filing  Petition  for  Special  Leave  to
Appeal (Crl.) No. 599 of 2006.  On 11.9.2008 leave to  appeal  was  granted.
Thereupon, the matter came to be registered as Criminal Appeal No.  1485  of

9.    Before this Court, learned counsel for  the  appellant,  in  order  to
substantiate the guilt of the accused-respondent Kishanbhai,  has  tried  to
project that the prosecution was successful  in  demonstrating  an  unbroken
chain  of  circumstances,  clearly  establishing  the  culpability  of   the
accused.  In fact, the endeavour at the hands of  the  learned  counsel  for
the  appellant  was  to  project  an  unbroken  chain  of  circumstances  to
establish the guilt of the accused.  Despite the  defects  in  investigation
and the prosecution of the case, as also,  the  inconsistencies  highlighted
by the High Court in the  evidence  produced  by  the  prosecution,  learned
counsel for the State expressed confidence, to establish the  guilt  of  the
accused-respondent.  In this behalf, it is essential to record  the  various
heads under which submissions were advanced at  the  hands  of  the  learned
counsel for the appellant-State.  We  shall,  therefore,  briefly  summarise
all the contentions, and while doing so, refer to the  evidence  brought  to
our notice by the learned counsel for the appellant, to establish the  guilt
of the accused-respondent, Kishanbhai.
The submissions advanced  before  us
are accordingly being recorded hereunder :

(a)   First and foremost, learned counsel for the  appellant,  in  order  to
connect the accused with the crime under reference, extensively relied  upon
the  evidence  produced  by  the  prosecution  to  show  that  the  accused-
respondent Kishanbhai was last seen with the victim.   He  was  seen  taking
away the victim Gomi.  For the above, reliance was placed on  the  statement
of Naranbhai Manabhai Solanki PW5, who had deposed  that  he  had  seen  the
deceased Gomi with the accused-respondent Kishanbhai on 27.2.2003 at  around
6:00 p.m.  As per his deposition, he had seen Gomi eating a  “gola”  outside
his (the witness’s) residence.  At the same juncture, he had also  seen  the
accused-respondent  Kishanbhai  coming  from  the   side   of   Polytechnic.
Kishanbhai, according  to  the  deposition  of  PW5,  had  approached  Gomi.
Thereafter, as per the statement of PW5, the accused had carried  away  Gomi
towards the side of the Polytechnic.  
In his testimony,  Naranbhai  Manabhai
Solanki PW5, had also stated, that at about 9:00 pm, when he had again  seen
the accused-respondent Kishanbhai  coming  from  the  road  leading  to  the
Gulbai Tekra Police Chowki, he was asked, by those who  were  searching  for
Gomi,  about  her  whereabouts.   
The  accused  was  also  asked  about  the
whereabouts of Gomi, by Naranbhai Manabhai Solanki PW5 and by the son of  PW
5 i.e., by Bababhai  Naranbhai  Solanki  PW2.   To  the  aforesaid  queries,
according  to  Naranbhai  Manabhai  Solanki  PW5,   the   accused-respondent
Kishanbhai had stated, that she  might  be  sitting  in  Jivi’s  field.   In
addition to the testimony of Naranbhai Manabhai Solanki PW5,  reference  was
also made to the testimony of Dinesh Karshanbhai Thakore PW6.   PW6,  during
his deposition, had asserted, that  the  accused-respondent  Kishanbhai  had
come to his “lari” (handcart used by hawkers, to sell  their  products)  for
purchasing a “dabeli”.  It was pointed out  by  Dinesh  Karshanbhai  Thakore
PW6, that he had noticed the accused  carrying  a  child  aged  about  seven
years, wearing a red frock.  In his statement, he  also  affirmed  that  the
accused-respondent Kishanbhai,  had  asked  him  for  a  knife  but  he  had
declined  to  give  it  to  him.   Thereupon,  whilst  leaving  his  “lari”,
Kishanbhai had stolen a knife from his “lari”.  It  was  also  pointed  out,
that  the  knife  recovered  at  the  instance  of  the   accused-respondent
Kishanbhai, was identified by  him  as  the  one  stolen  from  his  “lari”.
According to the learned counsel for the appellant, the last  seen  evidence
referred to above stands duly corroborated by  the  deposition  of  Bababhai
Naranbhai Solanki PW2, not only in his deposition before  the  Trial  Court,
but also in the complaint filed by him at the first instance  at  Navrangpur
Police Station, Ahmedabad, immediately after the recovery of the  dead  body
of Gomi from Jivi’s field.

(b)   Learned counsel for the appellant also laid emphasis on  the  recovery
of the weapon of offence, i.e., a blood stained knife, at  the  instance  of
none other than the accused-respondent  Kishanbhai  himself.   In  order  to
substantiate the instant  aspect  of  the  matter,  learned  counsel  placed
reliance on the testimony of Dinesh Karshanbhai  Thakore  PW6,  who  deposed
that the accused had visited his “lari” on the evening of 27.2.2003 for  the
purchase of a “dabeli”.  The accused respondent, as noticed earlier, as  per
the statement of Dinesh Karshanbhai Thakore PW6, was carrying a  small  girl
aged about 7 years.  He also deposed, that the accused-respondent had  asked
him for his knife, but upon his  refusal,  had  stolen  the  same  from  his
“lari”.  Dinesh Karshanbhai Thakore PW6, had identified the knife which  had
been recovered at the instance of the accused, as  the  one  stolen  by  the
accused-respondent  Kishanbhai  from  his  “lari”.   Additionally   it   was
submitted, that the accused had led the police to Jivi’s field,  from  where
he got recovered the murder weapon,  i.e.,  the  same  knife  which  he  had
stolen from the “lari” of Dinesh Karshanbhai Thakore PW6.  The  above  knife
had a blade measuring  eight  inches,  including  a  steel  handle  of  four
inches.  At the time of recovery of  the  knife,  the  same  had  stains  of
blood.  The above knife was recovered by the  police  on  1.3.2003,  in  the
presence of an independent witness, namely, Rameshbhai Lakhabhai Bhati  PW1,
who in his deposition clearly narrated,  that  the  knife  in  question  was
recovered from Jivi’s field, from under some stones at the instance  of  the
accused-respondent Kishanbhai.

(c)   Learned counsel for  the  appellant,  then  referred  to  the  medical
evidence produced by the prosecution, so  as  to  contend  that  the  wounds
inflicted on the person of Gomi, were with  the  murder  weapon,  i.e.,  the
knife recovered at the instance of the accused-respondent  Kishanbhai.   For
this, learned counsel  placed  reliance  on  the  statement  of  Dr.  Saumil
Premchandbhai Merchant PW8, who had conducted  the  post-mortem  examination
of the deceased Gomi on 28.2.2003.  In the post-mortem report, according  to
learned counsel, mention was  made  about  several  incised  injuries  which
could have been inflicted with the knife stolen  by  the  accused-respondent
Kishanbhai.  In this respect, reference was made  to  serial  No.14  of  the
post-mortem notes (Exhibit 29) proved by Dr. Saumil  Premchandbhai  Merchant
PW8, clearly indicating, that the injuries caused to the victim  which  have
been referred to at serial No.7, could  have  been  caused  with  the  knife
(muddamal Article No.19), i.e., the same knife, which had been recovered  at
the instance of the accused.  Even in the inquest  panchnama  (Exhibit  14),
it was recorded that both legs of the victim Gomi  were  mutated  from  just
above the ankle with a  sharp  weapon,  with  the  object  of  removing  the
anklets in the feet of the victim Gomi.  This  document,  according  to  the
learned counsel, also indicates the use of a knife in the  occurrence  under

(d)   It was also the submission of the learned counsel for  the  appellant,
that at the time of recovery of the body of the victim  from  Jivi’s  field,
the same was found to  be  covered  with  a  shirt  with  stripes.   It  was
submitted, that the aforesaid shirt was identified as the shirt worn by  the
accused-respondent Kishanbhai, when he was seen  carrying  away  the  victim
Gomi, on 27.2.2003.  In this behalf, reliance  was  placed  by  the  learned
counsel for the appellant, on the testimony of  Naranbhai  Manabhai  Solanki
PW5.  The above witnesses had identified the shirt as  a  white  shirt  with
lines.  To give credence to the  testimony  of  Naranbhai  Manabhai  Solanki
PW5, learned counsel also pointed out,  that  when  the  accused  was  found
coming from the direction of the police station after the commission of  the
crime, he was seen wearing a black  T-shirt.   The  statement  of  Naranbhai
Manabhai Solanki PW5, was sought to be corroborated with  the  statement  of
Dinesh Karshanbhai Thakore PW6.  The accused respondent is  stated  to  have
approached the “lari” of Dinesh Karshanbhai Thakore  PW6  for  purchasing  a
“dabeli”, and at that juncture, the accused-respondent  is  stated  to  have
been wearing a white lined shirt, and a green trouser.  On the  recovery  of
the shirt and trouser, they were  marked  as  Mudammal  Articles  8  and  14
respectively.  Dinesh Karshanbhai Thakore PW6 had identified the  shirt,  as
also, the trouser during the course  of  his  deposition  before  the  Trial
Court.   The  green  trouser  worn  by  the  accused-respondent   was   also
identified  by  Bababhai  Naranbhai  Solanki  PW2.   Additionally,  Bababhai
Naranbhai Solanki PW2 deposed that a black colour T-shirt was  worn  by  the
accused-respondent when  he  was  apprehended  and  brought  to  the  police
station.  The above articles were also identified by Angha Lalabhai  Marwadi
PW12 and Naranbhai Lalbhai Desai PW13 who were the panch  witnesses  at  the
time of seizure of the abovementioned clothing.

(e)   It was also the submission of the learned counsel for  the  appellant,
that the report  of  the  forensic  science  laboratory  was  sufficient  to
confirm, that the accused respondent was the one who  was  involved  in  the
commission of the crime under reference.  In this  behalf,  it  was  pointed
out that the victim Gomi was shown to have blood  group  “B+ve”.   According
to the report of the Forensic Science Laboratory, the bricks recovered  from
the place of occurrence (which had been used  in  causing  injuries  on  the
head and other body parts of the victim), the panties worn by  the  deceased
victim Gomi, the white shirt which was found on the body of  the  victim  at
the time of its recovery from  Jivi’s  field,  the  T-shirt  and  the  green
trouser worn by the accused  respondent  Kishanbhai  (at  the  time  he  was
apprehended), and even the weapon of the crime, namely, the knife  recovered
at the instance  of  the  accused-respondent,  were  all  found  with  blood
stains.  The forensic report reveals that the blood stains on all the  above
articles were of blood group “B+ve”.  It was, therefore, the  submission  of
the learned counsel for  the  appellant,  that  the  accused-respondent  was
unmistakably shown to be connected with the crime under reference.

(f)   In  order  to  substantiate  the  motive  of  the  accused-respondent,
learned  counsel  for  the  appellant  relied  upon  the  statement  of  the
investigating officer Ranchhodji Bhojrajji Chauhan PW14, who had  stated  in
his  deposition  that  the  owner  of  Mahavir  Jewellers,  i.e.,  Premchand
Shankarlal  Mehta  had  presented  himself  at  the  police  station.    The
abovementioned jeweler is stated to  have  informed  the  police,  that  the
accused respondent Kishanbhai  had  pawned  the  anklets  belonging  to  the
victim  Gomi  with  him  for  a  sum  of   Rs.1,000/-.    Insofar   as   the
identification of the anklets  is  concerned,  reference  was  made  to  the
statement of Keshobhai Madanbhai Solanki PW7, i.e.,  father  of  the  victim
who had  identified  the  anklets  marked  as  Muddamal  Article  No.18,  as
belonging to his daughter Gomi, which she was  wearing  when  she  had  gone
missing.  Reference was also made to the statement of Jagdishbhai  Bhagabhai
Marwadi PW11, as also, the panchnama  of  recovery  of  the  silver  anklets
which also, according to  learned  counsel,  connects  the  accused  to  the

(g)   Last but not the least, learned  counsel  for  the  appellant  invited
this Court’s attention to  the  statement  tendered  by  the  accused  under
Section 313 of the Code of Criminal Procedure.  During  the  course  of  his
above testimony, he  was  confronted  with  the  evidence  of  the  relevant
witnesses depicting, that the victim Gomi was last seen in  his  company  at
6:00 p.m. on 27.2.2003.  He was also  confronted  with  the  fact,  that  he
himself had informed the search party, that Gomi  may  be  found  at  Jivi’s
field.  It is submitted, that the  accused-respondent  Kishanbhai,  who  had
special knowledge about the  whereabouts  of  the  deceased,  was  bound  to
explain and prove when and where he had  parted  from  the  company  of  the
victim Gomi.  It was submitted that during  the  course  of  his  deposition
under Section 313 of the Code of Criminal Procedure, the accused  could  not
tender any satisfactory explanation.

Based on the above evidence, it was the submission of  the  learned  counsel
for the appellant, that even in the absence of any eye witness account,  the
prosecution should be held to  have  been  successful  in  establishing  the
guilt of the accused-respondent Kishanbhai through circumstantial  evidence.
 The claim of circumstantial  evidence  emerging  from  different  witnesses
summarized above, according to the learned counsel, leads to  one  and  only
one conclusion, namely, that the  accused-respondent  Kishanbhai  alone  had
committed the criminal acts under reference.  It  was  submitted,  that  the
chain of circumstantial evidence, was sufficient  to  establish,  that  none
other than the accused-respondent could have committed the alleged  criminal
actions.   It  was  also  contended,  that  no  link   in   the   chain   of
circumstantial evidence was missing, so as to render any  ambiguity  in  the

10.  We have heard the learned counsels for the parties.  To  determine  the
controversy arising out of the  instant  criminal  appeal,  we  shall  first
endeavour to summarise  the  conclusions  drawn  by  the  High  Court  under
different  heads.   We  have  decided  to  adopt  the  above  procedure   to
understand the implications of various aspects of the evidence  produced  by
the prosecution before the Trial Court.  This procedure has been adopted  by
us (even though the same was neither adopted by the Trial Court, or  by  the
High Court) so as to effectively understand, and  thereupon,  to  adequately
deal with the contentions advanced at the hands  of  the  appellant,  before
this Court.

11.  We would first of all, like to deal with the lapses  committed  by  the
investigating and prosecuting agencies in the process  of  establishing  the
guilt of the accused before  the  Trial  Court.   It  will  be  relevant  to
mention  that  all  these  lacunae/deficiencies,  during   the   course   of
investigation and prosecution, were pointed out by the High  Court,  in  the
impugned judgment.  These constitute relevant aspects, which are  liable  to
be taken into consideration while examining the evidence relied upon by  the
prosecution.  We have summarised the aforesaid lapses, pointedly  to  enable
us to correctly deal with the submissions advanced  at  the  behest  of  the
State.  Since the guilt of the accused in the instant case is  to  be  based
on circumstantial evidence, it is essential for us to determine  whether  or
not a complete chain of events stand established from the evidence  produced
by the prosecution.
The  above  deficiencies  and  shortcomings  are  being
summarised below:
(a)   According to the prosecution story after having  removed  the  anklets
from Gomi’s feet, the accused Kishanbai had taken  the  anklets  to  Mahavir
Jewellers, a shop owned  by  Premchand  Shankerlal.   He  pledged  aforesaid
anklets with Premchand Shankerlal, for a sum of Rs.  1,000/-.   
The  anklets
under reference, were handed over by Premchand Shankerlal to  the  investing
officer on 1.3.2003, in the presence of two panch witnesses.   
According  to
the prosecution case, the jeweller had gone to the police station  with  the
anklets on his own, after having read newspaper reports to the effect,  that
a girl had been raped and murdered and her anklets had been taken away.   He
had approached the police station under  the  suspicion,  that  the  anklets
pledged with  him,  might  have  belonged  to  the  girl  mentioned  in  the
newspaper reports.  
One of the panch witnesses, namely, Jagdishbhai  Marwari
PW15 had  deposed,  that  above  Premchand  Shankerlal  had  identified  the
accused Kishanbhai, as the very person who  had  pledged  the  anklets  with
In this behalf it is relevant to mention,  that  Premchand  Shankerlal
was not produced as a prosecution witness.  
It is important to notice,  that
the anklets handed over to the Police, were successfully established by  the
prosecution as the ones worn  by  the  deceased  Gomi.   
The  lapse  of  the
prosecution on account of not producing Premchand Shankerlal as  prosecution
witness, according to the High Court, resulted in  a  missing  link  in  the
chain of events which  would  have  established  the  link  of  the  accused
Kishanbhai, with the anklets, and thereby convulsively connecting  him  with
the crime.

(b)  The prosecution story further discloses, that Premchand Shankerlal  the
owner of  Mahavir  Jewellers,  had  executed  a  receipt  with  the  accused
Kishanbhai, depicting the pledging of the anklets for a sum  of  Rs.1,000/-.
The aforesaid receipt was placed on record of the  Trial  Court  as  exhibit
52.  The above receipt according to Premchand Shankerlal, was  thumb  marked
by the accused Kishanbhai.  Even though the receipt indicates  the  name  of
the person who had pledged the anklets as Rajubhai, the same  could  clearly
be a false name given by the person who  pledged  the  anklets.   Certainly,
there could be no mistake in the identity of the thumb mark affixed  on  the
said receipt.  The prosecution could have easily  established  the  identity
of the pledger, by comparing the thumb impression on  the  receipt  (exhibit
52), with the thumb impression of the accused-respondent  Kishanbhai.   This
was however not done.   The  lapse  committed  by  the  prosecution  in  not
producing  Premchand  Shankerlal  as  a  witness,  could  have  easily  been
overcome by proving the identity of the person who had pledged the  anklets,
by identifying  the  thumb  impression  on  the  receipt  (exhibit  52),  in
accordance with law.  In case the thumb impression turned out to be that  of
the accused Kishanbhai, he would be unmistakably linked with the crime.   In
case it was found not to be the thumb impression of the accused  Kishanbhai,
his innocence could also have been inferred.  According to  the  High  Court
this important lapse in  proving  the  prosecution  case  before  the  Trial
Court, had resulted in a major obstacle in establishing the  guilt/innocence
of the accused.

(c)  It is  also  the  case  of  the  prosecution,  that  when  the  accused
Kishanbhai was apprehended,  a  sum  of  Rs.940/-  was  recovered  from  his
possession.  According to the prosecution story the accused  Kishanbhai  had
pledged the anklets at Mahavir Jewellers with  Premchand  Shankerlal  for  a
sum of Rs.  1,000/-.   In  order  to  link  the  money  recovered  from  his
possession at  the  time  of  his  detention,  it  was  imperative  for  the
prosecution to establish how and why a sum of Rs.940/- only,  was  recovered
from the possession of the accused Kishanbhai.  He ought  to  have  been  in
possession of  at  least  Rs.1,000/-  i.e.,  the  amount  given  to  him  by
Premchand Shankerlal  when he pledged the anklets at his shop,  even  if  it
is assumed that he had no money with him when he  had  pawned  the  anklets.
This important link having not been established by the  prosecution,  breaks
the chain of  events  necessary  to  establish  the  guilt  of  the  accused
Kishanbhai, and constitutes a serious lapse in the prosecution evidence.

(d)  It is apparent from the prosecution story, that  the  victim  Gomi  was
raped.  In establishing the factum of the rape the  prosecution  had  relied
upon  the  note  prepared  at  the  time  of  conducting   the   post-mortem
examination of the deceased Gomi.  The same inter  alia  reveals,  that  dry
blood was present over  the  labia,  and  deep  laceration  of  subcutaneous
tissues was present on the left margin of the vaginal  opening,  just  above
the posterior commission.  The hymen was also found ruptured at 3  and  6,O’
clock.  It is therefore, that the accused was deputed  for  being  subjected
to medical examination, during the course of investigation.  For  the  above
purpose he was examined by Dr. P.D. Shah. 
 In  fact  Dr.  P.D.  Shah  was  a
cited witness before the Trial Court.  Despite the above Dr. P.D.  Shah  was
not examined as a prosecution witness.  Clearly a vital link in a  chain  of
events, to establish  the  rape  of  the  victim  Gomi  came  to  be  broken
consequent upon by the non-examination of Dr. P.D.  Shah  as  a  prosecution

(e)  The High Court has  also  noticed,  that  even  the  report/certificate
given by the medical officer relating to  the  medical  examination  of  the
accused Kishanbhai was not produced by  the  prosecution  before  the  Trial
Court.  It is apparent, that the lapse in not producing Dr. P.D. Shah  as  a
prosecution witness, may have been overcome if the report  prepared  by  him
(after examining the accused Kishanbhai) was placed on  the  record  of  the
Trial Court, after being proved in  accordance  with  law.   The  action  of
prosecution in not producing the aforesaid report before  the  Trial  Court,
was another serious lapse in proving the case before the Trial Court.   This
had also resulted a missing vital link, in the chain of events  which  could
have established, whether or not accused Kishanbhai had  committed  rape  on
victim Gomi.

(f)  The High Court having noticed the injuries  suffered  by  Gomi,  a  six
year old girl child on her genitals, had expressed the view, that  the  same
would have resulted in reciprocal injuries to the male organ of  the  person
who had committed rape on her.  It was pointed  out,  that  if  the  accused
Kishanbhai had been sent  for  medical  examination  the  testimony  or  the
report of the medical officer would have revealed  the  presence  of  smegma
around the corona-glandis, which would have either established innocence  or
guilt of the accused, specially if the accused had been  medically  examined
within 24 hours.  In the instant case the sequence  of  the  events  reveal,
that the occurrence had been committed between 6:00 p.m.  to  8:00  p.m.  on
27.2.2003.  At the time of recovery  of  the  body  of  deceased  Gomi  from
Jivi’s field, at about 9:00 pm, it came to be believed  that  she  had  been
subjected to rape.  The accused Kishanbhai was shown to have  been  formerly
arrested at 6:40 a.m. on 28.2.2003 (even if the inference drawn by the  High
Court, that the accused Kishanbhai was in police custody since 9:00 p.m.  on
27.2.2003 itself, is  ignored).   The  accused  could  have  been  medically
examined within a period of 24 hours of  the  occurrence.   The  prosecution
case does not show whether or not such action was taken.  This lapse in  the
investigation of the case, had also resulted the omission of  a  vital  link
in the chain of events  which  would  have  unquestionably  established  the
guilt of the accused Kishanbhai of having committed rape  (or  possibly  his

(g)  It needs to be noticed, that when the accused Kishanbhai was  arrested,
there were several injuries on his person.   The  said  injuries  were  also
depicted in his arrest panchnama.  At 7:15  am  on  28.2.2003,  the  accused
Kishanbhai filed a first information report alleging, that he was beaten  by
some of the relatives of the victim Gomi, as also, by some  unknown  persons
accompanying the search party,  under  the  suspicion/belief,  that  he  was
responsible for the occurrence.  In the above first information report,  the
accused Kishanbhai had also depicted the  nature  of  injuries  suffered  by
him.   The  statement  of  the  investigating  officer  Ranchodji  Bhojrajji
Chauhan PW14 reveals, that the accused Kishanbhai had  been  sent  to  Civil
Hospital, Ahmedabad, for his medical examination.  Neither  the  doctor  who
had examined the accused was produced as  a  prosecution  witness,  nor  the
report/certificate given by the medical officer disclosing  the  details  of
his observations/findings was placed on record.   This  evidence  was  vital
for the success of the prosecution  case.   According  to  the  High  Court,
blood of group “B +ve” was found on the clothes of the  accused  Kishanbhai.
The important question to be determined thereupon was, whether  it  was  his
own blood or blood of  the  victim  Gomi.   The  statement  of  the  medical
officer who had examined  the  accused  Kishabhai,  when  he  was  sent  for
medical examination  to  Civil  Hospital,  Ahmedabad,  would  have  disclose
whether  or  not  accused  Kishanbhai  had  any  bleeding   injuries.    The
importance of nature of the injuries  suffered  by  the  accused  Kishanbhai
emerges from the fact, that both the accused Kishanbhai and the victim  Gomi
had the same blood group        “B +ve”.  An inference could have only  been
drawn that the blood on his clothes was that of the victim, in case  it  was
established that the accused-respondent  Kishanbhai  had  not  suffered  any
bleeding injuries, and therefore, the possibility of his own blood being  on
his clothes was ruled out.  This important link in the chain  of  events  is
also missing from the evidence produced by the prosecution, and  constitutes
a serious lapse in the investigation/prosecution of the case.

In view of the above factual position, the High  Court  made  the  following
observations “Looking to the advancement in the field  of  medical  science,
the investigating agency should not have stopped at this stage.  Though  ABO
system of blood grouping is one of  the  most  important  system,  which  is
being normally used for distinguishing blood  of  different  persons,  there
are about 19 genetically determined blood  grouping  systems  known  to  the
present day science,  and  it  is  also  known  that  there  are  about  200
different blood groups, which have been identified by the modern  scientific
methods  (Source:  Mc-Graw-Hill  Encyclopedia  of  Science  and  Technology,
Vol.2).  Had such an effort been made by the  prosecution,  the  outcome  of
the said effort would have helped a lot to the trial Court  in  ascertaining
whether the accused had in fact visited the scene of  offence.”   This  also
constitutes a  glaring  lapse  in  the  investigation  of  the  crime  under

There has now been a great advancement in scientific  investigation  on  the
instant aspect of the  matter.   The  investigating  agency  ought  to  have
sought DNA profiling of the blood samples, which would have  given  a  clear
picture whether or not the blood of the victim Gomi  was,  in  fact  on  the
clothes   of   the   accused-respondent   Kishanbhai.     This    scientific
investigation would  have  unquestionably  determined  whether  or  not  the
accused-respondent was linked with the crime.  Additionally,  DNA  profiling
of the blood found on the knife used in the commission of the  crime  (which
the  accused-respondent,  Kishanbhai  had  allegedly  stolen   from   Dinesh
Karshanbhai Thakore PW6), would have  uncontrovertibly  determined,  whether
or not the said knife had been used for severing  the  legs  of  the  victim
Gomi, to remove her anklets.  In spite of so much advancement in  the  field
of forensic science, the investigating agency seriously  erred  in  carrying
out an effective investigation to genuinely  determine  the  culpability  of
the accused-respondent Kishanbhai.

(h)  It is also apparent from the complaint submitted by Bababhai  Naranbhai
Solanki PW 2, that he had been informed by one Kalabhai Ganeshbhai, that  he
had seen the accused Kishanbhai taking away Gomi.  In  such  an  event,  the
proof of the fact of the accused-respondent having abducted Gomi could  have
only been substantiated, through the statement of  Kalabhai  Ganeshbhai  who
had  allegedly  actually  seen  the  accused  Kishanbhai  taking  her  away.
According to the  High  Court,  for  the  reasons  best  known  to  it,  the
prosecution did not produce Kalabhai Ganeshbhai as a witness.   Even  though
according to the High Court the above-mentioned Kalabhai  Ganeshbhai  was  a
resident in one of the peon quarters, and was  also  a  government  servant,
the absence of the evidence of the above  factual  position,  results  in  a
deficiency  in  the  confirmation  of  a  factual  position  of  substantial
importance, from the chain of events necessary  for  establishing  the  last
seen evidence.

(i)  It is also apparent, that there is no dispute about the recovery  of  a
green blood stained “dupatta”, from the person of  the  victim.   The  green
blood stained “dupatta” (veil)  was  found  by  the  medical  officer  while
conducting the post-mortem examination on Gomi.  The existence of the  green
“dupatta” was also duly mentioned in the post-mortem report.   According  to
the High Court, none of  the  prosecution  witnesses  had  referred  to  the
factum of the victim having  worn  a  green  “dupatta”.   According  to  the
prosecution evidence, the deceased was wearing  a  red  frock  and  panties,
whereas, the accused was  wearing  a  full  sleeve  white  shirt  and  green
trousers.  According to the High  Court,  if  neither  the  victim  nor  the
accused had a green “dupatta”, a question would arise, as to how  the  green
blood stained “dupatta” was found on the dead  body  of  the  victim.   Even
leading to the inference of the presence of a third party  at  the  time  of
occurrence.  The above omission in not explaining the presence of the  green
“dupatta”, has also been taken by the High Court, as a glaring  omission  at
the hands of the prosecution in the process of investigation/prosecution  of
the charges levelled against the accused Kishanbhai.

(j)   While deposing before the  Trial  Court,  Dinesh  Karshanbhai  Thakore
PW6, affirmed that the  accused-respondent  Kishanbhai  had  approached  his
“lari” for the first time to purchase  a  “dabeli”  on  27.2.2003.   It  is,
therefore, apparent that Dinesh Karshanbhai Thakore PW6 had  not  known  the
accused-respondent before 27.2.2003.  In the above view of  the  matter,  it
was imperative for the investigating agency to hold  a  test  identification
parade in order to determine whether Dinesh  Karshanbhai  Thakore  PW6,  had
correctly identified the accused-respondent, as the person who had  come  to
his “lari” to purchase a “dabeli” on 27.2.2003.  And  also  whether  he  was
the same person, who had stolen a knife from his “lari” on 27.2.2003.   This
is also a serious deficiency in the investigation/prosecution of the case.

(k)   Bababhai Naranbhai Solanki PW2, the complainant in the  present  case,
during the course of his examination-in-chief, observed as under :
           “This incident was occurred on 27/2/2003, on  that  day  Lilaben
           came to my house for pregnancy.  On the day of the  incident  at
           6.00 o clock in the evening I came  to  know  that  Gomiben  the
           daughter of Lilaben is not found.  Therefore, all our  relatives
           have started searching her.   We  went  to  the  quarter  of  my
           father, and inquired about the Gomiben, my father  told  that  I
           saw Gomiben with Lalis Sister in law brother Kisan, he gave  ice
           cream to Gomi.  Therefore, we have searched in the quarters  and
           other places.  At around 8.00 o clock in the  night  kishan  was
           coming from police Station, we have started asking him, at  that
           time along with me Shri Jagabhai Molabhai,  Mohanbhai  Molabhai,
           Hirabhai were present.  This police Chawky  means  Gulbai  Tekra
           Police Chawky.  He told me that I  have  left  her  at  Jivivala
           Field.  Therefore, we went at the Jivivala Field, at around 8.00
           or 9.00 o clock, we went there and  we  found  Gomiben  in  dead
           conditions, she had a several injuries on  her  head  and  other
           parts of the body.  She was being raped.”

From the above statement, it is apparent that Gomi  was  found  missing  for
the  first  time  at  6:00  pm.   The  search  for  her  began   immediately
thereafter.  The search party met the accused-respondent  Kishanbhai  coming
from the side of the police  station  at  8:00  p.m.   All  the  prosecution
witnesses have been equivocal about the  fact  that  Gomi  went  missing  at
about 6:00 p.m., i.e., the time when she was last seen  in  the  company  of
the accused-respondent Kishanbhai, and  thereafter,  the  search  party  met
Kishanbhai at 8:00 pm.   In  order  to  give  credence  to  the  prosecution
version, it was imperative  to  establish  that  it  was  possible  for  the
accused-respondent Kishanbhai, after having taken  Gomi  at  6:00  p.m.,  to
have stopped at the “lari” of Dinesh Karshanbhai Thakore  PW6,  purchased  a
“dabeli” from him. Thereupon, to have had  time  to  steal  his  knife,  the
accused-respondent proceeded on with Gomi to Jivi’s field.  There  ought  to
have been enough time for him thereafter to have raped her,  then  assaulted
her with bricks on her head and other parts  of  the  body  leading  to  her
death, and finally to cut her legs just above  her  ankles,  to  remove  her
anklets.  He should thereupon have also had time to hide the knife  used  in
the commission of the crime, under the stones. And thereafter further  time,
to have taken the anklets to Mahavir Jewellers so as to pawn the  same  with
Premchand Shankarlal Mehta, as also, time to  execute  a  receipt  in  token
thereof.  Over and above the above, he ought have had  time,  to  visit  his
residence so as to able to wear a fresh shirt i.e., the shirt which  he  was
wearing when he was detained.  After all that, he should have  had  time  to
cover the area from Jivi’s field to Premchand Shankarlal  Mehta’s  shop  and
further on from the above  shop  to  his  residence  and  finally  from  his
residence till the  place  where  he  was  detained.   It  is  difficult  to
appreciate how all the activities depicted in the prosecution  story,  could
have been carried out from 6:00 p.m. on 27.2.2003 to 8:00 p.m. on  the  same
day, i.e., all in all within a period of two hours.   It  is  in  the  above
context that  the  cross-examination  of  Naranbhai  Manabhai  Solanki  PW5,
assume significance.  Relevant extract from his cross-examination  is  being
reproduced hereunder :
           “It is true that the accused was coming from  police  Chawky  at
           around 8.00 or 8.30 p.m. as I was not wearing the watch I cannot
           say the exact time.  It is true that it takes 15 to  20  minutes
           to go to Panjrapole from my quarters, and it will take 30 to  35
           minutes to go to the field of JIVI.  It is  true  that  it  will
           taken half an hour to come to the Office of BSNL through  Jivi’s
           Field and C.N. Vidhayalaya.  It is  true  that  from  the  Jivis
           field  towards  Panjrapole  and  through  Panjrapole  main  road
           towards BSNL office, by walking it will take 40 minutes.  It  is
           true that both the roads are public roads, and many  people  are
           passing through this road.”
                                                          (emphasis is ours)

Whether or not the above sequence of events could have taken  place  in  the
time referred to above, would have been easily overcome if  the  prosecution
had placed on record a sketch map  providing  details  with  regard  to  the
distance between different places.  In that  event,  it  would  have  become
possible to determine whether the activities at different places,  projected
through the prosecution version of  the  incident  were  possible.   In  the
absence of any knowledge about the distance between  the  residence  of  the
victim Gomi as well as that of the accused  from  the  Polytechnic  or  from
Jivi’s field; it would  be  impossible  to  ascertain  the  questions  which
emerge from the cross-examination of Naranbhai Manabhai Solanki PW5.  Had  a
sketch map been prepared or details with regard to the distance been  given,
the courts concerned would have been able to determine all that was  alleged
in the  prosecution  version  of  the  incident.   This  deficiency  in  the
prosecution evidence, must be  construed  as  a  serious  infirmity  in  the

12.   We would now  like  to  deal  with  the  discrepancies  found  in  the
evidence produced by the prosecution before the Trial Court.  We would  also
simultaneously summarise the effect of defences adopted  on  behalf  of  the
accused-respondent Kishanbhai.  These aspects of the matter are  also  being
summerised hereunder, so as to  enable  us  to  effectively  deal  with  the
submissions advanced at the behest of  the  State.
  These  aspects  of  the
matter are liable to be taken into consideration, to  determine  whether  or
not, a complete chain of events stands proved to establish the guilt of  the
The above considerations are summarized hereunder:

(a)   The post mortem report relied upon by the prosecution leaves  no  room
for any doubt that injuries on the genitals of  Gomi  were  post  mortem  in nature.   
The  question  which  arises  for  consideration  is 
 whether  the
injuries under reference  had  been  inflicted  on  the  victim  first,  and
thereupon, rape was committed on the victim.  
It is natural to assume,  that
the first act of aggression by the  person  who  had  committed  assault  on
Gomi, was by inflicting injuries on her head and other parts  of  the  body,
only thereafter the legs just above the ankles, would have  been  cut  (with
the object of  removing  her  anklets).   It  is  not  possible  for  us  to
contemplate that the legs of the deceased were cut whilst  she  was  in  her
senses,  is  incomprehensible  and  therefore,  most  unlikely.   Now,   the
question to be considered is, whether it was humanly possible for  even  the
most perverted person, to have committed rape  on  a  child,  who  had  been
killed by causing injuries on head and other parts of body,  and  after  her
feet had been severed from  her  legs.   We  would  have  no  hesitation  by
responding in the negative.  The prosecution in the instant case  apparently
projected a version including an act of rape, which is impossible to  accept
on the touchstone of logic and common sense.

(b)   The evidence produced by the  prosecution  also  reveals,  that  pubic
hair  of  the  accused-respondent  Kishanbhai,  had  been  examined  by  the
scientific  officer  of  the  Forensic  Science  Laboratory.    
The   report
submitted by the Forensic Science  Laboratory  (Exhibit  48)  reveals,  that
there was neither any semen nor any blood on the pubic hair of the  accused.
 Reference to the possibility of there being blood on  the  public  hair  of
the accused-respondent Kishanbhai emerges  from  the  fact,  that  the  post
mortem report of the deceased revealed, that there was blood on  the  vagina
of the deceased.  
Whilst accusing the respondent-Kishanbhai of  the  offence
under Section 376 of the Indian  Penal  Code,  it  was  imperative  for  the
prosecution to have kept in its mind the aforesaid aspects  of  the  matter.
Absence of semen or blood from the pubic  hair  of  the  accused-respondent,
would prima facie exculpate him from the offence of rape.

(c)   According to the  testimony  of  the  complainant  Bababhai  Naranbhai
Solanki PW2, the accused-respondent Kishanbhai was wearing a white shirt  at
the time of occurrence.  It is, therefore, when  a  white  shirt  was  found
covering the dead body of the victim Gomi, he had  identified  the  same  as
the shirt which the accused-respondent Kishanbhai was  wearing,  before  the
offence was committed.  From the prosecution story, as it emerged  from  the
statements of different witnesses, it is apparent  that  Bababhai  Naranbhai
Solanki PW2, had  had  no  occasion  to  have  seen  the  accused-respondent
Kishanbhai, wearing the said white shirt.  When Bababhai  Naranbhai  Solanki
PW2, was questioned as to  how  he  knew  that  the  accused-respondent  was
wearing a white shirt, when he first saw the shirt covering  the  dead  body
of the victim, his response was, that he had been told  about  that  by  his
father Naranbhai Manabhai Solanki PW5.  
In the above  view  of  the  matter,
the question arises whether the testimony  of  Bababhai,  Naranbhai  Solanki
PW2 about the shirt  referred  to  above  was  truthful.   And  whether  his
testimony can be described as fair and honest.

(d)   Additionally when the accused–respondent Kishanbhai was arrested,  the
T-shirt worn by him, was taken from him by recording a panchnama.  The  said
T-shirt is available on the record of the Trial Court as Exhibit-39.  It  is
not a matter of dispute that the T-shirt (Exhibit 39), worn by the  accused-
respondent, Kishanbhai at the time of his arrest, is  actually  a  white  T-
shirt with a trident design on it.  But, as per the  narration  recorded  by
Bababhai Naranbhai PW2, contained in the  complaint  which  constituted  the
basis of registering  the  first  information,  it  is  mentioned  that  the
accused-respondent Kishanbhai was wearing a black T-shirt  at  the  time  of
his  detention.   It  is  apparent  from  the   factual   position   noticed
hereinabove,  that  the  factual  position  expressed  by  the   complainant
Bababhai Naranbhai Solanki PW2 was absolutely  incorrect,  and  contrary  to
the factual position.  In the above view of the  matter,  a  question  would
arise, whether the deposition of Bababhai Naranbhai  Solanki  PW2  was  fair
and honest.

(e)   According to the prosecution  version  of  the  incident,  the  search
party met the accused-respondent Kishanbhai at about  8:00  p.m.   The  said
party had thereupon proceeded to Jivi’s field, from where the dead  body  of
the victim was recovered.  According  to  Naranbhai  Manabhai  Solanki  PW5,
after finding the dead body, he had proceeded to  the  police  station.   At
the police station, he had requested the police personnel to visit the  site
of occurrence.  Simultaneously, Naranbhai Manabhai Solanki PW5  had  stated,
that when enquiries were being made from Kishanbhai,  police  personnel  had
taken away the accused-respondent.  According to the testimony of  Naranbhai
Manabhai Solanki PW5, therefore, at the most,  the  accused-respondent  must
be deemed to have been taken into police custody from  about  9:00  p.m.  on
27.2.2003.  It is apparent, that the occurrence had come  to  the  knowledge
of a large number  of  persons  constituting  the  search  party,  when  the
victim’s body was found on Jivi’s field.  Even  before  that,  the  accused-
respondent was already in police custody.  As if,  the  police  had  already
concluded on the guilt of Kishanbhai, even before  the  recovery  of  Gomi’s
body from Jivi’s farm.  Despite  the  above,  the  arrest  of  the  accused-
respondent Kishanbhai was shown at 6.40 a.m. on  28.3.2003.   
The  detention
of the accused-respondent Kishanbhai from 9:00 pm on 27.2.2003 to 6.40  a.m.
on 28.2.2003, shows that the prosecution has not presented the case  in  the
manner the events unfolded to the investigating agencies.

(f)   It also needs to  be  noticed,  that  the  inquest  panchnama  besides
mentioning the amputation of the legs of the victim above her  ankles,  also
records, that the silver  anklets  worn  by  Gomi  were  missing.   In  this
behalf, it would also be relevant to mention, that even though  the  inquest
panchnama was drawn at 0030 a.m. on 28.2.2003, the  complaint  resulting  in
the registration of the first information  report  was  lodged  by  Bababhai
Naranbhai Solanki PW2 at 3:05 a.m. on 28.02.2003.  It is strange,  that  the
inquest panchnama should be drawn  before  the  registration  of  the  first
information report.  It is  also  strange  as  to  how,  while  drawing  the
inquest panchnama, the panchas of the same could have recorded,  that  after
amputation of the victim’s legs, her silver anklets had been taken  away  by
the offender.  There was no occasion for the panchas  to  have  known,  that
Gomi used to wear silver anklets.  Accordingly, there was  no  occasion  for
them to have recorded that the silver anklets usually worn by Gomi had  been
taken away by the offender.

(g)   From the prosecution version  (emerging  from  the  evidence  recorded
before the Trial Court), it is apparent, that the  search  party,  as  also,
the relatives of the victim were aware at about 8:00 p.m. on 27.2.2003  that
Gomi had been murdered, with a possibility of her having  been  raped  also,
and her silver anklets had been stolen.  Despite  the  above,  no  complaint
whatsoever came to be filed in connection with the above occurrence  at  the
police station on 27.2.2003, despite  the  close  coordination  between  the
search party and the police from 8:00 pm onwards no 27.2.2003  itself.   The
complaint leading to the filing of the first information was made  at  about
3:05 a.m. on 28.2.2003.  Not only  is  the  delay  of  seven  hours  in  the
registration of  the  complaint  ununderstandable,  but  the  same  is  also
rendered extremely suspicious, on the account of the fact that the  accused-
respondent Kishanbhai is acknowledged to be in police detention  since  9:00
p.m. on 27.2.2003 itself.  This may be the result of fudging  the  time  and
date at which the victim Gomi went missing, as also, the time  and  date  on
which the body of the victim was discovered resulting in  the  discovery  of
the occurrence itself.  The question  which  arises  for  consideration  is,
whether the investigation agency adopted the usual practice  of  padding  so
as  to  depict  the  occurrence  in  a  manner  different  from  the  actual
occurrence.  A question also arises as to  why  it  was  necessary  for  the
investigating agency to adopt the above practice, despite the fact  that  it
was depicted as an open and shut case.

(h)   As noticed above, that  from  the  statements  of  Bababhai  Naranbhai
Solanki PW2 and Naranbhai Manabhai Solanki PW5,  it  is  apparent  that  the
accused  was  detained  by  the  police  informally  around  9:00  p.m.   on
27.2.2003.  It is also essential to  notice,  that  an  acknowledgement  was
made to the above effect even  by  Sub  Inspector  Naranbhai  Lalbhai  Desai
PW13, who had commenced investigation of the crime under reference.   It  is
apparent that when Bababhai Naranbhai Solanki PW2, had  contacted  him  with
details about the offence under reference, he had not recorded any entry  in
the station diary before leaving the police  station.   This  constitutes  a
serious lapse in itself.  In his cross-examination, he had affirmed that  he
was taken by Bababhai Naranbhai Solanki PW2, i.e., the  complainant  to  the
scene of occurrence.  Having gone to the scene  of  occurrence,  and  having
made on the spot investigation,  he  acknowledged  having  returned  to  the
police station.  In his statement, he accepted, that when  he  had  returned
to the police station after visiting the site of  occurrence,  the  accused-
respondent Kishanbhai was already  present  at  the  police  station.   When
questioned, he could not tender any explanation,  as  to  how  the  accused-
respondent Kishanbhai had come to the police station.  In his  statement  as
a witness, he had expressed, that  for  the  first  time  he  had  seen  the
accused-respondent  Kishanbhai  only  on  28.2.2003  at  around  5:30   a.m.
Whereafter, the accused-respondent was formally arrested at 6.40  a.m.   The
inconsistency between the  statements  made  by  the  complainant  (Bababhai
Naranbhai Solanki PW2) and his father (Naranbhai Manabhai  Solanki  PW5)  on
the one hand, and by Sub-Inspector  Naranbhai  Lalbhai  Desai  PW13  on  the
other, discloses a serious contradiction with respect to  the  time  of  the
detention of the accused-respondent Kishanbhai.  It  needs  to  be  noticed,
that it was an aberration for Naranbhai Lalbhai Desai  PW13,  to  have  left
the police station without making  an  entry  in  the  station  diary.   Why
should a police officer, investigating a crime of  such  a  heinous  nature,
commit such a lapse?  The fact that he did so, is not a matter  of  dispute.
The truth of the matter is, that Naranbhai Lalbhai Desai PW13, did not  make
any note either in the station diary or in any other register;  he  did  not
take any informal complaint from the complainant, even though  he  had  been
apprised about the commission of an offence.  It  is  therefore  clear  that
Naranbhai Lalbhai Desai PW13, had left the police station without making  an
entry depicting the purpose of his departure.  All this further adds to  the
suspicion of the manner in which investigation of the matter was conducted.

(i)   So  far  as  the  statement  of  Dinesh  Karshanbhai  Thakore  PW6  is
concerned, he had supported the prosecution  story  by  deposing,  that  the
accused had visited his “lari” with a small child, about  seven  years  old.
He  had  further  asserted,  that  the  accused-respondent  Kishanbhai   had
purchased a “dabeli” from him.  He  had  also  testified  that  the  accused
–respondent had asked for a knife but he had  refused  to  give  it  to  him
because, at the time when the accused-respondent  had  visited  the  “lari”,
there were several customers waiting for purchasing “dabelis”.   He  further
confirmed, that the accused-respondent had stolen a knife, used by  him  for
cutting vegetables  from  his  “lari”.   Another  important  aspect  of  the
matter, out of the statement of Dinesh Karshanbhai Thakore PW6 is,  that  he
identified the shirt that the accused-respondent Kishanbhai was wearing,  at
the time when he had  visited  his  “lari”  for  purchasing  a  “dabeli”  on
27.2.2003.  He had also identified  the  red  frock  which  the  victim  was
wearing at the said juncture.  Additionally, he identified the  knife  which
the  accused-respondent  Kishanbhai  had  stolen  from  his   “lari”.    The
statement  of  Dinesh  Karshanbhai  Thakore  PW6  was   considered   to   be
untrustworthy by the High Court, primarily for  the  reason  that  he  could
identify the shirt worn by the accused-respondent, Kishanbhai  when  he  had
approached his “lari” for the purchase of a  “dabeli”,  at  which  juncture,
the accused-respondent Kishanbhai may have remained at  the  “lari”  at  the
most for 10 to 15 minutes, when there was a rush of customers.   As  against
the above,  he  had  remained  with  the  accused-respondent  Kishanbhai  at
Navrangpur Police Station, Ahmedabad, for approximately four hours.   During
the course of his cross-examination, he could not depose about the  sort  of
shirt which the accused respondent was wearing,  at  the  Navrangpur  Police
Station, Ahmedabad.  It is,  therefore,  apparent  that  Dinesh  Karshanbhai
Thakore PW6 was deposing far in excess of  what  he  remembered,  and/or  in
excess of what was actually to his knowledge.  He appears to  be  a  tutored
witness.  This aspect of the matter also renders  the  testimony  of  Dinesh
Karshanbhai Thakore PW6, suspicious.

(j)   There is yet another aspect of  the  controversy  relating  to  Dinesh
Karshanbhai Thakore PW6.  The investigating agency  became  aware  from  the
disclosure  statement  of  the  accused-respondent  Kishanbhai  tendered  on
1.3.2003, that he had procured the weapon of offence by way  of  theft  from
the  “lari”  of  Dinesh  Karshanbhai  Thakore  PW6.   The  above  knife  was
recovered at the instance of the accused-respondent Kishanbhai on  1.3.2003,
in the presence of panch witnesses.  In the above view  of  the  matter,  in
the ordinary course of investigation, it would have been imperative for  the
investigating agency  to  have  immediately  approached  Dinesh  Karshanbhai
Thakore  PW6,  to  record  his  statement.   His  statement  was   extremely
important for the simple reason, that it would have  connected  the  accused
with the weapon with which the crime had been committed, as  also  with  the
victim.  Despite the above, the investigating agency recorded the  statement
of Dinesh Karshanbhai Thakore PW6, for  the  first  time  on  4.3.2003.   No
reason  is  forthcoming  why  his  statement  was  not  recorded  either  on
1.3.2003, or on the  intervening  dates  before  4.3.2003.   The  inordinate
delay by the investigating agency, in confirming the version of the accused-
respondent, in respect of the weapon of the crime, renders  the  prosecution
version suspicious.  Such delay would not have taken place in  the  ordinary
course of investigation.  If there were good reasons  for  the  delay,  they
ought to have been made  known  to  the  Trial  Court  by  way  of  reliable
evidence.  This fact too  raises  a  doubt  about  the  correctness  of  the
prosecution version of the incident.

The above discrepancies in the prosecution version,  were  duly  noticed  by
the High Court.  These constitute some of the glaring instances recorded  in
the impugned order.  Other instances of contradiction were also  noticed  in
the impugned order.  It is not necessary for  us  to  record  all  of  them,
since the above instances themselves are sufficient  to  draw  some  vitally
important inferences.  Some of the inferences  drawn  from  the  above,  are
being noticed below.  The prosecution’s  case  which  mainly  rests  on  the
testimony of Bababhai Naranbhai Solanki PW2, Naranbhai Manabhai Solanki  PW5
and Dinesh Karshanbhai Thakore PW6, is unreliable because  of  the  glairing
inconsistencies in their statements.  The  testimony  of  the  investigating
officer Naranbhai Lalbhai Desai PW13 shows fudging and padding,  making  his
deposition untrustworthy.  In the  absence  of  direct  oral  evidence,  the
prosecution case almost wholly rested on the above mentioned witnesses.   It
is for the above reasons, that the High Court through  the  impugned  order,
considered  it  just  and  appropriate  to  grant   the   accused-respondent
Kishanbhai, the benefit of doubt.

13.    Learned  counsel  for  the  appellant,  in  order  to   support   the
submissions advanced before  this  Court  in  the  present  criminal  appeal
(which have  been  recorded  in  paragraph  9  hereinabove),  with  judicial
precedent, placed reliance on a number of judgments rendered by this  Court.
 We shall now summarise hereunder, the judgment relied upon,  as  also,  the
submissions of the learned counsel on the basis thereof:

(a)   Referring to the judgment rendered by this Court in Ram Prasad &  Ors.
v. State of UP, (1974) 1 SCR 650, it  was  asserted  at  the  hands  of  the
learned counsel for the appellant, that non-examination of some of the  eye-
witnesses would not introduce a fatal infirmity  to  the  prosecution  case,
specially when conviction  could  be  based  on  evidence  produced  by  the

(b)   Reference was  also  made  to  Takhaji  Hiraji  v.  Thakore  Kubersing
Camansing & Ors., (2001) 6 SCC 145, and it was pointed out, that this  Court
has ruled that in cases where witnesses already examined were reliable,  and
the testimony coming from the mouth was unimpeachable, a court could  safely
act upon the same uninfluenced by the factum  of  non-examination  of  other
witnesses.  Yet again the conclusion was, that reliable evidence  should  be
available, to determine the culpability of an  accused,  and  in  the  above
view of the matter it would be irrelevant  whether  some  others  who  could
have deposed on the facts in issue had not been examined.

(c)   Based on the judgment rendered in Laxman  Naik  v.  State  of  Orissa,
(1994) 3 SCC 381, it was submitted, that in a case relating to a seven  year
old child, who had been raped and murdered by her own  uncle,  relying  upon
incriminating evidence and testimony of witnesses, it came to be  held  that
when circumstances form a complete chain of  incidents,  then  the  same  is
sufficient to establish, that the accused is the perpetrator  of  the  crime
and conviction  can  be  based  on  the  complete  chain  of  circumstantial

(d)   Based on the judgment in State of Maharashtra v. Suresh, (2000) 1  SCC
471, where four years’ girl child was a victim of rape and  murder,  it  was
contended, that this Court had held that it was open to a court  to  presume
that the accused knew about the incriminating material or dead body  due  to
his involvement in the alleged offence.  When he discloses the  location  of
such incriminating material without disclosing the manner in which  he  came
to know of the same, the Court would presume that  the  accused  knew  about
the incriminating material.

(e)   Relying on the judgment in Amar Singh v.  Balwinder  Singh,  2003  (2)
SCC 518, it  was  contended,  that  where  the  prosecution  case  is  fully
established by the  testimony  of  witnesses  which  stood  corroborated  by
medical evidence, any failure  or  omission  of  the  investigating  officer
could not be treated as sufficient to render the prosecution  case  doubtful
or unworthy of belief.  This determination  leads  to  the  same  inference,
namely, when  reliable  evidence  to  prove  the  guilt  of  an  accused  is
available, lapses in investigation would not result in grant of the  benefit
of doubt to an accused.

(f)   Referring to State Government of NCT Delhi  v.  Sunil,  (2001)  1  SCC
652, it was asserted, that in a  case  where  a  child  of  four  years  was
brutally raped and murdered and incriminating  articles  were  recovered  on
the basis of the statement of the accused, the same could not  be  discarded
on the technical ground that no independent witness was examined.

(g)   Referring to the judgment in Joseph v. State of Kerala, (2005)  5  SCC
197, wherein, according to the learned counsel, it was held that  where  the
circumstances proved  form  themselves  into  a  complete  chain  unerringly
pointing to the guilt of the appellant, then the same can be  the  basis  of
the  conviction  of  the  accused.   This,  according  to  learned  counsel,
represents  the  manner  of  proving  the  guilt  of  an  accused  based  on
circumstantial evidence.

(h)   Based on the judgment in State of UP v. Satish (2005) 3  SCC  114,  it
was contended that it could  not  be  laid  down  as  a  rule  of  universal
application that if there is  any  delay  in  examination  of  a  particular
witness, the prosecution version  becomes  suspect.   Therefore,  the  facts
surrounding the delay ought to be considered  in  every  case  to  determine
whether or not the testimony is rendered suspicious.

(i)   Relying on the judgment in Bishnu  Prasad  Sinha  v  State  of  Assam,
(2007) 11 SCC 467, it was submitted, that in the above case  where  a  child
of 7-8 years was  a  victim  of  rape  and  murder,  the  grounds  that  the
investigation was done in an improper  manner  did  not  render  the  entire
prosecution  case  to  be  false.   Namely,  where  reliable   evidence   is
available, the same would determine the guilt of an accused.

(j)   Referring  to  the  judgment  in  Aftab  Ahmad  Anasari  v.  State  of
Uttaranchal, (2010) 2 SCC 583, it was asserted, that where a child  of  five
years was a victim  of  rape  and  murder  and  the  accused  disclosed  the
location of the crime as  also  of  the  incriminating  articles,  the  said
disclosure was admissible and would  constitute  a  complete  chain  in  the
circumstances.  Further, according to the learned counsel, it was held  that
the inquest panchnama may not contain every detail and the absence  of  some
details would not affect the veracity of the deposition made  by  witnesses.
Needless  to  mention,  that  absence  of  vital  links  in  the  claim   of
circumstantial evidence would result in the exoneration of the accused.

(k)   Reliance was placed on Sambhu Das v. State of  Assam,  (2010)  10  SCC
374, so as to contend, that any discrepancy occurring in the inquest  report
or the post mortem report  could  neither  be  fatal  nor  be  termed  as  a
suspicious circumstance as would warrant a benefit to the  accused  and  the
resultant dismissal of the prosecution case.  Needless to  add,  that  there
should be sufficient independent evidence to  establish  the  guilt  of  the

(l)    Based  on  the  judgment  in  Haresh  Mohandas  Rajput  v.  State  of
Maharashtra, (2011) 12 SCC 56, it was contended, that in a  case  of  murder
and rape of a ten year old child, it was found that where the  circumstances
taken cumulatively led  to  the  conclusion  of  guilt  and  no  alternative
explanation is given by the accused, the  conviction  ought  to  be  upheld.
This case reiterates that in a case based  on  circumstantial  evidence  the
evidence should be such as would point to the  inference  of  guilt  of  the
accused alone and none others.

(m)   Relying on Rajendra PrahladraoWasnik v. State of  Maharashtra,  (2012)
4 SCC 37, it was submitted that where a three years old child was  a  victim
of rape and murder by the accused who lured her under the pretext of  buying
biscuits,    circumstances    showed    the    manner    in    which     the
trust/belief/relationship was violated  resulting  in  affirming  the  death
penalty imposed on the accused.

14.    We  have  given  our  thoughtful  consideration  to  the  submissions
advanced at the hands of the learned counsel for the appellant,  which  have
been duly noticed in paragraph 9 hereinabove.  It is also  relevant  for  us
to record, that the learned counsel for the  appellant  did  not  advance  a
single submission  in  addition  to  the  contentions  we  have  noticed  in
paragraph 9 above.  The submissions advanced at the  hands  of  the  learned
counsel for  the  appellant,  were  sought  to  be  supported  by  judgments
rendered by this Court, all of which have been referred to in  paragraph  13
above.  The submissions advanced at the hands of  the  learned  counsel  for
the appellant, based  on  each  of  the  judgments  cited,  have  also  been
recorded by us in the said paragraph.  Having  considered  the  totality  of
the facts and circumstances of  this  case,  specially  the  glaring  lapses
committed in the investigation and prosecution  of  the  case  (recorded  in
paragraph 11 of the instant judgment), as also the  inconsistencies  in  the
evidence  produced  by  the  prosecution   (summarized   in   paragraph   12
hereinabove),  we  are  of  the  considered  view,  that  each  one  of  the
submissions advanced at the hands of the learned counsel for  the  appellant
is meritless.  For the circumstantial evidence produced by the  prosecution,
primary reliance has been placed on the  statements  of  Bababhai  Naranbhai
Solanki PW2, Naranbhai Manabhai Solanki PW5, and Dinesh Karshanbhai  Thakore
PW6.  By demonstrating inconsistencies and infirmities in the statements  of
the above witnesses, their statements have  also  been  rendered  suspicious
and accordingly unreliable.  There is also a serious impression  of  fudging
and padding at the hands of the agencies involved.  As  a  matter  of  fact,
the  lack  of  truthfulness  of  the  statements  of  witnesses   has   been
demonstrated by means of simple logic emerging  from  the  factual  position
expressed through different prosecution witnesses (summarized in  paragraphs
11 and 12 above).  The evidence produced to  prove  the  charges,  has  been
systematically  shattered,  thereby  demolishing  the  prosecution  version.
More than all that, is the non production of evidence which the  prosecution
has unjustifiably withheld, resulting in dashing all the States  efforts  to
the  ground.  
It  is  not  necessary  for  us  to   record   our   detailed
determination on the submissions  advanced  at  the  hands  of  the  learned
counsel for the appellant, for such reasons clearly emerge from the  factual
position noticed in paragraphs 11 and 12 hereinabove.  Recording of  reasons
all over again, would just be a  matter  of  repetition.   In  view  of  the
above, we find  no  merit  in  this  appeal  and  the  same  is  accordingly

15.    The  investigating  officials  and  the   prosecutors   involved   in
presenting this case, have miserably failed  in  discharging  their  duties.
They have been instrumental in denying to serve the cause of  justice.   The
misery of the family of the  victim  Gomi  has  remained  unredressed.   The
perpetrators of a horrendous crime, involving extremely ruthless and  savage
treatment  to  the  victim,  have  remained  unpunished.   
A  heartless  and
merciless criminal, who has committed an extremely heinous crime,  has  gone
He must be walking around in Ahmedabad, or some other  city/town
in India, with his head held high.  
A criminal on the  move.   Fearless  and
fearsome.   Fearless  now,  because  he  could  not  be   administered   the
punishment, he ought to have suffered.  And  fearsome,  on  account  of  his
having remained unaffected by  the  brutal  crime  committed  by  him.   His
actions now, know of no barriers.   He  could  be  expected  to  act  in  an
unfathomable savage manner, uncomprehendable to a sane mind.

16.   As we discharge our responsibility in deciding  the  instant  criminal
appeal, we proceed to apply principles of law, and  draw  inferences.   For,
that is our job.  We are trained, not to be swayed by mercy  or  compassion.
We are trained  to  adjudicate  without  taking  sides,  and  without  being
mindful of the consequences.  We are required to adjudicate on the basis  of
well drawn parameters.  We have done all that.   Despite  thereof,  we  feel
crestfallen, heartbroken and sorrowful.  We could not  serve  the  cause  of
justice, to an innocent child.   We  could  not  even  serve  the  cause  of
justice, to her immediate family.  The members of the family  of  Gomi  must
never have stopped cursing themselves, for not adequately  protecting  their
child from a prowler, who had snatched  an  opportunity  to  brutalise  her,
during their lapse in attentiveness.  And if the prosecution  version  about
motive is correct, the crime was  committed  for  a  mere  consideration  of

17.   Every time there is an acquittal, the consequences are just the  same,
as have been noticed hereinabove.  The  purpose  of  justice  has  not  been
achieved.  There is also another side to be taken  into  consideration.   We
have declared the accused-respondent innocent, by  upholding  the  order  of
the High Court, giving him the benefit of doubt.  He may be truly  innocent,
or  he  may  have  succeeded  because  of  the  lapses  committed   by   the
investigating/prosecuting teams.  If he has escaped, despite  being  guilty,
the investigating and the  prosecution  agencies  must  be  deemed  to  have
seriously messed it all up.  And if the accused was  wrongfully  prosecuted,
his  suffering  is  unfathomable.   Here   also,   the   investigating   and
prosecuting agencies are blameworthy.  It is  therefore  necessary,  not  to
overlook even the hardship suffered by the accused, first during  the  trial
of the case, and then at the appellate stages.  An innocent person does  not
deserve to suffer the turmoil of a long drawn litigation,  spanning  over  a
decade, or more.  The expenses incurred by an accused  in  his  defence  can
dry up all his  financial  resources  –  ancestral  or  personal.   Criminal
litigation could also ordinarily involve financial borrowings.   An  accused
can be expected to be under a financial debt, by  the  time  his  ordeal  is

18.    Numerous  petitions  are  filed  before  this  Court,   praying   for
anticipatory bail (under Section 438 of the Code of Criminal  Procedure)  at
the behest of persons apprehending arrest, or for bail  (under  Section  439
of the Code of Criminal Procedure) at the behest of  persons  already  under
detention.  In a large number of such petitions, the main contention  is  of
false implication.  Likewise, many petitions seeking  quashing  of  criminal
proceeding (filed under Section 482 of the Code of Criminal Procedure)  come
up for hearing day after day,  wherein  also,  the  main  contention  is  of
fraudulent  entanglement/involvement.   In   matters   where   prayers   for
anticipatory bail or for bail made under Sections 438 and  439  are  denied,
or where a quashing  petition  filed  under  Section  482  of  the  Code  of
Criminal Procedure is declined, the person  concerned  may  have  to  suffer
periods of  incarceration  for  different  lengths  of  time.   They  suffer
captivity and confinement most  of  the  times  (at  least  where  they  are
accused of serious offences), till the culmination of their trial.  In  case
of  their  conviction,  they  would  continue  in  confinement  during   the
appellate stages also, and in matters which reach the  Supreme  Court,  till
the disposal of  their  appeals  by  this  Court.   By  the  time  they  are
acquitted at the appellate stage, they may  have  undergone  long  years  of
When acquitted by this Court, they may have suffered  imprisonment
of 10 years, or more.   
When  they  are  acquitted  (by  the  trial  or  the
appellate court), no one returns to them; what  was  wrongfully  taken  away
from them.  
The system responsible for the  administration  of  justice,  is
responsible for having deprived them of   their  lives,  equivalent  to  the
period of their detention.   
It is  not  untrue,  that  for  all  the  wrong
reasons, innocent persons are subjected to suffer the ignominy  of  criminal
prosecution and to suffer shame  and  humiliation.   
Just  like  it  is  the
bounden duty of a court to serve the cause of  justice  to  the  victim,  so
also, it is the bounden duty of a court to ensure that  an  innocent  person
is not subjected to the rigours of criminal prosecution.

19.   The situation referred to above needs to be remedied.   For  the  said
purpose, adherence to a simple procedure  could  serve  the  objective.   We
accordingly direct, that  on  the  completion  of  the  investigation  in  a
criminal case, the prosecuting agency should  apply  its  independent  mind,
and require all shortcomings to be  rectified,  if  necessary  by  requiring
further investigation.   It  should  also  be  ensured,  that  the  evidence
gathered  during  investigation  is  truly  and  faithfully   utilized,   by
confirming that  all  relevant  witnesses  and  materials  for  proving  the
charges are conscientiously presented during the  trial  of  a  case.   This
would achieve two purposes.  Only persons against whom there  is  sufficient
evidence, will have to  suffer  the  rigors  of  criminal  prosecution.   By
following the above procedure, in most criminal prosecutions, the  concerned
agencies will be able to successfully establish the guilt of the accused.

20.   Every acquittal should be understood  as  a  failure  of  the  justice
delivery  system,  in  serving  the  cause  of  justice.   Likewise,   every
acquittal should ordinarily lead to the inference, that an  innocent  person
was wrongfully prosecuted.
It is  therefore,  essential  that  every  State
should put in place a procedural mechanism,  which  would  ensure  that  the
cause of justice is served, which would simultaneously ensure the  safeguard
of interest of  those  who  are  innocent.  
In  furtherance  of  the  above
purpose, it is considered essential to direct the Home Department  of  every
State, to examine all orders of acquittal and  to  record  reasons  for  the
failure of each prosecution case. 
 A standing committee of  senior  officers
of the police and prosecution departments, should be vested  with  aforesaid
responsibility.  The consideration at the  hands  of  the  above  committee,
should   be   utilized   for   crystalizing   mistakes   committed    during
investigation, and/or prosecution, or both.  
The Home  Department  of  every
State Government will incorporate in its existing  training  programmes  for
junior investigation/prosecution officials course- content  drawn  from  the
above consideration.  
The same  should  also  constitute  course-content  of
refresher  training   programmes,   for   senior   investigating/prosecuting
officials.  The above responsibility for preparing training  programmes  for
officials, should be  vested  in  the  same  committee  of  senior  officers
referred to above.  Judgments like the one in hand (depicting more  than  10
glaring lapses in the investigation/prosecution of the  case),  and  similar
other judgments, may also be added to the training programmes.   The  course
content will be reviewed by the above committee annually, on  the  basis  of
fresh  inputs,  including  emerging  scientific  tools   of   investigation,
judgments of Courts, and on the basis of experiences gained by the  standing
committee while examining failures, in unsuccessful  prosecution  of  cases.
We further direct, that the above training programme be put in place  within
6 months. 
This would ensure that those persons who handle sensitive  matters
concerning investigation/prosecution are fully trained to handle  the  same.
Thereupon, if any lapses are committed by them, they would not  be  able  to
feign innocence, when they are made liable to  suffer  departmental  action,
for their lapses.

21.   On the culmination of a criminal  case  in  acquittal,  the  concerned
investigating/prosecuting official(s) responsible for  such  acquittal  must
necessarily be identified.  A finding needs to be  recorded  in  each  case,
whether the lapse was innocent or blameworthy.   Each  erring  officer  must
suffer the consequences of his lapse, by  appropriate  departmental  action,
whenever called for.  Taking  into  consideration  the  seriousness  of  the
matter,  the  concerned  official  may  be  withdrawn   from   investigative
responsibilities,  permanently  or  temporarily,  depending  purely  on  his
culpability.  We also  feel  compelled  to  require  the  adoption  of  some
indispensable measures, which may reduce the malady suffered by  parties  on
both  sides  of  criminal  litigation.   Accordingly  we  direct,  the  Home
Department of every State Government, to formulate a  procedure  for  taking
action  against  all  erring  investigating/prosecuting  officials/officers.
All such erring officials/officers identified, as  responsible  for  failure
of a prosecution  case,  on  account  of  sheer  negligence  or  because  of
culpable lapses, must  suffer  departmental  action.   The  above  mechanism
formulated would infuse seriousness in the performance of investigating  and
prosecuting duties, and would ensure that investigation and prosecution  are
purposeful and decisive.  The instant direction shall also be  given  effect
to within 6 months.

22.   A copy of the instant judgment shall be transmitted  by  the  Registry
of this Court, to the Home Secretaries of all State  Governments  and  Union
Territories, within one week.  All the  concerned  Home  Secretaries,  shall
ensure  compliance  of  the  directions  recorded  above.   The  records  of
consideration, in compliance with the above direction, shall be maintained.

23.   We hope and trust the Home Department of the State  of  Gujarat,  will
identify the erring officers in the instant case, and will take  appropriate
departmental action against them,  as  may  be  considered  appropriate,  in
accordance with law.

24.   The instant criminal appeal is accordingly disposed of.

                                        (C.K. Prasad)

                                        (Jagdish Singh Khehar)

New Delhi;
January 7, 2014


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