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.
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1485 OF 2008
State of Gujarat … Appellant
Versus
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
Rs.1,000/-.
The accused Kishanbhai was confronted by Baghabhai and others
constituting the search party, whilst he was on his way back to his
residence.
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.
The
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
2008.
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
reference.
(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
crime.
(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
matter.
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
him.
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
witness.
(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
innocence).
(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
reference.
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
matter.
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
accused-respondent.
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
prosecution.
(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
evidence.
(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
accused.
(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
dismissed.
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
scot-free.
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
Rs.1,000/-.
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
over.
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
custody.
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.
…………………………….J.
(C.K. Prasad)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
January 7, 2014
-----------------------
7
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
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1485 OF 2008
State of Gujarat … Appellant
Versus
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
Rs.1,000/-.
The accused Kishanbhai was confronted by Baghabhai and others
constituting the search party, whilst he was on his way back to his
residence.
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.
The
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
2008.
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
reference.
(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
crime.
(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
matter.
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
him.
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
witness.
(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
innocence).
(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
reference.
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
matter.
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
accused-respondent.
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
prosecution.
(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
evidence.
(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
accused.
(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
dismissed.
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
scot-free.
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
Rs.1,000/-.
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
over.
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
custody.
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.
…………………………….J.
(C.K. Prasad)
…………………………….J.
(Jagdish Singh Khehar)
New Delhi;
January 7, 2014
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