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REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1485 OF 2008 State !

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JUD"MENT Ja21-+. S-)2. ,.e.a%3 J. 1. A complaint was lodged at Navrangpura Police Station, ear old girl

Ahmedabad, alleging the kidnapping/abduction of a six

child !omi daughter of "eshabhai #athabhai Solanki and $aliben on %&.%.%''( at around )*'' p.m. b +elabhai +anabhai #arwadi. the accused "ishanbhai son of

,t was alleged, that the accused had

enticed !omi with a -gola. /crushed ice, with sweet flavoured s rup0, and thereupon had taken her to 1ivi2s field, where he raped her. 3e had murdered her b inflicting in4uries on her head and other parts of the bod with bricks. ,n order to steal the -4han4ris. /anklets0 worn b her, he had chopped off her feet 4ust above her ankles. 5he aforesaid

complaint was lodged, after the bod of the deceased !omi was found from 1ivi2s field, at the instance of the accused "ishanbhai. 6n the receipt of the above complaint, the first information report came to be registered at Navrangpur Police Station, Ahmedabad.

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%.

5he prosecution version which emerged conse7uent upon the

completion of the investigation reveals, that the famil of the deceased !omi was distantl related to the famil of the accused "ishanbhai. ,n this behalf it would be pertinent to mention that 8aghabhai Naranbhai Solanki was a resident of !ulbai 5ekra, in the Navrangpura area of Ahmedabad. 3e resided there, along with his famil . 9or his livelihood, 8aghabhai Naranbhai Solanki was running a shop in the name of #ahakali Pan :entre. 5he said shop was located near his residence. 8aghabhai Naranbhai Solanki was running the business of selling -pan and bidi. in his shop. Naranbhai #anabhai Solanki, father of 8aghabhai Naranbhai Solanki used to live in the peon2s 7uarters at Ambavadi in Ahmedabad. #odabhai #anabhai Solanki, uncle of 8aghabhai

Naranbhai Solanki, had expired. 3is son ;evabhai2s daughter $aliben, was married to "eshabhai #athabhai Solanki. "eshabhai #athabhai Solanki and $aliben were residing at Shabamukhiwas, !ulbai 5ekra in Ahmedabad. "eshabhai #athabhai Solanki and $aliben had two

children, a daughter !omi aged six ears, and a son 3imat aged three ears. $aliben2s sister<in<law /her husband2s, elder brother2s wife0

9uliben +alabhai was residing near the residence of "eshabhai #athabhai Solanki and $aliben. "ishanbhai the accused, is the brother of 9uliben, and was residing with her. ,t is therefore, that the famil of the deceased as also the accused, besides being distantl related, were ac7uainted with one another as the were residing close to one another. (. ,nsofar as the occurrence is concerned, according to the

prosecution, on %&.%.%''( $aliben, niece of 8aghabhai, was confined to her residence, as she was expecting. At about )*'' p.m. her daughter
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!omi, then aged ) ears, had wandered out of her house. 5he accused "ishanbhai then aged 1= ears, entice her b giving her a -gola..

3aving enticed her he had carried !omi to 1ivi2s field. 6n the wa to 1ivi2s field, he stole a knife with an > inch blade from ;ineshbhai "arsanbhai 5hakore P?), a -dabeli. /bread/bun, with spiced potato filling0 seller. 3aving taken !omi to 1ivi2s field he had raped her. 3e had then killed her b causing in4uries on her head and other parts of the bod with bricks. ,n order to remove the -4han4ris. worn b her, he had amputated her legs with the knife stolen b him, from 4ust above her ankles. 3e had then covered her bod with his shirt, and had left 1ivi2s field. "ishanbhai the accused, then took the anklets stolen b him to #ahavir 1ewellers, a shop owned b Premchand Shankerlal. 3e

pledged the anklets at the above shop, for a sum of @s.1,'''/<. 5he accused "ishanbhai was confronted b 8aghabhai and others back to his

constituting the search part , whilst he was on his wa

residence. "ishanbhai, despite stating that he had not taken her awa , had informed those searching for !omi, that she could be at 1ivi2s field. 6n the suggestion of "ishanbhai, the search part had gone to 1ivi2s farm, where the found the bod of !omi. A. 8ased on the aforesaid fact situation, confirmed through the the Police, a charge<sheet was framed

investigation carried on b

against the accused "ishanbhai under Sections ()(, ()=, (&), (=A, ('% and %'1 of the ,ndian Penal :ode, and Section 1(B/10 of the 8omba Police Act. 5he above charge<sheet was filed before the #etropolitan #agistrate, Ahmedabad. Since the offences involved could be tried

onl b a :ourt of Session, the #etropolitan #agistrate, committed the


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matter to the :ourt of Session. 6n >.(.%''A, the Sessions :ourt to which the matter came to be assigned, for trial, framed charges. Since the accused "ishanbhai denied his involvement in the matter, the court permitted the prosecution to lead evidence. B. 5he prosecution examined 1A witnesses. 5he statement of the

accused "ishanbhai was thereafter recorded under Section (1( of the :ode of :riminal Procedure. ,n his above statement, the accused

"ishanbhai denied his involvement. Cven though an opportunit was afforded to "ishanbhai, he did not lead an evidence in his defence. After examining the evidence produced b the prosecution, the 5rial :ourt vide its 4udgment dated 1>.>.%''A, arrived at the conclusion that prosecution had successfull proved its case be ond reasonable doubt. 8 a separate order dated 1>.>.%''A the 5rial :ourt sentenced hanging, sub4ect to confirmation of the said

"ishanbhai to death b sentence b

the 3igh :ourt of !u4arat at Ahmedabad /hereinafter

referred to as the D3igh :ourt20 under Section ()) of the :ode of :riminal Procedure. ). ,n the above view of the matter, the proceedings conducted b the :ourt of Session, were placed before the 3igh :ourt at the behest of the State of !u4arat, as :onfirmation :ase No. & of %''A. ,ndependentl of the confirmation proceedings, the accused "ishanbhai, aggrieved b the 4udgment and order of sentence dated 1>.>.%''A, in Sessions :ase No. (A) of %''(, filed :riminal Appeal No. 1BA= of %''A before the 3igh :ourt.

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&.

5he criminal appeal filed b

the accused "ishanbhai was

accepted b the 3igh :ourt. "ishanbhai was ac7uitted b giving him the benefit of doubt. 5he :onfirmation :ase No. & of %''A was turned down in view of the 4udgment of ac7uittal rendered b the 3igh :ourt while allowing :riminal Appeal no. 1BA= of %''A. >. ;issatisfied with the order passed b the 3igh :ourt, the State of !u4arat approached this :ourt b filing Petition for Special $eave to Appeal /:rl.0 No. B== of %''). granted. 6n 11.=.%''> leave to appeal was

5hereupon, the matter came to be registered as :riminal

Appeal No. 1A>B of %''>. =. 8efore this :ourt, learned counsel for the appellant, in order to

substantiate the guilt of the accused<respondent "ishanbhai, has tried to pro4ect that the prosecution was successful in demonstrating an unbroken chain of circumstances, clearl establishing the culpabilit of the accused. ,n fact, the endeavour at the hands of the learned counsel for the appellant was to pro4ect an unbroken chain of circumstances to establish the guilt of the accused. ;espite the defects in investigation and the prosecution of the case, as also, the inconsistencies highlighted b the 3igh :ourt in the evidence produced b the prosecution, learned counsel for the State expressed confidence, to establish the guilt of the accused<respondent. ,n 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. ?e shall, therefore, briefl

summarise all the contentions, and while doing so, refer to the evidence brought to our notice b the learned counsel for the appellant, to

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establish the guilt of the accused<respondent, "ishanbhai. submissions advanced before us are accordingl hereunder * /a0

5he

being recorded

9irst and foremost, learned counsel for the appellant, in order to

connect the accused with the crime under reference, extensivel relied upon the evidence produced b the prosecution to show that the

accused<respondent "ishanbhai was last seen with the victim. 3e was seen taking awa the victim !omi. 9or the above, reliance was placed on the statement of Naranbhai #anabhai Solanki P?B, who had deposed that he had seen the deceased !omi with the accused< respondent "ishanbhai on %&.%.%''( at around )*'' p.m. As per his deposition, he had seen !omi eating a -gola. outside his /the witness2s0 residence. respondent At the same 4uncture, he had also seen the accused< "ishanbhai coming from the side of Pol technic.

"ishanbhai, according to the deposition of P?B, had approached !omi. 5hereafter, as per the statement of P?B, the accused had carried awa !omi towards the side of the Pol technic. ,n his testimon , Naranbhai #anabhai Solanki P?B, had also stated, that at about =*'' pm, when he had again seen the accused<respondent "ishanbhai coming from the road leading to the !ulbai 5ekra Police :howki, he was asked, b those who were searching for !omi, about her whereabouts. 5he accused was also asked about the whereabouts of !omi, b #anabhai Solanki P?B and b Naranbhai Solanki P?%. the son of P? B i.e., b Naranbhai 8ababhai

5o the aforesaid 7ueries, according to

Naranbhai #anabhai Solanki P?B, the accused<respondent "ishanbhai had stated, that she might be sitting in 1ivi2s field. ,n addition to the
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testimon

of Naranbhai #anabhai Solanki P?B, reference was also

made to the testimon of ;inesh "arshanbhai 5hakore P?). P?), during his deposition, had asserted, that the accused<respondent "ishanbhai had come to his -lari. /handcart used b hawkers, to sell their products0 for purchasing a -dabeli.. ,t was pointed out b ;inesh "arshanbhai 5hakore P?), that he had noticed the accused carr ing a child aged about seven ears, wearing a red frock. ,n his statement, he also affirmed that the accused<respondent "ishanbhai, had asked him for a knife but he had declined to give it to him. 5hereupon, whilst leaving his -lari., "ishanbhai had stolen a knife from his -lari.. ,t was also pointed out, that the knife recovered at the instance of the accused< respondent "ishanbhai, was identified b him as the one stolen from his -lari.. According to the learned counsel for the appellant, the last seen

evidence referred to above stands dul corroborated b the deposition of 8ababhai Naranbhai Solanki P?%, not onl in his deposition before the 5rial :ourt, but also in the complaint filed b him at the first instance at Navrangpur Police Station, Ahmedabad, immediatel recover of the dead bod of !omi from 1ivi2s field. /b0 $earned counsel for the appellant also laid emphasis on the after the

recover of the weapon of offence, i.e., a blood stained knife, at the instance of none other than the accused<respondent "ishanbhai himself. ,n order to substantiate the instant aspect of the matter, learned counsel placed reliance on the testimon of ;inesh "arshanbhai 5hakore P?), who deposed that the accused had visited his -lari. on the evening of %&.%.%''( for the purchase of a -dabeli.. 5he accused respondent, as noticed earlier, as per the statement of ;inesh "arshanbhai 5hakore
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P?), was carr ing a small girl aged about & ears. 3e also deposed, that the accused<respondent had asked him for his knife, but upon his refusal, had stolen the same from his -lari.. ;inesh "arshanbhai

5hakore P?), had identified the knife which had been recovered at the instance of the accused, as the one stolen b the accused<respondent "ishanbhai from his -lari.. Additionall it was submitted, that the

accused had led the police to 1ivi2s field, from where he got recovered the murder weapon, i.e., the same knife which he had stolen from the -lari. of ;inesh "arshanbhai 5hakore P?). 5he above knife had a

blade measuring eight inches, including a steel handle of four inches. At the time of recover of the knife, the same had stains of blood. 5he above knife was recovered b the police on 1.(.%''(, in the presence of an independent witness, namel , @ameshbhai $akhabhai 8hati P?1, who in his deposition clearl narrated, that the knife in 7uestion was recovered from 1ivi2s field, from under some stones at the instance of the accused<respondent "ishanbhai. /c0 $earned counsel for the appellant, then referred to the medical

evidence produced b the prosecution, so as to contend that the wounds inflicted on the person of !omi, were with the murder weapon, i.e., the knife recovered at the instance of the accused<respondent "ishanbhai. 9or this, learned counsel placed reliance on the statement of ;r. Saumil Premchandbhai #erchant P?>, who had conducted the post<mortem examination of the deceased !omi on %>.%.%''(. ,n the post<mortem report, according to learned counsel, mention was made about several incised in4uries which could have been inflicted with the knife stolen b the accused<respondent "ishanbhai. ,n this respect, reference was
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made to serial No.1A of the post<mortem notes /Cxhibit %=0 proved b ;r. Saumil Premchandbhai #erchant P?>, clearl indicating, that the in4uries caused to the victim which have been referred to at serial No.&, could have been caused with the knife /muddamal Article No.1=0, i.e., the same knife, which had been recovered at the instance of the accused. Cven in the in7uest panchnama /Cxhibit 1A0, it was recorded that both legs of the victim !omi were mutated from 4ust above the ankle with a sharp weapon, with the ob4ect of removing the anklets in the feet of the victim !omi. 5his document, according to the learned counsel, also indicates the use of a knife in the occurrence under reference. /d0 ,t was also the submission of the learned counsel for the

appellant, that at the time of recover of the bod of the victim from 1ivi2s field, the same was found to be covered with a shirt with stripes. ,t was submitted, that the aforesaid shirt was identified as the shirt worn b the accused<respondent "ishanbhai, when he was seen carr ing awa the victim !omi, on %&.%.%''(. ,n this behalf, reliance was placed b the learned counsel for the appellant, on the testimon of Naranbhai

#anabhai Solanki P?B. 5he above witnesses had identified the shirt as a white shirt with lines. 5o give credence to the testimon of Naranbhai #anabhai Solanki P?B, 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 5<shirt. 5he statement of Naranbhai #anabhai Solanki P?B, was sought to be corroborated with the statement of ;inesh "arshanbhai 5hakore P?). 5he accused respondent is stated to have approached the -lari. of ;inesh "arshanbhai 5hakore P?) for purchasing a -dabeli., and at that
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4uncture, the accused<respondent is stated to have been wearing a white lined shirt, and a green trouser. 6n the recover of the shirt and trouser, the were marked as #udammal Articles > and 1A respectivel . ;inesh "arshanbhai 5hakore P?) had identified the shirt, as also, the trouser during the course of his deposition before the 5rial :ourt. 5he green trouser worn b the accused<respondent was also identified b

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8ababhai Naranbhai Solanki P?%. Additionall , 8ababhai Naranbhai Solanki P?% deposed that a black colour 5<shirt was worn b the

accused<respondent when he was apprehended and brought to the police station. 5he above articles were also identified b Angha

$alabhai #arwadi P?1% and Naranbhai $albhai ;esai P?1( who were the panch witnesses at the time of seiEure of the abovementioned clothing. /e0 ,t was also the submission of the learned counsel for the

appellant, that the report of the forensic science laborator was sufficient to confirm, that the accused respondent was the one who was involved in the commission of the crime under reference. ,n this behalf, it was pointed out that the victim !omi was shown to have blood group -8Fve.. According to the report of the 9orensic Science $aborator , the bricks recovered from the place of occurrence /which had been used in causing in4uries on the head and other bod parts of the victim0, the panties worn b the deceased victim !omi, the white shirt which was found on the bod of the victim at the time of its recover from 1ivi2s field, the 5<shirt and the green trouser worn b the accused respondent "ishanbhai /at the time he was apprehended0, and even the weapon of the crime, namel , the knife recovered at the instance of the accused<
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respondent, were all found with blood stains.

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5he forensic report

reveals that the blood stains on all the above articles were of blood group -8Fve.. ,t was, therefore, the submission of the learned counsel for the appellant, that the accused<respondent was unmistakabl shown to be connected with the crime under reference. /f0 ,n order to substantiate the motive of the accused<respondent,

learned counsel for the appellant relied upon the statement of the investigating officer @anchhod4i 8ho4ra44i :hauhan P?1A, who had stated in his deposition that the owner of #ahavir 1ewellers, i.e., Premchand Shankarlal #ehta had presented himself at the police station. 5he abovementioned 4eweler is stated to have informed the police, that the accused respondent "ishanbhai had pawned the anklets belonging to the victim !omi with him for a sum of @s.1,'''/<. ,nsofar as the identification of the anklets is concerned, reference was made to the statement of "eshobhai #adanbhai Solanki P?&, i.e., father of the victim who had identified the anklets marked as #uddamal Article No.1>, as belonging to his daughter !omi, which she was wearing when she had gone missing. @eference was also made to the statement of 1agdishbhai 8hagabhai #arwadi P?11, as also, the panchnama of recover of the silver anklets which also, according to learned counsel, connects the accused to the crime. /g0 $ast but not the least, learned counsel for the appellant invited

this :ourt2s attention to the statement tendered b the accused under Section (1( of the :ode of :riminal Procedure. ;uring the course of his above testimon , he was confronted with the evidence of the relevant

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witnesses depicting, that the victim !omi was last seen in his compan at )*'' p.m. on %&.%.%''(. 3e was also confronted with the fact, that he himself had informed the search part , that !omi ma be found at 1ivi2s field. ,t is submitted, that the accused<respondent "ishanbhai, who had special knowledge about the whereabouts of the deceased, was bound to explain and prove when and where he had parted from the compan of the victim !omi. ,t was submitted that during the course of his

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deposition under Section (1( of the :ode of :riminal Procedure, the accused could not tender an satisfactor explanation. 8ased on the above evidence, it was the submission of the learned counsel for the appellant, that even in the absence of an e e witness account, the prosecution should be held to have been successful in establishing the guilt of the accused<respondent "ishanbhai through circumstantial evidence. 5he claim of circumstantial evidence emerging from different witnesses summariEed above, according to the learned counsel, leads to one and onl one conclusion, namel , that the

accused<respondent "ishanbhai alone had committed the criminal acts under reference. ,t 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. ,t was also contended, that no link in the chain of circumstantial evidence was missing, so as to render an ambiguit in the matter. 1'. ?e have heard the learned counsels for the parties. 5o determine the controvers arising out of the instant criminal appeal, we shall first endeavour to summarise the conclusions drawn b the 3igh :ourt under

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different heads. ?e have decided to adopt the above procedure to understand the implications of various aspects of the evidence produced b the prosecution before the 5rial :ourt. 5his procedure has been adopted b us /even though the same was neither adopted b the 5rial :ourt, or b the 3igh :ourt0 so as to effectivel understand, and

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thereupon, to ade7uatel

deal with the contentions advanced at the

hands of the appellant, before this :ourt. 11. ?e would first of all, like to deal with the lapses committed b the investigating and prosecuting agencies in the process of establishing the guilt of the accused before the 5rial :ourt. ,t will be relevant to mention that all these lacunae/deficiencies, during the course of investigation and prosecution, were pointed out b the 3igh :ourt, in the impugned 4udgment. 5hese constitute relevant aspects, which are liable to be taken into consideration while examining the evidence relied upon b the prosecution. ?e have summarised the aforesaid lapses,

pointedl to enable us to correctl 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 b the prosecution. 5he above deficiencies and shortcomings are being summarised below* /a0 According to the prosecution stor after having removed the

anklets from !omi2s feet, the accused "ishanbai had taken the anklets to #ahavir 1ewellers, a shop owned b Premchand Shankerlal. 3e

pledged aforesaid anklets with Premchand Shankerlal, for a sum of @s. 1,'''/<. 5he anklets under reference, were handed over b Premchand
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Shankerlal to the investing officer on 1.(.%''(, in the presence of two panch witnesses. According to the prosecution case, the 4eweller 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 awa . 3e 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. 6ne of the panch witnesses, namel , 1agdishbhai #arwari P?1B had deposed, that above Premchand Shankerlal had identified the accused "ishanbhai, as the ver person who had pledged the anklets with him. ,n this behalf it is relevant to mention, that Premchand Shankerlal was not produced as a prosecution witness. ,t is important to notice, that the anklets handed over to the Police, were successfull established b the prosecution as the ones worn b the deceased !omi. 5he lapse of the prosecution on account of not producing Premchand Shankerlal as prosecution witness, according to the 3igh :ourt, resulted in a missing link in the chain of events which would have established the link of the accused "ishanbhai, with the anklets, and thereb connecting him with the crime. /b0 5he prosecution stor further discloses, that Premchand Shankerlal the owner of #ahavir 1ewellers, had executed a receipt with the accused "ishanbhai, depicting the pledging of the anklets for a sum of @s.1,'''/<. 5he aforesaid receipt was placed on record of the 5rial :ourt as exhibit B%. 5he above receipt according to Premchand the accused "ishanbhai. Cven convulsivel

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Shankerlal, was thumb marked b

though the receipt indicates the name of the person who had pledged
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the anklets as @a4ubhai, the same could clearl be a false name given b the person who pledged the anklets. :ertainl , there could be no mistake in the identit of the thumb mark affixed on the said receipt. 5he prosecution could have easil established the identit of the

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pledger, b comparing the thumb impression on the receipt /exhibit B%0, with the thumb impression of the accused<respondent "ishanbhai. 5his was however not done. 5he lapse committed b the prosecution in not producing Premchand Shankerlal as a witness, could have easil been overcome b proving the identit of the person who had pledged the anklets, b identif ing the thumb impression on the receipt /exhibit B%0, in accordance with law. ,n case the thumb impression turned out to be that of the accused "ishanbhai, he would be unmistakabl linked with the crime. ,n case it was found not to be the thumb impression of the accused "ishanbhai, his innocence could also have been inferred. According to the 3igh :ourt this important lapse in proving the prosecution case before the 5rial :ourt, had resulted in a ma4or obstacle in establishing the guilt/innocence of the accused. /c0 ,t is also the case of the prosecution, that when the accused

"ishanbhai was apprehended, a sum of @s.=A'/< was recovered from his possession. According to the prosecution stor the accused

"ishanbhai had pledged the anklets at #ahavir 1ewellers with Premchand Shankerlal for a sum of @s. 1,'''/<. ,n order to link the mone recovered from his possession at the time of his detention, it was imperative for the prosecution to establish how and wh a sum of

@s.=A'/< onl , was recovered from the possession of the accused "ishanbhai. 3e ought to have been in possession of at least @s.1,'''/<
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i.e., the amount given to him b

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Premchand Shankerlal

when he

pledged the anklets at his shop, even if it is assumed that he had no mone with him when he had pawned the anklets. 5his important link having not been established b the prosecution, breaks the chain of events necessar to establish the guilt of the accused "ishanbhai, and constitutes a serious lapse in the prosecution evidence. /d0 ,t is apparent from the prosecution stor , that the victim !omi was raped. ,n 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 !omi. 5he same inter alia reveals, that dr blood was present over the labia, and deep laceration of

subcutaneous tissues was present on the left margin of the vaginal opening, 4ust above the posterior commission. 5he h men was also found ruptured at ( and ),62 clock. ,t is therefore, that the accused was deputed for being sub4ected to medical examination, during the course of investigation. 9or the above purpose he was examined b ;r. P.;. Shah. ,n fact ;r. P.;. Shah was a cited witness before the 5rial :ourt. ;espite the above ;r. P.;. Shah was not examined as a prosecution witness. :learl a vital link in a chain of events, to establish the rape of the victim !omi came to be broken conse7uent upon b examination of ;r. P.;. Shah as a prosecution witness. /e0 5he 3igh :ourt has also noticed, that even the report/certificate given b the medical officer relating to the medical examination of the accused "ishanbhai was not produced b the prosecution before the 5rial :ourt. ,t is apparent, that the lapse in not producing ;r. P.;. Shah the non<

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as a prosecution witness, ma

have been overcome if the report

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prepared b him /after examining the accused "ishanbhai0 was placed on the record of the 5rial :ourt, after being proved in accordance with law. 5he action of prosecution in not producing the aforesaid report before the 5rial :ourt, was another serious lapse in proving the case before the 5rial :ourt. 5his had also resulted a missing vital link, in the chain of events which could have established, whether or not accused "ishanbhai had committed rape on victim !omi. /f0 5he 3igh :ourt having noticed the in4uries suffered b !omi, a six ear old girl child on her genitals, had expressed the view, that the same would have resulted in reciprocal in4uries to the male organ of the person who had committed rape on her. ,t was pointed out, that if the accused "ishanbhai had been sent for medical examination the testimon 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, speciall if the

accused had been medicall examined within %A hours. ,n the instant case the se7uence of the events reveal, that the occurrence had been committed between )*'' p.m. to >*'' p.m. on %&.%.%''(. At the time of recover of the bod of deceased !omi from 1ivi2s field, at about =*'' pm, it came to be believed that she had been sub4ected to rape. 5he accused "ishanbhai was shown to have been formerl arrested at )*A' a.m. on %>.%.%''( /even if the inference drawn b the 3igh :ourt, that the accused "ishanbhai was in police custod since =*'' p.m. on

%&.%.%''( itself, is ignored0. 5he accused could have been medicall examined within a period of %A hours of the occurrence. 5he
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prosecution case does not show whether or not such action was taken. 5his lapse in the investigation of the case, had also resulted the omission of a vital link in the chain of events which would have un7uestionabl established the guilt of the accused "ishanbhai of

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having committed rape /or possibl his innocence0. /g0 ,t needs to be noticed, that when the accused "ishanbhai was

arrested, there were several in4uries on his person. 5he said in4uries were also depicted in his arrest panchnama. At &*1B am on %>.%.%''(, the accused "ishanbhai filed a first information report alleging, that he was beaten b some of the relatives of the victim !omi, as also, b some unknown persons accompan ing the search part , under the suspicion/belief, that he was responsible for the occurrence. ,n the

above first information report, the accused "ishanbhai had also depicted the nature of in4uries suffered b him. 5he statement of the investigating officer @anchod4i 8ho4ra44i :hauhan P?1A reveals, that the accused "ishanbhai had been sent to :ivil 3ospital, Ahmedabad, for his medical examination. accused was Neither the doctor who had examined the as a prosecution witness, nor the

produced

report/certificate given b the medical officer disclosing the details of his observations/findings was placed on record. 5his evidence was vital for the success of the prosecution case. According to the 3igh :ourt, blood of group -8 Fve. was found on the clothes of the accused "ishanbhai. 5he important 7uestion to be determined thereupon was, whether it was his own blood or blood of the victim !omi. 5he statement of the

medical officer who had examined the accused "ishabhai, when he was sent for medical examination to :ivil 3ospital, Ahmedabad, would have
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disclose whether or not accused "ishanbhai had an bleeding in4uries. 5he importance of nature of the in4uries suffered b the accused

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"ishanbhai emerges from the fact, that both the accused "ishanbhai and the victim !omi had the same blood group -8 Fve.. An

inference could have onl been drawn that the blood on his clothes was that of the victim, in case it was established that the accused< respondent "ishanbhai had not suffered an bleeding in4uries, and

therefore, the possibilit of his own blood being on his clothes was ruled out. 5his important link in the chain of events is also missing from the evidence produced b the prosecution, and constitutes a serious lapse in the investigation/prosecution of the case. ,n view of the above factual position, the 3igh :ourt made the following observations -$ooking to the advancement in the field of medical science, the investigating agenc should not have stopped at this stage. 5hough A86 s stem of blood grouping is one of the most important s stem, which is being normall used for distinguishing blood of different persons, there are about 1= geneticall determined blood grouping

s stems known to the present da science, and it is also known that there are about %'' different blood groups, which have been identified b the modern scientific methods /Source* #c<!raw<3ill Cnc clopedia of Science and 5echnolog , +ol.%0. 3ad such an effort been made b the prosecution, the outcome of the said effort would have helped a lot to the trial :ourt in ascertaining whether the accused had in fact visited the scene of offence.. 5his also constitutes a glaring lapse in the

investigation of the crime under reference.

Page 19

5here has now been a great advancement in scientific investigation on the instant aspect of the matter. 5he investigating agenc ought to have sought ;NA profiling of the blood samples, which would have given a clear picture whether or not the blood of the victim !omi was, in fact on the clothes of the accused<respondent "ishanbhai. 5his scientific

20

investigation would have un7uestionabl determined whether or not the accused<respondent was linked with the crime. Additionall , ;NA

profiling of the blood found on the knife used in the commission of the crime /which the accused<respondent, "ishanbhai had allegedl stolen from ;inesh "arshanbhai 5hakore P?)0, would have uncontrovertibl determined, whether or not the said knife had been used for severing the legs of the victim !omi, to remove her anklets. ,n spite of so much advancement in the field of forensic science, the investigating agenc seriousl erred in carr ing out an effective investigation to genuinel

determine the culpabilit of the accused<respondent "ishanbhai. /h0 ,t is also apparent from the complaint submitted b 8ababhai

Naranbhai Solanki P? %, that he had been informed b one "alabhai !aneshbhai, that he had seen the accused "ishanbhai taking awa !omi. ,n such an event, the proof of the fact of the accused<respondent having abducted !omi could have onl been substantiated, through the statement of "alabhai !aneshbhai who had allegedl actuall seen the accused "ishanbhai taking her awa . According to the 3igh :ourt, for the reasons best known to it, the prosecution did not produce "alabhai !aneshbhai as a witness. Cven though according to the 3igh :ourt the above<mentioned "alabhai !aneshbhai was a resident in one of the peon 7uarters, and was also a government servant, the absence of the
Page 20

evidence of the above factual position, results in a deficienc in the confirmation of a factual position of substantial importance, from the chain of events necessar for establishing the last seen evidence. /i0 ,t is also apparent, that there is no dispute about the recover of a green blood stained -dupatta., from the person of the victim. 5he green blood stained -dupatta. /veil0 was found b the medical officer while conducting the post<mortem examination on !omi. 5he existence of the green -dupatta. was also dul mentioned in the post<mortem report.

21

According to the 3igh :ourt, 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 3igh :ourt, if neither the victim nor the accused had a green -dupatta., a 7uestion would arise, as to how the green blood stained -dupatta. was found on the dead bod of the victim. Cven leading to the inference of the presence of a third part at the time of occurrence. 5he above omission in not explaining the presence of the green -dupatta., has also been taken b the 3igh :ourt, as a glaring omission at the hands of the prosecution in the process of investigation/prosecution of the charges levelled against the accused "ishanbhai. /40 ?hile deposing before the 5rial :ourt, ;inesh "arshanbhai

5hakore P?), affirmed that the accused<respondent "ishanbhai had approached his -lari. for the first time to purchase a -dabeli. on %&.%.%''(. ,t is, therefore, apparent that ;inesh "arshanbhai 5hakore

Page 21

P?) had not known the accused<respondent before %&.%.%''(. ,n the above view of the matter, it was imperative for the investigating agenc to hold a test identification parade in order to determine whether ;inesh "arshanbhai 5hakore P?), had correctl identified the accused<

22

respondent, as the person who had come to his -lari. to purchase a -dabeli. on %&.%.%''(. And also whether he was the same person, who had stolen a knife from his -lari. on %&.%.%''(. 5his is also a serious deficienc in the investigation/prosecution of the case. /k0 8ababhai Naranbhai Solanki P?%, the complainant in the present

case, during the course of his examination<in<chief, observed as under * -5his incident was occurred on %&/%/%''(, on that da $ilaben came to m house for pregnanc . 6n the da of the incident at ).'' o clock in the evening , came to know that !omiben the daughter of $ilaben is not found. 5herefore, all our relatives have started searching her. ?e went to the 7uarter of m father, and in7uired about the !omiben, m father told that , saw !omiben with $alis Sister in law brother "isan, he gave ice cream to !omi. 5herefore, we have searched in the 7uarters and other places. At around >.'' o clock in the night kishan was coming from police Station, we have started asking him, at that time along with me Shri 1agabhai #olabhai, #ohanbhai #olabhai, 3irabhai were present. 5his police :hawk means !ulbai 5ekra Police :hawk . 3e told me that , have left her at 1ivivala 9ield. 5herefore, we went at the 1ivivala 9ield, at around >.'' or =.'' o clock, we went there and we found !omiben in dead conditions, she had a several in4uries on her head and other parts of the bod . She was being raped.. 9rom the above statement, it is apparent that !omi was found missing for the first time at )*'' pm. 5he search for her began immediatel thereafter. 5he search part met the accused<respondent "ishanbhai coming from the side of the police station at >*'' p.m. All the

prosecution witnesses have been e7uivocal about the fact that !omi went missing at about )*'' p.m., i.e., the time when she was last seen in

Page 22

the compan of the accused<respondent "ishanbhai, and thereafter, the search part met "ishanbhai at >*'' pm. ,n order to give credence to the prosecution version, it was imperative to establish that it was possible for the accused<respondent "ishanbhai, after having taken !omi at )*'' p.m., to have stopped at the -lari. of ;inesh "arshanbhai 5hakore P?), purchased a -dabeli. from him. 5hereupon, to have had time to steal his knife, the accused<respondent proceeded on with !omi to 1ivi2s field. 5here 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 bod leading to her death, and finall to cut her legs 4ust above her ankles, to remove her anklets. 3e 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 #ahavir 1ewellers so as to pawn the same with Premchand Shankarlal #ehta, as also, time to execute a receipt in token thereof. 6ver 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 1ivi2s field to Premchand Shankarlal #ehta2s shop and further on from the above shop to his residence and finall from his residence till the place where he was detained. ,t is difficult to

23

appreciate how all the activities depicted in the prosecution stor , could have been carried out from )*'' p.m. on %&.%.%''( to >*'' p.m. on the same da , i.e., all in all within a period of two hours. ,t is in the above context that the cross<examination of Naranbhai #anabhai Solanki

Page 23

P?B, assume significance. @elevant extract from his cross<examination is being reproduced hereunder * -,t is true that the accused was coming from police :hawk at around >.'' or >.(' p.m. as , was not wearing the watch , cannot sa the exact time. ,t is true that it takes 1B to %' minutes to go to Pan4rapole from m 7uarters, and it will take (' to (B minutes to go to the field of 1,+,. ,t is true that it will taken half an hour to come to the 6ffice of 8SN$ through 1ivi2s 9ield and :.N. +idha ala a. ,t is true that from the 1ivis field towards Pan4rapole and through Pan4rapole main road towards 8SN$ office, b walking it will take A' minutes. ,t is true that both the roads are public roads, and man people are passing through this road.. /emphasis is ours0 ?hether or not the above se7uence of events could have taken place in the time referred to above, would have been easil overcome if the

24

prosecution had placed on record a sketch map providing details with regard to the distance between different places. ,n that event, it would have become possible to determine whether the activities at different places, pro4ected through the prosecution version of the incident were possible. ,n the absence of an knowledge about the distance between the residence of the victim !omi as well as that of the accused from the Pol technic or from 1ivi2s fieldG it would be impossible to ascertain the 7uestions which emerge from the cross<examination of Naranbhai #anabhai Solanki P?B. 3ad 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. 5his deficienc in the prosecution evidence, must be

construed as a serious infirmit in the matter. 1%. ?e would now like to deal with the discrepancies found in the

evidence produced b the prosecution before the 5rial :ourt. ?e would

Page 24

also simultaneousl summarise the effect of defences adopted on behalf of the accused<respondent "ishanbhai. 5hese aspects of the matter are also being summerised hereunder, so as to enable us to effectivel deal with the submissions advanced at the behest of the State. 5hese

25

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. 5he above considerations are summariEed hereunder* /a0 5he post mortem report relied upon b the prosecution leaves no doubt that in4uries on the genitals of !omi were post 5he 7uestion which arises for consideration is

room for an

mortem in nature.

whether the in4uries under reference had been inflicted on the victim first, and thereupon, rape was committed on the victim. ,t is natural to assume, that the first act of aggression b the person who had

committed assault on !omi, was b inflicting in4uries on her head and other parts of the bod , onl thereafter the legs 4ust above the ankles, would have been cut /with the ob4ect of removing her anklets0. ,t 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 unlikel . Now, the 7uestion to be considered is, whether it was humanl possible for even the most perverted person, to have committed rape on a child, who had been killed b causing in4uries on head and other parts of bod , and after her feet had been severed from her legs. ?e would have no hesitation b responding in the negative. 5he prosecution in the instant case apparentl pro4ected a version including an act of rape,

Page 25

which is impossible to accept on the touchstone of logic and common sense. /b0 5he evidence produced b the prosecution also reveals, that

26

pubic hair of the accused<respondent "ishanbhai, had been examined b the scientific officer of the 9orensic Science $aborator . 5he report submitted b the 9orensic Science $aborator /Cxhibit A>0 reveals, that there was neither an semen nor an blood on the pubic hair of the accused. @eference to the possibilit of there being blood on the public hair of the accused<respondent "ishanbhai emerges from the fact, that the post mortem report of the deceased revealed, that there was blood on the vagina of the deceased. ?hilst accusing the respondent<

"ishanbhai of the offence under Section (&) of the ,ndian Penal :ode, 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. /c0 According to the testimon of the complainant 8ababhai

Naranbhai Solanki P?%, the accused<respondent "ishanbhai was wearing a white shirt at the time of occurrence. ,t is, therefore, when a white shirt was found covering the dead bod of the victim !omi, he had identified the same as the shirt which the accused<respondent "ishanbhai was wearing, before the offence was committed. 9rom the prosecution stor , as it emerged from the statements of different witnesses, it is apparent that 8ababhai Naranbhai Solanki P?%, had had no occasion to have seen the accused<respondent "ishanbhai,

Page 26

wearing the said white shirt. ?hen 8ababhai Naranbhai Solanki P?%, was 7uestioned as to how he knew that the accused<respondent was wearing a white shirt, when he first saw the shirt covering the dead bod of the victim, his response was, that he had been told about that b his father Naranbhai #anabhai Solanki P?B. ,n the above view of the of 8ababhai,

27

matter, the 7uestion arises whether the testimon

Naranbhai Solanki P?% about the shirt referred to above was truthful. And whether his testimon can be described as fair and honest. /d0 Additionall when the accusedHrespondent "ishanbhai was

arrested, the 5<shirt worn b him, was taken from him b recording a panchnama. 5he said 5<shirt is available on the record of the 5rial :ourt as Cxhibit<(=. ,t is not a matter of dispute that the 5<shirt /Cxhibit (=0, worn b the accused<respondent, "ishanbhai at the time of his

arrest, is actuall a white 5<shirt with a trident design on it. 8ut, as per the narration recorded b 8ababhai Naranbhai P?%, contained in the complaint which constituted the basis of registering the first information, it is mentioned that the accused<respondent "ishanbhai was wearing a black 5<shirt at the time of his detention. ,t is apparent from the factual position noticed hereinabove, that the factual position expressed b the complainant 8ababhai Naranbhai Solanki P?% was absolutel

incorrect, and contrar to the factual position. ,n the above view of the matter, a 7uestion would arise, whether the deposition of 8ababhai Naranbhai Solanki P?% was fair and honest. /e0 According to the prosecution version of the incident, the search

part met the accused<respondent "ishanbhai at about >*'' p.m. 5he

Page 27

said part had thereupon proceeded to 1ivi2s field, from where the dead bod of the victim was recovered. According to Naranbhai #anabhai Solanki P?B, after finding the dead bod , he had proceeded to the police station. At the police station, he had re7uested the police

28

personnel to visit the site of occurrence. Simultaneousl , Naranbhai #anabhai Solanki P?B had stated, that when en7uiries were being made from "ishanbhai, police personnel had taken awa the accused< respondent. According to the testimon of Naranbhai #anabhai Solanki P?B, therefore, at the most, the accused<respondent must be deemed to have been taken into police custod %&.%.%''(. from about =*'' p.m. on

,t is apparent, that the occurrence had come to the

knowledge of a large number of persons constituting the search part , when the victim2s bod was found on 1ivi2s field. Cven before that, the accused<respondent was alread in police custod . As if, the police had alread concluded on the guilt of "ishanbhai, even before the recover of !omi2s bod from 1ivi2s farm. ;espite the above, the arrest of the accused<respondent "ishanbhai was shown at ).A' a.m. on %>.(.%''(. 5he detention of the accused<respondent "ishanbhai from =*'' pm on %&.%.%''( to ).A' a.m. on %>.%.%''(, shows that the prosecution has not presented the case in the manner the events unfolded to the investigating agencies. /f0 ,t also needs to be noticed, that the in7uest panchnama besides

mentioning the amputation of the legs of the victim above her ankles, also records, that the silver anklets worn b !omi were missing. ,n this behalf, it would also be relevant to mention, that even though the in7uest panchnama was drawn at ''(' a.m. on %>.%.%''(, the complaint
Page 28

resulting in the registration of the first information report was lodged b 8ababhai Naranbhai Solanki P?% at (*'B a.m. on %>.'%.%''(. ,t is strange, that the in7uest panchnama should be drawn before the registration of the first information report. ,t is also strange as to how, while drawing the in7uest panchnama, the panchas of the same could have recorded, that after amputation of the victim2s legs, her silver anklets had been taken awa b the offender. 5here was no occasion for the panchas to have known, that !omi used to wear silver anklets. Accordingl , there was no occasion for them to have recorded that the silver anklets usuall offender. /g0 9rom the prosecution version /emerging from the evidence worn b !omi had been taken awa b the

29

recorded before the 5rial :ourt0, it is apparent, that the search part , as also, the relatives of the victim were aware at about >*'' p.m. on %&.%.%''( that !omi had been murdered, with a possibilit of her having been raped also, and her silver anklets had been stolen. ;espite the above, no complaint whatsoever came to be filed in connection with the above occurrence at the police station on %&.%.%''(, despite the close coordination between the search part and the police from >*'' pm

onwards no %&.%.%''( itself. 5he complaint leading to the filing of the first information was made at about (*'B a.m. on %>.%.%''(. Not onl is the dela of seven hours in the registration of the complaint

ununderstandable, but the same is also rendered extremel suspicious, on the account of the fact that the accused<respondent "ishanbhai is acknowledged to be in police detention since =*'' p.m. on %&.%.%''( itself. 5his ma be the result of fudging the time and date at which the
Page 29

victim !omi went missing, as also, the time and date on which the bod of the victim was discovered resulting in the discover of the occurrence itself. 5he 7uestion which arises for consideration is, whether the

30

investigation agenc adopted the usual practice of padding so as to depict the occurrence in a manner different from the actual occurrence. A 7uestion also arises as to wh it was necessar for the investigating agenc to adopt the above practice, despite the fact that it was depicted as an open and shut case. /h0 As noticed above, that from the statements of 8ababhai

Naranbhai Solanki P?% and Naranbhai #anabhai Solanki P?B, it is apparent that the accused was detained b the police informall around =*'' p.m. on %&.%.%''(. ,t is also essential to notice, that an

acknowledgement was made to the above effect even b Sub ,nspector Naranbhai $albhai ;esai P?1(, who had commenced investigation of the crime under reference. ,t is apparent that when 8ababhai Naranbhai Solanki P?%, had contacted him with details about the offence under reference, he had not recorded an entr in the station diar before

leaving the police station. 5his constitutes a serious lapse in itself. ,n his cross<examination, he had affirmed that he was taken b 8ababhai Naranbhai Solanki P?%, i.e., the complainant to the scene of occurrence. 3aving gone to the scene of occurrence, and having made on the spot investigation, he acknowledged having returned to the police station. ,n his statement, he accepted, that when he had returned to the police station after visiting the site of occurrence, the accused< respondent "ishanbhai was alread present at the police station. ?hen 7uestioned, he could not tender an explanation, as to how the accused<
Page 30

respondent "ishanbhai had come to the police station. ,n his statement as a witness, he had expressed, that for the first time he had seen the accused<respondent "ishanbhai onl on %>.%.%''( at around B*(' a.m. ?hereafter, the accused<respondent was formall arrested at ).A' a.m. 5he inconsistenc between the statements made b the complainant

31

/8ababhai Naranbhai Solanki P?%0 and his father /Naranbhai #anabhai Solanki P?B0 on the one hand, and b Sub<,nspector Naranbhai $albhai ;esai P?1( on the other, discloses a serious contradiction with respect to the time of the detention of the accused<respondent "ishanbhai. ,t needs to be noticed, that it was an aberration for Naranbhai $albhai ;esai P?1(, to have left the police station without making an entr in the station diar . ?h should a police officer, investigating a crime of such a heinous nature, commit such a lapseI 5he fact that he did so, is not a matter of dispute. 5he truth of the matter is, that Naranbhai

$albhai ;esai P?1(, did not make an note either in the station diar or in an other registerG he did not take an informal complaint from the complainant, even though he had been apprised about the commission of an offence. ,t is therefore clear that Naranbhai $albhai ;esai P?1(, had left the police station without making an entr depicting the purpose of his departure. All this further adds to the suspicion of the manner in which investigation of the matter was conducted. /i0 So far as the statement of ;inesh "arshanbhai 5hakore P?) is

concerned, he had supported the prosecution stor b deposing, that the accused had visited his -lari. with a small child, about seven ears old. 3e had further asserted, that the accused<respondent "ishanbhai had purchased a -dabeli. from him. 3e had also testified that the accused H
Page 31

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.. 3e

32

further confirmed, that the accused<respondent had stolen a knife, used b him for cutting vegetables from his -lari.. Another important aspect of the matter, out of the statement of ;inesh "arshanbhai 5hakore P?) is, that he identified the shirt that the accused<respondent "ishanbhai was wearing, at the time when he had visited his -lari. for purchasing a -dabeli. on %&.%.%''(. 3e had also identified the red frock which the victim was wearing at the said 4uncture. Additionall , he identified the knife which the accused<respondent "ishanbhai had stolen from his -lari.. 5he statement of ;inesh "arshanbhai 5hakore P?) was b the 3igh :ourt, primaril for the

considered to be untrustworth

reason that he could identif the shirt worn b the accused<respondent, "ishanbhai when he had approached his -lari. for the purchase of a -dabeli., at which 4uncture, the accused<respondent "ishanbhai ma have remained at the -lari. at the most for 1' to 1B minutes, when there was a rush of customers. As against the above, he had remained with the accused<respondent "ishanbhai at Navrangpur Police Station, Ahmedabad, for approximatel four hours. ;uring 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. ,t is, therefore, apparent that ;inesh "arshanbhai 5hakore P?) was deposing far in excess of what he remembered, and/or in excess of what was actuall to his knowledge. 3e appears to be a

Page 32

tutored witness. 5his aspect of the matter also renders the testimon of ;inesh "arshanbhai 5hakore P?), suspicious. /40 5here is et another aspect of the controvers relating to ;inesh

33

"arshanbhai 5hakore P?). 5he investigating agenc became aware from the disclosure statement of the accused<respondent "ishanbhai tendered on 1.(.%''(, that he had procured the weapon of offence b wa of theft from the -lari. of ;inesh "arshanbhai 5hakore P?). 5he above knife was recovered at the instance of the accused<respondent "ishanbhai on 1.(.%''(, in the presence of panch witnesses. ,n the above view of the matter, in the ordinar course of investigation, it would have been imperative for the investigating agenc to have immediatel approached ;inesh "arshanbhai 5hakore P?), to record his statement. 3is statement was extremel 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. ;espite the above, the investigating agenc recorded the statement of ;inesh "arshanbhai 5hakore P?), for the first time on A.(.%''(. No reason is forthcoming wh his statement was not recorded either on 1.(.%''(, or on the 5he inordinate dela b the

intervening dates before A.(.%''(.

investigating agenc , in confirming the version of the accused< respondent, in respect of the weapon of the crime, renders the prosecution version suspicious. Such dela would not have taken place in the ordinar course of investigation. ,f there were good reasons for the dela , the ought to have been made known to the 5rial :ourt b wa of reliable evidence. 5his fact too raises a doubt about the

correctness of the prosecution version of the incident.


Page 33

5he above discrepancies in the prosecution version, were dul noticed b the 3igh :ourt. 5hese constitute some of the glaring instances

34

recorded in the impugned order. 6ther instances of contradiction were also noticed in the impugned order. ,t is not necessar for us to record all of them, since the above instances themselves are sufficient to draw some vitall important inferences. Some of the inferences drawn from the above, are being noticed below. mainl rests on the testimon 5he prosecution2s case which

of 8ababhai Naranbhai Solanki P?%,

Naranbhai #anabhai Solanki P?B and ;inesh "arshanbhai 5hakore P?), is unreliable because of the glairing inconsistencies in their statements. 5he testimon of the investigating officer Naranbhai $albhai ;esai P?1( shows fudging and padding, making his deposition untrustworth . ,n the absence of direct oral evidence, the prosecution case almost wholl rested on the above mentioned witnesses. ,t is for the above reasons, that the 3igh :ourt through the impugned order, considered it 4ust and appropriate to grant the accused<respondent "ishanbhai, the benefit of doubt. 1(. $earned counsel for the appellant, in order to support the

submissions advanced before this :ourt in the present criminal appeal /which have been recorded in paragraph = hereinabove0, with 4udicial precedent, placed reliance on a number of 4udgments rendered b this :ourt. ?e shall now summarise hereunder, the 4udgment relied upon, as also, the submissions of the learned counsel on the basis thereof* /a0 @eferring to the 4udgment rendered b this :ourt in @am Prasad J

6rs. v. State of KP, /1=&A0 1 S:@ )B', it was asserted at the hands of

Page 34

the learned counsel for the appellant, that non<examination of some of the e e<witnesses would not introduce a fatal infirmit to the prosecution case, speciall when conviction could be based on evidence produced b the prosecution. /b0 @eference was also made to 5akha4i 3ira4i v. 5hakore "ubersing

35

:amansing J 6rs., /%''10 ) S:: 1AB, and it was pointed out, that this :ourt has ruled that in cases where witnesses alread examined were reliable, and the testimon coming from the mouth was unimpeachable, a court could safel act upon the same uninfluenced b the factum of non<examination of other witnesses. Let again the conclusion was, that reliable evidence should be available, to determine the culpabilit 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. /c0 8ased on the 4udgment rendered in $axman Naik v. State of

6rissa, /1==A0 ( S:: (>1, it was submitted, that in a case relating to a seven ear old child, who had been raped and murdered b her own uncle, rel ing upon incriminating evidence and testimon 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. /d0 8ased on the 4udgment in State of #aharashtra v. Suresh, /%'''0

1 S:: A&1, where four ears2 girl child was a victim of rape and murder, it was contended, that this :ourt had held that it was open to a court to
Page 35

presume that the accused knew about the incriminating material or dead bod due to his involvement in the alleged offence. ?hen he discloses the location of such incriminating material without disclosing the manner in which he came to know of the same, the :ourt would presume that the accused knew about the incriminating material. /e0 @el ing on the 4udgment in Amar Singh v. 8alwinder Singh, %''(

36

/%0 S:: B1>, it was contended, that where the prosecution case is full established b the testimon of witnesses which stood corroborated b medical evidence, an failure or omission of the investigating officer could not be treated as sufficient to render the prosecution case doubtful or unworth of belief. 5his determination leads to the same inference, namel , 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. /f0 @eferring to State !overnment of N:5 ;elhi v. Sunil, /%''10 1

S:: )B%, it was asserted, that in a case where a child of four ears was brutall 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. /g0 @eferring to the 4udgment in 1oseph v. State of "erala, /%''B0 B

S:: 1=&, wherein, according to the learned counsel, it was held that where the circumstances proved form themselves into a complete chain unerringl pointing to the guilt of the appellant, then the same can be the basis of the conviction of the accused. 5his, according to learned
Page 36

counsel, represents the manner of proving the guilt of an accused based on circumstantial evidence. /h0 8ased on the 4udgment in State of KP v. Satish /%''B0 ( S::

37

11A, it was contended that it could not be laid down as a rule of universal application that if there is an particular witness, the prosecution dela version in examination of a becomes suspect.

5herefore, the facts surrounding the dela ought to be considered in ever case to determine whether or not the testimon is rendered

suspicious. /i0 @el ing on the 4udgment in 8ishnu Prasad Sinha v State of

Assam, /%''&0 11 S:: A)&, it was submitted, that in the above case where a child of &<> ears 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. Namel , where reliable

evidence is available, the same would determine the guilt of an accused. /40 @eferring to the 4udgment in Aftab Ahmad Anasari v. State of

Kttaranchal, /%'1'0 % S:: B>(, it was asserted, that where a child of five ears 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. 9urther, according to the learned counsel, it was held that the in7uest panchnama ma not contain ever detail and the

absence of some details would not affect the veracit of the deposition made b witnesses. Needless to mention, that absence of vital links in
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the claim of circumstantial evidence would result in the exoneration of the accused. /k0 @eliance was placed on Sambhu ;as v. State of Assam, /%'1'0

38

1' S:: (&A, so as to contend, that an discrepanc occurring in the in7uest 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. /l0 8ased on the 4udgment in 3aresh #ohandas @a4put v. State of

#aharashtra, /%'110 1% S:: B), it was contended, that in a case of murder and rape of a ten ear old child, it was found that where the circumstances taken cumulativel led to the conclusion of guilt and no alternative explanation is given b the accused, the conviction ought to be upheld. 5his 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. /m0 @el ing on @a4endra Prahladrao?asnik v. State of #aharashtra,

/%'1%0 A S:: (&, it was submitted that where a three ears old child was a victim of rape and murder b the accused who lured her under the pretext of bu ing biscuits, circumstances showed the manner in which the trust/belief/relationship was violated resulting in affirming the death penalt imposed on the accused. 1A. ?e have given our thoughtful consideration to the submissions

advanced at the hands of the learned counsel for the appellant, which
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have been dul noticed in paragraph = hereinabove. ,t 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 = above. 5he submissions advanced at the hands of the learned counsel for the appellant, were sought to be supported b 4udgments rendered b this :ourt, all of which have been referred to in paragraph 1( above. 5he submissions advanced at the hands of the learned counsel for the appellant, based on each of the 4udgments cited, have also been recorded b considered the totalit speciall us in the said paragraph. 3aving

39

of the facts and circumstances of this case,

the glaring lapses committed in the investigation and

prosecution of the case /recorded in paragraph 11 of the instant 4udgment0, as also the inconsistencies in the evidence produced b the prosecution /summariEed in paragraph 1% hereinabove0, 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. 9or the circumstantial evidence produced b the prosecution, primar reliance has been placed on the statements of 8ababhai Naranbhai Solanki P?%, Naranbhai #anabhai Solanki P?B, and ;inesh "arshanbhai 5hakore P?). 8 demonstrating inconsistencies and infirmities in the statements of the above witnesses, their statements have also been rendered suspicious and accordingl unreliable. 5here 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 b means of simple logic emerging from the factual position expressed through different prosecution

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witnesses /summariEed in paragraphs 11 and 1% above0. 5he evidence produced to prove the charges, has been s stematicall shattered,

40

thereb demolishing the prosecution version. #ore than all that, is the non production of evidence which the prosecution has un4ustifiabl withheld, resulting in dashing all the States efforts to the ground. ,t is not necessar for us to record our detailed determination on the

submissions advanced at the hands of the learned counsel for the appellant, for such reasons clearl emerge from the factual position

noticed in paragraphs 11 and 1% hereinabove. @ecording of reasons all over again, would 4ust be a matter of repetition. ,n view of the above, we find no merit in this appeal and the same is accordingl dismissed. 1B. 5he investigating officials and the prosecutors involved in

presenting this case, have miserabl failed in discharging their duties. 5he have been instrumental in den ing to serve the cause of 4ustice. 5he miser of the famil of the victim !omi has remained unredressed. 5he perpetrators of a horrendous crime, involving extremel ruthless A

and savage treatment to the victim, have remained unpunished.

heartless and merciless criminal, who has committed an extremel heinous crime, has gone scot<free. 3e must be walking around in

Ahmedabad, or some other cit /town in ,ndia, with his head held high. A criminal on the move. 9earless and fearsome. 9earless now, because he could not be administered the punishment, he ought to have suffered. And fearsome, on account of his having remained unaffected b the brutal crime committed b him. 3is actions now, know of no barriers. 3e could be expected to act in an unfathomable savage manner, uncomprehendable to a sane mind.
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1).

As we discharge our responsibilit in deciding the instant criminal principles of law, and draw inferences.

41

appeal, we proceed to appl

9or, that is our 4ob. ?e are trained, not to be swa ed b merc or compassion. ?e are trained to ad4udicate without taking sides, and without being mindful of the conse7uences. ?e are re7uired to

ad4udicate on the basis of well drawn parameters. ?e have done all that. ;espite thereof, we feel crestfallen, heartbroken and sorrowful. ?e could not serve the cause of 4ustice, to an innocent child. ?e could not even serve the cause of 4ustice, to her immediate famil . members of the famil 5he

of !omi must never have stopped cursing

themselves, for not ade7uatel protecting their child from a prowler, who had snatched an opportunit 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 @s.1,'''/<. 1&. Cver time there is an ac7uittal, the conse7uences are 4ust the

same, as have been noticed hereinabove. 5he purpose of 4ustice has not been achieved. 5here is also another side to be taken into

consideration. ?e have declared the accused<respondent innocent, b upholding the order of the 3igh :ourt, giving him the benefit of doubt. 3e ma be trul innocent, or he ma have succeeded because of the lapses committed b the investigating/prosecuting teams. ,f he has

escaped, despite being guilt , the investigating and the prosecution agencies must be deemed to have seriousl messed it all up. And if the accused was wrongfull prosecuted, his suffering is unfathomable. 3ere also, the investigating and prosecuting agencies are blameworth . ,t is therefore necessar , not to overlook even the hardship suffered b the
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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. 5he expenses incurred b an accused in his defence can dr up all his financial

42

resources H ancestral or personal.

:riminal litigation could also

ordinaril involve financial borrowings. An accused can be expected to be under a financial debt, b the time his ordeal is over. 1>. Numerous petitions are filed before this :ourt, pra ing for

anticipator bail /under Section A(> of the :ode of :riminal Procedure0 at the behest of persons apprehending arrest, or for bail /under Section A(= of the :ode of :riminal Procedure0 at the behest of persons alread under detention. ,n a large number of such petitions, the main $ikewise, man petitions seeking

contention is of false implication.

7uashing of criminal proceeding /filed under Section A>% of the :ode of :riminal Procedure0 come up for hearing da after da , wherein also, the main contention is of fraudulent entanglement/involvement. matters where pra ers for anticipator ,n

bail or for bail made under

Sections A(> and A(= are denied, or where a 7uashing petition filed under Section A>% of the :ode of :riminal Procedure is declined, the person concerned ma have to suffer periods of incarceration for

different lengths of time. 5he suffer captivit and confinement most of the times /at least where the are accused of serious offences0, till the culmination of their trial. ,n case of their conviction, the would continue in confinement during the appellate stages also, and in matters which reach the Supreme :ourt, till the disposal of their appeals b this :ourt. 8 the time the are ac7uitted at the appellate stage, the ma have
Page 42

undergone long ears of custod . ?hen ac7uitted b this :ourt, the ma have suffered imprisonment of 1' ears, or more. ?hen the are ac7uitted /b the trial or the appellate court0, no one returns to themG what was wrongfull taken awa from them. 5he s stem responsible for the administration of 4ustice, is responsible for having deprived them of their lives, e7uivalent to the period of their detention. ,t is not untrue,

43

that for all the wrong reasons, innocent persons are sub4ected to suffer the ignomin of criminal prosecution and to suffer shame and

humiliation. 1ust like it is the bounden dut of a court to serve the cause of 4ustice to the victim, so also, it is the bounden dut of a court to ensure that an innocent person is not sub4ected to the rigours of criminal prosecution. 1=. 5he situation referred to above needs to be remedied. 9or the

said purpose, adherence to a simple procedure could serve the ob4ective. ?e accordingl direct, that on the completion of the

investigation in a criminal case, the prosecuting agenc should appl its independent mind, and re7uire all shortcomings to be rectified, if necessar b re7uiring further investigation. ,t should also be ensured, that the evidence gathered during investigation is trul utiliEed, b and faithfull

confirming that all relevant witnesses and materials for

proving the charges are conscientiousl presented during the trial of a case. 5his would achieve two purposes. 6nl persons against whom there is sufficient evidence, will have to suffer the rigors of criminal prosecution. 8 following the above procedure, in most criminal

prosecutions, the concerned agencies will be able to successfull establish the guilt of the accused.
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%'.

Cver ac7uittal should be understood as a failure of the 4ustice s stem, in serving the cause of 4ustice. $ikewise, ever

44

deliver

ac7uittal should ordinaril lead to the inference, that an innocent person was wrongfull prosecuted. ,t is therefore, essential that ever State should put in place a procedural mechanism, which would ensure that the cause of 4ustice is served, which would simultaneousl ensure the safeguard of interest of those who are innocent. ,n furtherance of the above purpose, it is considered essential to direct the 3ome ;epartment of ever State, to examine all orders of ac7uittal 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 responsibilit . 5he consideration at the hands of the

above committee, should be utiliEed for cr staliEing mistakes committed during investigation, and/or prosecution, or both. 5he 3ome ;epartment of ever State !overnment will incorporate in its existing training

programmes for 4unior investigation/prosecution officials course< content drawn from the above consideration. 5he same should also constitute course<content of refresher training programmes, for senior for

investigating/prosecuting officials.

5he above responsibilit

preparing training programmes for officials, should be vested in the same committee of senior officers referred to above. 1udgments like the one in hand /depicting more than 1' glaring lapses in the investigation/prosecution of the case0, and similar other 4udgments, ma also be added to the training programmes. 5he course content will be reviewed b the above committee annuall , on the basis of fresh inputs, including emerging scientific tools of investigation, 4udgments of :ourts,

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and on the basis of experiences gained b the standing committee while examining failures, in unsuccessful prosecution of cases. ?e further direct, that the above training programme be put in place within ) months. 5his would ensure that those persons who handle sensitive matters concerning investigation/prosecution are full trained to handle the same. 5hereupon, if an lapses are committed b them, the would not be able to feign innocence, when the are made liable to suffer departmental action, for their lapses. %1. 6n the culmination of a criminal case in ac7uittal, the concerned

45

investigating/prosecuting official/s0 responsible for such ac7uittal must necessaril be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworth . Cach erring officer must suffer the conse7uences of his lapse, b appropriate departmental action, whenever called for. 5aking into consideration the seriousness of the matter, the concerned official ma be withdrawn from investigative responsibilities, permanentl or temporaril , depending purel on his

culpabilit . ?e also feel compelled to re7uire the adoption of some indispensable measures, which ma reduce the malad suffered b

parties on both sides of criminal litigation. Accordingl we direct, the 3ome ;epartment of ever State !overnment, 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. 5he above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would
Page 45

ensure that investigation and prosecution are purposeful and decisive. 5he instant direction shall also be given effect to within ) months. %%. A cop of the instant 4udgment shall be transmitted b the

46

@egistr of this :ourt, to the 3ome Secretaries of all State !overnments and Knion 5erritories, within one week. All the concerned 3ome

Secretaries, shall ensure compliance of the directions recorded above. 5he records of consideration, in compliance with the above direction, shall be maintained. %(. ?e hope and trust the 3ome ;epartment of the State of !u4arat, the erring officers in the instant case, and will take

will identif

appropriate departmental action against them, as ma be considered appropriate, in accordance with law. %A. 5he instant criminal appeal is accordingl disposed of.

MMMMMMMMMMM.1. /:.". Prasad0

MMMMMMMMMMM.1. /1agdish Singh "hehar0 New ;elhiG 1anuar &, %'1A

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