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of the matter, the concerned official may be withdrawn from investigative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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1485 OF 2008
State of Gujarat
V
Kishanbhai Etc.
Jagdish Singh Khehar, J.
Dated:January 7, 2014
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. Page 2
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
2Page 3
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
3Page 4
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.
4Page 5
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
5Page 6
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 accusedrespondent
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 accusedrespondent
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
6Page 7
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 accusedrespondent
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
7Page 8
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
8Page 9
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
9Page 10
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-
10Page 11
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
11Page 12
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 accusedrespondent
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
12Page 13
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
13Page 14
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
14Page 15
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/-
15Page 16
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 nonexamination
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
16Page 17
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
17Page 18
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
18Page 19
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 accusedrespondent
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.
19Page 20
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
20Page 21
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
21Page 22
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 accusedrespondent,
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
22Page 23
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
23Page 24
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
24Page 25
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,
25Page 26
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 respondentKishanbhai
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,
26Page 27
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
27Page 28
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 accusedrespondent.
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
28Page 29
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
29Page 30
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 accusedrespondent
Kishanbhai was already present at the police station. When
questioned, he could not tender any explanation, as to how the accused-
30Page 31
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 –
31Page 32
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
32Page 33
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 accusedrespondent,
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.
33Page 34
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
34Page 35
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
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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
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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
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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
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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
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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.
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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
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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. 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
42Page 43
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.
43Page 44
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,
44Page 45
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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