IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 891 of 2007 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================= ================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================= ================ PRAHLAD @ PRAKASH @ AJAY LAXMANBHAI DHAKATE - Appellant(s) Versus STATE OF GUJARAT & 1 - Opponent(s) ========================================= ================ Appearance :
MS NITA C BANKER for Appellant(s) : 1,MR M.P SHAH for Appellant(s) : 1,MS. KRUTI M SHAH for Appellant(s) : 1, MR. K.P. RAVAL, ADDITIONAL. PUBLIC PROSECUTOR for Opponent(s) : 1, ========================================= ================ HONOURABLE THE CHIEF JUSTICE CORAM :
MR.BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :11/10/2012 CAV JUDGMENT (Per : HONOURABLE MR. JUSTICE J.B. PARDIWALA)
1. The present appeal is at the instance of a convict, the accused, for the offence punishable under Section 302 of the Indian Penal Code, and is directed against an order of conviction and sentence dated 30th March, 2007, passed by the learned Additional Sessions Judge, 6th Fast Track Court, Surat, in Sessions Case No.186/2005. By the aforesaid order, the learned Additional Sessions Judge found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code and consequently, sentenced him to suffer life imprisonment and a fine of Rs.2,000/-. In default of payment of fine, the appellant was directed to undergo further simple imprisonment for one year.
2. Case of the Prosecution :
2.1 The complainant, viz. one Radhika Ganpati, mother of the deceased, was residing with her family at Rameshwarnagar, Surat. The complainant was a mother of four children, namely, Shankerbhai, Shakubai, Priti and Deepak. Out of the four children, Shakubai and Deepak had passed away long time back. The daughter of the complainant, named, Priti, the deceased, was married to the accused, sometime in the year 2003. After marriage the deceased was residing with her husband, the accused, at Dindoli Octroi Post. The deceased was residing with her husband, the accused, in a joint family, consisting of eight brothers of the accused and the mother of the accused. From the wedlock of the deceased and the accused, a son, named Rajesh was born. After the birth of the son, the deceased was sent to the house of her mother i.e. the complainant. It is the case of the prosecution that after the birth of the son, the deceased was driven out of the matrimonial home and, therefore, the deceased started residing at the house of her mother, the complainant. It is also the case of the prosecution that there was lot of harassment to the deceased at the end of the accused, her husband, and the other family members of the accused. The deceased had also lodged a complaint of harassment at the end of her husband, the accused, and his family members, at the Mahila Police Station, situated at Athwa Gate, Surat. It appears that a settlement was arrived at with the intervention of the Mahila Police Officials and the accused agreed to take back the deceased. The deceased expressed her desire to go back to her husband, the accused, provided the accused would rent a room and start residing independently with the deceased. The accused also thereafter, agreed to find a house and start residing with his wife, the deceased, independently. The accused, thereafter, started visiting the house of the complainant and started persuading the deceased to accompany him, so that the accused could show few places to the deceased where they could start residing independently.
2.2 It is the case of the prosecution that the accused and the deceased were unable to find out any such place, despite their efforts. After some time, the accused once again persuaded the deceased to accompany him, in search of a house. On 2nd of June, 2005, the accused had taken the deceased along with him in search of a house, but at the end of the day, the accused was unable to find one. On 2nd of June, 2005, the deceased informed her mother, the complainant, that she would again be going along with the accused in search of a house on 5th June, 2005. It is the case of the prosecution that on 2nd June, 2005, after dropping the deceased at her mother's house, the accused had told the deceased that they would again go out in search of a house on 5th June, 2005, and accordingly, had asked the deceased to come at Sai Baba Temple, situated at Limbayat Vinoba Nagar. The deceased, left the house of her mother, at around 12' O Clock in the afternoon on 5th June, 2005, informing her mother, the complainant, that she had been called by the accused at Sai Baba Temple and from Sai Baba Temple, the accused and the deceased would be proceeding in search of a house. The deceased, having left the house in the afternoon, did not return in the evening.
2.3 On 6th June, 2005, the brother of the deceased, named Shankar, visited the house of the accused to enquire about the deceased, but the deceased was not found even at the house of the accused. After frantically searching the deceased for two days, the complainant finally went to Limbayat Police Station and lodged a report, stating that her daughter, the deceased was missing past two days and the whereabouts of the deceased were not known. The Police officials of Limbayat Police Station recorded the missing report lodged by the complainant, the mother of the deceased, and told the mother of the deceased that they would inform her no sooner they got some clue of the whereabouts of the deceased.
2.4 It appears that on 8th June, 2005, the P.W-1, Sureshbhai Somabhai spotted a dead body of a lady lying in his agricultural field in a highly decomposed state. The P.W-1, Sureshbhai Somabhai informed the Police in that regard. The Police officials reached at the spot where the dead body of the lady was lying, and after drawing an inquest panchnama, sent the body to the Civil Hospital for Postmortem examination. On 9th of June, 2005, the postmortem of the dead body was performed and the postmortem examination revealed a cut throat wound in the antero - lateral aspect of the neck, oblique 16 x 3cm x trachea deep. The thyroid cartilage was found to have a clean cut extending from left to right side covering mid line, margin clean cut and angle acute. The entire body was practically destroyed by the maggots and the animals. The part beyond left wrist was found to be missing. The external genital was prolapsed and decomposed, and the uterus was destroyed by the maggots. The cause of death assigned in the postmortem report was due to cut throat injuries. The viscera was preserved for chemical analysis and DNA.
2.5 It appears that the clothes, which were on the dead body, i.e., a green coloured saree, a green coloured blouse, a green coloured petticoat and a black coloured underwear were handed over by the doctor to the Police officials. As the body was in a highly decomposed state, and unidentified, the Police officials thought fit to hand over the body to a voluntary organization engaged in the social service of cremating such unidentified bodies. Accordingly, on 9th June, 2005, the dead body was cremated through a voluntary social organization at Surat. On 11th June, 2005, the mother of the complainant informed the complainant that Limbayat Police Station had reported recovery of a dead body of an unidentified lady and, therefore, asked the complainant, the mother of the deceased, to go to the Limbayat Police Station and enquire about the same. Accordingly, the complainant along with her mother, the P.W-9, Laxmiben Haribhau Kumbhare, went to the Limbayat Police Station. The Police officials of Limbayat Police Station informed the complainant that on 8th June, 2005, a dead body of a lady was found in an agricultural field in a highly decomposed state, and therefore, after the postmortem, the body was cremated. However, the Police officials informed the complainant that they had the clothes with them, which were on the body of the unidentified lady. Accordingly, the Police officials showed a green coloured saree, a green coloured blouse, a green coloured petticoat and a black coloured underwear. On the clothes being shown to the complainant and the mother of the complainant by the Police officials, the complainant and the mother of the complainant immediately identified the clothes to be those of Priti, the deceased. The mother of the complainant also identified a pair of slippers to be those of the deceased, recovered from the place where the dead body was lying in an agricultural field.
2.6 Thus, it was confirmed by the complainant that the dead body, which was recovered on 8th June, 2005, from an agricultural field as reported by the Police officials, was that of her daughter, Priti, and the deceased might have been murdered by her husband, the accused, after the deceased left the house on 5th June, 2005.
2.7 The mother of the deceased accordingly, lodged a First Information Report, on 11th June, 2005, and in the said first information report, the complainant alleged that the accused, on the pretext of showing a house to the deceased, had called the deceased at Sai Baba Temple, situated near Limbayat Vinoba Nagar, and from there, the accused might have taken the deceased at a particular place, and thereafter, might have killed the deceased, by inflicting injuries on the neck due to strained marital relations.
4. On the strength of the First Information Report, being Exh.12, lodged by the mother of the deceased, the investigation commenced. It appears that on 11th June, 2005, the accused was arrested and the arrest Panchnama, being Exh.27, was drawn in the presence of two panch witnesses, at 22.00 hours. After the arrest of the accused, it is the case of the prosecution that on 12th June, 2005, the accused on his own free will, showed his willingness to point out the place where the accused committed the crime, and also the place where the weapon of offence i.e. the knife had been concealed. Accordingly, the panchnama, being Exh.30, was drawn in the presence of two panch witnesses. Finally, charge-sheet was filed against the accused in the Court of Judicial Magistrate, First Class, Surat.
5. As the case was exclusively triable by the Sessions Court, the Judicial Magistrate, First Class, Surat, committed the case to the Sessions Court under Section 209 of the Criminal Procedure Code. The Sessions Court framed charge against the accused, being Exh.3, and the statement of the accused was recorded. The accused did not admit the charge and claimed to be tried.
6. The prosecution adduced the following oral evidence in support of its case.
P.W.1 Sureshbhai Somabhai, Exh. 9 the witness in whose agricultural field Dead body of the deceased found lying in a highly decomposed state.
P.W.2 Radhikaben Ganpati Exh.11 Original complainant and the mother of the deceased.
P.W.3 Shankerbhai Ganpati Exh.13 The brother of the deceased.
P.W.4 Tarkeshwar Haribhau Kumbhare, Exh.14 The uncle of the deceased and the brother of the original complainant.
P.W.5 Subhash Haribhau Kumbhare, Exh.15 The uncle of the deceased and the brother of the original complainant.
P.W.6 Ranvirsinh Parvatsinh, Police witness Exh.16
P.W.7 Vijatbhai Rupchandbhai Patil, Exh.17 Police witness.
P.W.8 Vanjibhai Reshmabhai Chaudhari, Exh.19 Police witness.
P.W.9 Laxmiben Haribhau Kumbhare, Exh.28 The mother of the complainant and the grandmother of the deceased.
P.W.10 Ravindra Kashinath, Exh.29 Panch witness of the discovery Panchnama of the weapon of offence and the place of occurrence.
P.W.11 Dr.Mohammad Iliyas Shaikh, Exh.32 Medical Officer who performed the Postmortem of the dead body of the deceased.
P.W.12 Shakuntalaben Pramodbhai, Exh.34 A lady constable at Mahila Police Station.
P.W.13 Dilipkumar M. Brathmbhatt, Exh.41 Investigating Officer.
P.W.14 Vinay Harishbhai Shukla, Exh.50 2nd Investigating Officer.
7. The following pieces of documentary evidence were adduced by the prosecution.
7. After completion of the oral as well as the documentary evidence of the prosecution, the statement of the accused under Section 313 of the Criminal Procedure Code was recorded, in which the accused stated that the complaint was a false one and he was innocent.
8. At the conclusion of the trial, the learned Trial Judge convicted the accused for the offence under Section 302 of IPC and sentenced him as stated herein before.
9. Being dissatisfied, the accused-appellant has come up with the this Appeal.
10. Submissions on behalf of the accused-appellant:
i) Ms. Kruti M. Shah, learned Counsel appearing for the accused-appellant, vehemently submitted that the Trial Court committed a serious error in holding the accused guilty of the offence of murder punishable under Section 302 of the Indian Penal Code as none of the circumstances relied upon by the prosecution could be termed as incriminating circumstances pointing towards the guilt of the accused.
ii) Ms. Shah further submitted that the conviction of the accused is based on strong suspicion but such suspicion cannot be the basis of conviction, going by the standard of proof required in a criminal case.
iii) Ms. Shah also submitted that the theory of the prosecution of the deceased last seen together in company of the accused, could not have been relied upon by the Trial Court for the simple reason that none of the witnesses examined by the prosecution have deposed that they had actually seen the deceased last in the company of the accused on 5th June, 2005.
iv) Ms. Shah, the learned counsel appearing for the accused- appellant also submitted that the Trial Court committed an error in relying upon the evidence of the discovery of the weapon of the offence, viz. the knife. According to Ms.Shah, discovery evidence is a very weak piece of evidence, and in the present case, as per the Serological Test Report, no blood was found on the knife alleged to have been used by the accused in committing the crime.
v) Ms. Shah, also submitted that the prosecution could be said to have failed to adduce satisfactory evidence to prove beyond reasonable doubt that the dead body which was recovered from the agricultural field of the P.W.1 Sureshbhai Somabhai was one of the deceased. According to Ms. Shah the dead body, which was recovered from the field of the P.W.1, was in a highly decomposed state. Ms. Shah, relying on the photographs of the dead body produced on record, being Exh.51, submitted that even the entire face of the dead body was decomposed. According to Ms. Shah, under such circumstances, only on the basis of the identification of the clothes, it could not be said that the dead body was one of the deceased.
vi) Ms. Shah, therefore, urged that conviction of the accused could not have been based on such pieces of circumstantial evidence, and the accused deserves to be given the benefit of the rule of reasonable doubt.
11. Submissions made on behalf of the State:
Mr.K.P.Raval, the learned Public Prosecutor appearing for the State, vehemently submitted that the Trial Court has rightly convicted the accused for the offence of murder punishable under Section 302 of the Indian Penal Code, relying upon the pieces of circumstantial evidence emerging from the oral as well as the documentary evidence. According to Mr. Raval, the learned Additional Public Prosecutor, the following are the incriminating pieces of circumstantial evidence emerging from the evidence on record, oral as well as documentary.
i) The deceased was married with the accused. The marital relations of the accused and the deceased were quite strained. This is evident from the documentary evidence in the form of the application and the complaint lodged by the deceased at the Mahila Police Station, Surat against the accused and his family members for harassment.
ii) The deceased was driven out of her matrimonial home after the birth of the son born from the wedlock of the deceased and the accused.
iii) The deceased at the time of the incident was residing with her mother, the P.W.2, Radhikaben.
iv) On 2nd June, 2005, the accused had come at the house of the P.W.2 Radhikaben, i.e. at the house of the mother of the deceased, and had taken the deceased along with him to show the places where they could reside independently by taking a room on rent. However, on 2nd June, 2005, the accused and the deceased were unable to find any house, where they could start to reside separately.
v) On 5th June, 2005, the deceased left her mother’s house saying that she had been called by the accused at Sai Baba temple, and from the Sai Baba Temple, they both would be going in search of a house where they could reside separately. The deceased, saying so, left the house at around 12 O’clock in the afternoon on 5th June, 2005, and thereafter, never returned home.
vi) On 6th June, 2005, the mother of the deceased i.e. P.W.2 Radhikaben lodged a report at Limbayat Police Station, Surat that her daughter, the deceased, had gone missing from the afternoon hours of 5th June, 2005, and the whereabouts were not known.
vii) On 8th June, 2005, at around 10.30 in the morning, the P.W.1, Sureshbhai Somabhai spotted a dead body of a woman lying in his agricultural field in a highly decomposed state. On the dead body of the woman, there was a parrot coloured saree.
viii) On learning that a dead body of a woman had been recovered by Limbayat Police Station, and also upon learning about the parrot coloured saree which was on the dead body of the woman, the mother of the deceased and the grandmother of the deceased, together went to Limbayat Police Station to inquire about the same and at that point of time, the clothes which were collected by the police from the Doctor, who performed the Postmortem of the dead body were shown to the mother and the grandmother of the deceased. On the clothes being shown to the mother and the grandmother, the same were identified by the mother and the grandmother to be the clothes of the deceased.
ix) After identifying the clothes at Limbayat Police Station, and on being told by the Police Officials of Limbayat Police Station that the dead body, which was recovered on 8th June, 2005, had to be cremated as the body was in a highly decomposed state, the mother of the deceased lodged the First Information Report on 11th June, 2005 alleging that it was the accused i.e. the husband of the deceased, who might have committed the murder of the deceased.
x) On 11th June, 2005, the accused was arrested.
xi) On 12th June, 2005, the accused expressed his willingness to point out the place of occurrence, and also the weapon of the offence i.e. the knife, allegedly said to have been used in inflicting injuries on the deceased. Accordingly a Panchnama was drawn, being Exh.30, in the presence of the two panch witnesses. The accused, pointed out the place where the accused had taken the deceased, and the accused also pointed out the place, where he had thrown away the knife after inflicting injuries on the deceased. On the place being pointed out, the knife was discovered. The knife discovered was collected, and thereafter, was sent to the Forensic Science Laboratory for chemical analysis.
According to Mr. Raval, the above referred pieces of circumstantial evidences taken into consideration by the trial Court were sufficient to hold the accused guilty of the offence of murder, as the chain of evidence furnished by these circumstances is complete, leaving no reasonable ground for a conclusion consistent with the innocence of the accused. According to Mr. Raval, the circumstances put forward by the prosecution could be said to have been satisfactorily proved and all the circumstances referred to above could be said to be consistent only with the hypothesis of the guilt of the accused. Thus, according to Mr. Raval, the Trial Court committed no error in holding the accused guilty of the offence of a gruesome murder of his own wife, the deceased. Mr. Raval, therefore, urged to dismiss the appeal, there being no merit in the same.
12. Having heard the learned counsel for the respective parties, and having gone through the entire evidence on the record, oral as well as documentary, the only question that falls for our consideration in this appeal is, as to whether the Trial Court was justified in basing the conviction of the accused on the strength of the circumstances relied upon by the prosecution, and as referred to above.
13. The accused was, indisputably married with the deceased and from the wedlock, a son was born, named, Rajesh. It also appears, as reflected from the applications and the complaint lodged by the deceased with the Mahila Police Station, Surat that the marital relations of the accused and the deceased were quite strained. The oral evidence on record would also suggest that the deceased, after getting married with the accused, was residing at her matrimonial home in a joint family consisting of eight brothers of the accused, and the mother of the accused. After the birth of the son, the deceased started residing at the house of her mother. However, it appears from the evidence on record that the accused started visiting the house of the mother of the deceased. The accused showed his willingness to reside independently with the deceased, in a rented room, and for that purpose, the accused started showing few places to the deceased where they could start residing independently. The P.W.2, Radhikaben, the mother of the deceased has deposed that the accused had come at her house on 2nd June, 2005 and had taken the deceased along with him, for the purpose of searching a house. The P.W.2, has also deposed that this fact was stated by her daughter, the deceased only after the deceased returned home. However, the house which the accused and the deceased had seen on 2nd June, 2005 was not liked and, therefore, the accused and the deceased had decided to once again visit few places on 5th June, 2005, for the purpose of taking a room on a rent. It is the case of the prosecution that the deceased was told by the accused to come at Sai Baba Temple in the afternoon on 5th June, 2005. The deceased, accordingly, reached the Sai Baba temple in the afternoon hours on 5th June, 2005, where she met the accused, and thereafter, both the accused and the deceased proceeded in search of a room. It is during that period that the accused inflicted injuries on the neck of the deceased with a knife and committed the murder of the deceased.
The prosecution has relied upon the above referred piece of circumstance to establish that it was at the instance of the accused that the deceased left the house of her mother at around 12' O Clock in the afternoon and thereafter, did not return to her mother's house. According to the prosecution, the deceased was last seen together in the company of the accused on 5th June, 2005, and after three days, i.e. on 8th June, 2005, the dead body of the deceased was found lying in an agricultural field of the P.W-1, in a highly decomposed state.
We, therefore, propose to consider as to whether the theory of last seen together, as sought to be relied upon by the prosecution is established by cogent and reliable evidence or not. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved, must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however, grave may be, cannot be a substitute for proof, and the Courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.
The last seen theory, further more, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive, and the deceased is found dead, is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case, the Courts should look for some corroboration. We are unable to persuade ourselves in accepting the theory of last seen together, as sought to be heavily relied upon by the prosecution. The circumstance of last seen together in a given case would definitely be a very important incriminating circumstance. But for the purpose of this theory, there has to be very cogent and convincing evidence on record to establish that the deceased was actually seen in the company of the accused. In the present case, nobody has deposed that the deceased was actually seen in the company of the accused at Sai Baba Temple and from there both proceeded to a particular place in search of a house. Even if we believe that the accused had asked the deceased to come at Sai Baba temple on 5th June, 2005, and the deceased had actually left her mother’s house at 12 O’clock in the afternoon, would not necessarily lead to an inference that the deceased must have gone to the Sai Baba Temple where the accused had joined the deceased, and thereafter, both proceeded in search of the house. It could be possible that the deceased might have left the house on 5th June, 2005, saying that she would be going with the accused in search of a house, but, in fact, the deceased may not have gone along with the accused and may have accompanied with somebody else. In our opinion, the theory of last seen together by itself is not sufficient to point a finger towards the guilt of the accused. Apart from the above, there is one more reason as to why the circumstance of last seen together could not be termed as an incriminating circumstance against the accused, is the time gap between the deceased said to have been seen last in the company of the accused, and the recovery of the dead body of the deceased from the agricultural field after a period of 3 days i.e. on 8th June, 2005.
14. So far as the incriminating circumstance of discovery of the weapon of offence is concerned, in our opinion, the same is not satisfactory so as to inspire confidence in the mind of the Court. To prove the discovery Panchnama, being Exh.30, the prosecution examined the P.W.10, Ravindra Kashinath. The P.W.10, in his evidence, has deposed that in the year 2005, he was called at Limbayat Police Station to act as a Panch witness. When the P.W.10, reached Limbayat Police Station on being called by the Police official, the P.W.10 also found one another person at the Police Station, who was also called to act as a panch witness. The P.W.10 has deposed that the accused was present at the police station, and the accused agreed to show the place and, therefore, they all together went at the place where the accused, on his own free will and volition desired to show. Accordingly, the accused led both the panch witnesses and the Police party to an agricultural field situated near Deladvad Railway Crossing and from there, the accused took out one knife and handed over the same to the Police Officers. In the cross-examination, the P.W.10 has deposed that he was a rickshaw driver, and the second panch witness was also a rickshaw driver. The police had called them at the police station in the morning. It was the Police Constable, who came and informed the P.W.10, and the other panch witness that they were being called at the Police Station. On reaching the Police Station, the Police Inspector asked the P.W.10, and the other panch witness to put their signatures on four papers. Accordingly, on the say of the Police Inspector, the P.W.10 and the other panch witnesses put their signatures. The contents of the document were not read over by the Police Inspector. The P.W.10 has also deposed in his cross-examination that in the past also he had been called at the police station to act as panch witness. The P.W.10 has also deposed that when he was standing at a particular place, the police came and showed a knife. The P.W.10 has also deposed that the muddamal knife is of a type which could be easily available from an open market. No blood stains were noticed on the knife. The evidence of the P.W.10 would suggest that the Police Official merely asked both the panch witnesses to put their signatures on a prepared Panchnama, and it is also very clear that the accused had not handed over the knife in the presence of the P.W.10 and the other panch witness. In our opinion, such a Panchnama and that too a Panchnama of discovery of a weapon could not be relied upon, as the discovery evidence by itself is a weak piece of evidence, and if found to be one inspiring confidence, then such a piece of circumstance could be considered along with other pieces of incriminating circumstances, so as to complete the chain of circumstances.
15. We now come to the next circumstance of the identification of the dead body recovered from the field of the P.W.1, to be one of the deceased. The Postmortem report reveals that the dead body was in a highly decomposed state. The photographs produced on record, being Exh.51, would also suggest that the body was in a highly decomposed state. A bare glance at the photographs of the dead body would go to show that the entire face was decomposed. Now, the question is as to whether on mere identification of the clothes, could it be said with certainty that the dead body was of the deceased and none else. The case of the prosecution is that at the time of Postmortem of the dead body, the clothes which were on the body of the deceased were handed over by the Doctor to the Police Officials. The Postmortem of the dead body was performed on 8th June, 2005. On 11th June 2005, the mother of the deceased, along with her own mother, i.e. the grandmother of the deceased had gone to Limbayat Police Station, as they had learnt about the recovery of a dead body of a woman, and on reaching the Limbayat Police Station, the Police Official showed the clothes. The clothes were a green coloured saree, a petticoat, a blouse and a pair of slippers. On the clothes being shown by the police, the mother and the grandmother identified the clothes to be those of the deceased. The reason being that according to the P.W.2, Radhikaben, the mother of the deceased, on 5th June, 2005, when the deceased left the house at 12 O’clock in the afternoon, she had worn a green coloured saree. This was the only reason for the P.W.2, the mother of the deceased to come to the conclusion that the Saree was the same saree which was worn by the deceased. The P.W.2, Radhikaben, the mother of the deceased had also admitted that such a saree was available in the market, and there was no special mark of identification in the saree or the blouse or the petticoat. There is nothing in the evidence of the P.W.2, the mother of the deceased, that the saree, petticoat or blouse were purchased by the P.W.2, the mother of the deceased, for the deceased. Hence, there appears substance in the submission of the learned counsel for the accused- appellant that there was no cogent evidence worth the name to come to the conclusion that the dead body, which was recovered from the agricultural field of the P.W.1, on 8th June, 2005, was the one of the deceased. So far as the pair of slippers is concerned, the same were also identified by the mother of the deceased to be of the deceased. However, the P.W.9, Laxmiben i.e. the grandmother of the deceased, had deposed that the deceased never used to wear slippers. Under such circumstances, in our view, it is very difficult to come to the conclusion that the dead body, which was recovered on 8th June, 2005, was the one of the deceased, solely on the clothes being identified by the mother of the deceased. We are not able to understand as to why the photographs, being Exh.51, were not shown to the mother of the deceased as well as to the grandmother of the deceased. Even on the basis of a DNA test, the identification of the dead body could have been established, but unfortunately no DNA test was undertaken by the investigating agency.
16. We have also noticed one peculiar piece of evidence. The prosecution examined the uncle of the deceased, i.e. the P.W.4, Tarkeshwar Kumbhare. The P.W.4, in his evidence, has deposed that from the wedlock of the deceased and the accused, a son, named Rajesh, was born and at the time of the incident, the deceased was pregnant by two months. So far as the postmortem report is concerned, as the body was in a highly decomposed state, the postmortem could not reveal about any such pregnancy as the entire uterus was destroyed by the maggots. The question is, how the P.W.4, being the uncle of the deceased, came to know that the deceased was carrying a pregnancy of two months. The P.W.4 could have come to know about the pregnancy only through his own sister i.e. the P.W.2, the mother of the deceased. What is bothering us is the fact that the deceased was residing at her mother’s house, and the accused had started visiting the house of the mother of the deceased just about a month before the date of the incident. If there were no relations between the accused and the deceased, then the fact of the deceased being pregnant assumes significance. It could be possible that the deceased might have been in contact with some other person. Apart from this, we have also noticed that the P.W.2, the mother of the deceased in her evidence has deposed that she learnt at a later stage that her daughter, the deceased had been murdered by few goons.
17. Ordinarily, if a person goes missing and a report of such a missing person is lodged at the Police Station, the Police officials would first enquire with the person lodging the report as regards the physical characteristics of the missing person. Secondly, the Police officials would also enquire about the clothes worn by such missing person. In the present case, we have noticed that the missing report of the deceased lodged by the P.W.2, the mother of the deceased, had not come on record. As this missing report had not come on record, we have not been able to know the contents of such a missing report. If the missing report would have come on record, then perhaps, it could have been confirmed as to whether the P.W.2, the mother of the deceased, had given any description of the deceased, or anything regarding the clothes worn by the deceased on 5th June, 2005. Such report could have thrown some light even so far as the say of the P.W.2, the mother of the deceased, that the deceased had left the house on 5th June, 2005 in the afternoon hours as she had been called by the accused at Sai Baba Temple, from where they were to proceed in search of a house. We fail to understand as to why no enquiry was made at the house of the accused by any of the family members of the P.W.2. All that we could find from the evidence is that the brother of the deceased i.e. the P.W.3, Shankarbhai Ganpati, had gone to the house of the accused, but the P.W.3, Sharkarbhai Ganpati has not made it clear as to with whom he enquired as regards the whereabouts of the deceased. All that has come on record is that the deceased was not found at the house of the accused.
18. We are of the opinion that once the circumstance of last seen together is taken out of consideration, then under such circumstances, a very vital link gets snapped from the chain of circumstances, and thereafter, mere discovery of the weapon at the instance of the accused, even if believed, would not be sufficient to base conviction for a serious offence like murder punishable under Section 302 of the Indian Penal Code. So far as the aspect of motive is concerned, the same is a double edged weapon. In the absence of any other reliable piece of evidence connecting the accused with the crime, mere motive to commit the crime by itself would not be sufficient to connect the accused with the crime, as, such a conviction could then be said to be based on a strong suspicion. A strong suspicion, no doubt, exists against the accused-appellant, but such a suspicion could not have been the basis of conviction, going by the standard of proof required in a criminal case. The distance between "may be true" and "must be true" shall be fully covered by reliable evidence adduced by the prosecution. But, that has not been done in the instant case. The view taken by the trial Court that the prosecution could establish the complete chain of circumstances incriminating the accused, could not be termed to be a reasonable view, and in our opinion, the trial Court has overlooked all the above referred aspects. Having regard to the state of available evidence, the accused is entitled to the benefit of the rule of reasonable doubt.
19. On consideration of the entire materials on record, we allow the appeal and set aside the order of conviction and consequent sentence dated 30th March, 2007, passed by the learned Additional Sessions Judge, 6th Fast Track Court, Surat, in Sessions Case No. 186 of 2005. The accused-appellant is acquitted of the charges levelled against him. The appellant is ordered to be set at liberty forthwith, if not required in any other case. Fine, if paid, is ordered to be refunded to the appellant.
(Bhaskar Bhattacharya, C.J.) (J.B. Pardiwala, J.) */Mohandas After the order was pronounced today, it has been brought to our notice by Ms. Shah, the learned counsel appearing for the appellant, that pending the appeal, the appellant was ordered to be released on bail. Such being the position, the bail bond stands cancelled.
(Bhaskar Bhattacharya, C.J.) (J.B. Pardiwala, J.) */Mohandas