(Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. The appellants were the accused persons before the Sessions Court, Surat, who came to be convicted by judgment and order dated 15th December, 2005 in Sessions Cases No.105 of 2004 and 12 of 2005. They came to be convicted for offences punishable under Section 302 read with Sections 143, 147, 148, 149 and 120B of the Indian Penal Code and were sentenced to undergo imprisonment for life with a fine of Rs.5,000/- each, in default, to undergo rigorous imprisonment for five months. They were also convicted for offence punishable under Section 135 of the Bombay Police Act and were sentenced to undergo imprisonment for a period of three months. The sentences were ordered to run concurrently and benefit of set off was also given.
2. As per the prosecution case, the incident occurred on 05.05.2004 at about 10-00 am on Lambe Hanuman Road in Varachha area of City of Surat near Ambika Jwellers Shop located near Tirupati Society. It is further the case of the prosecution that victim Rakesh @ Rako Bado was proceeding on his TVS Scooty from that place. At that point of time, appellant nos.1, 5, 6 ,7 and 8 came on two motorcycles along with two other persons on 3rd motorcycle for the purpose of fulfillment of their unlawful object of an unlawful assembly constituted by them. The unlawful object was to cause death of Rakesh on account of a dispute with him in relation to an earlier murder of Sura Bharwad, within the jurisdiction of Kapodara Police Station, which was committed about four years prior to the date of present incident. All the persons were armed with deadly weapons. When the victim Rakesh reached near the place of incident, proceeding on his Scooty, the assailants came from behind on motorcycles and accused no.1 Dinesh Shamji inflicted a sword blow on Rakesh, as a result of which, Rakesh fell down from the Scooty. Since it was found that the victim may get up and run away, accused no.7 inflicted another blow on the victim. Victim Rakesh then started running and entered the shop of Ambika Jwellers to take a shelter. However, all the accused persons chased him and rushed into the shop. It is further the case of the prosecution that inside the shop, all the accused persons attacked the victim indiscriminately and caused multiple injuries all over the body with deadly weapons like sword, daggers, knives, etc. As a result of the injuries, the victim fell down on the ground. On the other hand, police was informed by somebody and the police came to the spot and found the dead body of victim Rakesh lying in a puddle of blood in the shop of Ambika Jwellers. FIR was given by Vipul, brother of the deceased, on the basis of which, offence was registered and investigated. The police having found sufficient material against the accused persons, filed charge-sheet in the Court of Judicial Magistrate, First Class, Surat, who, in turn, committed the case to the Court of Sessions. There were two charge- sheets filed on account of late arrest of accused and therefore, two sessions cases were registered. However, both the sessions cases were clubbed together and tried together. Charge was framed against the appellants accused at Exh.27, to which, they pleaded not guilty and came to be tried.
2.1 The prosecution examined eye-witnesses to the incident and led other documentary and circumstantial evidence. The trial Court found that the prosecution was successful in establishing the charges against the accused persons and therefore, convicted all of them, as stated hereinabove. Hence, this appeal.
3. Learned Senior Advocate Mr.Shah appearing for the appellants submitted that the trial Court has erred in appreciating the evidence of prosecution witnesses. The evidence in form of deposition of eye-witnesses is unnatural and improbable.
3.1 Mr. Shah submitted that the motive attributed for the incident is stale and unnatural for the appellants accused to carry out such an assault. He submitted that it is alleged that the appellant nos.1, 5, 7 and 8 assaulted deceased Rakesh and had intimidated him prior to the incident. But, that claim of the prosecution seems to be doubtful, as no complaint/application is made in that regard prior to the incident. It is submitted that if the evidence of eye-witnesses is compared to the other material on record, they do not corroborate each other, but, on the contrary, they contradict each other. Mr. Shah submitted that as per prosecution case, the deceased was firstly assaulted with a sword on his parietal region, as a result of which, he fell down on the road. Thereafter, he was assaulted by the accused persons indiscriminately, whereafter, he got up from the ground and rushed to the Jweller's shop for taking shelter. He was chased into the Jweller's shop and again, indiscriminately attacked. Mr. Shah submitted that the deceased had a large number of bleeding injuries because as per the prosecution case, the weapons used were swords and knives. The dead body of the victim was lying in a puddle of blood which would mean that the deceased had bled heavily from the wounds. Mr. Shah submitted that despite this, strangely, no blood was found on the shirt of the victim of his group.
3.2 Mr. Shah submitted that as recorded in the recovery panchnama, the shirt of the victim had several cuts, both, at the front and the back and despite that, no blood of the group of the deceased was found on the shirt of the victim, though other clothes worn by the deceased were stained with his blood.
4. Mr. Shah submitted that it is the case of the prosecution that the deceased was attacked by the accused persons indiscriminately on the road, still no blood is found on the road. If we look at the panchnama describing the picture inside the Jweller's shop, the dead body was lying in a puddle of blood, meaning thereby that the deceased bled heavily and if the dead body was lying in a puddle of blood, Mr. Shah submitted that the shirt ought to have been stained with blood of the group of the victim himself. On the contrary, there was a blood mark of another group which was of accused no.1.
5. Mr. Shah submitted that injury on person of accused no.1 was initially not shown to have been caused by the deceased. It is only by way of an after-thought that the witness comes and says that said injury was suffered in a counter attack by the deceased with a knife which he drew from his socks. Mr. Shah submitted that this is purely an after- thought, because as per prosecution case, the accused had suffered the injuries in a vehicular accident as per history recorded by the doctor and the prosecution has not tried to give any explanation for this inconsistency in the evidence.
5.1 Mr. Shah submitted that absence of blood either on the ground outside the shop or absence of blood on the cloth of the victim would go to the root of the prosecution case for the reason that it touches the genesis of the incident. Though the version of the incident given by the eye-witnesses appears to be consistent, fact remains that the possibility of incident having not occurred in the manner in which they have described cannot be ruled out. Mr. Shah submitted that the resultant effect is that either the witnesses were not the eye- witnesses at all or that the witnesses were not speaking the truth as to how the incident occurred. In this set of circumstances, Mr. Shah submitted that the benefit of doubt ought to have been given to the accused appellants. Mr. Shah submitted that there is no witness who deposes about what occurred in the shop. He also submitted that since the witnesses are not able to give names of some of the accused, the identification of the assailants before recording the deposition, is important where they have to identify some of the assailants.
6. Learned APP, on the other hand, assisted by Ms.
Dilbar Contractor appearing with prosecution, submitted that the version of the eye-witnesses is consistent. The details about the occurrence are consistently given by the eye- witnesses and they have no reason to falsely implicate the accused. In fact, two of the accused have suffered injuries themselves in the incident, which is referred to by the witnesses in their evidence which would lend credence to their version and which would show involvement of at least two of the accused persons in the incident. Learned APP submitted that the defence has tried to raise doubt about the involvement of two unknown persons in the incident, but, if the evidence of the witnesses is seen as a whole, that doubt would get cleared. Learned APP submitted that the incident had occurred inside the shop and therefore, the persons, who were out of the shop, could not have seen the incident, but, they could say that the accused persons entered into the shop chasing the deceased with knives in their hands. Soon thereafter, the dead body of the victim is found from the shop in a slaughtered condition where blood-stains are found even on walls. Although there may not be any direct evidence, but, nothing is left to imagination either. Learned APP submitted that when the assailants had formed an unlawful assembly, their individual acts are not required to be proved by the prosecution.
6.1 Learned APP further submitted that the eye- witnesses have appropriately identified the accused persons as the assailants before the Court. They have also identified the weapons. Lastly, it was submitted that here is a case where the prosecution has been able to bring the case against the accused not only with the help of eye-witnesses but also with the help of circumstantial evidence. The appeal, therefore, may be dismissed.
7. We have examined the record and proceedings as well as evidence in context of rival submission. The first question that needs to address is whether it is a case of homicidal death or not.
8. The medical evidence is in form of deposition of Dr.
Dhavalbhai Jivanbhai Patel, Exh.42, postmortem report, Exh.44 and certificate as to cause of death, Exh.45. If these documents are seen, it leaves no doubt about the fact and it is not disputed by learned advocate for the appellants that the deceased died a homicidal death. He had as many as 17 external injuries. Out of 17 injuries, three were chopped wounds, seven were incised wounds with several multiple internal injuries having been described as only one injury on upper part of the left side of back of chest and there were four stab wounds with one of the stab wounds having been described as multiple stab wound over left back and abdomen.
8.1 Correspondingly, there were injuries on lungs, pleura, heart and other internal organs.
8.2 According to the doctor, the injuries were ante- mortem and were sufficient to cause the death.
8.3 The nature of injuries and the number of injuries satisfies us that the injuries could not have been caused without an intention to cause death and therefore, we conclude that the death of the deceased Rakesh @Rako Bado was homicidal.
9. Learned advocate Ms. Contractor has relied on decision of the Apex Court in case of Rajendra Pralhadrao Wasnik versus State of Maharashtra reported in (2012) 4 SCC 37 to support the prosecution case and argued that the evidence has to be read as a whole and if there is some discrepancy in the FSL report, that by itself will not help the defence.
9.1 We have gone through the judgment and in our view, there cannot be any dispute on the principle canvassed by learned advocate. But, in the instant case, attempt is made to connect the accused with the offence only on the basis of FSL report, which again, is found to be not reliable. Besides the fact that even the eye-witness's version is also not reliable and trustworthy. The depositions of eye-witnesses stand discarded on their own merits. Similarly, the FSL report is falsified by the other evidence led by the defence. It negatives the possibility of the incident having occurred in the manner suggested by the persons claiming to be eye-witnesses. The FSL report in respect of shirt of the victim rules out the possibility of the incident having occurred in the manner suggested by the prosecution and thus, helps the defence. The corroboration that such evidence leads, is to the theory of defence rather than the prosecution. In our view, therefore, this judgment cannot help the prosecution. We may quote part of the paragraph 27 of the said judgment.
“27. It is a settled principle of law that the evidence has to be read in its entirety. If, upon reading the evidence as such, there are serious loopholes or tacking in the case of the prosecution and they do not prove that the accused is guilty, then the Court would be justified in giving the benefit of doubt to the accused on the strength of a weak FSL report. “
10. Now comes the question as to who is responsible for the homicidal death of Rakesh. In this context, the prosecution has examined Vipul Balubhai Thakkar - Exh.52, Mukehbhai Rameshbhai Vitthalani - Exh.58, Arjanbhai Nathabhai - Exh.59, Jiteshbhai Vitthalbhai - Exh.60, Balubhai Durlabhai - Exh.62 and Hiren Kanubhai Waghela - Exh.63 as eye-witnesses. Out of these witnesses, witness Arjanbhai Nathabhai - Exh.59 and Jitesh Vitthalbhai Exh.60, have not supported the prosecution case and have been treated as hostile to the prosecution with the permission of the trial Court. Jitesh Vitthalbhai happens to be the owner of Ambika Jwellers, in whose shop, the deceased was done to death and where, the dead body was found lying in a puddle of blood. As per prosecution case, Jiteshbhai was present in the shop when the assailants attacked the victim and when the deceased took shelter in the shop. Differently put, Jitesh is projected as an eye-witness to the occurrence which took place inside the shop, ultimately resulting into the death of Rakesh. However, he ignores the fact of having seen the incident and is, therefore, treated as hostile to the prosecution case.
10.1 The resultant effect is that the prosecution has not been able to produce any other eye-witnesses to the occurrence inside the shop.
11. Vipul Balubhai Thakkar is the first informant, who is examined at Exh.52. His FIR is at Exh.53. This witness claims to be the witness to the first part of the incident which occurred on the main road when the deceased was allegedly attacked by the assailants while he was proceeding on his scooty. This witness is the brother of victim Rakesh. According to him, he along with his brother and father went to the shop at about 9-00 am on 05.05.2004 and he was cleaning the shop. Around that time, accused Nos.1, 5, 6, 7 and 8 came there on motorcycles. Dinesh Shamji and Lallu Mohan were armed with swords. At that time, his brother was about to go out on his scooty. The witness claimed that he informed his brother that Lallu Mohan and Dinesh Shamji are after him and therefore, he should change his route while going. His brother, left on the scooty. However, he felt that the accused persons may murder his brother and therefore, he closed the shop and he, his father and his friend Arjan followed Rakesh on a motorcycle. When they went towards Tirupati Society, they noticed that while overtaking, a sword blow was given to his brother Rakesh. As a result of which, Rakesh fell down, Lallu Mohan got down from his motorcycle with sword and gave a blow to Rakesh on his back. Rakesh, therefore, retaliated with knife and suffered injuries on his right hand wrist and thereafter, Rakesh rushed into Ambika Jwellers to save himself. They, therefore, followed him and found that the accused persons had given multiple blows indiscriminately on the deceased. Finally, one person gave a knife blow and others attacked him and thereafter, they left the shop along with their blood-stained weapons. He found his brother lying there dead in a profusely bleeding condition. The witness has been cross-examined and he states that he had seen two swords and two knives being used in the occurrence. He had not seen any other accused persons chasing the deceased. The witness has been cross-examined and a major contradiction comes from what he has stated in his FIR. In the FIR, he has stated that when his brother, after first attack, fell on the public road, the accused persons surrounded and attacked him indiscriminately. Whereas, in cross-examination, he denies this aspect. This improvement in his version, although it may appear to be innocuous, in our view and as is rightly argued by learned advocate Mr. Shah, is made only with a view to suit to the requirement of the prosecution case. This we say because if what is stated by him in the FIR, is stated by him in his deposition also, then it would run contrary to other evidence in form of panchnama of place of incident where no blood is found on the road. If the deceased was surrounded and attacked indiscriminately with deadly weapons like sword and knife and if he had suffered multiple stab wounds and inside injuries bleeding and if he was bleeding profusely as is found from other pieces of evidence, there ought to have been some blood found on the road at the place where the first part of the attack is alleged to have been made. But, because there was no blood found on the spot, despite all these factors, this witness tried to cover up that part by saying that the deceased was surrounded and was not attacked indiscriminately. This type of improvement by the witness would reflect seriously on the whole of the prosecution case. There is one more aspect which makes deposition of witness Vipul doubtful. According to him, the deceased, on being attacked, had drawn a knife from his socks and attacked two of the assailants. One of them was injured on his palm and the other on his wrist. This aspect is sought to be proved by prosecution by leading evidence in form of deposition of Dr. Abdul Kadir Gulam Husain Shaikh, Exh.102, who had issued medical certificate – Exh.103. He had examined accused Dinesh Shamji and Bhavesh Desai and had found injuries on their palm and wrist. Again, it may appear that the prosecution proves the injuries on the person of the accused nos.1 and 2 allegedly caused during the occurrence by the deceased while protecting himself . But, if we examine the medical certificate, Exh.103 and evidence of Dr. Abdul Kadi Gulam Husain Shaikh, Exh.102, we find that the history given to the doctor by the patients was that of having suffered injury in an accident to their motorcycle. Therefore, the story of this witness about the deceased having used a knife and having caused injuries to accused Dinesh Shamji and Bhavesh Desai is rendered doubtful by the prosecution's own evidence.
11.1 Our doubt is fortified by the fact that the knife allegedly used by the deceased had not been recovered during the course of investigation at all. It is not explained by the prosecution as to where the knife could have gone when the deceased died on the spot. On the contrary, there is evidence of witness, who admits that the knife dropped from the hand of the deceased victim and therefore, he ran into the shop seeking protection.
12. We may at this stage add that the prosecution seeks to establish this fact to corroborate the say of the witness by relying on evidence of the investigating officer, who has stated that the accused themselves had lodged non-cognizable (NC) complaint in respect of injuries suffered by them in the occurrence. However, the said NC is not made part of the record of the trial Court and we do not have any material to know what were the contents of that NC. Even otherwise, the contents of NC cannot be gone into by this Court. The Court will have ultimately to see if this one circumstance of the accused having lodged the NC would outweigh the defects in the prosecution case. Incidentally, we may record that what happened to the NC is not deposed to by the investigating officer.
12.1 Thus, the evidence of Vipual Balubhai Thakkar does not inspire confidence as it suffers from deliberate improvement made in the evidence to suit to the requirement of the prosecution case.
13. The next important witness is Mukeshbhai Rameshbhai Vitthalani, Exh.58, who happens to be the brother of the deceased and complainant. He says that he was passing by the place of incident, ahead of him was a Hero-Honda motorcycle and still ahead of the motorcycle, was a scooty. Three persons were riding the Hero-Honda motorcycle. The motorcyclists overtook the scooty and at that point of time, one of the persons sitting on the pillion seat of the motorcycle, inflicted a knife blow on the person driving the scooty. The said blow was given on the left parietal region of the deceased and the deceased fell on the ground. The occupants of the Hero-Honda motorcycle immediately got down and inflicted a sword blow on the back of the victim. One of them was accused no.1. The witness then identifies accused no.5 and accused no.7 as the assailants. Three and four other persons came there running towards the scooty rider – victim and he, in turn, took out a knife and caused injury on wrist of one of the assailants. The witness has been cross-examined, where he admits that, in his statement before the police, he has not stated anything about witness Vipul and Balubhai being present at the place and time of occurrence. He denies to have stated in his statement before the police the fact about a motorcycle going ahead of him and a scooty going ahead of the motorcycle occupied by three persons. While overtaking, one of the persons sitting on the pillion seat, attacked the scooty rider with a sword on the head. However, the defence during the cross-examination of the investigation officer has been able to show that such facts were not stated by him in his statement before the police. This witness has stated that if it is not found in the police statement, he has no explanation to give. This witness also denies to have not stated in his statement before the police that the occupants of Hero-Honda motorcycle came with a sword and inflicted a sword blow on the back of the victim. This aspect has also been proved to have been not stated by the witness in his statement before the police. He admits that in his statement before the police, the names of Dinesh Shamji, Lallu Mohan, Lulsi Lalji, Bhavesh Lalji, Bhavesh Desai and other two persons, were given by him on the basis of knowledge derived from somebody. He also admits that the police never took him for any T.I. Parade, as against his admission that he did not know any of the assailants prior to the occurrence. This witness also denies to have not stated about the victim having inflicted the knife blow on the assailants in his statement before the police, which again is proved through investigating officer's deposition.
13.1 The above factors would go to show that he is a witness who is ready to make improvement in his version while deposing before the Court to suit to the requirement of the prosecution case. He gives names of the accused as assailants on the basis of somebody giving those names to him and the name of supplier of that information is not revealed, either before police or before the Court. This witness does not speak of presence of Vipul or Balubhai at the place and time of incident and those two witnesses in their depositions do not speak about the presence of this witness. He is not named in the FIR as well. In this set of circumstances, it becomes very difficult for us to accept his version as a truthful description of what occurred in his presence as claimed by him.
14. The next witness is Balubhai Durlabhai, father of the victim, who has been examined at Exh.62. He also claims to be a witness to the incident, but, as stated above, his presence is not deposed to or noticed by witness Mukeshbhai Rameshbhai Vitthalani, his own son-in-law and in his deposition, he has deduced that he did not notice his son-in- law Mukeshbhai. The third and most important aspect is that this witness did not know the accused persons before the occurrence and he had given the names of the accused persons as assailants in his statement before the police on the basis of information given by Vipul, the first informant.
14.1 It is worth to note that in the T.I. parade conducted by Bahadurbhai Nathubhai Patel, Exh.68 and proceeding Exh.71, this witness identifies only accused no.4, as can be seen from Exh.71. Therefore, identification of rest of the accused by this witness would be rendered susceptible to doubt and identification of accused no.4 has to be treated as a shot in the dark hitting the target. Not much reliance can be placed on evidence of this witness.
15. The last witness is Hiren Kanubhai Waghela, Exh.63, who claims to be an eye-witness. This witness also deposes on the same line as Mukeshbhai Rameshbhai and Balubhai. He deposes about the deceased going on scooty, being overtaken by three motorcyclists, one of them attacking the deceased with a sword and then the deceased drawing a knife and attacking the assailants and thereafter, the deceased running into the Ambika Jwellers shop. According to this witness, again in the shop, the assailants attacked the victim indiscriminately and caused his death, where, he was found lying in a profusely bleeding condition.
15.1 During his cross-examination, it is found that all these aspects were not stated by him in his statement before the police. He, however, pleads ignorance about the fact whether he had so stated in his statement before the police or not, but, during cross-examination of the investigating officer, the defence has been able to prove these contradictions. The evidence of this witness is, therefore, in no way, more reliable than that of others as deposed hereinabove.
16. The evidence of Arjan Natha, Exh.59, if seen, would indicate that he does not support the prosecution case. In his deposition, he states that he does not know PW2 – Vipul Balubhai Thakkar nor Rakesh – victiim. He has been treated hostile and his evidence is, therefore, of no virtue, so far as the prosecution is concerned. This witness has been projected as an eye-witness by the prosecution. According to prosecution case, as put during cross-examination to the learned APP, he was in company of Vipul Balubhai Thakkar and his father – Balubhai Durlabhbhai Thakkar on the motorcycle. As per prosecution case, they were travelling on motorcycle No.GJ-1-BD-6638. During the cross-examination, it is found that the said motorcycle was not owned by this witness and he never was in possession thereof. The entire prosecution case, therefore, that Vipul and his father Balubhai travelled on motorcycle NoGJ-1-BD-6638 and saw the incident gets negatived.
17. This will now take us to the circumstantial evidence; first being injuries on the person of the accused. There, without entering into repetition, we may only say that the injuries on the person of the accused sought to be proved by the prosecution reel under the shadow of doubt, when the prosecution witness himself says that the history given by him was that of accidental injuries. We have no material to show except the say of the investigating officer that the accused themselves had lodged NC in respect of this very incident. Therefore, that circumstance does not appeal to us much and again, it is only one of the circumstances.
17.1 The second circumstance that is required to be taken into consideration, is the FSL report. The FSL report is a report made by an independent agency and there is no reason ordinarily to doubt its truthfulness. In the instant case, the serologist report would indicate that the shirt of the deceased had blood marks and that blood marks were of blood group 'A', which is of one of the accused persons. The blood group of deceased is 'O'. Differently put, there was no blood on the shirt of the deceased of his own group. This becomes very relevant and significant for the reason that the shirt of the deceased had multiple cuts on it to correspond with the injuries found on the dead body. The injuries on the dead body were severe and multiple in number. The deceased had profuse bleeding. His dead body was found to be lying in a puddle of blood in the shop. It is nobody's case that the dead body was found in a sitting condition. If the dead body was lying in the puddle of blood of size of 4 feet x 5 feet and the deceased had bled profusely, his shirt ought to have been stained, if not soaked with his blood. Fact, however, remains that there was no blood of the deceased found on the shirt which he was wearing. It also emerges from the inquest panchnama and panchnama of seizure of clothes that the deceased was wearing the shirt, till it was recovered from his dead body. In such circumstances, the only possibility that we visualise is that the shirt which was seized and was produced before the Court, as a part of muddamal, may not have been the shirt that the deceased may have been wearing at the time of incident. Though not far too remote, the possibility is that the incident may not have occurred in the manner, as described by the witnesses. In either case, the fact that blood of the accused was found on the shirt of the deceased becomes insignificant for the reason that the shirt may have been different or the witnesses may not be describing the occurrence correctly. The benefit, in any eventuality, has to go to accused.
17.2 The third circumstance is absence of blood at the place of incident. As per the prosecution case, the deceased was hit with a sword on his head firstly, then, he fell down and he was attacked with a sword and a blow was given on his back. Uptill this point, there is no dispute, so far as prosecution version is concerned. Thereafter, the witness changed their version from their earlier version by stating that it had not happened that the assailants had surrounded the deceased and attacked him indiscriminately with sword and knives. We have already discussed this aspect in earlier part of the judgment, but, still, for maintaining continuity of reasonings, we may reiterate that this was done by the witnesses only with a view to suit the requirement of the prosecution case and explain the absence of blood. The injuries on the person of the deceased were much in number and there ought to have been profuse bleeding. In such eventuality, there ought to have been found some blood at the spot where he fell down and was attacked. Assuming that he was not surrounded and attacked indiscriminately at the place of occurrence on the road, still he had one head injury and one back injury caused with a sword indisputably, as per the prosecution case. In such eventuality, there ought to have been some blood on the ground which we do not find. This would mean that the genesis of the occurrence is not correctly brought on record by the prosecution. Either the witnesses had not seen the incident and they are claiming to be witnesses just to help the prosecution or they have seen the incident and they are deposing differently to help the prosecution. In either eventualities, their evidence cannot be relied on and when the genesis of the incident is not properly brought on record or becomes doubtful, the benefit goes to the defence.
18. As per the prosecution case, after the occurrence on the road, the deceased ran into the jweller's shop to take shelter where he was chased by all the assailants, and was indiscriminately attacked and done to death. The prosecution has not been able to lead any evidence on the question as to what happened inside the shop. This has happened because the owner of the shop Jitesh, Exh.60, has turned hostile to the prosecution and has not supported the prosecution case at all. He pleads total ignorance. It is true that if the prosecution is able to prove that a particular assailant or assailants entered the shop chasing the deceased and the deceased was found dead from the shop, probable absence of direct evidence can be ignored, because nothing is left than to imagination. A legitimate inference can be drawn that the persons, who went in the shop, were the assailants and had caused death. But, in the instant case, involvement of the accused in the incident outside the shop where incident is said to have started becomes doubtful. The fact that deceased was chased in to the shop by accused, wherefrom he was found dead, is sought to be proved through witnesses, whose presence out side the shop where first part of the incident occurred, is doubtful. The genesis is doubtful and therefore, it is a matter of doubt;
whether it was accused persons who chased deceased into the shop and caused death of the victim. Absence of evidence, therefore, has to be blamed on prosecution's failure in linking the accused with the offence.
19. We may also add that the clothes of the accused were recovered/discovered by investigating agency immediately after the incident. In respect of accused nos.1 to 6 and 8, the blood group is found to be not identifiable in the serological test and therefore, the blood on clothes of the accused cannot carry the prosecution case any further.
19.1 We may also add that the clothes of accused no.7 are found to carry blood group 'O', which is of the deceased as per FLS report, but, the discovery of the clothes of this accused was made after about six months and that too from his own house under his mattresses on the cot. This discovery is brought on record through panchnama, Exh.80, where it is recorded that there were no apparent signs/marks of the blood on the clothes. The clothes are white pant and white shirt. It is also to be noted that this discovery is not properly proved, as the panch witnesses have not supported the prosecution case. This again reflects seriously on the investigation, where, the articles which are recovered immediately after the incident are found to be stained with blood, which is not identifiable, and articles which are discovered after six months are found to carry blood-stains and that too identifiable ! In our view, the blood-stained clothes of the accused, therefore, cannot be a circumstance, which can be used against them.
20. The foregoing discussion would lead us to conclude that the prosecution has not led reliable evidence as to the genesis of the incident. The evidence of eye-witnesses is not trustworthy and does not inspire any confidence. The circumstantial evidence also does not connect the accused with the offence. On the contrary, circumstantial evidence reflects badly on the nature of investigation made. All these factors are not considered by the trial Court while recording conviction. The conviction is recorded on the basis of evidence which we have disputed as unreliable and cannot be permitted to stand. In our view, therefore, the appeal merits acceptance.
21. Consistency in evidence of eye witnesses, if found to be improbable by circumstantial evidence, will render such evidence unreliable. Untruth, even if told repeatedly, cannot take place of truth because of its consistency and repetitiveness. Multiplicity of witnesses talking the same thing against and again cannot falsify the contemporaneous facts and circumstances of the incident.
22. The appeal is, therefore, allowed. The judgment and order of conviction and sentence rendered by the learned Presiding Officer, 10th Fast Track Court, Surat on 15/12/2005 in Sessions Cases No.105 of 2004 and No.12 of 2005 for the offence punishable under Section 302 read with Sections 143, 147, 148, 149 and 120B of the Indian Penal Code and under Section 135 of the Bombay Police Act is hereby set aside. All the Appellants are acquitted of the charges levelled against them. They shall be set at liberty forthwith, if not required in any other case. Fine, if paid, shall be refunded to them.
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[A.L. Dave, J.] Sd/-
[A.J. Desai, J.] #MH Dave