IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 808 of 2007 For Approval and Signature:
HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA AND HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== ===============
========================================== =============== KASHINATH @ KASHIYA SON OF NARHARI BAHERA & 3 ORS.
Versus STATE OF GUJARAT ========================================== =============== Appearance :
MR BC DAVE for Appellants.
MR KP RAWAL, ADDL. PUBLIC PROSECUTOR for Respondent.
========================================== =============== Date : 13/08/2012
CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA)
1. This appeal is at the instance of four convicted persons and is directed against an order of conviction and consequent sentence dated 13th April 2007 passed by the learned Sessions Judge, 6th Fast Track Court, Surat, in Sessions Case No. 273 of 2005. By the said order, the learned Sessions Judge found all the four accused persons guilty and sentenced them for life imprisonment for an offence punishable under section 302 of the Indian Penal Code and further imposed a fine of Rs.1000/- each on condition that in default of payment of fine, they would undergo simple imprisonment for one year.
1.2 The accused persons were also convicted for the offence punishable under section 201 of the Indian Penal Code and were sentenced to undergo 7 years' rigorous imprisonment and to pay a fine of Rs.500/- each; in default of payment of fine, they were ordered to suffer further simple imprisonment for one month.
1.3 The accused persons were also convicted for the offences punishable under sections 188 and 34 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for 6 months and to pay a fine of Rs.500/- each; in default of payment of fine, they were ordered to suffer further simple imprisonment for one month.
1.4 The learned Sessions Judge further directed that the sentences would run concurrently and the accused should also be given the benefit of set off for the period they had undergone the imprisonment as under-trial prisoners.
2. The English translation of the charges framed against the appellant, being Exh.4, is quoted below:
“You the accused No.1 and 2 along with the deceased Raju @ Idukhan Pathan on 18-08-2005 at night stole the country liquor of the witness viz. Subhasbhai @ Subba and hid that liquor on the terrace of the house of the deceased, and on allurement of Rs.300/- by witness Subhasbhai @ Subba, the deceased disclosed to him about the said liquor. Keeping grudge on that, you, the accused No.1 to 3 called the deceased on 19-08-2005 at 11 O'clock at the room of the accused No.1, Kashinath, and served him liquor and you, the accused No.1 Kashinath pushed the deceased and on his falling down, you the accused No.3 Raja @ Rajiya held the legs of the deceased, the accused No.2 Bhimabhai tied the hands of the deceased with cotton thread and the accused No.1 pressed the throat, the accused No.2 strangulated the deceased with yellow wire, the accused No.1 cut the throat of the deceased with knife and the accused No.2 cut the throat with weapon (wadia) and washed the blood stained clothes, the accused No.2 and 3 took bath and ran away and the accused No.4, Laxmiben, washed the blood and stains in her room and cleaned the room with water and thus, tried to destroy the evidence and the accused No.1 and 4 by throwing the body of the deceased in a plastic drum and kept clothes on it and kept the drum on the road, closed their own house and after achieving the common intention, ran away. Moreover though a notification for not keeping arms and ammunitions of the Police Commissioner was also in existence at the time of the incident, you the accused were in possession of arm like knife and used it to kill the deceased and thus, you the accused have committed the offences punishable under sections 302, 201, 34 and 188 of the Indian Penal Code and under section 135 of the BP Act under the territorial jurisdiction of this Court.”
3. The case made out by the prosecution may be summarized thus:
3.1 The complainant, one Mehmmunisha Pathan, used to reside with her second husband after death of her first husband with Indusha @ Raju, her son, born in the wedlock of her earlier husband and the daughter, Rehanabanu. She also had two other daughters who were married and were residing at their respective husbands' place of residence. The deceased used to do labour of trolley work in a Mill from 14th August 2000 but he stopped going to the job since last three days prior to the incident and was wandering with his friends, viz. Kashinath Behra, Kalu @ Khambho Shgahu and Rajiya Dukkar who were involved in the business of illicit liquor.
3.2 The complainant did not permit to hide stolen liquor in her house, and therefore, the accused No.1 to 3 had beaten Raju, the deceased. The husband and the daughter of the complainant scolded them for beating Raju and the said accused threatened also to beat them.
3.3 On 18th August 2005, Raju came home at 10.00 PM at night and for coming late, he was scolded, as a result, he went out of the house being enraged, after taking a little amount of meal, and all other members of the house went to sleep.
3.4 At about 2 O'clock in the night, the complainant woke up due to some noise in the house and at that time she saw that her son Raju and Kashinath were storing a jute bag in her house. On her asking, Raju told that Kashinath's liquor was kept in the house for hiding. The complainant asked Kashinath to take away the liquor from her house but Kashinath replied that if he took away the liquor at that hour of night, the police would arrest him and he assured that he would take it away at 5 O'clock in the morning. Thereafter, the complainant and Raju went to sleep.
3.5 The complainant got up at 7.30 in the morning, and she saw that Raju had brought mutton. Raju asked her to cook the mutton. The complainant asked Raju to take breakfast but Raju went out saying that he would come back within a short time. As Raju did not return till 9.00 AM, the complainant made inquiry and went to Galli (street) No.7 and enquired of Raju from Kalu @ Khambha Shah. He replied that he had brought liquor and after giving liquor to Raju for drinking, he had sent him to police line to bring liquor. The complainant also inquired from Rajiya Dukkar about Raju and he also gave the same answer. Therefore, the complainant returned home.
3.6 After some time, the complainant again went in search of Raju and inquired about him at Siddharthnagar where he used to sit but he was not found there. Thereafter, she met Bhagya, the brother of Kashinath, who also informed her that one Shiva sent him to bring liquor. To confirm this fact, she went to Shiva's shop but at that time as Shiva was talking on telephone, she stood there for some time and thereafter, returned to her home.
3.7 Thereafter, at about 2.30 PM, Shiva came to her house and informed that Raju had been killed and thrown in a plastic drum in front of Kashinath's house. Therefore, she went near Kashinath's house and looked into the plastic drum lying there and found her son's dead-body within it and the drum was also smeared with blood.
3.8 The complainant looked at Kashinath's house, but it was locked. It created a doubt in her mind that her son was killed by Kashinath Behra, Kalu and Raja @ Rajiya and other related persons and after putting the dead-body in the plastic drum, they had run away.
3.9 Somebody in the locality informed the police and the police arrived immediately, took photographs of the drum with the dead-body and thereafter, took out the dead-body from the drum, and on verifying the dead body, a deep wound was found in the throat and a jute string was also found to be tied on his right hand.
3.10 Police opened the lock of Kashinath's room, and on inspection, they found blood stains and a curved knife.
3.11 According to the complainant, Kashinath Behra, Kalu Shahu and Raju @ Rajiya tied her son's hand and cut his throat in Kashinath's house and then, washed off the blood stains and kept the dead body in a plastic drum and Kashinath and his wife kept the drum in the Galli outside the room and ran away.
3.12 The aforesaid complaint was written by the police at the spot of offence and then sent the complaint to register the offence.
3.13 On the complaint being registered, further investigation was handed over to the Investigating Officer who took out the dead- body in the presence of panchas, and after preparing inquest panchnama, sent the dead-body to Civil Hospital for post mortem.
3.14 The complainant showed the place of incident in the presence of panchas and the place of incident was visited by the FSL and Fingerprint personnel and articles 'A' to 'O' were seized from the place of incident after preparing panchnama. Statements of concerned witnesses were recorded. On search being made for the accused, the accused No.1 Kashinath Behra was arrested and arrest panchnama and panchnama of physical condition of the accused was also prepared. The accused Nos. 2 to 4 were also arrested and the requisite panchnamas were prepared. Muddamal knife and other articles were seized in the presence of panchas and necessary panchnamas were prepared. Arrangement was also made to prepare the map of the place of incident.
3.15 Since sufficient evidence was found against the accused persons, charge sheet was filed against them before the Joint Civil Judge (JD) and Judicial Magistrate First Class on 15th October 2005 and Criminal Case No. 1102 of 2005 was registered against the accused. Thereafter, the case being exclusively triable by the Court of Sessions, the same was committed to the Sessions Court, Surat, under section 209 of the Code of Criminal Procedure by passing committal order on 14th December 2005. The said case was thereafter registered as Sessions Case No. 273 of 2005 in the Sessions Court, Surat. The learned Sessions Judge, Surat transferred the case to the Fast Track Court and the said Court, after verifying that the accused had been supplied with all police papers, framed charges for offence punishable under sections 302, 201, 34 and 188 of the Indian Penal Code and section 135 of the Bombay Police Act. The accused persons denied the charges levelled against them and claimed to be tried.
3.16 The prosecution had produced the following pieces of oral evidence in support of its case.
3.16 The prosecution had also produced the following pieces of documentary evidence:
3.17 After the conclusion of hearing, the statements of the accused persons were taken under section 313 of the Code of Criminal Procedure and they denied the allegations made against them.
3.18 The learned Sessions Judge, by the impugned order, found all the accused persons guilty and imposed sentence upon them, as indicated earlier.
4. Being dissatisfied, the four convicted persons have come up with the present appeal.
5. Mr. Dave, the learned advocate appearing on behalf of the appellants strenuously contended before us that the learned trial Judge has committed both error of law and facts in holding that the appellants were guilty of the offences. Mr. Dave submits that there is no dispute that there is no eyewitness to the actual killing of the deceased by the accused persons and the learned Sessions Judge erroneously found that the appellants were guilty by totally relying upon circumstantial evidence which were insufficient to come to such a conclusion. Mr. Dave further contends that the prosecution virtually has made no allegations against the appellants No. 2, 3 and 4 and the only allegation against the appellant No.1 was that there was an earlier quarrel between him and the victim and he had beaten the deceased. Mr. Dave submits that even after the aforesaid incident, it would appear from the evidence on record that the accused persons and the deceased were friends and they were together involved in the business of illicit liquor and the appellant No.1 even gave the victim liquor for consumption and entrusted him with duty to bring liquor from police lines. Mr. Dave further contends that recovery of either the weapon or the blood stained wearing apparel not having been proved as the panchas became hostile, the findings of the learned Sessions Judge that offence was committed in the house of Kashinath was based on inadmissible piece of evidence. Mr. Dave submits that the Prosecution has even failed to prove that the house of the accused persons was locked or that the lock was broken as claimed by the Investigating Officer. Mr. Dave points out that even the broken lock was not brought on record as exhibit.
5.2 According to Mr. Dave, all the prosecution witnesses have merely testified that the deceased was a friend of the appellants who used to deal in illicit liquor but the motive of murder has not been proved. Mr. Dave contends that in order to hold a person guilty based on circumstantial evidence, the motive behind the murder must be well established. Mr. Dave contends that it is absurd to suggest that merely because some stolen article worth Rs.300/- was returned by the deceased person to the actual owner, his friends would kill him when the house of the deceased was the hiding place of the materials. Mr. Dave, therefore, prays for setting aside the order of conviction and allowing the appeal.
6. Mr. Rawal, the learned Additional Public Prosecutor appearing on behalf of the State has, on the other hand, supported the reasonings assigned by the learned Sessions Judge and contended that from the conduct of the accused persons immediately before the incident, it has been well established that they had committed the murder of the victim. Mr. Rawal contends that otherwise, there was no justification of misleading the complainant about the whereabouts of the victim on the date of the incident. It appears that all the accused persons falsely informed the mother of the victim that he was sent to police lines, which has not been proved. Mr. Rawal contends that from the evidence on record, particularly, the recovery of wearing apparels and weapon from the house of Kashinath, the accused No.1, it indicates that it was Kashinath and his wife and the other two appellants who were all responsible for the murder of the deceased. Mr. Rawal, therefore, prays for dismissal of the appeal.
7. Therefore, the question that arises for determination in this appeal is whether from the evidence on record, the learned Sessions Judge was justified in holding that the appellants were guilty of murder and other charges framed against them.
8. We, therefore, first propose to consider the evidence adduced by the relevant witnesses.
9. PW.1, Mehmmunisha, the complainant and the mother of the deceased, in her examination-in-chief has stated that on 19th August at 2 O'clock at night, her son Raju was sleeping alone in a room. Kashiyo, Bhimo and Rajiyo [the appellants No. 1,2 and 3 respectively] came to her house with liquor at about 1 O'clock at night. At that time when she woke up for going to toilet, those three people opened the door of her son's room. Kashinath and her son were talking and Bhimo and Rajiyo hid themselves in a small galli beside the room. Upon seeing this witness, Kashinath lay down outside in front of the room. She asked Kashinath as to why he lay down without bed.
Kashinath replied that he had some work and she asked what work he had. In the meanwhile, her son Raju locked the room, and therefore, she asked her son why he locked the room. She asked to open the lock and her son opened the lock. Thereafter, she entered in the said room and found a bag was lying there and on looking into it, found country liquor and quarter bottles of foreign liquor inside it. She asked Raju as to whom these bottles belonged to, to which Raju did not give any reply. In the meantime, Kashinath came and said that it was his liquor. She told Kashinath that liquor was not permitted in her house and asked him to take it away. Kashinath said that he would remove it at 5 O'clock in the morning. Thereafter, in the morning, she came to know that those liquors were the stolen property. Thereafter, the liquor was taken away by the person to whom it belonged, viz. one Subah.
9.1 According to her statement, her son Raju brought mutton at 7 O'clock in the morning and told her to cook the same. At that time, she asked Raju to take bath and to go to Ahmedabad. Raju told that he would take bath after some time and she started cooking. Thereafter, she came to know that Raju had gone to Kashinath, Bhima and Rajiya. As Raju did not return though the food was ready, she went in search of her son. She searched everywhere in the slum but he was not found anywhere. Thereafter, she returned to her house and waited for him till 2 PM. On the same day at 11.00 AM, she saw Khambha, Bhima and Rajiya Ramu selling liquor in galli No.7 and she inquired of them about Raju. Khambha replied that Kashinath had given him liquor to drink, and had sent him to bring liquor. She then asked for the place where Raju was sent to bring liquor and she was told that Raju had gone to bring liquor from the housing colony. She also asked the same question to Rajiya and Rajiya also gave the same answer. The witness thereafter started searching for Raju and met Kashinath in the same galli. On seeing her, Kashinath started telling some abusive words and observed that she did not know anything. Thereafter, all left that place.
9.2 This witness has further stated that she continued searching for Raju. At about 2 PM, Kashinath's brother Bhagya met her when this witness told him that Kashinath had sent Raju to bring liquor and as that day was a festival day, police might have arrested Raju and scolded him for sending Raju to bring liquor on the day of festival. Bhagya told this witness that Shiva had sent Raju. She, therefore, went to ask Shiva. At that time, Shiva was making a call from STD booth and she stood there for 10 minutes near him and as he was talking, she returned without asking him anything.
9.3 Subsequently, Shiva came to her house and told her that someone had killed Raju by cutting his throat and has thrown his body in a plastic drum. She accompanied Shiva to the place where Raju's dead-body was lying. It was lying in front of Kashinath's house.
9.4 Police arrived there at that time. Thereafter, the police came with a dog and apprehended Kashinath's wife and interrogated her. Subsequently, Kashinath was arrested near canal and brought there. The police dog came near Kashinath's house and there was lock on the entrance door of Kashinath's house. The lock was broken and they entered the house. She also entered inside, stood near the door of Kashinath’s house, and saw the stains of blood in the room. A plastic drum was also lying and there were bloodstained clothes in it.
9.5 According to this witness, before this incident, Rajiya, Khambha and Kashiya had threatened Raju that they would beat him in such a way that police would not be able to identify and doctor would not be able to treat him. This witness has further stated that the reason behind the murder was that Rajiyo, Kashio and Bhima Khambha quarelled and the quarrel was with regard to giving information about the liquor.
9.6 In her cross-examination, this witness, PW.1, has stated that she was residing at galli No.7 in the slum where there are about 400 to 500 huts. She has admitted that many people of this slum were dealing in illegal liquor business and she has further stated that about 40 to 50 persons were involved in liquor business. She has also admitted that among the persons involved in liquor business, there are some persons whose duty is to give delivery of liquor. She has also admitted that there is internal rivalry among the persons in liquor business. She has admitted that Shiva was in liquor business for the last 10 years.
9.7 She has further admitted in her cross-examination that Raju was involved in the work of printing sarees but he had not gone for work for 3 days prior to the incident. She has denied the suggestion that the deceased was in the habit of drinking liquor but admitted that occasionally he was drinking liquor with the accused. She has further admitted that since childhood Raju had friendship with the accused persons and he had close friendship with them. She has further admitted that since childhood Raju had friendship with the accused persons and had no enmity and there were no fights among them. She has further stated that she knew the accused persons since last 12 to 13 years from the time they came to reside there and had no quarrel with the accused and they were in visiting terms.
9.8 This witness has further stated in her cross-examination that when police came, the dog was not with them and the dog was brought later. Police stood around till the dog came. According to her statement, when police came, there was lock on Kashiya's room. The dog came near the drum and then caught the lock straightway and then police broke the lock. She has further admitted that she has not seen how the police broke the lock.
9.9 This witness has admitted in her cross-examination that in her complaint, she had stated that her son used to go for job but he left the job for the last five-six days before the incident. She has further admitted that the persons dealing in the business of liquor sometimes sent his son for delivery of liquor. She has further admitted that every person in the slum and every person attached with liquor business knew her son. She has further admitted that her son was in the habit of drinking liquor before one month of his death. In her cross-examination, this witness has further stated that she suspected Kashinath, Bhima, Shahu and Raju @ Rajiyo as there was a lock on Kashinath's house.
10. PW.2 Kishor @ Munna had a shop in the locality. He was declared hostile.
11. PW.3 Ramsing Pateriya also had a shop in the said locality, and he was also declared hostile.
12. PW.4 Shivram Siddharthbhai had a grocery shop, viz: Shiv Shakti Grocery Shop. He was also declared hostile.
13. PW.5, Rehanabanu, is a sister of the deceased. She has almost repeated the statements made by her mother relating to concealment of liquor in her house. This witness had stated that her brother had told her that Kashiya, Ramu Rajiya and Bhima Kalu had beaten him. This witness has further stated a new fact that on the earlier day of the incident at 7.00 AM, when her brother went for work, Kashinath, Kalu Bhima and Ramu Rajiya asked her brother as to why he was going for work. She has further stated that on their insistence, her brother did not go for work and they all forced him to drink liquor and said that they would go to watch cinema. She has further stated that after taking liquor at 12 noon, they all went for cinema. She further stated that she asked her brother to go after taking lunch and Kashinath said that they would take food in the hotel and thereafter, they all went together. She has further stated that they came back at 3 O'clock after watching picture and her brother came back to the room and thereafter, slept. She has further stated that after about half an hour, Kashinath came to their house and asked him to get up and to go for delivery of liquor.
13.1 In her cross-examination, she has stated that the dog came after the arrest of the accused persons. She has further stated that she could not say whether the police recovered key from Kashinath.
14 PW.6, Rambahadur Virbahadur Nepali, is a neighbour residing in the same area for the last five years. He has stated in his examination-in-chief that in the morning at 7.00 AM, he had seen Kashinath, Bhima, Rajiya and the deceased Raju and these four persons came near the mutton shop and went to drink liquor and this witness also followed them to drink liquor. They all drank liquor in Raju's room near Galli No.7 and there were five persons including him and they sat to drink liquor. Thereafter, Kashinath asked the deceased Raju as to where he had kept the liquor which was brought last night. The deceased answered that the liquor was not with him and someone had taken it away. Thereupon, Kashinath became angry upon Raju and told to him that inspite of the fact that he was his associate, why he was making a jest. Thereafter, Kashinath started abusing Raju and quarelled. Subsequently, the three persons went away from that place and Kashinath threatened Raju to beat and break his hands and legs. Thereafter, Kashinath dragged the deceased Raju to Galli No.8 and took him into his room. Kashinath's brother Bhagirath also came to Kashinath's room and he also abused Raju. Thereafter, Raju was allowed to go and this witness also went back to galli No.7. Thereafter, Kashinath, Raju and Bhima also came to galli No.7 and they started drinking liquor. This witness has stated that he did not know where the deceased Raju was at that time.
14.1 In his cross-examination, this witness has stated that the quarrel regarding the liquor took place at 10.30 AM to 11.00 AM and when the quarrel took place, Kashinath and Rajiyo were present. He has further stated that at that time Raju, the deceased, was not present. He has further admitted that at 7 O'clock in the morning, all the five persons [accused No.1 to 3, the victim and this witness] together drank liquor in Raju's house. He has further stated that he saw the deceased Raju running with mutton at 8.00 AM to 8.15 AM.
He has further stated that he was a tenant of Rajiya's mother.
15. PW.7, Praful, is the step-father of the deceased. In his evidence, he narrated the incident after the dead-body of Raju was detected. After description of the dead-body, he stated that police came with a dog; the dog first came at the place where the dead-body was kept and from there it went near Kashinath's room. The room was locked and the police opened the room. On entering into it, he found that there was blood in the room and bloodstained clothes were lying in a drum in the room. He further stated in his cross-examination that on the date of incident, he went for job at 8 O'clock in the morning and when he was going to job, he saw Nepali, Kashiyo, Rajiyo and Khambho drinking liquor in an open place in front of his house. At that time, Raju was not with them.
16. PW.8, Rukshana, is another sister of the victim. She stated that on the date of incident, she was at her matrimonial home and at 10.00 AM, she came to her paternal house to tie Rakhi to her brother.
When she inquired about her brother from her mother, she said that he had gone to bring mutton at 7 O'clock in the morning and thereafter, he was not seen. She further stated that she heard from her mother that there were some conflicts regarding liquor. She further stated that she went with her mother in search of her brother. Thereafter, she went to tie Rakhi to son of a woman residing there and when she returned, her mother was crying and told that her brother was thrown in a drum after being killed by somebody. She further stated that Kashiya, Khambha and Rajiya were amongst Raju's friends and they were not seen on that day. She denied the suggestion that she was giving false evidence.
17. PW.9, Radhakant, is a panch witness. He stated in his evidence that in his presence the two accused persons, namely: Kashinath and Rajiya, went to Sidhharthnagar in a jeep. There was a house like hut and a knife was taken out and shown. He did not remember who had taken out the knife.
17.1 In his cross-examination, he stated that no seal was applied in his presence and the knife was not sealed. He did not know whether anyone was residing in the hut which they visited along with the other panch. The hut was open. He did not see how the knife was taken out or shown. He did not read the panchnama and the panchnama was not read over to him by the police. The panchnama was not written as dictated by him. He has admitted his signature on the panchnama.
18. PW.10, Surendranath Dandpani is another panch witness. He was declared hostile.
19. PW.11, Dr. Sanjay Kedarlal Gupta is the Doctor who performed post mortem.
20. PW.12, Rafik Basirbhai is another panch witness of the dead- body, but he also became hostile.
21. PW.13, Pankajbhai is a panch witness of recovery of clothes, but he also became hostile.
22. Similarly, PW.14,Pareshkumar, a panch witness for recovery of clothes, also turned hostile.
23. Karimbhai, the Investigating Officer is PW.16. In his cross- examination, he stated that if dog squad was required, he was required to inform the Control. He has stated that he did not inform the Control for dog squad and no entry was made in the case diary that at what time the dog squad was called. He has further stated that he has not made any panchnama regarding dog squad and that he has not recorded the statement of dog-handler. He further stated that when dog squad came, the house of Kashinath was open and the dog entered the house. He has further stated that it was not true that there was a lock on Kashinath's house and it was broken. Subsequently, he has clarified that there was a small lock and on just giving pressure, it opened. He further stated that the lock was not an important evidence, and therefore, it was not seized. He has further admitted in his evidence that in the complaint and in the statements, it has not come on the record that the dog came and the dog squad helped in detecting the crime.
23.1 Various statements recorded by him under section 161 were read by him in his cross-examination and those were recorded in his deposition.
24. On consideration of the above materials on record, we find that neither recovery of weapon nor recovery of the bloodstained wearing apparel of the accused were proved by the panch witnesses because except one all of them became hostile and the said witness, the PW-9, although not declared as hostile, in his cross-examination admitted that he did not see how the knife was recovered or shown.
24.1 Similarly, the statements of the complainant, her husband and her daughter that the house of Kashinath was closed by a lock which was broken were inconsistent inasmuch as the Investigating Officer, at one place stated that it was already open and in another place, stated that the room was locked, that there was a small lock and on just snatching, i.e. on giving mere pressure by hand, it opened. Curiously enough, the lock was neither seized nor was it marked as exhibit.
24.2 We find that although there is a specific provision for making a requisition for dog squad, the Investigating Officer has admitted that such procedure was not followed and the formalities for calling dog squad were not complied with. At the same time, the dog- handler was not examined. In the absence of such evidence, we are unable to hold that the dog squad assisted the prosecution in detecting the crime. From the evidence on record, some of the witnesses said that when the dog came, the door was already open whereas some other witnesses said that after the dog came, the police had broken the lock. We find that the involvement of the dog squad in detecting the crime could have been easily proved by official documents but the same has not been proved in this case.
24.3 As there is admittedly no eyewitness, in our opinion, the learned Sessions Judge erred both in law and facts in involving the four accused persons simply on the basis of suspicion of the complainant. If the recovery of the wearing apparel and the weapons were not proved in accordance with law, it is impossible to hold that the accused persons were guilty of the offences charged against them. If further appears that the victim and the accused persons reside in the same locality and were together on the date of the incident and also drank liquor together in the morning.
24.4 In order to uphold conviction based on circumstantial evidence, the motive behind the murder must also be proved. In the case before us, it has been established that the deceased and the accused persons were partners of the team which dealt with illicit liquor and stolen liquor. The mother of the victim has admitted that there was rivalry among various groups of dealers of liquor in that area and there were several such groups. We are unable to accept the submission of Mr. Rawal, the learned Additional Public Prosecutor that merely because some stolen liquor was allegedly returned to the original owner by the victim on receipt of a sum of Rs.300/-, for that petty reason, the victim will be killed by the accused persons. Even the mother of the victim has admitted that the accused and the victim were friends from their childhood and even on the day of incident, Kashinath had given liquor to the victim for drinking. Even the time of the alleged quarrel over liquor is conflicting. The PW-6, Nepali stated that it was at about 10.30 to 11.00 in the morning such quarrel took place, which demolishes even the prosecution case. The sister of the victim has stated that her brother was beaten earlier whereas the mother has stated that the accused threatened to beat her son and the deceased was not traceable from 9 AM.
24.5 There is no material at all to suggest involvement of appellants No. 2, 3 and 4 as the recovery of the bloodstained wearing apparel of the accused persons and the alleged weapon used for committing crime are not proved by any admissible piece of evidence.
24.6 We, therefore, find that the prosecution case is based on mere suspicion because of an alleged altercation on a petty matter between Kashinath and the deceased and the story of murder formulated by the prosecution has not been proved by any evidence.
24.7 We, therefore, find that in the facts of the present case, the learned Sessions Judge committed gross error in relying upon inadmissible pieces of evidence for the purpose of drawing inference of guilt against the accused persons based on alleged circumstantial evidence, and, the recovery of bloodstained wearing apparels which we have already pointed out, has not been lawfully proved in accordance with the Evidence Act.
25. In the result, the appeal is allowed. The order of conviction and sentence dated 13th April 2007 passed by the learned Sessions Judge, 6th Fast Track Court, Surat, in Sessions Case No. 273 of 2005 are set aside. The appellants-accused persons are acquitted of the charges levelled against them. The appellants are ordered to be set at liberty forthwith if not required in any other case. Fine, if recovered, be returned.
[BHASKAR BHATTACHARYA, C.J.] mathew [J.B.PARDIWALA. J.] FURTHER ORDER:-
After this order is pronounced, Mr. Dave, the learned advocate appearing on behalf of the appellants No. 2,3 and 4, submits that those appellants are on bail.
In view of our judgment just pronounced, the bail bonds of those appellants be discharged.
Direct Service is permitted for the Appellant No.1.
[BHASKAR BHATTACHARYA, C.J.] mathew [J.B.PARDIWALA. J.]