Supreme Court of India
STATE OF GUJARATversusKISHANBHAI ETC.
- Citation
- 2014 INSC 14
- Decided
- 7 January 2014
- Disposal
- Dismissed
- Bench
- C K PRASAD
Holding
Because the prosecution failed to establish an unbroken chain of circumstantial evidence and committed multiple investigative and prosecutorial lapses, the High Court's acquittal stands.
Summary
The State of Gujarat charged Kishanbhai with kidnapping, rape, murder and theft of a six‑year‑old girl, Gomi, alleging that he abducted her, amputated her legs to steal her anklets and killed her. The trial court convicted him and sentenced him to death, but the Gujarat High Court acquitted him, citing numerous gaps in the chain of circumstantial evidence and serious investigative and prosecutorial lapses. On appeal, the Supreme Court examined whether the prosecution had established a complete, unbroken chain of circumstances required for conviction based on circumstantial evidence. It found that critical links—such as the failure to produce key witnesses, to compare thumb impressions, to conduct DNA profiling, and to record proper police entries—were missing, rendering the circumstantial case unreliable. Consequently, the Court upheld the High Court’s acquittal, dismissing the appeal. The judgment also directed systemic reforms, including departmental action against erring officials and training measures for police and prosecutors.
Issues considered
- The prosecution’s case was based solely on circumstantial evidence; was a complete chain of circumstances established?
- Do the investigative and prosecutorial lapses identified by the High Court defeat the prosecution’s case and warrant acquittal?
- Should the benefit of doubt be granted to the accused in view of the missing links and inconsistencies in the evidence?
Legislation cited
- Bombay Police Act, 1951s. 135(1)
- Code of Criminal Procedures. 313, s. 438, s. 439, s. 482
- Indian Penal Code, 1860s. 201, s. 302, s. 363, s. 369, s. 376, s. 394
Subjects
circumstantial evidenceinvestigative lapsesprosecution failuresbenefit of doubtchild rapemurderdeath penaltyDNA profilingpolice procedurecriminal justice reform
Judgment
[2014] 1 S.C.R. 197
STATE OF GUJARAT A
v.
KISHANBHAI ETC.
(Criminal Appeal No. 1485 of 2008)
JANUARY 7, 2014
8
[C.K. PRASAD AND JAGDISH SINGH KHEHAR, JJ.]
PENAL CODE, 1860:
ss.376, 302, 201, 363, 369 and 394 - Rape and murder c
of a six year old girl - Her legs amputed above ankles and
anklets stolen - Circumstantial evidence - Conviction by trial
court and sentence of death - Acquittal by High Court giving
the accused benefit of doubt - Held: Since the guilt of
accused in the instant case is to be based on circumstantial 0
evidence, establishing of a complete chain from the evidence
produced by prosecution becomes essential -- High Court has
rightly pointed out several missing links in the chain of
circumstances leading to failure of prosecution to establish
guilt of accused - Further there are several lapses committed E
by in11estigating!prosecuting agency - There are several
discrepancies and inconsistencies in the evidence produced
by prosecution before trial court - Judgment of High Court
needs no_ interference -- Directions given to identify erring
officers in the instant case and take appropriate departmental
action against them in accordance with Jaw - Investigation - F
Bombay Police Act 1951 -- s. 135(1) -- Circumstantial
evidence.
INVEST/GA TION:
G
Serious lapses in investigation and prosecution of a rape
and murder case - In the instant case, there have been
serious lapses committed by the investigating and
prosecuting agencies and there are deficiencies in the
197 H
198 SUPREME COURT REPORTS [2014) 1 S.C.R.
A process of establishing the guilt of the accused before the trial
court -- The investigating officials and the prosecutors
involved in presenting the case, have miserably failed in
discharging their duties -- They have been instrumental in
denying to serve the cause of justice -
B
Arrest of accused - Held -- Though accused was
acknowledged to be in police station since 9 p.m., he was
formally arrested at 6.40 a.m. on the following day - There
are inconsistent statements on record in this regard.
c Entries in Station Diary - Though 10 had been apprised
about the commission of crime, he left Police Station without
making any entry in Station Diary or in any other register,
depicting the purpose of his departure.
D Panchnama - Held: In the instant case, inquest
panchnama was drawn before registration of FIR.
Identification -- Held: Though the witness had seen the
accused for the first time on the date or occurrence, no test
identification parade to get the accused identified was
E conducted.
EVIDENCE:
Circumstantial evidence -- DNA test - Rape and murder
F - Held: Advancement in scientific investigation should be
taken recourse to -· In the instant case, investigating agency
ought to have sought DNA profiling of the blood samples,
which would have given a clear picture.
F.l.R.:
G
Delay in registering the FIR - Held: In the instant case,
not only is the delay of seven hours in registration of complaint
unexplained, but the same is also rendered extremely
suspicious.
H
STATE OF GUJARAT v. KISHANBHAI 199
ADMINISTRATION OF CRIMINAL JUSTICE: A
Faulty investigation and deficient prosecution
Directions given to State Governments to examine all orders
of acquittal and record reasons for the failure of each
prosecution case -- A standing committee of senior officers
8
of the police and prosecution departments should be vested
with this responsibility -- Home Department of every State
Government will incorporate in its existing training
programmes for investigation/prosecution officials course-
content drawn in light of instant judgment.
c
Respondent no.1 was prosecuted for committing
offences punishable u/ss 363, 369, 376, 394, 302 and 201,
IPC and s. 135(1) of Bombay Police Act, on the
allegations that he abducted a six year old girl, raped and
killed her. It was also alleged that the accused chopped D
off her feet just above ankles and took away her anklets.
The trial court convicted and sentenced the accused to
death. However, the High Court noticing several missing
links in the chain of circumstances, allowed his appeal
and acquitted him giving him benefit of doubt. E
Dismissing the appeal, the Court
HELD: 1.1. Since the guilt of the accused in the
instant case is to be based on circumstantial evidence,
establishing of a complete chain from the evidence F
produced by the prosecution becomes essential. The
serious lapses committed by the investigating and
prosecuting agencies and the deficiencies during the
course of investigation and prosecution, in the instant
case, are as follows: G
(a) According to the prosecution story after having
removed the anklets from victim's feet, the accused
had taken them to a Jeweller's shop and pledged
them for a sum of Rs. 1,000/-. The jeweller had gone H
200 SUPREME COURT REPORTS [2014] 1 S.C.R.
A to the police station with the anklets on his own, after
having read the news. The lapse of the prosecution
on account of not producing the jeweller as
prosecution witness, resulted in a missing link in the
chain of events. [para 11(a)] [221-B-D, E-F, G-H]
B
(b) The prosecution story discloses that the jeweller
had executed a receipt with the accused, who put his
thumb mark thereon, depicting the pledging of the
anklets for a sum of Rs.1,000/-. The prosecution took
no steps to compare the thumb impression on the
c receipt, with that of the accused-respondent. [par a
11 (b)] [222·8-C, C-D, E-F]
(c) It is also the case of the prosecution, that when
the accused was apprehended, a sum of Rs.940/-
D was recovered from his possession. However, he
ought to have been in possession of at least Rs.1 ,000/
- i.e., the amount given to him by the jeweller when
he pledged the anklets at his shop, even if it is
assumed that he had no money with him when he
E had pawned the anklets. [para 11 (c)] [223-C-D]
(d) In order to prove the prosecution case that the
victim was raped, the doctor, who had medically
examined the accused and had been cited as a
witness before the trial court, was not examined as
F a prosecution witness. [para 11 (d)] [223-G-H]
(e) Even the report/certificate given by the medical
officer relating to the medical examination of the
accused was not produced by the prosecution
G before the trial court. His evidence could have
established, whether or not accused had committed
rape on victim. [para 11 (e)] [224-A-C]
(f) The accused could have been medically examined
within a period of 24 hours of the occurrence. The
H
STATE OF GUJARAT v. KISHANBHAI 201
prosecution case does not show whether or not A
such action was taken. [para 11 (f)] [224-E-F]
. - .. - -
(g) When the accused was arrested, there were
several injuries on his person. He was sent to Civil
Hospital for his medical examination. Neither the 8
doctor who had examined him was produced as a
prosecution witness, nor was the report/certificate
given by the medical officer disclosing the details of
his observations/findings was placed on record. The
importance of nature of the injuries suffered by the C
accused emerges from the fact, that both the
accused and the victim had the same blood group
"B +ve". The investigating agency ought to have
sought DNA profiling of the blood samples, which
would have given a clear picture whether or not the
blood of the victim was, in fact on the clothes of the D
accused-respondent. Additionally, DNA profiling of
the blood found on the knife used in the commission
of the crime, would have uncontrovertibly
determined whether or not the said knife had been
used for severing the legs of the victim, to remove E
her anklets. [11 (g)] [225-B, D-E, G; 226-F-H]
(h) It is also apparent from the complaint submitted
by PW 2, that he had been informed by one 'KG', that
he had seen the accused taking away the victim. In F
such an event, the proof of the fact of the accused
having abducted the victim and her last seen with
accused could have only been substantiated through
the statement of 'KG'. [para 11 (h)] [227-B-C]
(i) A green blood stained "dupatta'" was recovered G
from the person of the victim, which neither belonged
to the victim nor to the accused. The presence of the
green "dupatta", has also not been explained. (para
11 (i)] [227-F-H]
H
202 SUPREME COURT REPORTS [2014) 1 S.C.R.
A (j) PWG is said to have seen the accused-respondent
for the first time when the latter approached his "lari"
to purchase a "dabeli" on 27.2.2003. Therefore, it was
imperative for the investigating agency to hold a test
identification parade in order to determine whether
B PWG, had correctly identified the accused-respondent,
as the person who had come to his "lari" to purchase
a "dabeli" on 27.2.2003 and also whether he was the
same person, who had stolen a knife from his "lari"
on 27 .2.2003. [para 11 (j)] [228-C-D]
c (k) All the prosecution witnesses have been equivocal
about the fact that the deceased went missing at
about 6:00 p.m., i.e., the time when she was last seen
in the company of the accused, and thereafter the
search party met the accused at 8:00 pm. Within the
D period of these two hours the accused is alleged to
have visited different places and committed several
acts. However, no sketch map indicating the distance
between different places was prepared, which would
have helped the court to determine all that was
E alleged in the prosecution version of the incident.
[para 11(k)] [229-C-D; 230-F-G, H; 231-A]
1.2. Discrepancies found in the evidence produced
by the prosecution before the trial court are as follows:
F (a) The post mortem report states that injuries on the
genitals of deceased were post mortem in nature. It
is not possible to contemplate that the legs of the
deceased were cut whilst she was in her senses. It
does not appear humanly possible for even the most
G perverted person, to have committed rape on a child,
who had been killed by causing injuries on head and
other parts of body, and after her feet had been
severed from her legs. The prosecution in the instant
case apparently projected a version including an act
H of rape, which is impossible to accept on the
STATE OF GUJARAT v. KISHANBHAI 203
touchstone of logic and common sense. (para 12(a)] A
[231-B, F-H; 232-A]
(b) The evidence produced by the prosecution also
reveals that pubic hair of the accused had been
examined in the Forensic Science Laboratory. The 8
FSL report does not support the prosecution case of
rape by the accused. This would prima facie
exculpate him from the offence of rape. [para 12(b)]
[232-B and D]
(c) According to the testimony of the complainant C
PW2, the accused was wearing a white shirt at the
time of occurrence. It is, therefore, when a white shirt
was found covering the dead body of the victim, he
had identifiel:I the same as the shirt which the
accused was wearing, before the offence was D
committed. From the prosecution story, as it emerged
from the statements of different witnesses, it is
apparent that PW2 had had no occasion to have seen
the accused, wearing the said white shirt. [para 12(c)]
(23~-E-G] E
(d) The T-shirt worn by accused at the time of his
arrest was a white one, but PW-2 in his complaint has
~~tioned that the accused was wearing a black T-
shirt at the time of his detention. Thus, narration in . F
this regard made by the complainant PW2 was
absolutely incorrect and contrary to the factual
position and, as such, his deposition does not
appear to be fair and honest. [para 12(d)] (233-B-Dl
(e) From the statements of PW2 and PW5, it is G
apparent that the accused was detained by the police
informally around 9:00 p.m. on 27 .2.2003. However,
his arrest was shown at 6.40 a.m. on 28.3.2003. The
detention of the accused from 9:00 pm on 27.2.2003
to 6.40 a.m. on 28.2.2003, shows that the prosecution H
204 SUPREME COURT REPORTS [2014] 1 S.C.R.
A has not presented the case in the manner the events
unfolded to the investigating agencies. [para 12(e)]
[233-G-H; 234-8-C]
(f) The inquest panchnama besides mentioning the
amputation of the legs of the victim above her
B
ankles, also records that the silver anklets worn by
the victim were missing. In this behalf, it would also
be relevant to mention, that even though the inquest
panchnama was drawn at 00.30 a.m. on 28.2.2003, the
complaint resulting in the registration of the first
c information report was lodged by PW2 at 3:05 a.m.
on 28.02.2003. It is strange, that the inquest
panchnama should be drawn before the registration
of the first information report. It is also strange as to
how, while drawing the inquest panchnama, the
D panchas of the same could have recorded that after
amputation of the victim's legs, her silver anklets had
been taken away by the offender, as there was no
occasion for the panchas to have known, that the
deceased used to wear silver anklets. [para 12(f)]
E [234-C-F]
(g) From the prosecution version (emerging from the
evidence recorded before the trial court), it is
apparent, that the search party as also the relativos
of the victim were aware at about 8:00 p.m. on
F
27.2.2003 that she had been murdered, with a
possibility of her having been raped also, and her
silver anklets had been stolen. Still no complaint
whatsoever came to be filed on 27.2.2003, despite the
close coordination between the search party and the
G police from 8:00 pm onwards on 27.2.2003 itself. The
complaint leading to the filing of the first information
was made at about 3:05 a.m. on 28.2.2003. Not only
is the delay of seven hours in the registration of the
complaint un-explained, but the same is also
H rendered extremely suspicious, on account of the fact
STATE OF GUJARAT v. KISHANBHAI 205
that the accused is acknowledged to be in pqlice A
·detention since 9:00 p.m. on 27.2.2003 itself. This may
be the result of fudging the time and date on which
the victim went missing, as also, the time and date
on which the body of the victim was discovered
resulting in the discovery of the occurrence itself. B
[para 12(g)] [234-G-H; 235-8-D]
(h) PW13, the Sub Inspector, who had commenced
investigation of the crime, acknowledged about
informal detention of accused at about 9 P.M. on
27.2.2003. But, in his statement as a witness, he had C
expressed that for the first time he had seen the
accused only on 28.2.2003 at around 5:30 a.m.
Whereafter, the accused-respondent was formally
arrested at 6.40 a.m. The inconsistency between the
statements made by the complainant (PW2) and his D
father (PW5) on the one hand, and by Sub-Inspector
(PW13) on the other, discloses a serious
contradiction with respect to the time of detention of
the accused. The truth of the matter is that PW 13 did
not make any note either in the station diary or in any E
other register; he did not take any informal complaint
from the complainant, even though he had been
apprised about t.he commission of the offence. It is
therefore, clear that PW13, had left the police station
without making an entry depicting the purpose of his F
departure. A police officer, investigating a crime of
such a heinous nature should not commit such a
lapse. All this further adds to the suspicion of the
manner in which investigation of the matter was
conducted. [para 12(h)] [235-E-H; 236-B-F] G
(i) PW6 could identify the shirt worn by the accused-
respondent, when he visited his "lari" for a very short
period during rush hours for the purchase of a
"dabeli", but he could not depose about the sort of
shirt which the accused was wearing at the Police H
206 SUPREME COURT REPORTS [2014) 1 S.C.R.
A Station where he remained with the accused for
approximately four hours. It is, therefore, apparent
that PW6 was deposing far in excess of what he
remembered, and/or in excess of what was actually
to his knowledge. He appears to be a tutored
B witness. This aspect of the matter also renders the
testimony of PW6, suspicious. [para 12(i)] (236-G-H;
237 -B and E-F]
0) The investigating agency became aware from the
disclosure statement of the accused tendered on
c 1.3.2003, that he had procured the weapon of offence
by way of theft from the "lari" of PW6. In the ordinary
course of investigation, it would have been
imperative for the investigating agency to have
immediately approached PW6, to record his
D statement, but his statement was recorded for the
first time on 4.3.2003. No reason is forthcoming why
his statement was not recorded either on 1.3.2003, or
on the intervening dates before 4.3.2003. The
inordinate delay by the investigating agency, in
E confirming the version of the accused, in respect of
the weapon of the crime, renders the prosecution
version suspicious. Such delay would not have
taken place in the ordinary course of investigation.
This fact too raises a doubt about the correctness of
F the prosecution version of the incident. [para 12(j)]
[237-G-H; 238-B-D]
1.3. The prosecution case which mainly rests on the
testimony of PW2, PW5 and PW6, is unreliable because
G of the glairing inconsistencies in their statements. The
testimony of the investigating officer PW13 shows
fudging and padding, making his deposition
untrustworthy. In the absence of direct oral evidence, the
prosecution case almost wholly rested on these
witnesses. The evidence produced to prove the charges
H has been systematically shattered, thereby demolishing
STATE OF GUJARAT v. KISHANBHAI 207
the prosecution version. More than all that is the non· A
production of evidence which the prosecution has
unjustifiably withheld, resulting in dashing all the State
efforts to the ground. Therefore, the High Court through
the impugned order, rightly considered it just and
appropriate to grant the accused-respondent, the benefit B
of doubt. [para 12] [238-F-H; 239-A]
1.4. Having considered the totality of the facts and
circumstances of the case, specially the glaring lapses
committed in the investigation and prosecution of the C
case as also the inconsistencies in the evidence
produced by the prosecution, this Court is of the
considered view that judgment of acquittal passed by the
High Court needs no interference. [para 14] [242-G-H; 243·
A and F]
D
Ram Prasad & Ors. v. State of UP (1974) 1 SCR 650;
Takhaji Hiraji v. Thakore Kubersing Camansing & Ors.,
(2001) 6 SCC 145; Laxman Naik v. State of Orissa, 1994
(2) SCR 94 = (1994) 3 SCC 381, State of Maharashtra v.
Suresh, 1999 (5) Suppl. SCR 215 = (2000) 1SCC471, Amar E
Singh v. Ba/winder Singh 2003 (1) SCR 754 =2003 (2) SCC
518; State Government of NCT Delhi v. Sunil 2000 (5)
Suppl. SCR 144 = (2001) 1 SCC 652; Joseph v. State of
Kera/a, (2005) 5 SCC 197; State of UP v. Satish 2005
(2) SCR 1132 = (2005) 3 SCC 114; Bishnu Prasad Sinha v F
State of Assam 2007 (1) SCR 916 = (2007) 11 SCC 467;
Aftab Ahmad Anasari v. State of Uttaranchal 2010 (1)
SCR 1027 = (2010) 2 SCC 583; Sambhu Das v. State of
Assam 2010 (11) SCR 493 = (2010) 10 SCC 374; Haresh
Mohandas Rajput v. State of Maharashtra 2011 (14) SCR 921 G
= (2011) 12 SCC 56; Rajendra Prahladrao Wasnik v. State
of Maharashtra 2012 (2) SCR 225 = (2012) 4 SCC 37 - cited.
2.1. The investigating officials and the prosecutors
involved in presenting the instant case, have miserably
failed in discharging their duties. They have been H
208 SUPREME COURT REPORTS [2014] 1 S.C.R.
A instrumental in denying to serve the cause of justice. The
misery of the family of the victim has remained
unredressed. At the same time, it is necessary not to
overlook even the hardship suffered by the accused, first
during the trial of the case, and then at the appellate
B stages. An innocent person does not deserve to suffer
the turmoil of a long drawn litigation, spanning over a
decade, or more. [para 15 and 17] (243-G; 245-8]
2.2. Just like it is the bounden duty of a court to
serve the cause of justice to the victim, so also, it is the
C bounden duty of a court to ensure that an innocent
person is not subjected to the rigours of criminal
prosecution. The situation needs to be remedied. For the
said purpose, adherence to a simple procedure could
serve the objective. It is, therefore, directed that on the
D completion of the investigation in a criminal case, the
prosecuting agency should apply its independent mind,
and ensure that all shortcomings are rectified, if
necessary by requiring further investigation. It should
also be ensured, that the evidence gathered during
E investigation is truly and faithfully utilized, by confirming
that all relevant witnesses and materials for proving the
charges are conscientiously presented during the trial of
a case. This would achieve two purposes - (1) only
persons against whom there is sufficient evidence, will
F have to suffer the rigors of criminal prosecution; and (2)
in most criminal prosecutions, the agencies concerned
will be able to successfully establish the guilt of the
accused. [para 18 and 19] [246-8-C and D-F]
2.3. Every acquittal should be understood as a failure
G of the justice delivery system, in serving the cause of
justice. Likewise, every acquittal should ordinarily lead to
the inference, that an innocent person was wrongfully
prosecuted. It is therefore, essential that every State
should put in place a procedural mechanism, which
H
STATE OF GUJARAT v. KISHANBHAI 209
A
would ensure that the cause of justice is served, and
would simultaneously ensure the safeguard of interest of
those. who are innocent. It is, therefore, directed:
(i) The Home Department of every State shall
examine all orders of acquittal and record reasons B
for the failure of each prosecution case. A standing
committee of senior officers of the police and
prosecution departments should be vested with this
responsibility. The consideration at the hands of
such committee should be utilized for crystalizing c
mistakes committed during investigation, and/or
prosecution, or both. The Home Department of every
State Government will incorporate in its existing
training programmes for junior investigation/
prosecution officials course-content drawn in the' o
light of the instant judgment. The same should also
constitute course-content of refresher training
programmes, for senior investigating/prosecuting
officials. Judgments like the one in hand (depicting
more than 10 glaring lapses in the investigation/ E
prosecution of the case), and similar other
judgments, may also be added to the training
programmes. [para 20] [246-G-H; 247-A-C]
(ii) On the culmination of a criminal case in acquittal,
the investigating/prosecuting official(s) concerned F
responsible for such acquittal must necessarily be
identified. A finding needs to be recorded in each ·
case, whether the lapse was innocent or /
blameworthy. [para 21] [247-G-H]
' G
(iii) The Home Department of every State Government
shall formulate a procedure for taking action against
all erring investigating/prosecuting officials/officers.
All such erring officials/officers identified, as
responsible for failure of a prosecution case, on H
210 SUPREME COURT REPORTS [2014] 1 S.C.R.
A account of sheer negligence or because of culpable
lapses, must suffer departmental action. All the Home
Se~retaries concerned shall ensure compliance. The
records of consideration, in compliance with the
direction, shall be maintained. [para 21-22] [248-C
B and E-F]
(iv) The Home Department of the State will identify
the erring officers in the instant case, and will take
appropriate departmental action against them, as
may be considered appropriate, in accordance with
c law. [para 23) [248-F-G]
Case Law Reference:
(1974) 1 SCR 650 cited para 12
D (2001) 6 sec 145 cited para 12
1994 (2) SCR 94 cited para 12
1999 (5) Suppl. SCR 215 cited para 12
E 2003 (1) SCR 754 cited para 12
2000 (5) Suppl. SCR 144 cited para 12
(2005) 5 sec 191 cited para 12
2005 (2) SCR 1132 cited para 12
F
2007 (1) SCR 916 cited para 12
2010 (1) SCR 1027 cited para 12
2010 (11) SCR 493 cited para 12
G 2011 (14) SCR 921 cited para 12
2012 (2) SCR 225 cited para 12
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1485 of 2008.
H
STATE OF GUJARAT v. KISHANBHAI 211
From the Judgment & Order dated 30.8.2005 of the High A
Court of Gujarat at Ahmedabad in Crl. Confirmation Case No.
7 of 2004 with Crl. Appeal No. 1549 of 2004.
Vibha Dutta Makhija, Archi Agnihotri, Hemantika Wahi for
the Appellant.
B
Rishi Malhotra for the Respondent.
The Judgment of the Court was delivered by
JAGDISH SINGH KHEHAR, J. 1. A complaint was
lodged at Navrangpura Police Station, Ahmedabad, alleging C
the kidnapping/abduction of a six year old girl child Gomi
daughter of Keshabhai Mathabhai Solanki and Laliben on
27.2.2003 at around 6:00 p.m. by the accused Kishanbhai son
of Velabhai Vanabhai Marwadi. It was alleged, that the
accused had enticed Gomi with a "gola" (crushed ice, with D
sweet flavoured syrup), and thereupon had taken her to Jivi's
field, where he raped her. He had murdered her by inflicting
injuries on her head and other parts of the body with bricks. In
order to steal the "jhanjris" (anklets) worn by her, he had
chopped off her feet just above her ankles. The aforesaid E
complaint was lodgerd, after the body of the deceased Gomi
was found from Jivi's field, at the instance of the accused
Kishanbhai. On the receipt of the above complaint, the first
information report came to be registered at Navrangpur Police
Station, Ahmedabad. F
2. The prosecution version which emerged consequent
upon the completion of the investigation reveals, that the family
pf the deceased Gomi was distantly related to the family of the
accused Kishanbhai. In this behalf it would be pertinent to G
mention that Baghabhai Naranbhai Solanki was a resident of
Gulbai Tekra, in the Navrangpura area of Ahmedabad. He
resided there, along with his family. For his livelihood,
Baghabhai Naranbhai Solanki was running a shop in the name
of Mahakali Pan Centre. The said shop was located near his
H
212 SUPREME COURT REPORTS [2014] 1 S.C.R.
A residence. Baghabhai Naranbhai Solanki was running the
business of selling "pan and bidi" in his shop. Naranbhai
Manabhai Solanki, father of Baghabhai Naranbhai Solanki
used to live in the peon's quarters at Ambavadi in Ahmedabad.
Modabhai Manabhai Solanki, uncle of Baghabhai Naranbhai
8 Solanki, had expired. His son Devabhai's daughter Laliben,
was married to Keshabhai Mathabhai Solanki. Keshabhai
Mathabhai Solanki and Laliben were residing at
Shabamukhiwas, Gulbai Tekra in Ahmedabad. Keshabhai
Mathabhai Solanki and Laliben had two children, a daughter
C Gomi aged six years, and a son Himat aged three years.
Laliben's sister-in-law (her husband's, elder brother's wife)
Fuliben Valabhai was residing near the residence of Keshabhai
Mathabhai Solanki and Laliben. Kishanbhai the accused, is the
brother of Fuliben, and was residing with her. It is therefore, that
the family of the deceased as also the accused, besides being
D distantly related, were acquainted with one another as they were
residing close to one another.
3. Insofar as the occurrence is concerned, according to the
prosecution, on 27.2.2003 Laliben, niece of Baghabhai, was
E confined to her residence, as she was expecting. At about 6:00
p.m. her daughter Gomi, then aged 6 years, had wandered out
of her house. The accused Kishanbhai then aged 19 years,
entice her by giviny her a "gola". Having enticed her he had
carried Gomi to Jivi's field. On the way to Jivi's field, he stole
F a knife with an 8 inch blade from Dineshbhai Karsanbhai
Thakore PW6, a "dabeli" (bread/bun, with spiced potato filling)
seller. Having taken Gomi to Jivi's field he had raped her. He
had then killed her by causing injuries on her head and other
parts of the body with bricks. In order to remove the "jhanjris"
G worn by her, he had amputated her legs with the knife stolen
by him, from just above her ankles. He had then covered her
body with his shirt, and had left Jivi's field. Kishanbhai the
accused, then took the anklets stolen by him to Mahavir
Jewellers, a shop owned by Premchand Shankerlal. He
H pledged the anklets at the above shop, for a sum of Rs.1,000/
STATE OF GUJARAT v. KISHANBHAI 213
[JAGDISH' SINGH KHEHAR; J.]
-. The accused Kishanbhai was confronted by Baghabhai and A
others constituting the search party, whilst he was on his way
back to his residence. Kishanbhai, despite stating that he had
not taken her away, had informed those searching for Gomi,
that she could be at Jivi's field. On the suggestion of
Kishanbhai, the search party had gone to Jivi's farm, where B
they found the body of Gomi.
4. Based on the aforesaid fact situation, confirmed through
the investigation carried on by the Police, a charge-sheet was
framed against the accused Kishanbhai under Sections 363, C
369, 376, 394, 302 and 201 of the Indian Penal Code, and
Section 135(1) of the Bombay Police Act. The above charge-
sheet was filed before the Metropolitan Magistrate,
Ahmedabad. Since the offences involved could be tried only
by a Court of Session, the Metropolitan Magistrate, committed
the matter to the Court of Session. On 8.3.2004, the Sessions D
Court to which the matter came to be assigned, for trial, framed
charges. Since the accused Kishanbhai denied his involvement
in the matter, the court permitted the prosecution to lead
evidence.
E
5. The prosecution examined 14 witnesses. The statement
of the accused Kishanbhai was thereafter recorded under
Section 313 of the Code of Criminal Procedure. In his above
statement, the accused Kishanbhai denied his involvement.
Even though an opportunity was afforded to Kishanbhai, he did · F
not lead any evidence in his defence. After examining the
evidence produced by the prosecution, the Trial Court vide its
judgment dated 18.8.2004, arrived at the conclusion that
prosecution had successfully proved its case beyond
reasonable doubt. By a separate order dated 18.8.2004 the G
Trial Court sentenced Kishanbhai to death by hanging, subject
to confirmation of the said sentence by the High Court of
Gujarat at Ahmedabad (hereinafter referred to as the 'High
Court') under Section 366 of the Code of Criminal Procedure.
6. In the above view of the matter, the proceedings H
214 SUPREME COURT REPORTS [2014] 1 S.C.R.
A conducted by the Court of Session, were placed before the
High Court at the behest of the State of Gujarat, as
Confirmation Case No. 7 of 2004. Independently of the
confirmation proceedings, the accused Kishanbhai, aggrieved
by the judgment and order of sentence dated 18.8.2004, in
B Sessions Case No. 346 of 2003, filed Criminal Appeal No.
1549 of 2004 before the High Court.
7. The criminal appeal filed by the accused Kishanbhai
was accepted by the High Court. Kishanbhai was acquitted by
C giving him the benefit of doubt. The Confirmation Case No. 7
of 2004 was turned down in view of the judgment of acquittal
rendered by the High Court while allowing Criminal Appeal no.
1549 of 2004.
8. Dissatisfied with the order passed by the High Court,
D the State of Gujarat approached this Court by filing Petition for
Special Leave to Appeal (Crl.) No. 599 of 2006. On 11.9.2008
leave to appeal was granted. Thereupon, the matter came to
be registered as Criminal Appeal No. 1485 of 2008.
E 9. Before this Court, learned counsel for the appellant, in
order to substantiate the guilt of the accused-respondent
Kishanbhai, has tried to project that the prosecution was
successful in demonstrating an unbroken chain of
circumstances, clearly establishing the culpability of the
accused. In fact, the endeavour at the hands of the learned
F counsel for the appellant was to project an unbroken chain of
circumstances to establish the guilt of the accused. Despite the
defects in investigation and the prosecution of the case, as
also, the inconsistencies highlighted by the High Court in the
evidence produced by the prosecution, learned counsel for the
G State expressed confidence, to establish the guilt of the
accused-respondent. In this behalf, it is essential to record the
various heads under which submissions were advanced at the
hands of the learned counsel for the appellant-State. We shall,
therefore, briefly summarise all the contentions, and while doing
H so, refer to the evidence brought to our notice b~.' the learned
STATE OF GUJARAT v. KISHANBHAI 215
[JAGDISH SINGH KHEHAR, J.]
counsel for the appellant, to establish the guilt of the accused- A
respondent, Kishanbhai. The submissions advanced qefore us
are accordingly being recorded hereunder :
(a) First and foremost, learned counsel for the appellant,
in order to connect the accused with the crime under reference, 8
extensively relied upon the evidence produced by the
prosecution to show that the accused-respondent Kishanbhai
was last seen with the victim. He was seen taking away the
victim Gomi. For the above, reliance was placed on the
statement of Naranbhai Manabhai Solanki PW5, who had C
deposed that he had seen the deceased Gomi with the
accused-respondent Kishanbhai on 27.2.2003 at around 6:00
p.m. As per his deposition, he had seen Gomi eating a "gola"
outside his (the witness's) residence. At the same juncture, he
. had also seen the accused-respondent Kishanbhai coming
from the side of Polytechnic. Kishanbhai, according to the D
deposition of PW5, had approached Gomi. Thereafter, as per
the statement of PW5, the accused had carried away Gomi
towards the side of the Polytechnic. In his testimony, Naranbhai
Manabhai Solanki PW5, had also stated, that at about 9:00 pm,
when he had again seen the accused-respondent Kishanbhai E
coming from the road leading to the Gulbai Tekra Police
Chowki, he was asked, by those who were searching for Gomi,
about her whereabouts. The accused was also asked about the
whereabouts of Gomi, by Naranbhai Manabhai Solanki PW5
and by the son of PW 5 i.e., by Bababhai Naranbhai Solanki F
PW2. To the aforesaid queries, according to Naranbhai
Manabhai Solanki 'pws, the accused-respondent Kishanbhai
had stated, that she might be sitting in Jivi's field. In addition
to the testimony of Naranbhai Manabhai Solanki PW5,
reference was also made to the testimony of Dinesh G
Karshanbhai Thakore PW6. PW6, during his deposition, had
asserted, that the accused-respondent Kishanbhai had come
to his "lari" (handcart used by hawkers, to sell their products)
for purchasing a "dabeli". It was pointed out by Dinesh
Karshanbhai Thakore PW6, that he had noticed the accused H
216 SUPREME COURT REPORTS [2014] 1 S.C.R.
A carrying a child aged about seven years, wearing a red frock.
In his statement, he also affirmed that the accused-respondent
Kishanbhai, had asked him for a knife but he had declined to
give it to him. Thereupon, whilst leaving his "lari", Kishanbhai
had stolen a knife from his "lari". It was also pointed out, that
B the knife recovered at the instance of the accused-respondent
Kishanbhai, was identified by him as the one stolen from his
"lari". According to the learned counsel for the appellant, the last
seen evidence referred to above stands duly corroborated by
the deposition of Bababhai Naranbhai Solanki PW2, not only
C in his deposition before the Trial Court, but also in the complaint
filed by him at the first instance at Navrangpur Police Station,
Ahmedabad, immediately after the recovery of the dead body
of Gomi from Jivi's field.
(b) Learned counsel for the appellant also laid emphasis
D on the recovery of the weapon of offence, i.e., a blood stained
knife, at the instance of none other than the accused-respondent
Kishanbhai himself. In order to substantiate the instant aspect
of the matter, learned counsel placed reliance on the testimony
of Dinesh Karshanbhai Thakore PW6, who deposed that the
E accused had visited his "lari" on the evening of 27.2.2003 for
the purchase of a "dabeli". The accused respondent, as noticed
earlier, as per the statement of Dinesh Karshanbhai Thakore
PW6, was carrying a small girl aged about 7 years. He also
deposed, that the accused-respondent had asked him for his
F knife, but upon his refusal, had stolen the same from his "lari".
Dinesh Karshanbhai Thakore PW6, had identified the knife
which had been recovered at the instance of the accused, as
the one stolen by the accused-respondent Kishanbhai from his
"lari". Additionally it was submitted, that the accused had led
G the police to Jivi's field, from where he got recovered the murder
weapon, i.e., the same knife which he had stolen from the "lari"
of Dinesh Karshanbhai Thakore PW6. The above knife had a
blade measuring eight inches, including a steel handle of four
inches. At the time of recovery of the knife, the same had stains
H of blood. The above knife was recovered by the police on
STATE OF GUJARAT v. KISHANBHAI 217
[JAGDISH SINGH KHEHAR, J.]
1.3.2003, in the presence of an independent witness, namely, A
Rameshbhai Lakhabhai Bhati PW1, who in his deposition
clearly narrated, that the knife in question was recovered from
Jivi's ,field, from under some stones at the instance of the
accused-respondent Kishanbhai.
B
(c) Learned counsel for the appellant, then referred to the
medical evidence produced by the prosecution, so as to
contend that the wounds inflicted on the person of Gomi, were
with the murder weapon, i.e., the knife recovered at the instance
of the accused-respondent Kishanbhai. For this, learned C
counsel placed reliance on the statem.ent of Dr. Saumil
Premchandbhai Merchant PW8, who had conducted the post-
mortem examination of the deceased Gomi on 28.2.2003. In
the post-mortem report, according to learned counsel, mention
was made about several incised injuries which could have been
inflicted with the knife stolen by the accused-respondent D
Kishanbhai. In this respect, reference was made to serial No.14
of the post-mortem notes (Exhibit 29) proved by Dr. Saumil
Prenichandbhai Merchant PW8, clearly indicating, that the
injuries caused to the victim which have been referred to at
serial No.7, could have been caused with the knife (muddamal · E
Article No.19), i.e., the same knife, which had been recovered
at the instance of the accused. Even in the inquest panchnama
(Exhibit 14), it was recorded that both legs of the victim Gomi
were mutated from just above the ankle with a sharp weapon,
with the object of removing the anklets in the feet of the victim F
Gomi. This document. according to the. learned counsel, also
indicates the use of a knife in the occurrence under reference.
(d} It was also the submission of the learned counsel for
the appellant, that at the time of recovery of the body of the G
victim from Jivi's field, the same was found to be covered with
a shirt with stripes. It WCIS submitted, that the aforesaid shirt )IVaS
identified as the shirt worn by the accused-respondent
Kishanbhai, when he was seen carrying away the victim Gomi,
on 27.2.2003. In this behalf, reliance was placed by the learned
H
218 SUPREME COURT REPORTS [2014] 1 S.C.R.
A counsel for the appellant, on the testimony of Naranbhai
Manabhai Solanki PW5. The above witnesses had identified
the shirt as a white shirt with lines. To give credence to the
testimony of Naranbhai Manabhai Solanki PW5, learned
counsel also pointed out, that when the accused was found
B coming from the direction of the police station after the
commission of the crime, he was seen wearing a black T-shirt.
The statement of Naranbhai Manabhai Solanki PW5, was
sought to be corroborated with the statement of Dinesh
Karshanbhai Thakore PW6. The accused respondent is stated
c to have approached the "lari" of Dinesh Karshanbhai Thakore
PW6 for purchasing a "dabeli", and at that juncture, the
accused-respondent is stated to have been wearing a white
lined shirt, and a green trouser. On the recovery of the shirt and
trouser, they were marked as Mudammal Articles 8 and 14
D respectively. Dinesh Karshanbhai Thakore PW6 had identified
the shirt, as also, the trouser during the course of his deposition
before the Trial Court. The green trouser worn by the accused-
respondent was also identified by Bababhai Naranbhai Solanki
PW2. Additionally, Bababhai Naranbhai Solanki PW2 deposed
E that a black colour T-shirt was worn by the accused-respondent
when he was apprehended and brought to the police station.
The above articles were also identified by Angha Lalabhai
Marwadi PW12 and Naranbhai Lalbhai Desai PW13 who were
the panch witnesses at the time of seizure of the
abovementioned clothing.
F
(e) It was also the submission of the learned counsel for
the appellant, that the report of the forensic science laboratory
was sufficient to confirm, that the accused respondent was the
one who was involved in the commission of the crime under
G reference. In this behalf, it was pointed out that the victim Gomi
was shown to have blood group "B+ve". According to the report
of the Forensic Science Laboratory, the bricks recovered from
the place of occurrence (which had been used in causing
injuries on the head and other body parts of the victim). the
H panties worn by the deceased victim Gomi, the white shirt
STATE OF GUJARAT v. KISHANBHAI 219
[JAGDISH SINGH KHEHAR, J.]
which was found on the body of the victim at the time of its A
recovery from Jivi's field, the T-shirt and the green trouser worn
by the accused respondent Kishanbhai (at the time he was
apprehended), and even the weapon of the crime, namely, the
knife recovered at the instance of the accused-respondent, were
all found with blood stains. The forensic report reveals that the B
blood stains on all the above articles were of blood group
"B+ve". It was, therefore, the submission of the learned counsel
for the appellant, that the accused-respondent was
unmistakably shown to be connected with the crime under
reference. c
(f) In order to substantiate the motive of the accused-
respondent, learned counsel for the appellant relied upon the
statement of the investigating officer Ranchhodji Bhojrajji
Chauhan PW14, who had stated in his deposition that the
owner of Mahavir Jewellers, i.e., Premchand Shankarlal Mehta D
had presented himself at the police station. The
abovementioned jeweler is stated to have informed the police,
that the accused respondent Kishanbhai had pawned the
anklets belonging to the victim Gomi with him for a sum of
Rs.1,000/-. Insofar as the identification of the anklets is E
concerned, reference was made to the statement of Keshobhai
Madanbhai Solanki PW7, i.e., father of the victim who had
identified the anklets marked as Muddamal Article No.18, as
belonging to his daughter Gomi, which she was wearing when
she had gone missing. Reference was also made to the F
statement of Jagdishbhai Bhagabhai Marwadi PW11, as also,
the panchnama of recovery of the silver anklets which also,
according to learned counsel, connects the accused to the
crime.
G
(g) Last but not the least, learned counsel for the appellant
invited this Court's attention to the statement tendered by the
- accused under Section 313 of the Code of Criminal Procedure.
During the course of his above testimony, he was confronted
· with the evidence of the relevant witnesses depicting, that the
H
220 SUPREME COURT REPORTS · [2014] 1 S.C.R.
A victim Gomi was last seen in his company at 6:00 p.m. on
27.2.2003. He was also confronted with the fact, that he himself
had informed the search party, that Gomi may be found at Jivi's
field. It is submitted, that the accused-respondent Kishanbhai,
who had special knowledge about the whereabouts of the
B deceased, was bound to explain and prove when and where
he had parted from the company of the victim Gomi. It was
submitted that during the course of his deposition under
Section 313 of the Code of Criminal Procedure, the accused
could not tender any satisfactory explanation.
c Based on the above evidence, it was the submission of
the learned counsel for the appellant, that even in the absence
of any eye witness account, the prosecution should be held to
have been successful in establishing the guilt of the accused-
respondent Kishanbhai through circumstantial evidence. The
D claim of circumstantial evidence emerging from different
witnesses summarized above, according to the learned
counsel, leads to one and only one conclusion, namely, that the
accused-respondent Kishanbhai alone had committed the
criminal acts under reference. It was submitted, that the chain
E of circumstantial evidence, was sufficient to establish, that none
other than the accused-respondent could have committed the
alleged criminal actions. It was also contended, that no link in
the chain of circumstantial evidence was missing, so as to
render any ambiguity in the matter.
F
10. We have heard the learned counsels for the parties.
To determine the controversy arising out of the instant criminal
appeal, we shall first endeavour to summarise the conclusions
drawn by the High Court under different heads. We have
G decided to adopt the above procedure to understand the
implications of various aspects of the evidence produced by
the prosecution before the Trial Court. This procedure has been
adopted by us (even though the same was neither adopted by
the Trial Court, or by the High Court) so as to effectively
understand, and thereupon, to adequately deal with the
H
STATE OF GUJARAT v. KISHANBHAI 221
[JAGDISH SINGH KHEHAR, J.]
contentions advanced at the hands of the appellant, before this A
Court.
11. We would first of all, like to deal with the lapses
committed by the investigating arid prosecuting agencies in the
process of establishing the guilt of the accused before the Trial 8
Court. It will be relevant to mention that all these lacunae/
deficiencies, during the course of investigation and prosecution,
were pointed out by the High Court, in the impugned judgment.
These constitute relevant aspects, which are liable to be taken
into consideration while examining the evidence relied upon by C
the prosecution. We have summarised the aforesaid lapses,
pointedly to enable us to correctly deal with the submissions
advanced at the behest of the State. Since the guilt of the
accused in the instant case is to be based on circumstantial
evidence, it is essential for us to determine whether ot not a
complete chain of events stand established from the evidence D
produced by the prosecution. The above deficiencies and
shortcomings are being summarised below:
~(a) According to the prosecution story after having removed
the anklets from Gomi's feet, the accused Kishanbai had taken E
the anklets to Mahavir Jewellers, a shop owned by Premchand
Shankerlal. He pledged aforesaid anklets with Premchand
Shankerlal, for a sum of Rs. 1,000/-. The anklets under
reference, were handed over by Premchand Shankerlal to the
investing officer on 1.3.2003, in the presence of two panch F
witnesses. According to the prosecution case, the jeweller had
gone to the police station with the anklets on his own, after
having read newspaper reports to the effect, that a girl had
been raped and murdered and her anklets had been taken
away. He had approached the police station under. the G
suspicion, that the anklets pledged with him, might have
belonged to the girl mentioned in the newspaper reports. One
of the panch witnesses, namely, Jagdishbhai Marwari PW15
had deposed, that above Premchand Shankerlal had identified
the accused Kishanbhai, as the very person who had pledged
H
222 SUPREME COURT REPORTS [2014] 1 S.C.R.
A the anklets with him. In this behalf it is relevant to mention, that
Premchand Shankerlal was not produced as a prosecution
witness. It is important to notice, that the anklets handed over
to the Police, were successfully established by the prosecution
as the ones worn by the deceased Gomi. The lapse of the
B prosecution on account of not producing Premchand Shankerlal
as prosecution witness, according to the High Court, resulted
in a missing link in the chain of events which would have
established the link of the accused Kishanbhai, with the anklets,
and thereby convulsively connecting him with the crime.
c (b) The prosecution story further discloses, that Premchand
Shankerlal the owner of Mahavir Jewellers, had executed a
receipt with the accused Kishanbhai, depicting the pledging of
the anklets for a sum of Rs.1,000/-. The aforesaid receipt was
placed on record of the Trial Court as exhibit 52. The above
D receipt according to Pr.emchand Shankerlal, was thumb
marked by the accused Kishanbhai. Even though the receipt
indicates the name of the person who had pledged the anklets
as Rajubhai, the same could clearly be a false name given by
the person who pledged the anklets. Certainly, there could be
E no mistake in the identity of the thumb mark affixed on the said
receipt. The prosecution could have easily established the
identity of the pledger, by comparing the thumb impression on
the receipt (exhibit 52), with the thumb impression of the
accused-respondent Kishanbhai. This was however not done.
F The lapse committed by the prosecution in not producing
Premchand Shankerlal as a witness, could have easily been
overcome by proving the identity of the person who had pledged
the anklets, by identifying the thumb impression on the receipt
(exhibit 52), in accordance with law. In case the thumb
G impression turned out to be that of the accused Kishanbhai, he
would be unmistakably linked with the crime. In case it was
found not to be the thumb impression of the accused
Kishanbhai, his innocence could also have been inferred.
According to the High Court this important lapse in proving the
H
STATE OF GUJARAT v. KISHANBHAI 223
[JAGDISH SINGH KHEHAR, J,]
prosecution case before the Trial Court, had resulted in a major A
obstacle in establishing the guilt/innocence of the accused.
(c) It is a_lso the case of the prosecution, that when the
accused Kishanbhai was apprehended, a sum of Rs.940/- was
recovered from his possession. According to the prosecution
8
story the accused Kishanbhai had pledged the anklets at
Mahavir Jewellers with Premchand.Shankerlal for a sum of Rs.
1,000/-. In order to link the money recovered from his
possession at the time of his detention, it was imperative for
the prosecution to establish how and why a sum of Rs.940/- C
only, was recovered from the possession of the accused
Kishanbhai. l::fe ought to have been in possession of at least
Rs.1,000/- i.e., the amount given to him by Premchand
Shankerlal when he pledged the anklets at his shop, even if it
is assumed that he had no money with him when he had
pawned the anklets. This important link having not been D
established by the prosecution, breaks the chain of events
necessary to establish the guilt of the accused Kishanbhai, and
constitutes a serious lapse in the prosecution evidence ..
(d) It is apparent from the prosecution story, thafthe victim E
Gomi was raped. In establishing the factum of the rape the
prosecution had relied upon the note prepared at the time of
conducting the post-mortem examination of the deceased
Gomi. The same inter alia reveals, that dry blood was present
over the labia, and deep laceration of subcutaneous tissues was F
present on the left margin Of the vaginal opening, just above
the posterior commission. The hymen was also found ruptured
at 3 and 6,0' clock. It is therefore, that the accused was deputed
for.being subjected to medical examination, during the course '
of investigation. For the above purpose he was examined by G
Dr. P.D. Shah. In fact Dr.P.D. Shah was a cited witness before
the Trial Court. Despite the above Dr. P.O. Shah was not
examined as a prosecution witness. Clearly a vital link in a chain
of events, to establish the rape of the victim Gomi came to be
broken consequent upon by the non~examination of Dr. P.D.
Shah as a prosecution witness. H
224 SUPREME COURT REPORTS [2014] 1 S.C.R.
A (e) The High Court has also noticed, that even the report/
certificate given by the medical officer relating to the medical
examination of the accused Kishanbhai was not produced by
the prosecution before the Trial Court. It is apparent, that the
lapse in not producing Dr. P.O. Shah as a prosecution witness,
B may have been overcome if the report prepared by him (after
examining the accused Kishanbhai) was placed on the record
of the Trial Court, after being proved in accordance with law.
The action of prosecution in not producing the aforesaid report
before the Trial Court, was another serious lapse in proving the
C case before the Trial Court. This had also resulted a missing
vital link, in the chain of events which could have established,
whether or not accused Kishanbhai had committed rape on
victim Gomi.
(f) The High Court having noticed the injuries suffered by
D Gomi, a six year old girl child on her genitals, had expressed
the view, that the same would have resulted in reciprocal injuries
to the male organ of the person who had committed rape on
her. It was pointed out, that if the accused Kishanbhai had been
sent for medical examination the testimony or the report of the
E medical officer would have revealed the presence of smegma
around the corona-glandis, which would have either established
innocence or guilt of the accused, specially if the accused had
been medically examined within 24 hours. In the instant case
the sequence of the events reveal, that the occurrence had been
F committed between 6:00 p.m. to 8:00 p.m. on 27.2.2003. At
the time of recovery of the body of deceased Gomi from Jivi's
field, at about 9:00 pm, it came to be believed that she had
been subjected to rape. The accused Kishanbhai was shown
to have been formerly arrested at 6:40 a.m. on 28.2.2003 (even
G if the inference drawn by the High Court, that the accused
Kishanbhai was in police custody since 9:00 p.m. on 27.2.2003
itself, is ignored). The accused could have been medically
examined within a period of 24 hours of the occurrence. The
prosecution case does not show whether or not such action was
H taken. This lapse in the investigation of the case, had also
STATE OF GUJARAT v. KISHANBHAI 225
[JAGDISH SINGH KHEHAR, J.]
resulted the omission of a vital link in the chain of events which A
would have unquestionably established the guilt of the accused
Kishanbhai of having committed rape (or possibly his
innocence).
(g) It needs to be noticed, that when the accused 8
Kishanbhai was arrested, there were several injuries on his
person. The said injuries were also depicted in his arrest
panchnama. At 7:15 am on 28.2.2003, the accused Kishanbhai
filed a first information report alleging, that he was beaten by
some of the relatives of the victim Gomi, as also, by some C
· unknown persons accompanying the search party, under the
suspicion/belief, that he was responsible for the occurrence. In
the above first information report, the accused Kishanbhai had
also depicted the nature of injuries suffered by him. The
statement of the investigating officer Ranchodji Bhojrajji
Chauhan PW14 reveals, that the accused Kishanbhai had been D
sent to Civil Hospital, Ahmedabad, for his medical examination.
Neither the doctor who had examined the accused was
produced as a prosecution witness, nor the report/certificate
given by the medical officer disclosing the details of his
observations/findings was placed on record. This evidence was E
vital for the success of the prosecution case. According to the
High Court, blood of group "B +ve" was found on the clothes of
the accused Kishanbhai. The important question to be
determined thereupon was, whether it was his own blood or
. blood of the victim Gomi. The statement of the medical officer · . F
who had examined the accused Kishabhai, when he was sent
for medical examination to Civil Hospital, Ahmedabad, would
have disclose whether or not accused Kishanbhai had any
bleeding injuries. The importance of nature of the injuries
. suffered by the accused Kishanbhaiemerges from the fact, that G
both the accused Kishanbhai and the victim Gomi had the
same blood group "B +ve". An inference could have only been
drawn that the blood on his clothes was that of the victim, in
case it was established that the accused-respondent
Kishanbhai had not suffered any bleeding injuries, and H
226 SUPREME COURT REPORTS [2014] 1 S.C.R.
A therefore, the possibility of his own blood being on his clothes
was ruled out. This important link in the chain of events is also
missing from the evidence produced by the prosecution, and
constitutes a serious lapse in the investigation/prosecution of
the case.
B
In view of the above factual position, the High Court made
the following observations "Looking to the advancement in the
field of medical science, the investigating agency should not
have stopped at this stage. Though ABO system of blood
grouping is one of the most important system, which is being
C normally used for distinguishing blood of different persons, there
are about 19 genetically determined blood grouping systems
known to the present day science, and it is also known that there
are about 200 different blood groups, which have been identified
by the modern scientific methods (Source: Mc-Graw-Hill
D Encyclopedia of Science and Technology, Vol.2). Had such an
effort been made by the prosecution, the outcome of the said
effort would have helped a lot to the trial Court in ascertaining
whether the accused had in fact visited the scene of offence."
This also constitutes a glaring lapse in the investigation of the
E crime under reference.
There has now been a great advancement in scientific
investigation on the instant aspect of the matter. The
investigating agency ought to have sought DNA profiling of the
F blood samples, which would have given a clear picture whether
or not the blood of the victim Gomi was, in fact on the clothes
of the accused-respondent Kishanbhai. This scientific
investigation would have unquestionably determined whether or
not the accused-respondent was linked with the crime.
G Additionally, DNA profiling of the blood found on the knife used
in the commission of the crime (which the accused-respondent,
Kishanbhai had allegedly stolen from Dinesh Karshanbhai
Thakore PW6), would have uncontrovertibly determined,
whether or not the said knife had been used for severing the
legs of the victim Gomi, to remove her anklets. In spite of so
H
STATE OF GUJARAT v. KISHANBHAI 227
[JAGDISH SINGH KHEHAR, J.]
much advancement in the field of forensic science, the A
investigating agency seriously erred in carrying out an effective
investigation to genuinely determine the culpability of the
accused-respondent Kishanbhai.
(h) It is also apparent from the complaint submitted by
8
Bababhai Naranbhai Solanki PW 2, that he had been informed
by one Kalabhai Ganeshbhai, that he had seen the accused
Kishanbhai taking away Gomi. In such an event, the proof of
the fact of the accused-respondent having abducted Gomi could
have only been substantiated, through the statement of
Kalabhai Ganeshbhai who had allegedly actually seen the C
accused Kishanbhai taking her away. According to the High
Court, for the reasons best known to it, the prosecution did not
produce Kalabhai Ganeshbhai as a witness. Even though
according to the High Court the above-mentioned Kalabhai
Ganeshbhai was a resident in one of the peon quarters, and D
was also a government servant, the absence of the evidence
of the above factual position, results in a deficiency in the
confirmation of a factual position of substantial importance,
from the chain of events necessary for establishing the last seen
evidence. E
(i) It is also apparent, that there is no dispute about the
recovery of a green blood stained "dupatta", from the person
of the victim. The green blood stained "dupatta" (veil) was found
by the medical officer while conducting the post-mortem F
examination on Gomi. The existence of the green "dupatta" was
also duly mentioned in the post-mortem report. According to
the High Court, none of the prosecution witnesses had referred
to the factum of the victim having worn a green "dupatta".
According to the prosecution evidence, the deceased was G
wearing a red frock and panties, whereas, the accused was
wearing a full sleeve white shirt and green trousers. According
to the High Court, if neither the victim nor the accused had a
green "dupatta", a question would arise, as to how the green
blood stained "dupatta" was found on the dead body of the
H
228 SUPREME COURT REPORTS [2014) 1 S.C.R.
A victim. Even leading to the inference of the presence of a third
party at the time of occurrence. The above omission in not
explaining the presence of the green "dupatta", has also been
taken by the High Court, as a glaring omission at the hands of
the prosecution in the process of investigation/prosecution of
B the charges levelled against the accused Kishanbhai.
(j) While deposing before the Trial Court, Dinesh
Karshanbhai Thakore PW6, affirmed that the accused-
respondent Kishanbhai had approached his "lari" for the first
time to purchase a "dabeli" on 27.2.2003. It is, therefore,
C apparent that Dinesh Karshanbhai Thakore PW6 had not known
the accused-respondent before 27.2.2003. In the above view
of the matter, it was imperative for the investigating agency to
hold a test identification parade in order to determine whether
Dinesh Karshanbhai Thakore PW6, had correctly identified the
D accused-respondent, as the person who had come to his "lari"
to purchase a "dabeli" on 27.2.2003. And also whether he was
the same person, who had stolen a knife from his "lari" on
27.2.2003. This is also a serious deficiency in the.investigation/
prosecution of the case.
E
(k) Bababhai Naranbhai Solanki PW2, the complainant in
the present case, during the course of his examination-in-chief,
observed as under :
"This incident was occurred on 27/2/2003, on that day
F Lilaben came to my house for pregnancy. On the day of
the incident at 6.00 o clock in the evening I came to know
that Gomiben the daughter of Lilaben is not found.
Therefore, all our relatives have started searching her. We
went to the quarter of my father, and inquired about the
G Gomiben, my father told that I saw Gomiben with Lalis
Sister in law brother Kisan, he gave ice cream to Gomi.
Therefore. we have searched in the quarters and other
places. At around 8.00 o clock in the night kishan was
coming from police Station, we have started asking him,
H at that time along with me Shri Jagabh3i Molabhai,
STATE OF GUJARAT v. KISHANBHAI 229
[JAGDISH SINGH KHEHAR, J.]
Mohanbhai Molabhai, Hirabhai were present. This police A
Chawky means Gulbai Tekra Police Chawky. He told me
that I have left her at Jivivala Field. Therefore, we went at.
the Jivivala Field, at around 8.00 or 9.00 o clock, we went
there and we found Gomiben in dead conditions, she had
a several injuries on her head and other parts of the body. B
She was being raped."
From the above statement, it is apparent that Gomi was
found missing for the first time at 6:00 pm. The search for her
began immediately thereafter. The search party met the C
accused-respondent Kishanbhai coming from the side of the
police station at 8:00 p.m. All the prosecution witnesses have
been equivocal about the fact that Gomi werit missing at about
6:00 p.m., i.e., the time when she was last seen in the company
of the accused-respondent Kishanbhai, and thereafter, the
search party met Kishanbhai at 8:00 pm. In order to give D
credence to the prosecution version, it was imperative to
establish that it was possible for the accused-respondent
Kishanbhai, after having taken Gomi at 6:00 p.m., to have
stopped at the "lari" of Dinesh Karshanbhai Thakore PW6,
purchased a "dabeli" from him. Thereupon, to have had time E
to steal his knife, the accused-respondent proceeded on with
Gomi to Jivi's field. There ought to have been enough time for
him thereafter to have raped her, then assaulted her with bricks
on her head and other parts of the body leading to her death,
and finally to cut her legs just above her ankles, to remove her F
anklets. He should thereupon have also had time to hide the
knife used in the commission of the crime, under the stones.
And thereafter further time, to have taken the anklets to Mahavir
Jewellers so as to pawn the same with Premchand Shankarlal
Mehta, as also, time to execute a receipt in token thereof. Over G
and above the above, he ought have had time, to visit his
residence so as to able to wear a fresh shirt i.e., the shirt which
he was wearing when he was detained. After all that, he should
have had time to cover the area from Jivi's field to Premchand
Shankarlal Mehta's shop and further on from the above shop H
230 SUPREME COURT REPORTS [2014] 1 S.C.R.
A to his residence and finally from his residence till the place
where he was detained. It is difficult to appreciate how all the
activities depicted in the prosecution story, could have been
carried out from 6:00 p.m. on 27.2.2003 to 8:00 p.m. on the
same day, i.e., all in all within a period of two hours. It is in the
B above context that the cross-examination of Naranbhai
Manabhai Solanki PW5, assume significance. Relevant extract
from his cross-examination is being reproduced hereunder :
"It is true that the accused was coming from police Chawky
at around 8.00 or 8.30 p.m. as I was not wearing the watch
c I cannot say the exact time. It is true that it takes 15 to 20
minutes to go to Panjrapole from my quarters, and it will
take 30 to 35 minutes to go to the field of JIVI. It is true
that it will taken half an hour to come to the Office of BSNL
through Jivi's Field and C.N. Vidhayalaya. It is true that
D from the Jivis field towards Panjrapole and through
Panjrapole main road towards BSNL office. by walking it
will take 40 minutes. It is true that both the roads are public
roads, and many people are passing through this road."
E (emphasis is ours)
Whether or not the above sequence of events could have
taken place in the time referred to above, would have been
easily overcome if the prosecution had placed on record a
F sketch map providing details with regard to the distance
between different places. In that event, it would have become
possible to determine whether the activities at different places,
projected through the prosecution version of the incident were
possible. In the absence of any knowledge about the distance
between the residence of the victim Gomi as well as that of the
G accused from the Polytechnic or from Jivi's field; it would be
impossible to ascertain the questions which emerge from the
cross-examination of Naranbhai Manabhai Solanki PW5. Had
a sketch map been prepared or details with regard to the
distance been given, the courts concerned would have been
H able to determine all that was alleged in the pros&cution version
STATE OF GUJARAT v. KISHANBHAI 231
[JAGDISH SINGH KHEHAR, J.]
of the incident. This deficiency in the prosecution evidence, A
must be construed as a serious infirmity in the matter.
12. We would now like to deal with the discrepancies found
in the evidence produced by the prosecution before the Trial
Court. We would also simultaneously summarise the effect of B
defences adopted on behalf of the accused-respondent
Kishanbhai. These aspects of the matter are also being
summerised hereunder, so as to enable us to effectively deal
with the submissions advanced at the behest of the State.
These aspects of the matter are liable to be taken into C
consideration, to determine whether or not, a complete chain
of events stands proved to establish the guilt of the accused-
respondent. The above considerations are summarized
hereunder:
(a) The post mortem report relied upon by the prosecution D
leaves no room for any doubt that injuries on the genitals of
Gomi were post mortem in nature. The question which arises
for consideration is whether the injuries under reference had
been inflicted on the victim first, and thereupon, rape was
committed on the victim. It is natural to assume, that the first E
act of aggression by the person who had committed assault •
on Gomi, was by inflicting injuries on her head and other parts
of the body, only thereafter the legs just above the ankles,
would have been cut (with the object of removing her anklets).
It is not possible for us to contemplate that the legs of the F
deceased were cut whilst she was in her senses, is
incomprehensible and therefore, mot) unlikely. Now, the
question to be considered is, whether it was humanly possible
for even the most perverted person, to have committed rape
on a child, who had been killed by causing injuries on head and G
olher_parts of body, and after her feet had been severed from
Her legs~ We would have no hesitation by responding in the
negative. The prosecution in the instant case apparently
\projected a version including an act of rape, which is
H
232 SUPREME COURT REPORTS [2014] 1 S.C.R.
A impossible to accept on the touchstone of logic and common
sense.
(b) The evidence produced by the prosecution also
reveals, that pubic hair of the accused-respondent Kishanbhai,
B had been examined by the scientific officer of the Forensic
Science Laboratory. The report submitted by the Forensic
Science Laboratory (Exhibit 48) reveals, that there was neither
any semen nor any blood on the pubic hair of the accused.
Reference to the possibility of there being blood on the public
hair of the accused-respondent Kishanbhai emerges from the
C fact, that the post mortem report of the deceased revealed, that
there was blood on the vagina of the deceased. Whilst accusing
the respondent-Kishanbhai of the offence under Section 376
of the Indian Penal Code, it was imperative for the prosecution
to have kept in its mind the aforesaid aspects of the matter.
D Absence of semen or blood from the pubic hair of the accused-
respondent, would prima facie exculpate him from the offence
of rape.
(c) According to the testimony of the complainant
E Bababhai Naranbhai Solanki PW2, the accused-respondent
Kishanbhai was wearing a white shirt at the time of occurrence.
It is, therefore, when a white shirt was found covering the dead
body of the victim Gomi, he had identified the same as the shirt
which the accused-respondent Kishanbhai was wearing, before
F the offence was committed. From the prosecution story, as it
emerged from the statements of different witnesses, it is
apparent that Bababhai Naranbhai Solanki PW2, had had no
occasion to have seen the accused-respondent Kishanbhai,
wearing the said white shirt. When Bababhai Naranbhai
Solanki PW2, was questioned as to how he knew that the
G accused-respondent was wearing a white shirt, when he first
saw the shirt covering the dead body of the victim. his response
was, that he had been told about that by his father Naranbhai
Manabhai Solanki PW5. In the above view of the matter, the
question arises whether the testimony of BababhaL Naranbhai
H
STATE OF GUJARAT v. KISHANBHAI 233
[JAGDISH SINGH KHEHAR, J.]
Solanki PW2 about the shirt referred to above was truthful. And A
whether his testimony can be described as fair and honest.
(d) Additionally when the accused-respondent Kishanbhai
was arrested, the T-shirt worn by him, was taken from him by
recording a panchnama. The said T-shirt is available on the 8
record of the Trial Court as Exhibit-39. It is not a matter of
dispute that the T-shirt (Exhibit 39), worn by the accused-
respondent, Kishanbhai at the time of his arrest, is actually a
white T-shirt with a trident design c;m it. But, as per the narration
recorded by Bababhai Naranbhai PW2, contained in the C
complaint which constituted the basis of registering the first
information, it is mentioned that the accused-respondent
Kishanbhai was wearing a black T-shirt at the iime of his
detention. It is apparent from the factual position. noticed
hereinabove, that the factual position expressed by the
complainant Bababhai Naranbhai Solanki PW2 was absolutely D
incorrect, and contrary to the factual position. In the above view
of the matter, a question would arise, whether the deposition
of Bababhai Naranbhai Solanki PW2 was fair and honest.
(e) According to the prosecution version of the incident, E
the search party met the accused-respondent Kishanbhai at
about 8:00 p.m. ·The said party had thereupon pmceeded to
Jivi's field, from where the dead body of the victim was
recovered. According to Naranbhai Manabhai Solanki PW5,
,after finding the dead body, he had proceeded to the police F
station. At the police station, he had requested the police
personnel to visit the site of occurrence. Simultaneously,
Naranbhai Manabhai Solanki PW5 had stated, that when
enquiries were being made from Kishanbhai, police personnel
had taken away the accused-respondent. According to the G
testimony of Naranbhai Manabhai Solanki PW5, therefore, at
the most, the accused-respondent must be deemed to· have
been taken into police custody from about 9:00 p.m. on
27.2.2003. It is apparent, that the occurrence had come to the
·knowledge of a large number of persons constituting the search
H
234 SUPREME COURT REPORTS [2014] 1 S.C.R.
A party, when the victim's body was found on Jivi's field. Even
before that, the accused-respondent was already in police
custody. As if, the police had already concluded on the guilt of
Kishanbhai, even before the recovery of Gomi's body from Jivi's
farm. Despite the above, the arrest of the accused-respondent
B Kishanbhai was shown at 6.40 a.m. on 28.3.2003. The
detention of the accused-respondent Kishanbhai from 9:00 pm
on 27.2.2003 to 6.40 a.m. on 28.2.2003, shows that the
prosecution has not presented the case in the manner the
events unfolded to the investigating agencies.
c (f) It also needs to be noticed, that the inquest panchnama
besides mentioning the amputation of the legs of the victim
above her ankles, also records, that the silver anklets worn by
Gomi were missing. In this behalf, it would also be relevant to
mention, that even though the inquest panchnama was drawn
D at 0030 a.m. on 28.2.2003, the complaint resulting in the
registration of the first information report was lodged by
Bababhai Naranbhai Solanki PW2 at 3:05 a.m. on 28.02.2003.
It is strange, that the inquest panchnama should be drawn
before the registration of the first information report. It is also
E strange as to how, while drawing the inquest panchnama, the
panchas of the same could have recorded, that after
amputation of the victim's legs, her silver anklets had been
taken away by the offender. There was no occasion for the
panchas to have known, that Gomi used to wear silver anklets.
F Accordingly, there was no occasion for them to have recorded
that the silver anklets usually worn by Gomi had been taken away
by the offender.
(g) From the prosecution version (emerging from the
G evidence recorded before the Trial Court), it is apparent, that
the search party, as also, the relatives of the victim,were aware
at about 8:00 p.m. on 27.2.2003 that Gomi had been murdered,
with a possibility of her having been raped also, and her silver
anklets had been stolen. Despite the above, no complaint
whatsoever came to be filed in connection with the above
H
STATE OF GUJARAT v. KISHANBHAI 235
[JAGDISH SINGH KHEHAR, J.]
occurrence at the police station on 27.2.2003, despite the close A
coordination between the search party and the police from 8:00
pm onwards no 27.2.2003 itself. The complaint leading to the
filing cif the first information was made at about 3:05 a.ITI. on
28.2.2003. Not only is the delay of seven hours in the
registration of the complaint ununderstandable, but the same s
is also rendered extremely suspicious, on the account of the
fact that the accused-respondent Kishanbhai is acknowledged
to be in police detention since 9:00 p.m. on 27.2.2003 itself.
This may be the result of fudging the time and date at which
the victim Gomi went missing, as also, the time and date on c
which the body of the victim was discovered resulting in the
discovery of the occurrence itself. The question which arises
for consideration is, whether the investigation agency adopted
the usual practice of padding· so as to depict the occurrence
in a manner different from the actual occurrence. A question
0
also arises as to why it was necessary for the investigating
agency to adopt the above practice, despite the fact that it was
depicted as an open and shut case.
(h) As noticed above, that from the statements of Bababhai
Naranbhai Solanki PW2 and Naranbhai Manabhai Solanki E
PWS, it is apparent that the accused was detained by the
police inforn:ially around 9:00 p.m. on 27.2.2003. It is also
essential to notice, that an acknowledgement was. made to the
above effect even by Sub Inspector Naranbhai Lalbhai Desai
PW13, who had commenced investigation of the crime under F
reference. It is apparent that when Bababhai Naranbhai Solanki
PW2, had contacted him with details about the offence under
reference, he had not recorded any entry in the station diary
before leaving the police station. This constitutes a serious
lapse in itself. In his cross-examination, he had affirmed that G
he was taken by Bababhai Naranbhai Solanki PW2, i.e., the
complainant to the scene of occurrence. Having gone to the
scene of occurrence, and having made on the spot investigation,·
he acknowledged having returned to the police station. In his
statement, he accepted, that when he had returned to the pcilice H
236 SUPREME COURT REPORTS [2014] 1 S.C.R.
A station after visiting the site of occurrence, the accused-
respondent Kishanbhai was already present at the police
station. When questioned, he could not tender any explanation,
as to how the accused-respondent Kishanbhai had come to the
police station. In his statement as a witness, he had expressed,
B that for the first time he had seen the accused-respondent
Kishanbhai only on 28.2.2003 at around 5:30 a.m. Whereafter,
the accused-respondent was formally arrested at 6.40 a.m. The
inconsistency between the statements made by the complainant
(Bababhai Naranbhai Solanki PW2) and his father (Naranbhai
C Manabhai Solanki PW5) on the one hand, and by Sub-Inspector
Naranbhai Lalbhai Desai PW13 on the other, discloses a
serious contradiction with respect to the time of the detention
of the accused-respondent Kishanbhai. It needs to be noticed,
that it was an aberration for Naranbhai Lalbhai Desai PW13,
to have left the police station without making an entry in the
0
station diary. Why should a police officer, investigating a crime
of such a heinous nature, commit such a lapse? The fact that
he did so, is not a matter of dispute. The truth of the matter is,
that Naranbhai Lalbhai Desai PW13, did not make any note
either in the station diary or in any other register; he did not take
E any informal complaint from the complainant, even though he
had been apprised about the commission of an offence. It is
therefore clear that Naranbhai Lalbhai Desai PW13, had left
the police station without making an entry depicting the purpose
of his departure. All this further adds to the suspicion of the
F manner in which investigation of the matter was conducted.
(i) So far as the statement of Dinesh Karshanbhai Thakore
PW6 is concerned, he had supported the prosecution story by
deposing, that the accused had visited his "lari" with a small
G child, about seven years old. He had further asserted, that the
accused-respondent Kishanbhai had purchased a "dabeli" from
him. He had also testified that the accused -respondent had
asked for a knife but he had refused to give it to him because,
at the time when the accused-respondent had visited the "lari",
H there were several customers waiting for purchasing "dabelis".
STATE OF GUJARAT v. KISHANBHAI 237
[JAGDISH SINGH KHEHAR, J.]
He further confirmed, that the accused-respondent had stolen A
a knife, used by him for cutting vegetables from his "lari".
Another important aspect of the matter, out of the statement of
Dinesh Karshanbhai Thakore PW6 is, that he identified the shirt
that the accused-respondent Kishanbhai was wearing, at the
time when he had visited his "lari" for purchasing a "dabeli" on B
27 .2.2003. He had also identified the red frock which the victim
was wearing at the said juncture. Additionally, he identified the
knife which the accused-respondent Kishanbhai had stolen
from his "lari". The statement of Dinesh Karshanbhai Thakore
PW6 was considered to be untrustworthy by the High Court, c
primarily for the reason that he could identify the shirt worn by
the accused-respondent; Kishanbhai when he had approached
his "lari" for the purchase of a "dabeli", at which juncture, the
accused-respondent Kishanbhai may have remained at the
1
"lari" at the most for 10 to 15 minutes, when there was a rush
0
of customers. As against the above, he had remained with the
· accused-respondent Kishanbhai at Navrangpur Police Station,
Ahmedabad, for approximately four hours. During the course
of his cross-examination, he could not depose about the sort
of shirt which the accused respondent was wearing, at the
E
Navrangpur Police Station, Ahmedabad. It is, therefore,
apparentthat Dinesh Karshanbhai Thakore PW6 was deposing
far in excess of what he remembered, and/or in excess of what
was actually to his knowledge. He appears to be a tutored
witness. This aspect of the matter also renders the testimony
of Dinesh Karshanbhai Thakore PW6, suspicious. F
0) There is yet another aspect of the controversy relating
to Dinesh Karshanbhai Thakore PW6. The investigating agency
became aware from the disclosure statement of the accused-
respondent Kishanbhai tendered on 1.3.2003, that he had G
procured the weapon of offence by way of theft from the "lari"
of Dinesh Karshanbhai Thakore PW6. The above knife was
recovered at the instance of the accused-respondent
Kishanbhai on 1.3.2003, in the presence of panch witnesses.
In the above view of the matter, in the ordinary course of H
238 SUPREME COURT REPORTS [2014] 1 S.C.R.
A investigation, it would have been imperative for the investigating
agency to have immediately approached Dinesh Karshanbhai
Thakore PW6, to record his statement. His statement was
extremely important for the simple reason, that it would have
connected the accused with the weapon with which the crime
B had been committed, as also with the victim. Despite the
above, the investigating agency recorded the statement of
Dinesh Karshanbhai Thakore PW6, for the first time on
4.3.2003. No reason is forthcoming why his statement was not
recorded either on 1.3.2003, or on the intervening dates before
c 4.3.2003. The inordinate delay by the investigating agency, in
confirming the version of the accused-respondent, in respect
of the weapon of the crime, renders the prosecution version
suspicious. Such delay would not have taken place in the
ordinary course of investigation. If there were good reasons for
D the delay, they ought to have been made known to the Trial
Court by way of reliable evidence. This fact too raises a doubt
about the correctness of the prosecution version of the incident.
. The above discrepancies in the prosecution version, were
duly noticed by the High Court. These constitute some of the
E glaring instances recorded in the impugned order. Other
instances of contradiction were also noticed in the impugned
order. It is not necessary for us to record all of them, since the
above instances themselves are sufficient to draw some vitally
important inferences. Some of the inferences drawn from the
F above, are being noticed below. The prosecution's case which
mainly rests on the testimony of Bababhai Naranbhai Solanki
PW2, Naranbhai Manabhai Solanki PW5 and Dinesh
Karshanbhai Thakore PW6, is unreliable because of the
glairing inconsistencies in their statements. The testimony of
G the investigating officer Naranbhai Lalbhai Desai PW13 shows
fudging and padding, making his deposition untrustworthy. In
the absence of direct oral evidence, the prosecution case
almost wholly rested on the above mentioned witnesses. It is
for the above reasons, that the High Court through the
H
STATE OF GUJARAT v. KISHANBHAI 239
[JAGDISH SINGH KHEHAR, J.]
impugned order, considered it just and appropriate to grant the A
accused-respondent Kishanbhai, the benefit of doubt.
13. Learned counsel for the appellant, in order to support
the submissions advanced before this Court in the present
criminal appeal (which have been recorded in paragraph 9
8
hereinabove), with judicial precedent, placed reliance on a
number of judgments rendered by this Court. We shall now
summarise hereunder, the judgment relied upon, as also, the
submissions of the learned counsel on the basis thereof:
(a) Referring to the judgment rendered by this Court in Ram C
Prasad & Ors. v. State of UP, (1974) 1 SCR 650, it was
asserted at the hands of the learned counsel for the appellant,
that non-examination of some of the eye-witnesses would not
introduce a fatal infirmity to the prosecution case, specially
when conviction could be based on evidence produced by the D
prosecution.
(b) Reference was also made to Takhaji Hiraji v. Thakore
Kubersing Camansing & Ors., (2001) 6 SCC 145, and it was
pointed out, that this Court has ruled that in cases where E
witnesses already examined were reliable, and the testimony
coming from the mouth was unimpeachable, a court could
safely act upon the same uninfluenced by the factum of non-
examination of other witnesses. Yet again the conclusion was,
that reliable evidence should be available, to determine the
culpability of an accused, and in the above view of the matter F
it would be irrelevant whether some others who could have
deposed on the facts in issue had notbeen examined ..
(c) Based on the judgment rendered in Laxman Naik v.
State of Orissa, (1994) 3 sec 381, it was submitted, that in a G
case relating to a seven year old child, who had been raped
and murdered by her own uncle~ 'felying upon"incriminating
evidence and testimony of witnesses, it came to be held that
when circumstances form a complete chain of incidents, then
the same is sufficient to establish, that the accused is the H
240 SUPREME COURT REPORTS [2014] 1 S.C.R.
A perpetrator of the crime and conviction can be based on the
complete chain of circumstantial evidence.
(d) Based on the judgment in State of Maharashtra v.
Suresh, (2000) 1 SCC 471, where four years' girl child was a
victim of rape and murder, it was contended, that this Court had
8
held that it was open to a court to presume that the accused
knew about the incriminating material or dead body due to his
involvement in the alleged offence. When he discloses the
location of such incriminating material without disclosing the
manner in which he came to know of the same, the Court would
C presume that the accused knew about the incriminating
material.
(e) Relying on the judgment in Amar Singh v. Ba/winder
Singh, 2003 (2) sec 518, it was contended, that where the
D prosecution case is fully established by the testimony of
witnesses which stood corroborated by medical evidence, any
failure or omission of the investigating officer could not be
treated as sufficient to render the prosecution case doubtful or
unworthy of belief. This determination leads to the same
E inference, namely, when reliable evidence to prove the guilt of
an accused is available, lapses in investigation would not result
in grant of the benefit of doubt to an accused.
(f) Referring to State Government of NCT Delhi v. Sunil,
(2001) 1 sec 652, it was asserted, that in a case where a
F child of four years was brutally raped and murdered and
incriminating articles were recovered on the basis of the
statement of the accused, the same could not be discarded on
the technical ground that no independent witness was examined .
.G (g) Referring to the judgment in Joseph v. State of Kera/a,
(2005) 5 SCC 197, wherein, according to the learned counsel,
it was held that where the circumstances proved form
themselves into a complete chain unerringly pointing to the guilt
of the appellant, then the same can be the basis of the
H conviction of the accused. This, according to learned counsel,
'
STATE OF GUJARAT v. KISHANBHAI - ].41.,
[JAGDISH SINGH KHEHAR, J.]
,
represents the manner of proving the guilt of an accused based A
on circumstantial evidence.
(h) Based on the judgment in State of UP v. Satish (2005)
3 sec 114, it was contended that it could not be laid down as ·
a rule of universal application that if there is any delay in 8
examination of a particular witness, the prosecution version
becomes suspect. Therefore, the facts surrounding the delay
ought to be considered in every case to determine whether or
not the testimony is rendered suspicious.
·. (i) Relying. on the judgment in Bishnu Prasad Sinha v State C
of Assam, (2007) 11 SCC 467, it was submitted, that in the
above case where a childof 7-8 year.s was a victim of rape
and murder, the grounds that the investigation was done in an
improper manner did not render the entire prosecution case to
be false. Namely, where reliable evidence is available, the D
same would determine the guilt of an accused.
0) Referring to the judgment in Aftab Ahmad Anasari v.
State of Uttaranchal, (2010) 2 sec 583, it was asserted, .that
where a child of five years was a victim of rape and murder E
and the accused disclosed the location of the crime as also of
the incriminating articles, the said disclosure was admissible
and would constitute a complete chain in the circumstances. ·
Further, according to the learned counsel, it was held that the
inquest panchnama may not contain every detail and the
F
absence· of some details would not affect the veracity of the
· deposition made by witnesses. Needless to mention, that
absence of vital links in the claim of circumstantial evidence
would result in the exoneration of the accused.
(k) Reliance was placed on Sambhu Das v. State of G
Assam, (2010) 10 SCC 374, so as to contend, that any
discrepancy occurring in the inquest report or the post mortem
report could neither be fatal nor be termed as a suspicious
circumstance as would warrant a benefit to the accused and
the resultant dismissal of the prosecution case. Needless to H
.--
242 SUPREME COURT REPORTS [2014] 1 S.C.R.
A add, that there should be sufficient independent evidence to
establish the guilt of the accused.
(I) Based on the judgment in Haresh Mohandas Rajput
v. State of Maharashtra, (2011) 12 sec 56, it was contended,
that in a case of murder and rape of a ten year old child. it was
8
found that where the circumstances taken cumulatively led to
the conclusion of guilt and no alternative explanation is given
by the accused, the conviction ought to be upheld This case
reiterates that in a case based on circumstantial evidence the
C evidence should be such as would point to the inference of guilt
of the accused alone and none others.
(m) Relying on Rajendra PrahladraoWasnik v. State of
Maharashtra, (2012) 4 sec 37, it was submitted that where a
three years old child was a victim of rape and murder by the
D accused who lured her under the pretext of buying biscuits,
circumstances showed the manner in which the trust/belief/
relationship was violated resulting in affirming the death penalty
imposed on the accused.
E 14. We have given our thoughtful consideration to the
submissions advanced at the hands of the learned counsel for
the appellant, which have been duly noticed in paragraph 9
hereinabove. It is also relevant for us to record, that the learned
counsel for the appellant did not advance a single submission
F in addition to the contentions we have noticed in paragraph 9
above. The submissions advanced at the hands of the learned
counsel for the appellant, were sought to be supported by
judgments rendered by this Court, all of which have been
referred to in paragraph 13 above. The submissions advanced
at the hands of the learned counsel for the appellant, based on
G each of the judgments cited, have also been recorded by us in
the said paragraph. Having considered the totality of the facts
and circumstances of this case, specially the glaring lapses
committed in the investigation and prosecution of the case
(recorded in paragraph 11 of the instant judgment), as also the
H inconsistencies in the evidence produced by the prosecution
STATE OF GUJARAT v. KISHANBHAI 243
[JAGDISH SINGH KHEHAR, J.]
(summarized in paragraph 12 hereinabove), we are of the A
considered view, that each one of the submissions advanced
at the hands of the learned counsel for the appellant is
meritless. For the circumstantial evidence produced by the
prosecution, primary reliance has been placed on the
statements of Bababhai Naranbhai Solanki PW2, Naranbhai 8
Manabhai Solanki PW5, and Dinesh Karshanbhai Thakore
PW6. By demonstrating inconsistencies and infirmities in the
statements of the above witnesses, their statements have also
been rendered suspicious and accordingly unreliable. There is
also a serious impression of fudging and padding at the hands c
of the agencies involved. As a matter of fact, the lack of
truthfulness of the statements of witnesses has been
demonstrated by means of simple logic emerging from the
factual position expressed through different prosecution
witnesses (summarized in paragraphs 11 and 12 above). The
0
evidence produced to prove the charges, has been
systematically shattered, thereby demolishing the prosecution
version. More than all that, is the non production of evidence
which the prosecution has unjustifiably withheld, resulting in
dashing all the States efforts to the ground. It is not necessary
for us to record our detailed determination on the submissions E
advanced at the hands of the learned counsel for the appellant,
for such reasons clearly emerge from the factual position
noticed in paragraphs 11 and 12 hereinabove. Recording of
reasons all over again, would just be a matter of repetition. In
view of the above, we find no merit in this appeal and the same F
is accordingly dismissed.
15. The investigating officials and the prosecutors involved
in presenting this case, have miserably failed in discharging
their duties. They have been instrumental in denying to serve G
the cause of justice. The misery of the family of the victim Gomi
has remained unredressed. The perpetrators of a horrendous
crime, involving extremely ruthless and savage treatment to the
victim, have remained unpunished. A heartless and merciless
. criminal, who has committed an extremely heinous crime, has H
244 SUPREME COURT REPORTS [2014] 1 S.C.R.
A gone scot-free. He must be walking around in Ahmedabad, or
some other city/town in India, with his head held high. A criminal
on the move. Fearless and fearsome. Fearless now, because
he could not be administered the punishment, he ought to have
suffered. And fearsome, on account of his having remained
B unaffected by the brutal crime committed by him. His actions
now, know of no barriers. He could be expected to act in an
unfathomable savage manner, uncomprehendable to a sane
mind.
16. As we discharge our responsibility in deciding the
C instant criminal appeal, we proceed to apply principles of law,
and draw inferences. For, that is ourjob. We are trained, not
to be swayed by mercy or compassion. We are trained to
adjudicate without taking sides, and without being mindful of
the consequences. We are required to adjudicate on the basis
D of well drawn parameters. We have done all that. Despite
thereof, we feel crestfallen, heartbroken and sorrowful. We could
not serve the cause of justice, to an innocent child. We could
not even serve the cause of justice, to her immediate family.
The members of the family of Gomi must never have stopped
E cursing themselves, for not adequately protecting their child
from a prowler, who had snatched an opportunity to brutalise
her, during their lapse in attentiveness. And if the prosecution
version about motive is correct, the crime was committed for
a mere consideration of Rs.1,000/-.
F
17. Every time there is an acquittal, the consequences are
just the same, as have been noticed hereinabove. The purpose
of justice has not been achieved. There is also another side to
be taken into consideration. We have declared the accused-
G respondent innocent, by upholding the order of the High Court,
giving him the benefit of doubt. He may be truly innocent, or he
may have succeeded because of the lapses committed by the
investigating/prosecuting teams. If he has escaped, despite
being guilty, the investigating and the prosecution agencies
must be deemed to have seriously messed it all up. And if the
H
STATE OF GUJARAT v. KISHANBHAI 245
[JAGDISH SINGH KHEHAR, J.]
accused was wrongfully prosecuted, his suffering is A
unfathomable. Here also, the investigating and prosecuting
agencies are blameworthy. It is therefore necessary, not to
overlook even the hardship suffered by the accused, first during
the trial of the case, and then at the appellate stages. An
innocent person does not deserve to suffer the turmoil of a long B
drawn litigation, spanning over a decade, or more. The
expenses incurred by an accused in his defence can dry up all
his financial resources - ancestral or personal. Criminal litigation
could also ordinarily involve financial borrowings. An accused
can be expected to be under a financial debt, by the time his c
ordeal is over.
18. Numerous petitions are filed before this Court, praying
for anticipatory bail (under Section 438 of the Code of Criminal
Procedure) at the behest of persons apprehending arrest, or
for bail (under Section 439 of the Code of Criminal Procedure) D
at the behest of persons already under detention. In a large
number of such petitions, the main contention is of false
implication. Likewise, many petitions seeking quashing of
criminal proceeding (filed under Section 482 of the Code of
Criminal Procedure) come up for hearing day after day, wherein E
also, the main contention is of fraudulent entanglement/
involvement. In matters where prayers for anticipatory bail or
for bail made under Sections 438 and 439 are denied, or where
a quashing petition filed under Section 482 of the Code of
Criminal Procedure is declined, the person concerned may F
have to suffer periods of incarceration for different lengths of
time. They suffer captivity and confinement most of the times
(at least where they are accused of serious offences), till the
culmination of their trial. In case of their conviction, they would
continue in confinement during the appellate stages also, and G
in matters which reach the Supreme Court, till the disposal of
their appeals by this Court. By the time they are acquitted at
the appellate stage, they may have undergone long years of
custody. When acquitted by this Court, they may have suffered
imprisonment of 10 years, or more. When they are acquitted H
246 SUPREME COURT REPORTS [2014) 1 S.C.R.
A (by the trial or the appellate court), no one returns to them; what
was wrongfully taken away from them. The system responsible
for the administration of justice, is responsible for having
deprived them of their lives, equivalent to the period of their
detention. It is not untrue, that for all the wrong reasons, innocent
B persons are subjected to suffer the ignominy of criminal
prosecution and to suffer shame and humiHation. Just like it is
the bounden duty of a court to serve the cause of justice to the
victim, so also, it is the bounden duty of a court to ensure that
an innocent person is not subjected to the rigours of criminal
c prosecution.
19. The situation referred to above needs to be remedied.
For the said purpose, adherence to a simple procedure could
serve the objective. We accordingly direct, that on the
completion of the investigation in a criminal case, the
D prosecuting agency should apply its independent mind, and
require all shortcomings to be rectified, if necessary by
requiring further investigation. It should also be ensured, that
the evidence gathered during investigation is truly and faithfully
utilized, by confirming that all relevant witnesses and materials
E for proving the charges are conscientiously presented during
the trial of a case. This would achieve two purposes. Only
persons against whom there is sufficient evidence, will have to
suffer the rigors of criminal prosecution. By following the above
procedure, in most criminal prosecutions, the concerned
F agencies will be able to successfully establish the guilt of the
accused.
20. Every acquittal should be understood as a failure of
the justice delivery system, in serving the cause of justice.
G Likewise, every acquittal should ordinarily lead to the inference,
that an innocent person was wrongfully prosecuted. It is
therefore, essential that every State should put in place a
procedural mechanism, which would ensure that the cause of
justice is served, which would simultaneously ensure the
H safeguard of interest of those who are innocent. In furtherance
STATE OF GUJARAT v. KISHANBHAI 247
[JAGDISH SINGH KHEHAR, J.]
of the above
.
purpose, it is considered essential to directI
the A
Home Department of every State, to examine all orders of
acquittal and to record reasons for the failure of each
prosecution case. A standing committee of senior officers of
the police and prosecution departments, should be vested with
aforesaid responsibility. The consideration at the hands of the B
above committee, should be utilized for crystalizing mistakes
committed during investigation, and/or prosecution, or both. The
Home Department of every State Government will incorporate
in its existing training programmes for junior investigation/
prosecution officials course- content drawn from the above c
consideration. The same should also constitute course-content
of refresher training programmes, for senior investigating/
prosecuting officials. The above responsibility for preparing
training programmes for officials, should be vested in the same
, committee of senior officers referred to above. Judgments like D
the one in hand (depicting more than 10 glaring lapses in the
investigation/prosecution of the case), and similar other
judgments, may also be added to the training programmes. The
course content will be reviewed by the above committee
annually. on the basis of fresh inputs, including emerging
scientific tools of investigation. judgments of Courts, and on the
E
basis of experiences gained by the standing committee while
examining failures, in unsuccessful prosecution of cases. VVe
further direct. that the above training programme be put in place
within 6 months. This would ensure that those persons who
handle sensitive matters concerning investigation/prosecution F
are fully trained to handle the same Thereupon, if any lapses
.'are committed by them, they would not be able to feign
:innocence, when they are made liable to suffer departmental
action, for their lapses. ·
G
21. On the culmination of a criminal case in acquittal, the
concerned investigating/prosecuting official(s) responsible for
such acquittal must necessarily be identified. A finding needs
to be recorded in each case, whether the lapse was innocent
or blameworthy. Each erring officer must suffer the H
248 SUPREME COURT REPORTS (2014] 1 S.C R.
A consequences of his lapse, by appropriate departmental
action, whenever called for. Taking into consideration the
seriousness of the matter, the concerned official may be
withdrawn from investigative responsibilities. permanently or
temporarily, depending purely on his culpability. We also feel
B compelled to require the adoption of some indispensable
measures, which may reduce the malady suffered by parties
on both sides of criminal litigation. Accordingly we direct, the
Home Department of every State Government. to formulate a
procedure for taking action against all erring investigating/
C prosecuting officials/officers. All such erring officials/officers
identified, as responsible for failure of a prosecution case. on
account of sheer negligence or because of culpable lapses,
must suffer departmental action. The above mechanism
formulated would infuse seriousness in the performance of
D investigating and prosecuting duties, and would ensure that
investigation and prosecution are purposeful and decisive. The
instant direction shall also be given effect to within 6 months.
22. A copy of the instant judgment shall be transmitted by
the Registry of this Court, to the Home Secretaries of all State
E Governments and Union Territories, within one week. All the
concerned Home Secretaries, shall ensure compliance of the
directions recorded above. The records of consideration, in
compliance with the above direction, shall be maintained.
F 23. We hope and trust the Home Department of the State
of Gujarat, will identify the erring officers in the instant case, and
will take appropriate departmental action against them. as may
be considered appropriate, in accordance with law.
24. The instant criminal appeal is accordingly disposed of.
G
R.P. Appeal dismissed.
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