failure of prosecution
TRANSCRIPT
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1485 OF 2008
State ! "#$a%at & A''e((a)t
*e%+#+
,-+a)/a- Et. & Re+')e)t+
J U D " M E N T
Ja-+ S-) ,ea%3 J.
1. A complaint was lodged at Navrangpura Police Station,
Ahmedabad, alleging the kidnapping/abduction of a six ear old girl
child !omi daughter of "eshabhai #athabhai Solanki and $aliben on
%&.%.%''( at around )*'' p.m. b the accused "ishanbhai son of
+elabhai +anabhai #arwadi. t was alleged, that the accused had
enticed !omi with a -gola crushed ice, with sweet flavoured srup0,
and thereupon had taken her to ivi2s field, where he raped her. 3e had
murdered her b inflicting in4uries on her head and other parts of the
bod with bricks. n order to steal the -4han4ris anklets0 worn b her, he
had chopped off her feet 4ust above her ankles. 5he aforesaid
complaint was lodged, after the bod of the deceased !omi was found
from ivi2s field, at the instance of the accused "ishanbhai. 6n the
receipt of the above complaint, the first information report came to be
registered at Navrangpur Police Station, Ahmedabad.
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%. 5he prosecution version which emerged conse7uent upon the
completion of the investigation reveals, that the famil of the deceased
!omi was distantl related to the famil of the accused "ishanbhai. n
this behalf it would be pertinent to mention that 8aghabhai Naranbhai
Solanki was a resident of !ulbai 5ekra, in the Navrangpura area of
Ahmedabad. 3e resided there, along with his famil. 9or his livelihood,
8aghabhai Naranbhai Solanki was running a shop in the name of
#ahakali Pan :entre. 5he said shop was located near his residence.
8aghabhai Naranbhai Solanki was running the business of selling -pan
and bidi in his shop. Naranbhai #anabhai Solanki, father of 8aghabhai
Naranbhai Solanki used to live in the peon2s 7uarters at Ambavadi in
Ahmedabad. #odabhai #anabhai Solanki, uncle of 8aghabhai
Naranbhai Solanki, had expired. 3is son ;evabhai2s daughter $aliben,
was married to "eshabhai #athabhai Solanki. "eshabhai #athabhai
Solanki and $aliben were residing at Shabamukhiwas, !ulbai 5ekra in
Ahmedabad. "eshabhai #athabhai Solanki and $aliben had two
children, a daughter !omi aged six ears, and a son 3imat aged three
ears. $aliben2s sister
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!omi, then aged ) ears, had wandered out of her house. 5he accused
"ishanbhai then aged 1= ears, entice her b giving her a -gola.
3aving enticed her he had carried !omi to ivi2s field. 6n the wa to
ivi2s field, he stole a knife with an > inch blade from ;ineshbhai
"arsanbhai 5hakore P?), a -dabeli bread/bun, with spiced potato
filling0 seller. 3aving taken !omi to ivi2s field he had raped her. 3e
had then killed her b causing in4uries on her head and other parts of the
bod with bricks. n order to remove the -4han4ris worn b her, he had
amputated her legs with the knife stolen b him, from 4ust above her
ankles. 3e had then covered her bod with his shirt, and had left ivi2s
field. "ishanbhai the accused, then took the anklets stolen b him to
#ahavir ewellers, a shop owned b Premchand Shankerlal. 3e
pledged the anklets at the above shop, for a sum of @s.1,'''/
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matter to the :ourt of Session. 6n >.(.%'', the Sessions :ourt to
which the matter came to be assigned, for trial, framed charges. Since
the accused "ishanbhai denied his involvement in the matter, the court
permitted the prosecution to lead evidence.
B. 5he prosecution examined 1 witnesses. 5he statement of the
accused "ishanbhai was thereafter recorded under Section (1( of the
:ode of :riminal Procedure. n his above statement, the accused
"ishanbhai denied his involvement. Cven though an opportunit was
afforded to "ishanbhai, he did not lead an evidence in his defence.
After examining the evidence produced b the prosecution, the 5rial
:ourt vide its 4udgment dated 1>.>.%'', arrived at the conclusion that
prosecution had successfull proved its case beond reasonable doubt.
8 a separate order dated 1>.>.%'' the 5rial :ourt sentenced
"ishanbhai to death b hanging, sub4ect to confirmation of the said
sentence b the 3igh :ourt of !u4arat at Ahmedabad hereinafter
referred to as the D3igh :ourt20 under Section ()) of the :ode of
:riminal Procedure.
). n the above view of the matter, the proceedings conducted b the
:ourt of Session, were placed before the 3igh :ourt at the behest of the
State of !u4arat, as :onfirmation :ase No. & of %''. ndependentl of
the confirmation proceedings, the accused "ishanbhai, aggrieved b the
4udgment and order of sentence dated 1>.>.%'', in Sessions :ase No.
() of %''(, filed :riminal Appeal No. 1B= of %'' before the 3igh
:ourt.
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&. 5he criminal appeal filed b the accused "ishanbhai was
accepted b the 3igh :ourt. "ishanbhai was ac7uitted b giving him
the benefit of doubt. 5he :onfirmation :ase No. & of %'' was turned
down in view of the 4udgment of ac7uittal rendered b the 3igh :ourt
while allowing :riminal Appeal no. 1B= of %''.
>. ;issatisfied with the order passed b the 3igh :ourt, the State of
!u4arat approached this :ourt b filing Petition for Special $eave to
Appeal :rl.0 No. B== of %''). 6n 11.=.%''> leave to appeal was
granted. 5hereupon, the matter came to be registered as :riminal
Appeal No. 1>B of %''>.
=. 8efore this :ourt, learned counsel for the appellant, in order to
substantiate the guilt of the accused
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establish the guilt of the accused
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testimon of Naranbhai #anabhai Solanki P?B, reference was also
made to the testimon of ;inesh "arshanbhai 5hakore P?). P?),
during his deposition, had asserted, that the accused
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P?), was carring a small girl aged about & ears. 3e also deposed,
that the accused
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made to serial No.1 of the post, clearl indicating, that the
in4uries caused to the victim which have been referred to at serial No.&,
could have been caused with the knife muddamal Article No.1=0, i.e.,
the same knife, which had been recovered at the instance of the
accused. Cven in the in7uest panchnama Cxhibit 10, it was recorded
that both legs of the victim !omi were mutated from 4ust above the ankle
with a sharp weapon, with the ob4ect of removing the anklets in the feet
of the victim !omi. 5his document, according to the learned counsel,
also indicates the use of a knife in the occurrence under reference.
d0 t was also the submission of the learned counsel for the
appellant, that at the time of recover of the bod of the victim from ivi2s
field, the same was found to be covered with a shirt with stripes. t was
submitted, that the aforesaid shirt was identified as the shirt worn b the
accused
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4uncture, the accused and 1 respectivel. ;inesh
"arshanbhai 5hakore P?) had identified the shirt, as also, the trouser
during the course of his deposition before the 5rial :ourt. 5he green
trouser worn b the accused
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respondent, were all found with blood stains. 5he forensic report
reveals that the blood stains on all the above articles were of blood
group -8Fve. t was, therefore, the submission of the learned counsel
for the appellant, that the accused, as belonging to his daughter !omi, which she was wearing when
she had gone missing. @eference was also made to the statement of
agdishbhai 8hagabhai #arwadi P?11, as also, the panchnama of
recover of the silver anklets which also, according to learned counsel,
connects the accused to the crime.
g0 $ast but not the least, learned counsel for the appellant invited
this :ourt2s attention to the statement tendered b the accused under
Section (1( of the :ode of :riminal Procedure. ;uring the course of his
above testimon, he was confronted with the evidence of the relevant
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witnesses depicting, that the victim !omi was last seen in his compan
at )*'' p.m. on %&.%.%''(. 3e was also confronted with the fact, that he
himself had informed the search part, that !omi ma be found at ivi2s
field. t is submitted, that the accused
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different heads. ?e have decided to adopt the above procedure to
understand the implications of various aspects of the evidence produced
b the prosecution before the 5rial :ourt. 5his procedure has been
adopted b us even though the same was neither adopted b the 5rial
:ourt, or b the 3igh :ourt0 so as to effectivel understand, and
thereupon, to ade7uatel deal with the contentions advanced at the
hands of the appellant, before this :ourt.
11. ?e would first of all, like to deal with the lapses committed b the
investigating and prosecuting agencies in the process of establishing
the guilt of the accused before the 5rial :ourt. t will be relevant to
mention that all these lacunae/deficiencies, during the course of
investigation and prosecution, were pointed out b the 3igh :ourt, in the
impugned 4udgment. 5hese constitute relevant aspects, which are liable
to be taken into consideration while examining the evidence relied upon
b the prosecution. ?e have summarised the aforesaid lapses,
pointedl to enable us to correctl deal with the submissions advanced
at the behest of the State. Since the guilt of the accused in the instant
case is to be based on circumstantial evidence, it is essential for us to
determine whether or not a complete chain of events stand established
from the evidence produced b the prosecution. 5he above deficiencies
and shortcomings are being summarised below*
a0 According to the prosecution stor after having removed the
anklets from !omi2s feet, the accused "ishanbai had taken the anklets
to #ahavir ewellers, a shop owned b Premchand Shankerlal. 3e
pledged aforesaid anklets with Premchand Shankerlal, for a sum of @s.
1,'''/
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Shankerlal to the investing officer on 1.(.%''(, in the presence of two
panch witnesses. According to the prosecution case, the 4eweller 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 awa. 3e had approached
the police station under the suspicion, that the anklets pledged with him,
might have belonged to the girl mentioned in the newspaper reports.
6ne of the panch witnesses, namel, agdishbhai #arwari P?1Bhad
deposed, that above Premchand Shankerlal had identified the accused
"ishanbhai, as the ver person who had pledged the anklets with him.
n this behalf it is relevant to mention, that Premchand Shankerlal was
not produced as a prosecution witness. t is important to notice, that the
anklets handed over to the Police, were successfull established b the
prosecution as the ones worn b the deceased !omi. 5he lapse of the
prosecution on account of not producing Premchand Shankerlal as
prosecution witness, according to the 3igh :ourt, resulted in a missing
link in the chain of events which would have established the link of the
accused "ishanbhai, with the anklets, and thereb convulsivel
connecting him with the crime.
b0 5he prosecution stor further discloses, that Premchand Shankerlal
the owner of #ahavir ewellers, had executed a receipt with the
accused "ishanbhai, depicting the pledging of the anklets for a sum of
@s.1,'''/
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the anklets as @a4ubhai, the same could clearl be a false name given
b the person who pledged the anklets. :ertainl, there could be no
mistake in the identit of the thumb mark affixed on the said receipt.
5he prosecution could have easil established the identit of the
pledger, b comparing the thumb impression on the receipt exhibit B%0,
with the thumb impression of the accused
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i.e., the amount given to him b Premchand Shankerlal when he
pledged the anklets at his shop, even if it is assumed that he had no
mone with him when he had pawned the anklets. 5his important link
having not been established b the prosecution, breaks the chain of
events necessar to establish the guilt of the accused "ishanbhai, and
constitutes a serious lapse in the prosecution evidence.
d0 t is apparent from the prosecution stor, that the victim !omi was
raped. n establishing the factum of the rape the prosecution had relied
upon the note prepared at the time of conducting the post
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as a prosecution witness, ma have been overcome if the report
prepared b him after examining the accused "ishanbhai0 was placed
on the record of the 5rial :ourt, after being proved in accordance with
law. 5he action of prosecution in not producing the aforesaid report
before the 5rial :ourt, was another serious lapse in proving the case
before the 5rial :ourt. 5his had also resulted a missing vital link, in the
chain of events which could have established, whether or not accused
"ishanbhai had committed rape on victim !omi.
f0 5he 3igh :ourt having noticed the in4uries suffered b !omi, a six
ear old girl child on her genitals, had expressed the view, that the
same would have resulted in reciprocal in4uries to the male organ of the
person who had committed rape on her. t was pointed out, that if the
accused "ishanbhai had been sent for medical examination the
testimon or the report of the medical officer would have revealed the
presence of smegma around the corona*'' p.m. on %&.%.%''(. At the time of
recover of the bod of deceased !omi from ivi2s field, at about =*''
pm, it came to be believed that she had been sub4ected to rape. 5he
accused "ishanbhai was shown to have been formerl arrested at )*'
a.m.on %>.%.%''( even if the inference drawn b the 3igh :ourt, that
the accused "ishanbhai was in police custod since =*'' p.m. on
%&.%.%''( itself, is ignored0. 5he accused could have been medicall
examined within a period of % hours of the occurrence. 5he
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prosecution case does not show whether or not such action was taken.
5his lapse in the investigation of the case, had also resulted the
omission of a vital link in the chain of events which would have
un7uestionabl established the guilt of the accused "ishanbhai of
having committed rape or possibl his innocence0.
g0 t needs to be noticed, that when the accused "ishanbhai was
arrested, there were several in4uries on his person. 5he said in4uries
were also depicted in his arrest panchnama. At &*1B am on %>.%.%''(,
the accused "ishanbhai filed a first information report alleging, that he
was beaten b some of the relatives of the victim !omi, as also, b
some unknown persons accompaning the search part, under the
suspicion/belief, that he was responsible for the occurrence. n the
above first information report, the accused "ishanbhai had also
depicted the nature of in4uries suffered b him. 5he statement of the
investigating officer @anchod4i 8ho4ra44i :hauhan P?1 reveals, that the
accused "ishanbhai had been sent to :ivil 3ospital, Ahmedabad, for his
medical examination. Neither the doctor who had examined the
accused was produced as a prosecution witness, nor the
report/certificate given b the medical officer disclosing the details of his
observations/findings was placed on record. 5his evidence was vital for
the success of the prosecution case. According to the 3igh :ourt, blood
of group -8 Fve was found on the clothes of the accused "ishanbhai.
5he important 7uestion to be determined thereupon was, whether it was
his own blood or blood of the victim !omi. 5he statement of the
medical officer who had examined the accused "ishabhai, when he was
sent for medical examination to :ivil 3ospital, Ahmedabad, would have
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disclose whether or not accused "ishanbhai had an bleeding in4uries.
5he importance of nature of the in4uries suffered b the accused
"ishanbhai emerges from the fact, that both the accused "ishanbhai
and the victim !omi had the same blood group -8 Fve. An
inference could have onl been drawn that the blood on his clothes was
that of the victim, in case it was established that the accused.'%.%''(. t is
strange, that the in7uest panchnama should be drawn before the
registration of the first information report. t is also strange as to how,
while drawing the in7uest panchnama, the panchas of the same could
have recorded, that after amputation of the victim2s legs, her silver
anklets had been taken awa b the offender. 5here was no occasion
for the panchas to have known, that !omi used to wear silver anklets.
Accordingl, there was no occasion for them to have recorded that the
silver anklets usuall worn b !omi had been taken awa b the
offender.
g0 9rom the prosecution version emerging from the evidence
recorded before the 5rial :ourt0, it is apparent, that the search part, as
also, the relatives of the victim were aware at about >*'' p.m. on
%&.%.%''( that !omi had been murdered, with a possibilit of her having
been raped also, and her silver anklets had been stolen. ;espite the
above, no complaint whatsoever came to be filed in connection with the
above occurrence at the police station on %&.%.%''(, despite the close
coordination between the search part and the police from >*'' pm
onwards no %&.%.%''( itself. 5he complaint leading to the filing of the
first information was made at about (*'B a.m. on %>.%.%''(. Not onl is
the dela of seven hours in the registration of the complaint
ununderstandable, but the same is also rendered extremel suspicious,
on the account of the fact that the accused
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victim !omi went missing, as also, the time and date on which the bod
of the victim was discovered resulting in the discover of the occurrence
itself. 5he 7uestion which arises for consideration is, whether the
investigation agenc adopted the usual practice of padding so as to
depict the occurrence in a manner different from the actual occurrence.
A 7uestion also arises as to wh it was necessar for the investigating
agenc to adopt the above practice, despite the fact that it was depicted
as an open and shut case.
h0 As noticed above, that from the statements of 8ababhai
Naranbhai Solanki P?% and Naranbhai #anabhai Solanki P?B, it is
apparent that the accused was detained b the police informall around
=*'' p.m. on %&.%.%''(. t is also essential to notice, that an
acknowledgement was made to the above effect even b Sub nspector
Naranbhai $albhai ;esai P?1(, who had commenced investigation of
the crime under reference. t is apparent that when 8ababhai Naranbhai
Solanki P?%, had contacted him with details about the offence under
reference, he had not recorded an entr in the station diar before
leaving the police station. 5his constitutes a serious lapse in itself. n
his cross
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respondent "ishanbhai had come to the police station. n his statement
as a witness, he had expressed, that for the first time he had seen the
accused
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respondent had asked for a knife but he had refused to give it to him
because, at the time when the accused
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tutored witness. 5his aspect of the matter also renders the testimon of
;inesh "arshanbhai 5hakore P?), suspicious.
40 5here is et another aspect of the controvers relating to ;inesh
"arshanbhai 5hakore P?). 5he investigating agenc became aware
from the disclosure statement of the accused
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5he above discrepancies in the prosecution version, were dul noticed
b the 3igh :ourt. 5hese constitute some of the glaring instances
recorded in the impugned order. 6ther instances of contradiction were
also noticed in the impugned order. t is not necessar for us to record
all of them, since the above instances themselves are sufficient to draw
some vitall important inferences. Some of the inferences drawn from
the above, are being noticed below. 5he prosecution2s case which
mainl rests on the testimon of 8ababhai Naranbhai Solanki P?%,
Naranbhai #anabhai Solanki P?B and ;inesh "arshanbhai 5hakore
P?), is unreliable because of the glairing inconsistencies in their
statements. 5he testimon of the investigating officer Naranbhai $albhai
;esai P?1( shows fudging and padding, making his deposition
untrustworth. n the absence of direct oral evidence, the prosecution
case almost wholl rested on the above mentioned witnesses. t is for
the above reasons, that the 3igh :ourt through the impugned order,
considered it 4ust and appropriate to grant the accused
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the learned counsel for the appellant, that non
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presume that the accused knew about the incriminating material or dead
bod due to his involvement in the alleged offence. ?hen he discloses
the location of such incriminating material without disclosing the manner
in which he came to know of the same, the :ourt would presume that
the accused knew about the incriminating material.
e0 @eling on the 4udgment in Amar Singh v. 8alwinder Singh, %''(
%0 S:: B1>, it was contended, that where the prosecution case is full
established b the testimon of witnesses which stood corroborated b
medical evidence, an failure or omission of the investigating officer
could not be treated as sufficient to render the prosecution case doubtful
or unworth of belief. 5his determination leads to the same inference,
namel, 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.
f0 @eferring to State !overnment of N:5 ;elhi v. Sunil, %''10 1
S:: )B%, it was asserted, that in a case where a child of four ears was
brutall 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.
g0 @eferring to the 4udgment in oseph v. State of "erala, %''B0 B
S:: 1=&, wherein, according to the learned counsel, it was held that
where the circumstances proved form themselves into a complete chain
unerringl pointing to the guilt of the appellant, then the same can be the
basis of the conviction of the accused. 5his, according to learned
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counsel, represents the manner of proving the guilt of an accused based
on circumstantial evidence.
h0 8ased on the 4udgment in State of KP v. Satish %''B0 ( S::
11, it was contended that it could not be laid down as a rule of
universal application that if there is an dela in examination of a
particular witness, the prosecution version becomes suspect.
5herefore, the facts surrounding the dela ought to be considered in
ever case to determine whether or not the testimon is rendered
suspicious.
i0 @eling on the 4udgment in 8ishnu Prasad Sinha v State of
Assam, %''&0 11 S:: )&, it was submitted, that in the above case
where a child of & ears 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. Namel, where reliable
evidence is available, the same would determine the guilt of an
accused.
40 @eferring to the 4udgment in Aftab Ahmad Anasari v. State of
Kttaranchal, %'1'0 % S:: B>(, it was asserted, that where a child of
five ears was a victim of rape and murder and the accused disclosed
the location of the crime as also of the incriminating articles, the said
disclosure was admissible and would constitute a complete chain in the
circumstances. 9urther, according to the learned counsel, it was held
that the in7uest panchnama ma not contain ever detail and the
absence of some details would not affect the veracit of the deposition
made b witnesses. Needless to mention, that absence of vital links in
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the claim of circumstantial evidence would result in the exoneration of
the accused.
k0 @eliance was placed on Sambhu ;as v. State of Assam, %'1'0
1' S:: (&, so as to contend, that an discrepanc occurring in the
in7uest report or the post mortem report could neither be fatal nor be
termed as a suspicious circumstance as would warrant a benefit to the
accused and the resultant dismissal of the prosecution case. Needless
to add, that there should be sufficient independent evidence to establish
the guilt of the accused.
l0 8ased on the 4udgment in 3aresh #ohandas @a4put v. State of
#aharashtra, %'110 1% S:: B), it was contended, that in a case of
murder and rape of a ten ear old child, it was found that where the
circumstances taken cumulativel led to the conclusion of guilt and no
alternative explanation is given b the accused, the conviction ought to
be upheld. 5his case reiterates that in a case based on circumstantial
evidence the evidence should be such as would point to the inference of
guilt of the accused alone and none others.
m0 @eling on @a4endra Prahladrao?asnik v. State of #aharashtra,
%'1%0 S:: (&, it was submitted that where a three ears old child
was a victim of rape and murder b the accused who lured her under the
pretext of buing biscuits, circumstances showed the manner in which
the trust/belief/relationship was violated resulting in affirming the death
penalt imposed on the accused.
1. ?e have given our thoughtful consideration to the submissions
advanced at the hands of the learned counsel for the appellant, which
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have been dul noticed in paragraph = hereinabove. t is also relevant
for us to record, that the learned counsel for the appellant did not
advance a single submission in addition to the contentions we have
noticed in paragraph = above. 5he submissions advanced at the hands
of the learned counsel for the appellant, were sought to be supported b
4udgments rendered b this :ourt, all of which have been referred to in
paragraph 1( above. 5he submissions advanced at the hands of the
learned counsel for the appellant, based on each of the 4udgments cited,
have also been recorded b us in the said paragraph. 3aving
considered the totalit of the facts and circumstances of this case,
speciall the glaring lapses committed in the investigation and
prosecution of the case recorded in paragraph 11 of the instant
4udgment0, as also the inconsistencies in the evidence produced b the
prosecution summariEed in paragraph 1% hereinabove0, we are of the
considered view, that each one of the submissions advanced at the
hands of the learned counsel for the appellant is meritless. 9or the
circumstantial evidence produced b the prosecution, primar reliance
has been placed on the statements of 8ababhai Naranbhai Solanki
P?%, Naranbhai #anabhai Solanki P?B, and ;inesh "arshanbhai
5hakore P?). 8 demonstrating inconsistencies and infirmities in the
statements of the above witnesses, their statements have also been
rendered suspicious and accordingl unreliable. 5here is also a serious
impression of fudging and padding at the hands of the agencies
involved. As a matter of fact, the lack of truthfulness of the statements
of witnesses has been demonstrated b means of simple logic emerging
from the factual position expressed through different prosecution
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witnesses summariEed in paragraphs 11 and 1% above0. 5he evidence
produced to prove the charges, has been sstematicall shattered,
thereb demolishing the prosecution version. #ore than all that, is the
non production of evidence which the prosecution has un4ustifiabl
withheld, resulting in dashing all the States efforts to the ground. t is
not necessar for us to record our detailed determination on the
submissions advanced at the hands of the learned counsel for the
appellant, for such reasons clearl emerge from the factual position
noticed in paragraphs 11 and 1% hereinabove. @ecording of reasons all
over again, would 4ust be a matter of repetition. n view of the above,
we find no merit in this appeal and the same is accordingl dismissed.
1B. 5he investigating officials and the prosecutors involved in
presenting this case, have miserabl failed in discharging their duties.
5he have been instrumental in dening to serve the cause of 4ustice.
5he miser of the famil of the victim !omi has remained unredressed.
5he perpetrators of a horrendous crime, involving extremel ruthless
and savage treatment to the victim, have remained unpunished. A
heartless and merciless criminal, who has committed an extremel
heinous crime, has gone scot
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1). As we discharge our responsibilit in deciding the instant criminal
appeal, we proceed to appl principles of law, and draw inferences.
9or, that is our 4ob. ?e are trained, not to be swaed b merc or
compassion. ?e are trained to ad4udicate without taking sides, and
without being mindful of the conse7uences. ?e are re7uired to
ad4udicate on the basis of well drawn parameters. ?e have done all
that. ;espite thereof, we feel crestfallen, heartbroken and sorrowful.
?e could not serve the cause of 4ustice, to an innocent child. ?e could
not even serve the cause of 4ustice, to her immediate famil. 5he
members of the famil of !omi must never have stopped cursing
themselves, for not ade7uatel protecting their child from a prowler, who
had snatched an opportunit 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 @s.1,'''/
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accused, first during the trial of the case, and then at the appellate
stages. An innocent person does not deserve to suffer the turmoil of a
long drawn litigation, spanning over a decade, or more. 5he expenses
incurred b an accused in his defence can dr up all his financial
resources H ancestral or personal. :riminal litigation could also
ordinaril involve financial borrowings. An accused can be expected to
be under a financial debt, b the time his ordeal is over.
1>. Numerous petitions are filed before this :ourt, praing for
anticipator bail under Section (> of the :ode of :riminal Procedure0
at the behest of persons apprehending arrest, or for bail under Section
(= of the :ode of :riminal Procedure0 at the behest of persons alread
under detention. n a large number of such petitions, the main
contention is of false implication. $ikewise, man petitions seeking
7uashing of criminal proceeding filed under Section >% of the :ode of
:riminal Procedure0 come up for hearing da after da, wherein also,
the main contention is of fraudulent entanglement/involvement. n
matters where praers for anticipator bail or for bail made under
Sections (> and (= are denied, or where a 7uashing petition filed
under Section >% of the :ode of :riminal Procedure is declined, the
person concerned ma have to suffer periods of incarceration for
different lengths of time. 5he suffer captivit and confinement most of
the times at least where the are accused of serious offences0, till the
culmination of their trial. n case of their conviction, the would continue
in confinement during the appellate stages also, and in matters which
reach the Supreme :ourt, till the disposal of their appeals b this :ourt.
8 the time the are ac7uitted at the appellate stage, the ma have
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undergone long ears of custod. ?hen ac7uitted b this :ourt, the
ma have suffered imprisonment of 1' ears, or more. ?hen the are
ac7uitted b the trial or the appellate court0, no one returns to themG
what was wrongfull taken awa from them. 5he sstem responsible for
the administration of 4ustice, is responsible for having deprived them of
their lives, e7uivalent to the period of their detention. t is not untrue,
that for all the wrong reasons, innocent persons are sub4ected to suffer
the ignomin of criminal prosecution and to suffer shame and
humiliation. ust like it is the bounden dut of a court to serve the cause
of 4ustice to the victim, so also, it is the bounden dut of a court to
ensure that an innocent person is not sub4ected to the rigours of criminal
prosecution.
1=. 5he situation referred to above needs to be remedied. 9or the
said purpose, adherence to a simple procedure could serve the
ob4ective. ?e accordingl direct, that on the completion of the
investigation in a criminal case, the prosecuting agenc should appl its
independent mind, and re7uire all shortcomings to be rectified, if
necessar b re7uiring further investigation. t should also be ensured,
that the evidence gathered during investigation is trul and faithfull
utiliEed, b confirming that all relevant witnesses and materials for
proving the charges are conscientiousl presented during the trial of a
case. 5his would achieve two purposes. 6nl persons against whom
there is sufficient evidence, will have to suffer the rigors of criminal
prosecution. 8 following the above procedure, in most criminal
prosecutions, the concerned agencies will be able to successfull
establish the guilt of the accused.
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%'. Cver ac7uittal should be understood as a failure of the 4ustice
deliver sstem, in serving the cause of 4ustice. $ikewise, ever
ac7uittal should ordinaril lead to the inference, that an innocent person
was wrongfull prosecuted. t is therefore, essential that ever State
should put in place a procedural mechanism, which would ensure that
the cause of 4ustice is served, which would simultaneousl ensure the
safeguard of interest of those who are innocent. n furtherance of the
above purpose, it is considered essential to direct the 3ome ;epartment
of ever State, to examine all orders of ac7uittal 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 responsibilit. 5he consideration at the hands of the
above committee, should be utiliEed for crstaliEing mistakes committed
during investigation, and/or prosecution, or both. 5he 3ome ;epartment
of ever State !overnment will incorporate in its existing training
programmes for 4unior investigation/prosecution officials course< content
drawn from the above consideration. 5he same should also constitute
course
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and on the basis of experiences gained b the standing committee while
examining failures, in unsuccessful prosecution of cases. ?e further
direct, that the above training programme be put in place within )
months. 5his would ensure that those persons who handle sensitive
matters concerning investigation/prosecution are full trained to handle
the same. 5hereupon, if an lapses are committed b them, the would
not be able to feign innocence, when the are made liable to suffer
departmental action, for their lapses.
%1. 6n the culmination of a criminal case in ac7uittal, the concerned
investigating/prosecuting officials0 responsible for such ac7uittal must
necessaril be identified. A finding needs to be recorded in each case,
whether the lapse was innocent or blameworth. Cach erring officer
must suffer the conse7uences of his lapse, b appropriate departmental
action, whenever called for. 5aking into consideration the seriousness
of the matter, the concerned official ma be withdrawn from investigative
responsibilities, permanentl or temporaril, depending purel on his
culpabilit. ?e also feel compelled to re7uire the adoption of some
indispensable measures, which ma reduce the malad suffered b
parties on both sides of criminal litigation. Accordingl we direct, the
3ome ;epartment of ever State !overnment, to formulate a procedure
for taking action against all erring investigating/prosecuting
officials/officers. All such erring officials/officers identified, as
responsible for failure of a prosecution case, on account of sheer
negligence or because of culpable lapses, must suffer departmental
action. 5he above mechanism formulated would infuse seriousness in
the performance of investigating and prosecuting duties, and would
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ensure that investigation and prosecution are purposeful and decisive.
5he instant direction shall also be given effect to within ) months.
%%. A cop of the instant 4udgment shall be transmitted b the
@egistr of this :ourt, to the 3ome Secretaries of all State !overnments
and Knion 5erritories, within one week. All the concerned 3ome
Secretaries, shall ensure compliance of the directions recorded above.
5he records of consideration, in compliance with the above direction,
shall be maintained.
%(. ?e hope and trust the 3ome ;epartment of the State of !u4arat,
will identif the erring officers in the instant case, and will take
appropriate departmental action against them, as ma be considered
appropriate, in accordance with law.
%. 5he instant criminal appeal is accordingl disposed of.
MMMMMMMMMMM..:.". Prasad0
MMMMMMMMMMM..
agdish Singh "hehar0
New ;elhiG
anuar &, %'1
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