Gujarat High Court
Baldevji Vajaji Thakor vs State Of ... on 25 March, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
R/CR.A/606/2007 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 606 of 2007
With
CRIMINAL APPEAL NO. 763 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR
BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India, 1950
or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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BALDEVJI VAJAJI THAKOR....Appellant(s)
Versus
STATE OF GUJARAT....Opponent(s)/Respondent(s)
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Appearance:
CRIMINAL APPEAL No.606 of 2007
MR DHIRENDRA MEHTA, ADVOCATE for the Appellant(s) No. 1
MS MOXA THAKKAR, APP for the Opponent(s)/Respondent(s) No. 1
CRIMINAL APPEAL No.763 of 2007
MR YOGENDRA THAKORE, ADVOCATE for the Appellant(s) No. 1
MS MOXA THAKKAR, APP for the Opponent(s)/Respondent(s) No. 1
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Page 1 of 25
R/CR.A/606/2007 CAV JUDGMENT
CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 25/03/2014
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. As both the captioned appeals arise from a common judgment and order dated 19th February 2007 passed by the Principal Sessions Judge, Mehsana, in Sessions Case No.110 of 2006, those were heard analogously and are being disposed of by this common judgment and order. Criminal Appeal No.606 of 2007 is at the instance of original accused no.2, Baldevji Vajaji Thakor, whereas Criminal Appeal No.763 of 2007 is at the instance of the original accused no.1-Kanuji Kalaji Thakor.
2. The appellants-original accused nos.1 and 2 calls in question the legality and validity of the order of conviction and sentence dated 19th February 2007 passed by the Principal Sessions Judge, Mehsana, in Sessions Case No.110 of 2006 by which the Principal Sessions Judge convicted the appellants of the offence punishable under Section 302 read with Section 114 of the Indian Penal Code. The learned Sessions Judge, Mehsana, sentenced both the accused- appellants to undergo life imprisonment with fine of Rs.5,000/- each of the offence punishable under Section 302 of the Indian Penal Code and, in default of payment of fine, further imprisonment of six months.
Page 2 of 25 R/CR.A/606/2007 CAV JUDGMENT
3. CASE OF THE PROSECUTION:-
3.1 According to the charge framed by the trial Court vide Exh.2, the deceased, namely, Jashubhai was a friend of the accused-
appellants. They altogether were engaged in the business of collecting and selling of honey. The deceased had borrowed a sum of Rs.1,000/- from the accused-appellants. For the purpose of settling the accounts towards the sale of honey, the deceased was called by the original accused no.1-Kanuji Kalaji Thakor at his house. Accordingly, on 9th May 2006 at around 5 O' Clock in the evening the accused no.2 Baldevji Vajaji Thakor came at the house of the deceased and asked the deceased to come along with him at the house of the accused no.1. Accordingly, the deceased left the house in company of the accused no.2 stating that they were going at the house of the accused no.1 to settle the accounts. It is the case of the prosecution that the accused no.2 on the false pretext that the accused no.1 had called him at his house left together and thereafter both the accused persons committed the murder of the deceased by strangulating him to death. It is also the case of the prosecution that the accused no.2 also inflicted the injuries on the private part of the deceased as the deceased had illicit relations with the sister of the accused no.2 and the accused no.1 had illicit relations with the sister of the deceased. Due to such enmity both the accused persons in aid of each other committed the offence of murder punishable under Page 3 of 25 R/CR.A/606/2007 CAV JUDGMENT Section 302 read with Section 114 of the Indian Penal Code. 3.2 It appears that on 10th May 2006 the PW-1, Bakabhai Vaghari, the brother of the deceased, lodged a First Information Report at Langlaj Police Station, Exh.11, about the incident. He stated in his First Information Report that on the previous day at around 5 O' Clock in the evening his brother, the deceased, was in company of the accused no.2 and both together had left for the house of the accused no.1 for settling the accounts. On 10th May 2006 at around 7 O' Clock in the evening, the PW-1, brother of the deceased learnt through others that a dead body of a male was lying naked near the railway line and the body was that of his brother. The PW-1 in the First Information Report, Exh.11, has further stated that on reaching the place where the dead body was lying he found that there were injuries on the neck and face of his brother. He also noticed that there were injuries inflicted on the private part of his brother with some object. He stated in the First Information Report that there were marks of dragging of the body and those were suggestive of the fact that his brother was killed in the nearby field of one Thakor Keshaji Hamarji and thereafter the body was dragged and left near the railway line.
3.3 On the strength of the complaint lodged by the brother of the deceased, the investigation had commenced. The inquest panchnama, Exh.17 of the dead body of the deceased, was drawn in Page 4 of 25 R/CR.A/606/2007 CAV JUDGMENT presence of the panch witnesses. The scene of offence panchnama, Exh.16, was drawn in presence of the panch witnesses. The dead body of the deceased was sent for postmortem examination and according to the postmortem report, Exh.14, the face had swollen, the mouth was semi open, the tongue was protruded and there was also discharge of blood from the nose, mouth and ear. The discharge of semen from penis was also noticed. There were many abrasions on the face including pressure marks on the neck and the hyoid bone was also found to be fractured. The cause of death which was assigned is asphyxia due to throttling. The clothes of the deceased were collected by drawing a panchnama, Exh.18, in presence of the panch witnesses.
3.4 It appears that the accused no.1, Kanuji Kalaji Thakor, was arrested on 12th May 2006 and the arrest panchnama as well as the panchnama of the person of the accused no.1 was drawn vide Exh.33 in presence of the panch witnesses. The accused no.2-Baldevbhai Vajaji Thakor was arrested on 16th May 2006 and his arrest panchnama and panchnama of his person was drawn vide Exh.30 in presence of the panch witnesses. The demonstration panchnamas, Exh.27 and Exh.28 of the place of occurrence, as pointed out by both the accused persons, were drawn in presence of the panch witnesses. A panchnama of dog tracking, Exh.32, was drawn in presence of the panch witnesses. The muddamal articles collected during the course of investigation were sent to the Forensic Science Laboratory for Page 5 of 25 R/CR.A/606/2007 CAV JUDGMENT chemical analysis. The serological test report, Exh.37, disclosed that the shirt and pant of the accused no.1 was detected to be stained with human blood of "O" group matching with the blood group of the deceased and in the same way the pant of the accused no.2 was also detected to be stained with human blood of "O" group matching with the blood group of the deceased. The statements of various witnesses were recorded.
3.5 Finally, charge sheet was filed against both the accused- appellants in the Court of learned Judicial Magistrate, First Class, Mehsana.
3.6 As the case was exclusively triable by the Sessions Court, the learned Judicial Magistrate, First Class, Mehsana, committed the case to the Sessions Case under Section 209 of the Code of Criminal Procedure. The Sessions Court framed the charge against the accused-appellant vide Exh.2 and statements of both the accused were recorded. Both the accused did not admit the charge and claimed to be tried.
3.7 The prosecution adduced the following oral evidence in support of its case.
PW-1 Bakabhai Babubhai Vaghari The complainant Exh.10 PW-2 Tinabhai Babubhai Vaghari The witness Exh.12 Page 6 of 25 R/CR.A/606/2007 CAV JUDGMENT PW-3 Dr.Kaushik Chandrakant Zala Medical Officer Exh.13 PW-4 Manaji Khodaji The witness Exh.19 PW-5 Kalaji Somaji The witness Exh.20 PW-6 Gagaji Punjaji Thakor Panch Exh.21 PW-7 Abhuji Kantiji Thakor Panch Exh.22 PW-8 Manaji Talaji Thakor Panch Exh.23 PW-9 Kanuji Khodaji Thakor Panch Exh.24 PW-10 Gitaben Babubhai Witness Exh.25 PW-11 Navinbhai Somabhai Vaghari Panch Exh.26 PW-12 Kalaji Chhaganji Thakor Panch Exh.29 PW-13 Mukeshbhai Bachubhai Vyas Investigating Exh.31 Officer 3.8 The following pieces of documentary evidence were adduced by the prosecution. 1 Original complaint Exh.11 2 P.M.Note of the deceased Exh.14 3 Panchnama of the place of offence Exh.16 4 Inquest Panchnama Exh.17 5 Panchnama in respect of seizing clothes of the Exh.18 deceased. 6 Panchnama of place of offence Exh.17 7 Panchnama of the place shown by the accused Exh.27 no.1. 8 Panchnama of the place shown by the accused Exh.28 no.2. 9 Panchnama of physical condition of the accused Exh.30 no.2. 10 Panchnama of dog squad track. Exh.32 11 Panchnama of physical condition of the accused Exh.33 no.1 and seizing the clothes. 12 Dispatch note of sending muddamal. Exh.34 13 Receipt of sending muddamal. Exh.35 14 FSL report. Exh.36 15 Serological report. Exh.37 Page 7 of 25 R/CR.A/606/2007 CAV JUDGMENT
3.9 After completion of oral as well as documentary evidence of the prosecution, the statement of both the accused persons under Section 313 of the Code of Criminal Procedure were recorded, in which both the accused persons stated that the complaint is false one and they are innocent.
3.10 At the conclusion of the trial, the learned trial Judge convicted both the accused-appellants of the offence punishable under Section 302 read with Section 114 of the Indian Penal Code and sentenced them as stated herein before.
3.11 Being dissatisfied, both the accused-appellants have come up with their respective appeals.
4 SUBMISSIONS ON BEHALF OF THE ACCUSED-
APPELLANTS:-
4.1 Mr.Yogendra Thakor, the learned advocate appearing for the accused no.1 and Mr.Dhirendra Mehta, the learned advocate appearing for the accused no.2 submitted that the trial Court committed a serious error in finding their clients guilty of the offence of murder punishable under Section 302 of the Indian Penal Code.
Both the learned advocates submitted that the entire case of the prosecution hinges on circumstantial evidence and if a case is tested on circumstantial evidence, the circumstances put forward must be Page 8 of 25 R/CR.A/606/2007 CAV JUDGMENT satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. Both the learned advocates further submitted that again those circumstances should be of a conclusive nature and tendency and they should be such so as to include every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far as complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such so as to show that within all given probabilities the act must have been done by the accused. It is submitted that the prosecution has failed to complete the chain of circumstances so as to establish that the circumstantial evidence is consistent only with the guilt of the accused and inconsistent with any other rationale explanation. 4.2 It is submitted by both the learned advocates that the prosecution has not been able to establish even the motive behind the commission of the alleged crime. In the cases of circumstantial evidence, motive plays an important role and in absence of a strong motive to commit the crime the chain of circumstantial evidence could not be said to be complete.
4.3 It is also submitted that the trial Court committed a serious error in placing reliance on the evidence of dog tracking. According to the learned advocates the evidence of dog tracking is a very weak piece of evidence and could not be said to have been proved in Page 9 of 25 R/CR.A/606/2007 CAV JUDGMENT absence of the examination of the dog tracker in the course of the trial.
4.4 In such circumstances, it has been urged that the appeals merit consideration and the same may be allowed by setting aside the order of conviction and sentence passed by the trial Court.
5. SUBMISSIONS ON BEHALF OF THE STATE:-
5.1 Ms.Moxa Thakkar, the learned Additional Public Prosecutor appearing for the State opposed this appeal and vehemently submitted that the trial Court has rightly convicted the accused-
appellants of the offence punishable under Section 302 read with Section 114 of the Indian Penal Code and no interference is warranted at the end of this Court in the present appeal.
5.2 According to Ms.Thakkar, the deceased was last seen together in company of the accused no.2 and the evidence of dog tracking would suggest that the accused no.1 was also involved in the crime. Besides the above, according to Ms.Thakkar the clothes of both the accused-appellants were stained with human blood matching with the blood group of the deceased. Ms.Thakkar submitted that although all the incriminating circumstances which point to the guilt of the accused-appellants had been put to them yet they chose not to give any explanation under Section 313 of the Criminal Procedure Code except denying everything. According to Ms.Thakkar, it is also a circumstance that goes against them. In such circumstances, Page 10 of 25 R/CR.A/606/2007 CAV JUDGMENT referred to above, Ms.Thakkar would urge that there being no merit in both the appeals, the same deserve to be dismissed.
6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in both the appeals is whether the trial Court committed any error in finding the accused-appellants guilty of the offence of murder punishable under Section 302 read with Section 114 of the Indian Penal Code.
7. The prosecution case is based on the circumstantial evidence and it is a well-settled proposition of law that when the case rests upon circumstantial evidence such evidence must satisfy the following tests:
(i) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) Those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(iv) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any Page 11 of 25 R/CR.A/606/2007 CAV JUDGMENT other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
8. It appears from the materials on record that the trial Court has relied on the following incriminating circumstances to hold the accused guilty of the offence of murder.
(I) On 9th May 2006 in the evening the accused no.2 had come at the house of the deceased and both had left together to go to the house of the accused no.1 for the purpose of settling the accounts. The deceased did not return home in the night and on the next day the dead body of the deceased was found lying in a naked condition near the railway line. Thus, according to the prosecution the deceased was last seen in the company of the accused no.2.
(II) On 10th May 2006, the panchnama of dog tracking was drawn, Exh.32, after taking the dog at the place where the dead body was lying. The dog led the dog squad straight to the house of the accused no.2 and from the house of the accused no.2, a shirt and pant was collected.
(III) The shirt and pant of the accused no.2, according to the Page 12 of 25 R/CR.A/606/2007 CAV JUDGMENT serological test report, was detected to be stained with human blood matching with the blood group of the deceased.
(IV) A demonstration panchnama of the scene of offence was drawn at the instance of the accused-appellants.
9. There is no dispute as regards the cause of death, as according to the PW-3, Dr.Kaushik Zala, who had performed the postmortem, the deceased was throttled to death, resulting in asphyxia. The PW- 3, Dr.Zala in his evidence has deposed that at the time of postmortem he had noted the following injuries on the body of the deceased.
"1. Left cheek abrasion and black discolouring around cheek, size - 1 X 0.5 cm size.
2. Pressure mark in front of neck, oblique in direction and brown in colour size. Not circumference. 9.9 cm abrasion over left side of neck and in front of neck. 2 cm in size. 2 cm below the left T.M.Joint. Above the thyroid cartilage, 3 cm below the Thyroid Cartilage.
3. Abrasion over right leg 1 X 1 cm.
4. Abrasion on forehead.
5. Black discolouring on the chest and abrasion, size 2 X 1 cm.
6. Abrasion over heel and sole on both leg. 2 X 2 cm.Page 13 of 25 R/CR.A/606/2007 CAV JUDGMENT
Fracture of Hyoid bone."
10. The question is whether the accused-appellants committed the murder of the deceased.
11. We are of the opinion that none of the circumstances relied upon by the trial Court against the accused appellants could be said to be incriminating in nature pointing only towards the guilt of the accused.
12. First, there is nothing to even remotely suggest that the accused no.1 was last seen in the company of the deceased. Assuming for the moment that on 9th May 2006, the accused no.2 had come to the house of the deceased in the evening and both had left together saying that they were going to the house of the accused no.1 to settle the account, even then such a circumstance could hardly be termed as last seen together because the deceased and the accused no.2 were friends. They were both carrying on business together and used to practically meet everyday. Therefore, this is hardly a circumstance which could be termed as a incriminating circumstance.
13. Even otherwise the circumstance of last seen together, by itself, is not sufficient to implicate the accused in the crime. In the case of Eradu v. State of Hyderabad (AIR 1956 SC 316), the Supreme Court pointed out that it is a fundamental principle of Page 14 of 25 R/CR.A/606/2007 CAV JUDGMENT criminal jurisprudence that circumstantial evidence should point inevitably to the conclusion that it was the accused and the accused only who were the perpetrators of the offence and such evidence should be incompatible with the innocence of the accused. Where the accused enticed away the deceased on the evening of day of the murder and the deceased was found hanging in the backyard of his house, these circumstances by themselves, were not enough, without anything more, to connect the accused with the crime. Similarly in the case of Inderjit Singh v. State of Punjab (AIR 1991 SC 1674), the Supreme Court pointed out that the sole circumstance that the deceased was last seen in company of the accused was not sufficient to convict the accused.
14. So far as the evidence of dog tracking is concerned, in our opinion, it is a very weak piece of evidence and in the present case having regard to the manner in which the panchnama has been drawn does not inspire any confidence.
15. In this context we may profitably look into the decision of the Supreme Court in the case of Gade Lakshmi Mangaraju @ Ramesh v. State of A.P. [(2001) 6 SCC 205]. The Supreme Court has dealt with the science of dog tracking explaining the same in the following words:
"10. The uncanny smelling power of canine species has been Page 15 of 25 R/CR.A/606/2007 CAV JUDGMENT profitably tapped by investigating agencies to track the culprits. Trained dogs can pick up scent from the scene of any object and trace out the routes through which the culprits would have gone to reach their hideouts. Developing countries have utilized such sniffer dogs in a large measure. In India also the utilization of such tracker dogs is on the increase. Though such dogs may be useful to the investigating officers, can their movements be of any help to the Court in evaluating the evidence in criminal cases ?
11. A four-fold criticism is advanced against the reception of such evidence. First it is not possible to test the correctness of the canine movements through the normal method available in criminal cases, i.e. in cross-examination. Second is that the life and liberty of human beings should not be made to depend on animal sensibilities. Third is that the possibility of a dog misjudging the smell or mistaking the track cannot be ruled out, or many a times such mistakes have happened. Fourth is that even today the science has not finally pronounced about the accuracy of canine tracking.
12. There are basically three kinds of police dogs - the tracker dogs, the patrol dogs and sniffer dogs, Recent trends show that hounds belonging to certain special breeds sheltered in specialized kennels and imparted with special training are capable of leading investigating agency to very useful clue in crime detection and thereby help detectives to make a breakthrough in investigation. English Courts have already started treating such evidence as admissible. In Canada and in Scotland such evidence has become, of late, admissible though in United States the position is not uniform in different States.
13. The weakness of the evidence based on tracker dogs has Page 16 of 25 R/CR.A/606/2007 CAV JUDGMENT been dealt with in an article "Police and Security Dogs". The possibility of error on the part of the dog or its master is the first among them. The possibility of misunderstanding between the dog and its master is close on its heels. The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not be ruled out. The last, but not the least, is the fact that from a scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals. Police dogs engaged in these actions by virtue of instincts and also by the training imparted to them.
14. We will now refer to two decisions of this Court in which the evidence relating to sniffer dogs movement have been tested.
15. In Abdul Razak Murtaza Dafadar v. State of Maharashtra, AIR 1970 SC 283 : (1970 Cri LJ 373) a three Judge Bench of this Court declined to express any concluded opinion or to lay down any general rule with regard to tracker dog's or evidence or its admissibility against the accused, as it was not necessary to do so on the fact situation. However, their Lordships made the following observations on the usefulness or otherwise of such evidence (Para 11) :
"It was argued that the tracker dog's evidence could be likened to the type of evidence accepted from scientific experts describing chemical reactions, blood tests and the actions of bacilli. The comparison does not, however, appear to be sound because the behaviour of chemicals, blood corpuscles and bacilli contains no element of conscious volition or deliberate choice. But dogs are intelligent animals with many thought process similar to the thought processes of human beings and wherever you have thought processes there is always the risk of error, deception and even self-deception. For these reasons we are of the opinion that in the present state of Page 17 of 25 R/CR.A/606/2007 CAV JUDGMENT scientific knowledge evidence of dog tracking, even if admissible, is not ordinarily of much weight. "
16. In Surinder Pal Jain v. Delhi Administration, 1993 Supple (3) 681 : (1993 AIR SCW 1561 : AIR 1993 SC 1723 : 1993 Cri LJ 1871) a two Judge Bench expressed the opinion that "the pointing out by the dogs could as well lead to a misguided suspicion that the appellant had committed the crime." So save (sic saying) Their Lordships sidelined that item of evidence from consideration.
17. We are of the view that criminal Courts need not bother much about the evidence based on sniffer dogs due to the inherent frailties adumbrated above, although we cannot disapprove the investigating agency employing such sniffer dogs for helping the investigation to track down criminals.
18. Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill afford them."
16. Thus, from the above it is clear that sniffer dogs are more helpful to the investigating officer during the course of the investigation but the same could hardly be relied upon to use as one of the incriminating circumstances against the accused.
17. There is one more reason why we do not find it safe to rely upon the evidence of dog tracking. The reason is that the actual dog handler has not been examined nor any other person, who was expert of the dog squad has been examined, although the presence Page 18 of 25 R/CR.A/606/2007 CAV JUDGMENT of such experts and the dog handler at the time of dog tracking is admitted by the investigating officer, who has stated that he had procured the presence of the team of the dog squad and that the expert of the dog tracking and the dog handler was present at the time when the dog tracking was conducted. In such circumstances, it is too risky to place reliance on such a piece of evidence.
18. The circumstance of blood being detected on the clothes of the accused-appellants matching with the blood group of the deceased is also hardly of any significance for the prosecution.
19. First there is nothing to indicate that the blood of both the accused persons was drawn and the blood group was determined. It appears that only the blood of the deceased was drawn and the same was found to be of "O" group. In absence of any determination of the blood group of the accused-appellants, this circumstance, in our opinion, could not be treated as an incriminating piece of circumstance.
20. Secondly, we are not inclined to place reliance on such a circumstance for the reason that in the further statement of both the accused-appellants recorded under Section 313 of the Criminal Procedure Code, no specific question was put to them as to what they had to say as regards the blood being detected on their clothes matching with the blood group of the deceased. All that was put to Page 19 of 25 R/CR.A/606/2007 CAV JUDGMENT them was as to what they had to explain as regards the serological test report, Exh.37. In our opinion, if the prosecution wanted to rely on the circumstance of blood being detected on the clothes of the deceased then it was the duty of the trial Court to put it very specifically to both the accused persons so that they could have answered in whatever manner they would have deemed fit. It is very difficult for an illiterate rustic accused to understand what is FSL and serological test report. All that the accused would understand is regarding the blood being detected on his clothes. In absence of any specific question being put to the accused-appellants we refuse to consider this circumstance against the accused-appellants in the chain of circumstances.
21. The correct question which the trial Court ought to have put to the accused should have been "what do you have to say as regards the presence of blood stains of human blood matching with the blood group of the deceased found on your shirt and pant." By putting such a question even an illiterate and a rustic accused would be able to understand that the Court wants him to say something or explain as regards the presence of blood stains on his clothes. The explanation could be anything which the accused may deem fit to give one. However, to ask him as to what he had to say as regards the serological test report or a Forensic Science Laboratory would be nothing short of non-compliance of the mandatory provisions of law. It is as good as not putting the circumstance to the accused to give Page 20 of 25 R/CR.A/606/2007 CAV JUDGMENT him an opportunity to explain.
22. The Supreme Court in Machander v. State of Hyderabad (AIR 1955 SC 792) has raised voice as early as in 1955 by holding that the Judges and Magistrates must realize the importance of the examination under Section 342 (313 of the new Code). It is the duty of the Court to question the accused properly and fairly, bringing home to his mind in clear and simple language the exact case he has to meet with and each material point that is sought to be pointed out against him and of affording him a chance to explain the circumstances against him, if he can and so desires. In view of the serious error and discrepancy the accused came to be acquitted from the serious charges under Section 300 of the I.P.C. in the said case. The said decision is also fully applicable to the facts of the present case.
23. Later on, in Harnam Singh v. State (Delhi Admn.), (AIR 1976 SC 2140), the Supreme Court has, also, held that if the material circumstances appearing against the accused are not put to him, there will be non-compliance of the provisions of Section 342 of the old Act (313 of the new Code). Whether the error committed by the Court was curable under old Section 537 (new 465 of the Code) was also examined by the Court and in the facts of the said case, it was held that it was curable. If the irregularity does not, in fact, occasion the failure of justice, it is curable under Section 465 of the Page 21 of 25 R/CR.A/606/2007 CAV JUDGMENT Code. In the present case, there is a failure of justice and serious prejudice caused to the accused. Therefore, the prosecution is not in a position to make any slice of profit out of the provisions of Section 465 of the Code.
24. In Harijan Megha Jesha v. State of Gujarat, this principle was very well examined and explained. It is held that the circumstances against accused not put to him in his statement under Section 313 of the Code, prosecution cannot be permitted to rely on those circumstances in order to convict him particularly after his acquittal by the trial Court. In that case, the learned Additional Sessions Judge had acquitted the accused. On appeal to this Court by the State the accused was convicted of the offence punishable under Section 302 of the Indian Penal Code. The accused was tried by the learned Sessions Judge, thus came to be convicted by this Court. The accused carried the matter to the Supreme Court and accused succeeded. The conviction order passed by this Court was reversed by the Supreme Court. In that case it was held that the circumstances against the accused relied on by the prosecution were not put to him in his statement under Section 313 of the Code and the prosecution cannot be permitted to place reliance on such circumstances so as to hold the accused guilty.
25. The aforesaid decision of the Supreme Court was relied on by the Supreme Court in Sharad v. State of Maharashtra, AIR 1984 SC 1632. The circumstances which are not put to the accused in his Page 22 of 25 R/CR.A/606/2007 CAV JUDGMENT statement under Section 313 of the Code cannot be relied on by the prosecution to prove his guilt. The underlying principles under Section 313 of the Code are explained and settled.
26. It is not necessary for this Court to multiply the authorities on this point as this question is settled long before and there is a catena of judicial pronouncements. It is very clear from the aforesaid decisions that all important material incriminating circumstances ought to be put to the accused in his examination under Section 313 of the Code in a proper and simple language so that the accused could be afforded with an opportunity to meet with the case of the prosecution. In case of non-compliance of the provisions of Section 313 of the Code, the circumstances and the incriminating material not put to the accused in his statement or examination under Section 313 of the Code will have to be totally excluded from the consideration.
27. The circumstance of the demonstration panchnama at the place of occurrence could also hardly be termed as an incriminating piece of circumstance. The dead body of the deceased was recovered near the railway line and, therefore, the investigating agency had already an idea as regards the place of occurrence. In such circumstances, by merely drawing a demonstration panchnama at the instance of the accused persons, it could hardly be termed as an incriminating piece of circumstance.
Page 23 of 25 R/CR.A/606/2007 CAV JUDGMENT
28. It appears that the trial Court in paragraph 33 of the judgment, has observed that the accused-appellants' defence was found to be false which would be an additional link in the chain of circumstance. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. Where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacunae in the prosecution case, the same could be cured or supplied by a false defence or a false plea which is not accepted by a Court.
29. Before a false explanation can be used as an additional link, the following essential conditions must be satisfied.
(i) Various links in the chain of evidence led by the prosecution have been satisfactorily proved.
(ii) Such circumstance points to the guilt of the accused as reasonable defence.
(iii) The circumstance is in proximity to the time and situation.
Page 24 of 25 R/CR.A/606/2007 CAV JUDGMENT
30. If these conditions are fulfilled only then a Court use a false explanation or a false defence as an additional link to lend as assurance to the Court and not otherwise. [See Sharad Biridhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622)]
31. For the reasons given above, we hold that the prosecution has failed to prove its case against the accused-appellants beyond reasonable doubt. We, therefore, allow both the appeals and set aside the order dated 19th February 2007 of conviction and sentence passed by the trial Court in Sessions Case No.110 of 2006. Both the accused-appellants are acquitted of the offence of murder punishable under Section 302 read with Section 114 of the Indian Penal Code. We are informed that the accused no.1-Kanuji Kalaji Thakor is on bail, as during the pendency of his appeal, the order of sentence was suspended. As the accused no.1, Kanuji Kalaji Thakor, stands acquitted the bail bond furnished by him stands discharged. So far as the accused no.2, Baldevbhai Vajaji Thakor is concerned, he is ordered to be set at liberty forthwith, if not required in any other case.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) *malek Page 25 of 25