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(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 counsel placed reliance on the statement 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 Kishanbhai. In this respect, reference was made to serial No.14 of the post-mortem notes (Exhibit 29) proved by Dr. Saumil Premchandbhai 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 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 Gomi. This document, according to the learned counsel, also indicates the use of a knife in the occurrence under reference.

(d) It is apparent from the prosecution story, that the victim 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 present on the left margin of the vaginal opening, just above the posterior commission. The hymen was also found ruptured at 3 and 6,O’ 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 Dr. P.D. Shah. In fact Dr. P.D. Shah was a cited witness before the Trial Court. Despite the above Dr. P.D. 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.

(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 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 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 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 the charges levelled against the accused Kishanbhai.

(a) The post mortem report relied upon by the prosecution 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 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 deceased were cut whilst she was in her senses, is incomprehensible and therefore, most 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 other 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 impossible to accept on the touchstone of logic and common sense.