2008 Supreme(Guj) 450

2009 (2) GCD 1070 (Guj) (DB)
Hon’ble Mr. Justice J.R. Vora &
Hon’ble Mr. Justice Sharad D. Dave
Ghanshyam @ Ganiyo Dayaldas Pithani Sindhi [Ahmedabad]
Versus
State of Gujarat
Criminal Appeal No. 1038 of 2000—Decided on 18/12/2008

Point in Issue :
Whether in the facts and circumstances brought on record by prosecution it has proved the case against accused appellant beyond reasonable doubt.

Headnote:Head Note :

       [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Section 302 — [Indian] Evidence Act — Sections 21, 24 to 26 and 27 — Murder — Conviction — Circumstantial evidence — Appreciation of — Finding as to — Sustainability — The prosecution first claimed to rest it’s case on the testimony of mother of deceased PW. 1 and maternal uncle of the deceased P.W. 2 as having seen the accused appellant inflicting fatal injuries to deceased with knife — But both these witnesses have resulted their version recorded in police statement and have stated in the Court that they had only seen the accused running away from the place of offence — Thus there is no manner of doubt that the whole case against the appellant rests upon the circumstantial evidence — As seen the alleged witnesses mother and maternal uncle have made substantial change during the trial — In appreciating their evidence Court did not found their evidence so complete as eliminating any other hypothesis of innocence of the accused and only consistent with the guilt of the accused — Likewise is the evidence of admission of accused before the doctor — Court observed that alleged admission is such that it is capable of explanation of hundred hypothesis than that of guilt of accused — The evidence of discovery and Forensic Science Laboratory both also raise hypothesis than that of the guilt of the accused — Such circumstances even if taken cumulatively fail to form chain so complete that there is no escape from the conclusion that in all human probabilities the crime was committed by the accused and none else — In the matter of circumstantial evidence each individual circumstance must be cogently and firmly established by which inference of guilt can be inferred but in the case it is not possible to form the chain of circumstances of the guilt of the accused because each so called link of chain is not complete — In view of this Court concluded that the learned trial Judge erred in convicting and sentencing the appellant — Court, therefore, set aside the impugned judgment and order of sentence.

       Held :

       If the evidence of both these witnesses i.e. P.W. 1 and P.W. 2 is appreciated together, we find that P.W. 1 Kamlaben does not refer that the accused had knife in his hand while he was running and noticed by her. It is pertinent to note that Kamlaben P.W. 1 does not refer even to the presence of P.W. 2 Dilipbhai Mohandas either at the time of incident or even thereafter. Therefore, this is the contradiction and the evidence falls short which is the circumstance in the nature to connect the accused with the crime. Court is unable to come to the conclusion that this evidence is so trustworthy that does not leave room at all for consideration that the accused might have been only passing through because his residence was situated just near the lavatory. Therefore, what is stated by P.W. 1 and 2, if taken as it is, the circumstance which is on record as narrated by these two witnesses is not conclusive in nature and so complete as to consistent only with the hypothesis of the guilt of the accused.

       Court find the gap left in the chain of evidence that only because P.W. 1 and P.W. 2 saw the accused running, it could not be said that such circumstance is so complete that it would lead in all probabilities to the guilt of the accused. The probable reason for the accused being there and going away is obvious and admitted that the accused was staying near the lavatory and was not intruder or outsider and, therefore, in our view, this circumstance is not proved by the prosecution beyond doubt as against the accused, to be the reliable link of chain of circumstantial evidence. [Para 24]

       Now, looking to the nature of the statement which the accused has made before the doctor P.W. 5, in no manner it can be said that it is an admission of guilt by a person charged with the offence. What is found in the statement of the accused is this much only that there was some stabbing by Rampuri chakku at 20.30 hours at Thakkarbapanagar, Jaishankar Society and he got injury by the same chakku in his hand. If the statement is taken as it is, no inference at all can be drawn that the accused was saying that he inflicted injury to Minaben for which he has been charged in this prosecution case. One cannot make out anything that who was doing stabbing and whether it was the same knife by which blow was inflicted to deceased Minaben. Undoubtedly, therefore, the statement made by the accused before P.W. 5 falls short of labelling the same as confession. [Para 25]

       Inference of guilt from the circumstantial evidence would be justified only when all incriminating facts and circumstances are found to be incompatible with the innocence of the accused or guilt of any other person. The circumstance must be complete and must not be capable of explanation of any other hypothesis than that of the guilt of the accused. When there are discrepancies as described by us in this particular piece of evidence, it is difficult to come to the conclusion that whatever stated by the accused as history to the doctor, even if it is an admission under Section 21 of the Act is capable to indicate guilt of the accused only. On probabilities, if the circumstance is considered while stabbing Minaben, it would not be probable that the accused would get such injury. Therefore, this circumstance as has been established against the accused does not help the prosecution to prove the guilt of the accused.

        [Para 26]

       What is required to be proved is the information received from the accused and that information can be proved through the discovery which is effected in pursuance of that discovery. If the fact is discovered in pursuance of the information supplied by the accused, then it is the duty of the prosecution to prove that how and what information the accused provided and how and what discovery was effected and how the discovery related to the information supplied by the accused. None of these ingredients is proved by the prosecution in the present case in respect of discovery and, therefore, the evidence of discovery is not at all proved as against the accused in respect of knife upon which the blood group of the deceased was found. When the discovery is not proved from the accused of the weapon, the blood upon such weapon even if it belongs to the deceased is of no use to the prosecution to prove the guilt of the accused. This circumstance, therefore, also does not indicate the guilt and only the guilt of the accused. [Para 27]

       It was the duty of the prosecution to eliminate all hypothesis of innocence of the accused to the extent that the prosecution ought to have proved beyond doubt that blood group of the accused was not ‘B’ group and that stains on the pant of the accused was not the blood of the accused himself. It is an admitted fact that blood group of the accused has not been ascertained. It has also been admitted in the evidence that the accused had also bleeding injury. It is, therefore, reasonable hypothesis that upon pant of the accused, there might be his own blood because he had bleeding injury. This fact is incompatible with the guilt of the accused and hence this fourth circumstance upon which the prosecution case rests also could not be proved beyond doubt. [Para 29]

       While the evidence of discovery and Forensic Science Laboratory both also raise hypothesis than that of the guilt of the accused. Such circumstance even if taken cumulatively fail to form chain so complete that there is no escape from the conclusion that in all human probability, the crime was committed by the accused and none else. This is so because each individual circumstance must be cogently and firmly established by which inference of guilt can be inferred and then cumulative effect of such circumstance can be noted but this is the case wherein it is not possible to form the chain of circumstances of the guilt of the accused because each so called link of chain could not be established beyond doubt. [Para 31]

       Law Laid Down :

       Where prosecution case squarely rests on circumstantial evidence every circumstance must be cogently and firmly established.

       Case Law Analysis :

       Koli Madha Jina & Others vs. State of Gujarat, 1985 GLH 49 [Para 6];; Kishore Chand vs. State of Himachal Pradesh, 1990 CrLJ 2289 [Para 6];; Aghnoo Nagesia vs. State of Bihar, AIR 1966 SC 119 [Para 6].—Distinguished

       Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 [Para 22];; Hanumant Govind Nargundkar and Another vs. State of Madhya Pradesh, AIR 1952 SC 343 [Para 32].—Relied on

       Appeal Allowed