2014 Supreme(Guj) 103

Gujarat High Court
Hon’ble Mr. Chief Justice Bhaskar Bhattacharya & Hon’ble Mr. Justice J.B. Pardiwala
Baldevji Vajaji Thakor
Versus
State of Gujarat
Criminal Appeal No. 606 of 20071—Decided on 25/03/2014

Point in Issue :
Whether in the facts and circumstances of the case accused are rightly convicted for the offence of murder of the deceased.

Headnote:Head Note :

       (a) [Indian] Penal Code, 1860 (Central Act 45 of 1860) — Section 302 read with Section 114 — Murder — Conviction — Death caused by strangulation — Appeal against — Finding of — The entire case of the prosecution hinges on circumstantial evidence — In order to prove a case on basis of circumstantial evidence circumstances established should be consistent conclusive and 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 — It must be such so as to show that within all given probabilities the act must have been done by the accused — Court having considered the entire evidence of witnesses examined and circumstantial evidence brought on record held that prosecution has failed to complete the chain of circumstances so as to establish that circumstantial evidence is consistent only with the guilt of the accused and inconsistent with any other rationale explanation — The trial Court has mainly relied on evidence of dog tracking but it is a very weak piece of evidence and could not be said to have been proved in absence of the examination of the dog tracker in course of trial — In such facts and circumstances the Court set aside the conviction and sentence passed by trial Court.

       Held :

       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.

        [Para 12]

       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. [Para 14]

       There is one more reason why Court does 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 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.

        [Para 17]

       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.

        [Para 28]

       Head Note :

       (b) Criminal trial — Circumstantial evidence — Tests required to be satisfied — Indicated.

       Held :

       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 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. [Para 7]

       Head Note :

       © Criminal Trial — Defence — False defence can be used if satisfy the following conditions.

       Held :

       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. [Para 29]

       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. [Para 30]

       Law Laid Down :

       Sniffer dogs are more helpful to Investigating Officer during course of the investigation but same could hardly be relied upon to use as one of the incriminating circumstance against accused.