The judgment emphasizes the need for circumstantial evidence to be incompatible with the innocence of the accused and the importance of establishing motive from reliable evidence.

R.D.KOTHARI, J.

1. This is somewhat unusual case. On 19.05.1994, three homicidal death took place. The appellant is charged for that. The facts of the case may be stated at once, but before that we may observe that notwithstanding bulky record made by the prosecution and very lengthy judgment under appeal by trial Court, big question mark remains so far as case against the appellant is concerned.

2. The facts in brief are as under :

2.1. The present appeal arises out of the common judgment delivered in two Sessions Cases i.e. Sessions Case No. 127 of 2003 and Sessions Case No. 128 of 2003. Those two cases, in turn, arise out of two complaints registered with Kalyanpur Police Station, District : Jamnagar. These two complaints are C.R. No. I61 of 1994 and C.R. No. I62 of 1994. The former complaint is by one Bhoga Lakha for homicidal death of Markhibhai and later complaint is by one Jetha Savdas. Jetha Savdas is the father of other two deceased. His two sons i.e. Hamir Jetha and Kana Jetha have met with homicidal death. Bogha Lakha is a relative – in distant relation, of the deceased Markhibhai. It is the case of the prosecution that the present appellant has lured the deceased persons by saying that he would give gold at a cheaper rate. Criminal trial against the sole appellant herein has resulted in acquittal so far as the death of Hamir Jetha and Kana Jetha is concerned, however, the case of the prosecution qua Markhibhai was believed by the learned trial Court. The modus operandi of the appellant as alleged is thus :

2.2. On late evening on 19.05.1994, these three deceased, the appellant and the complainant all were at the store room of Water Supply Board of Village Bhatia, Taluka : Kalyanpur, District : Jamnagar. The complainant – Bogha Lakha is a Watchman at the store room; Markhibhai had a bag with him containing cash. The said bag was kept in a room of this store room. It is the case of prosecution that these three deceased had gathered there i.e. at the compound of the store room, because the appellant had said to them that the appellant would be giving gold at a cheaper rate. As the story of the prosecution goes, first Kana Jetha had gone from the store room with the present appellant to collect the “goods” and then after half an hour, the appellant came back. He was breathing heavily and perspiring profusely. He said that Kana Jetha is outside. Saying so, he asked the other two i.e. Markhibhai and Hamir Jetha to accompany him. Accordingly, they had gone with him. Then after another half an hour, Markhibhai came at the store room. The complainant was there. He asked the complainant whether the other two persons had come or not. The complainant says no. Markhibhai at that time had asked the complainant to take the present appellant with him for dinner when the present appellant and other come. After such a talk, Markhibhai left. Then after another half an hour or so, the present appellant came. This time also, it is alleged that the appellant was perspiring profusely. The appellant had come alone. On being asked by the complainant whether he would like to have a dinner, the appellant suggested to have breakfast. After taking breakfast at a highway hotel, they came back. The appellant had said to have asked the complainant that they i.e. the complainant and the appellant may go and see where others had gone. To this the complainant says no. Then Devayat – brother of Markhibhai came in a jeep at the store room and told to the complainant that Markhibhai is attacked by someone. He asked the complainant to accompany him in the Jeep. The complainant goes with him. Then the complainant says to Devayat that the appellant is there at the store room. On such say of the complainant, it is alleged that Devayat and the complainant came back. They found that the appellant was not there. It is alleged that he had ran away. Then as they came on road, another Jeep came there, in which Markhibhai was lying unconscious. He was take