IMPORTANT POINT
The prosecution must establish a chain of circumstances pointing towards the guilt of the accused, and the circumstances should be incapable of explanation on any hypothesis other than guilt.

JUDGMENT :

A.S. SUPEHIA, J.

1. Since it was noticed by us that the convict - Aman S/o Ashok Narayan Panchal (Pawar) is aged around 25 years and while considering the evidence while dealing with the application seeking suspension of sentence, it was found that the conviction of the accused by the trial court appears to be perverse, we have heard the learned advocates for the respective parties on the main appeal itself.

2. Hence, after hearing the learned advocates for the respective parties at length, we are deciding the captioned appeal.

3. The convict has already undergone 6 years 3 months and 27 days incarceration as on 21.02.2024.

4. The captioned Criminal Appeal is filed under Section 374 of the Code of Criminal Procedure, 1973, challenging the judgment and order of conviction and sentence dated 11th November 2022 passed by the Special (Atrocity) Judge and 5th Additional Sessions Judge, Anand, in Special (Atrocity) Case No. 94 of 2017, whereby the accused has been charged for the offences punishable under Sections 363, 302 and 201 of the Indian Penal Code, 1860 (IPC) as well as under Section 3(2)(5-a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

5. The trial court, after examining the evidence, convicted the accused and sentenced him to suffer life imprisonment with fine of Rs. 1,500/- and in default of payment of fine, to further suffer simple imprisonment for three months, for the offence under Section 302 of the IPC; for the offence under Section 363, the accused has been sentenced to undergo simple imprisonment for three years with fine of Rs. 1,000/- and in default of payment of fine, to further undergo simple imprisonment for one month; for the offence under Section 201, the accused has been sentenced to undergo simple imprisonment for two years with fine of Rs. 500/- and in default of payment of fine, to further undergo simple imprisonment for one month.

6. The case of the prosecution, as per the charge (Exh.4), is that on 27th September 2017 at around 17:30 hours, the present accused had kidnapped the deceased, who was 11 years 3 months and 26 days of age and murdered him since he had seen the accused with his sister - Payal (PW-16). It is the case of the prosecution that the accused kidnapped the deceased on a motorcycle bearing Reg. No. GJ-23-DJ-1570 and thereafter he committed his murder and threw his dead body at Mathupura sim near the canal, after strangulating him. The charge under the Atrocity Act as mentioned herein above was also framed against the accused.

7. Since the deceased was missing on 27th September 2017, an FIR came to be registered on 28th September 2017 by the father of the deceased (PW-1) Sunilbhai Becharbhai Vasava and an offence under Section 363 of the IPC was registered. Thereafter, the dead body of the deceased was found on 30th September 2017. Prior to the discovery of the dead body, it is the case of the prosecution that the Investigating Officer, through his reliable sources, had found out that the kidnapping and murder was committed by the present accused. This fact had been stated by the Investigating Officer (PW-20) Navalsinh Narubhai Jadav in his evidence at Exh.67.

8. Learned advocate Mr. Thakkar appearing for the accused has submitted that the entire case of the prosecution is premised on circumstantial evidence and there is no link established by the prosecution to suggest that the present accused has committed the offence. He has submitted that the motive alleged by the prosecution for commission of the crime appears to be that the sister of the deceased was being harassed by the accused, as he wanted to talk with her. He has referred to the deposition of PW-16, Payalben Sunilbhai Vasava, who is the sister of the deceased, and has submitted that her evidence does not inspire confidence as she, in her police statement, has never disclosed such facts. Similarly, he has referred to the testimony of the complainant (PW-1), Sunilbhai Becharbhai Vasava,