# STATE OF GUJARAT v. KISHANBHAI ETC

- **Citation:** [2014] 1 S.C.R. 197
- **Court:** Supreme Court of India
- **Decided:** 2014-01-07
- **Case number:** Criminal Appeal No. 1485 of 2008
- **Bench:** C.K. Prasad, Jagdish Singh Khehar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-gujarat-v-kishanbhai-etc-29724
- **Pages:** 52

## Headnote

PENAL CODE, 1860:
A
8
ss.376, 302, 201, 363, 369 and 394 - Rape and murder c
of a six year old girl - Her legs amputed above ankles and
anklets stolen - Circumstantial evidence - Conviction by trial
court and sentence of death - Acquittal by High Court giving
the accused benefit of doubt - Held: Since the guilt of
accused in the instant case is to be based on circumstantial
0
evidence, establishing of a complete chain from the evidence
produced by prosecution becomes essential -- High Court has
rightly pointed out several missing links in the chain of
circumstances leading to failure of prosecution to establish
guilt of accused - Further there are several lapses committed
E
by in11estigating!prosecuting agency -
There are several
discrepancies and inconsistencies in the evidence produced
by prosecution before trial court - Judgment of High Court
needs no_ interference -- Directions given to identify erring
officers in the instant case and take appropriate departmental
action against them in accordance with Jaw - Investigation -
F
Bombay Police Act 1951 -- s. 135(1) -- Circumstantial
evidence.
INVEST/GA TION:
Serious lapses in investigation and prosecution of a rape
and murder case - In the instant case, there have been
serious lapses committed by the investigating and
prosecuting agencies and there are deficiencies in the
197
G
H
198
SUPREME COURT REPORTS
[2014) 1 S.C.R.
A process of establishing the guilt of the accused before the trial
court -- The investigating officials and the prosecutors
involved in presenting the case, have miserably failed in
discharging their duties -- They have been instrumental in
B
c
D
denying to serve the cause of justice -
Arrest of accused - Held -- Though accused was
acknowledged to be in police station since 9 p.m., he was
formally arrested at 6.40 a.m. on the following day - There
are inconsistent statements on record in this regard.
Entries in Station Diary - Though 10 had been apprised
about the commission of crime, he left Police Station without
making any entry in Station Diary or in any other register,
depicting the purpose of his departure.
Panchnama -
Held: In the instant case, inquest
panchnama was drawn before registration of FIR.
Identification -- Held: Though the witness had seen the
accused for the first time on the date or occurrence, no test
identification parade to get the accused identified was
E conducted.
EVIDENCE:
Circumstantial evidence -- DNA test - Rape and murder
F - Held: Advancement in scientific investigation should be
taken recourse to -· In the instant case, investigating agency
ought to have sought DNA profiling of the blood samples,
which would have given a clear picture.
G
H
F.l.R.:
Delay in registering the FIR - Held: In the instant case,
not only is the delay of seven hours in registration of complaint
unexplained, but the same is also rendered extremely
suspicious.
STATE OF GUJARAT v. KISHANBHAI
199
ADMINISTRATION OF CRIMINAL JUSTICE:
Faulty investigation and deficient prosecution
Directions given to State Governments to examine all orders
A
of acquittal and record reasons for the failure of each
prosecution case -- A standing committee of senior officers
8
of the police and prosecution departments should be vested
with this responsibility -- Home Department of every State
Government will incorporate in its existing training
programmes for investigation/prosecution officials coursecontent drawn in light of instant judgment.
c
Respondent no.1 was prosecuted for committing
offences punishable u/ss 363, 369, 376, 394, 302 and 201,
IPC and s. 135(1) of Bombay Police Act, on the
allegations that he abducted a six year old girl, raped and
killed her. It was also alleged that the accused chopped
D
off her feet just above ankles and took away her anklets.
The trial court convicted and sentenced the accused to
death. However, the High Court noticing several missing
links in the chain of circumstances, allowed his appeal
and acquitted him giving him benefit of doubt.

## Text

_Characters 0–39,852 of 104,682. This is a partial read: ask again with offset=39852 for what follows._

[2014] 1 S.C.R. 197
STATE OF GUJARAT
v.
KISHANBHAI ETC.
(Criminal Appeal No. 1485 of 2008)
JANUARY 7, 2014
[C.K. PRASAD AND JAGDISH SINGH KHEHAR, JJ.]
PENAL CODE, 1860:
A
8
ss.376, 302, 201, 363, 369 and 394 - Rape and murder c
of a six year old girl - Her legs amputed above ankles and
anklets stolen - Circumstantial evidence - Conviction by trial
court and sentence of death - Acquittal by High Court giving
the accused benefit of doubt - Held: Since the guilt of
accused in the instant case is to be based on circumstantial
0
evidence, establishing of a complete chain from the evidence
produced by prosecution becomes essential -- High Court has
rightly pointed out several missing links in the chain of
circumstances leading to failure of prosecution to establish
guilt of accused - Further there are several lapses committed
E
by in11estigating!prosecuting agency -
There are several
discrepancies and inconsistencies in the evidence produced
by prosecution before trial court - Judgment of High Court
needs no_ interference -- Directions given to identify erring
officers in the instant case and take appropriate departmental
action against them in accordance with Jaw - Investigation -
F
Bombay Police Act 1951 -- s. 135(1) -- Circumstantial
evidence.
INVEST/GA TION:
Serious lapses in investigation and prosecution of a rape
and murder case - In the instant case, there have been
serious lapses committed by the investigating and
prosecuting agencies and there are deficiencies in the
197
G
H
198
SUPREME COURT REPORTS
[2014) 1 S.C.R.
A process of establishing the guilt of the accused before the trial
court -- The investigating officials and the prosecutors
involved in presenting the case, have miserably failed in
discharging their duties -- They have been instrumental in
B
c
D
denying to serve the cause of justice -
Arrest of accused - Held -- Though accused was
acknowledged to be in police station since 9 p.m., he was
formally arrested at 6.40 a.m. on the following day - There
are inconsistent statements on record in this regard.
Entries in Station Diary - Though 10 had been apprised
about the commission of crime, he left Police Station without
making any entry in Station Diary or in any other register,
depicting the purpose of his departure.
Panchnama -
Held: In the instant case, inquest
panchnama was drawn before registration of FIR.
Identification -- Held: Though the witness had seen the
accused for the first time on the date or occurrence, no test
identification parade to get the accused identified was
E conducted.
EVIDENCE:
Circumstantial evidence -- DNA test - Rape and murder
F - Held: Advancement in scientific investigation should be
taken recourse to -· In the instant case, investigating agency
ought to have sought DNA profiling of the blood samples,
which would have given a clear picture.
G
H
F.l.R.:
Delay in registering the FIR - Held: In the instant case,
not only is the delay of seven hours in registration of complaint
unexplained, but the same is also rendered extremely
suspicious.
STATE OF GUJARAT v. KISHANBHAI
199
ADMINISTRATION OF CRIMINAL JUSTICE:
Faulty investigation and deficient prosecution
Directions given to State Governments to examine all orders
A
of acquittal and record reasons for the failure of each
prosecution case -- A standing committee of senior officers
8
of the police and prosecution departments should be vested
with this responsibility -- Home Department of every State
Government will incorporate in its existing training
programmes for investigation/prosecution officials coursecontent drawn in light of instant judgment.
c
Respondent no.1 was prosecuted for committing
offences punishable u/ss 363, 369, 376, 394, 302 and 201,
IPC and s. 135(1) of Bombay Police Act, on the
allegations that he abducted a six year old girl, raped and
killed her. It was also alleged that the accused chopped
D
off her feet just above ankles and took away her anklets.
The trial court convicted and sentenced the accused to
death. However, the High Court noticing several missing
links in the chain of circumstances, allowed his appeal
and acquitted him giving him benefit of doubt.
E
Dismissing the appeal, the Court
HELD: 1.1. Since the guilt of the accused in the
instant case is to be based on circumstantial evidence,
establishing of a complete chain from the evidence
F
produced by the prosecution becomes essential. The
serious lapses committed by the investigating and
prosecuting agencies and the deficiencies during the
course of investigation and prosecution, in the instant
case, are as follows:
G
(a) According to the prosecution story after having
removed the anklets from victim's feet, the accused
had taken them to a Jeweller's shop and pledged
them for a sum of Rs. 1,000/-. The jeweller had gone
H
A
B
c
D
E
F
G
H
200
SUPREME COURT REPORTS
[2014] 1 S.C.R.
to the police station with the anklets on his own, after
having read the news. The lapse of the prosecution
on account of not producing the jeweller as
prosecution witness, resulted in a missing link in the
chain of events. [para 11(a)] [221-B-D, E-F, G-H]
(b) The prosecution story discloses that the jeweller
had executed a receipt with the accused, who put his
thumb mark thereon, depicting the pledging of the
anklets for a sum of Rs.1,000/-. The prosecution took
no steps to compare the thumb impression on the
receipt, with that of the accused-respondent. [par a
11 (b)] [222·8-C, C-D, E-F]
(c) It is also the case of the prosecution, that when
the accused was apprehended, a sum of Rs.940/-
was recovered from his possession. However, he
ought to have been in possession of at least Rs.1 ,000/
- i.e., the amount given to him by the jeweller when
he pledged the anklets at his shop, even if it is
assumed that he had no money with him when he
had pawned the anklets. [para 11 (c)] [223-C-D]
(d) In order to prove the prosecution case that the
victim was raped, the doctor, who had medically
examined the accused and had been cited as a
witness before the trial court, was not examined as
a prosecution witness. [para 11 (d)] [223-G-H]
(e) Even the report/certificate given by the medical
officer relating to the medical examination of the
accused was not produced by the prosecution
before the trial court. His evidence could have
established, whether or not accused had committed
rape on victim. [para 11 (e)] [224-A-C]
(f) The accused could have been medically examined
within a period of 24 hours of the occurrence. The
STATE OF GUJARAT v. KISHANBHAI
201
prosecution case does not show whether or not A
such action was taken. [para 11 (f)] [224-E-F]
.
- .. -
-
(g) When the accused was arrested, there were
several injuries on his person. He was sent to Civil
Hospital for his medical examination. Neither the
8
doctor who had examined him was produced as a
prosecution witness, nor was the report/certificate
given by the medical officer disclosing the details of
his observations/findings was placed on record. The
importance of nature of the injuries suffered by the
C
accused emerges from the fact, that both the
accused and the victim had the same blood group
"B +ve". The investigating agency ought to have
sought DNA profiling of the blood samples, which
would have given a clear picture whether or not the
blood of the victim was, in fact on the clothes of the
D
accused-respondent. Additionally, DNA profiling of
the blood found on the knife used in the commission
of the crime, would have uncontrovertibly
determined whether or not the said knife had been
used for severing the legs of the victim, to remove
E
her anklets. [11 (g)] [225-B, D-E, G; 226-F-H]
(h) It is also apparent from the complaint submitted
by PW 2, that he had been informed by one 'KG', that
he had seen the accused taking away the victim. In
F
such an event, the proof of the fact of the accused
having abducted the victim and her last seen with
accused could have only been substantiated through
the statement of 'KG'. [para 11 (h)] [227-B-C]
(i) A green blood stained "dupatta'" was recovered
G
from the person of the victim, which neither belonged
to the victim nor to the accused. The presence of the
green "dupatta", has also not been explained. (para
11 (i)] [227-F-H]
H
202
SUPREME COURT REPORTS
[2014) 1 S.C.R.
A
(j) PWG is said to have seen the accused-respondent
for the first time when the latter approached his "lari"
to purchase a "dabeli" on 27.2.2003. Therefore, it was
imperative for the investigating agency to hold a test
identification parade in order to determine whether
B
PWG, had correctly identified the accused-respondent,
as the person who had come to his "lari" to purchase
a "dabeli" on 27.2.2003 and also whether he was the
same person, who had stolen a knife from his "lari"
on 27 .2.2003. [para 11 (j)] [228-C-D]
c
D
E
F
G
H
(k) All the prosecution witnesses have been equivocal
about the fact that the deceased went missing at
about 6:00 p.m., i.e., the time when she was last seen
in the company of the accused, and thereafter the
search party met the accused at 8:00 pm. Within the
period of these two hours the accused is alleged to
have visited different places and committed several
acts. However, no sketch map indicating the distance
between different places was prepared, which would
have helped the court to determine all that was
alleged in the prosecution version of the incident.
[para 11(k)] [229-C-D; 230-F-G, H; 231-A]
1.2. Discrepancies found in the evidence produced
by the prosecution before the trial court are as follows:
(a) The post mortem report states that injuries on the
genitals of deceased were post mortem in nature. It
is not possible to contemplate that the legs of the
deceased were cut whilst she was in her senses. It
does not appear 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. The prosecution in the instant
case apparently projected a version including an act
of rape, which is impossible to accept on the
STATE OF GUJARAT v. KISHANBHAI
203
touchstone of logic and common sense. (para 12(a)]
A
[231-B, F-H; 232-A]
(b) The evidence produced by the prosecution also
reveals that pubic hair of the accused had been
examined in the Forensic Science Laboratory. The
8
FSL report does not support the prosecution case of
rape by the accused. This would prima facie
exculpate him from the offence of rape. [para 12(b)]
[232-B and D]
(c) According to the testimony of the complainant C
PW2, the accused was wearing a white shirt at the
time of occurrence. It is, therefore, when a white shirt
was found covering the dead body of the victim, he
had identifiel:I the same as the shirt which the
accused was wearing, before the offence was D
committed. From the prosecution story, as it emerged
from the statements of different witnesses, it is
apparent that PW2 had had no occasion to have seen
the accused, wearing the said white shirt. [para 12(c)]
(23~-E-G]
E
(d) The T-shirt worn by accused at the time of his
arrest was a white one, but PW-2 in his complaint has
~~tioned that the accused was wearing a black Tshirt at the time of his detention. Thus, narration in . F
this regard made by the complainant PW2 was
absolutely incorrect and contrary to the factual
position and, as such, his deposition does not
appear to be fair and honest. [para 12(d)] (233-B-Dl
(e) From the statements of PW2 and PW5, it is G
apparent that the accused was detained by the police
informally around 9:00 p.m. on 27 .2.2003. However,
his arrest was shown at 6.40 a.m. on 28.3.2003. The
detention of the accused from 9:00 pm on 27.2.2003
to 6.40 a.m. on 28.2.2003, shows that the prosecution
H
A
B
c
D
E
F
G
H
204
SUPREME COURT REPORTS
[2014] 1 S.C.R.
has not presented the case in the manner the events
unfolded to the investigating agencies. [para 12(e)]
[233-G-H; 234-8-C]
(f) The inquest panchnama besides mentioning the
amputation of the legs of the victim above her
ankles, also records that the silver anklets worn by
the victim were missing. In this behalf, it would also
be relevant to mention, that even though the inquest
panchnama was drawn at 00.30 a.m. on 28.2.2003, the
complaint resulting in the registration of the first
information report was lodged by PW2 at 3:05 a.m.
on 28.02.2003. It is strange, that the inquest
panchnama should be drawn before the registration
of the first information report. It is also strange as to
how, while drawing the inquest panchnama, the
panchas of the same could have recorded that after
amputation of the victim's legs, her silver anklets had
been taken away by the offender, as there was no
occasion for the panchas to have known, that the
deceased used to wear silver anklets. [para 12(f)]
[234-C-F]
(g) From the prosecution version (emerging from the
evidence recorded before the trial court), it is
apparent, that the search party as also the relativos
of the victim were aware at about 8:00 p.m. on
27.2.2003 that she had been murdered, with a
possibility of her having been raped also, and her
silver anklets had been stolen. Still no complaint
whatsoever came to be filed on 27.2.2003, despite the
close coordination between the search party and the
police from 8:00 pm onwards on 27.2.2003 itself. The
complaint leading to the filing of the first information
was made at about 3:05 a.m. on 28.2.2003. Not only
is the delay of seven hours in the registration of the
complaint un-explained, but the same is also
rendered extremely suspicious, on account of the fact
STATE OF GUJARAT v. KISHANBHAI
205
that the accused is acknowledged to be in pqlice
A
·detention since 9:00 p.m. on 27.2.2003 itself. This may
be the result of fudging the time and date on which
the victim went missing, as also, the time and date
on which the body of the victim was discovered
resulting in the discovery of the occurrence itself.
B
[para 12(g)] [234-G-H; 235-8-D]
(h) PW13, the Sub Inspector, who had commenced
investigation of the crime, acknowledged about
informal detention of accused at about 9 P.M. on
27.2.2003. But, in his statement as a witness, he had
C
expressed that for the first time he had seen the
accused only on 28.2.2003 at around 5:30 a.m.
Whereafter, the accused-respondent was formally
arrested at 6.40 a.m. The inconsistency between the
statements made by the complainant (PW2) and his
D
father (PW5) on the one hand, and by Sub-Inspector
(PW13) on the other, discloses a serious
contradiction with respect to the time of detention of
the accused. The truth of the matter is that PW 13 did
not make any note either in the station diary or in any
E
other register; he did not take any informal complaint
from the complainant, even though he had been
apprised about t.he commission of the offence. It is
therefore, clear that PW13, had left the police station
without making an entry depicting the purpose of his
F
departure. A police officer, investigating a crime of
such a heinous nature should not commit such a
lapse. All this further adds to the suspicion of the
manner in which investigation of the matter was
conducted. [para 12(h)] [235-E-H; 236-B-F]
G
(i) PW6 could identify the shirt worn by the accusedrespondent, when he visited his "lari" for a very short
period during rush hours for the purchase of a
"dabeli", but he could not depose about the sort of
shirt which the accused was wearing at the Police
H
A
B
c
D
E
F
206
SUPREME COURT REPORTS
[2014) 1 S.C.R.
Station where he remained with the accused for
approximately four hours. It is, therefore, apparent
that PW6 was deposing far in excess of what he
remembered, and/or in excess of what was actually
to his knowledge. He appears to be a tutored
witness. This aspect of the matter also renders the
testimony of PW6, suspicious. [para 12(i)] (236-G-H;
237 -B and E-F]
0) The investigating agency became aware from the
disclosure statement of the accused tendered on
1.3.2003, that he had procured the weapon of offence
by way of theft from the "lari" of PW6. In the ordinary
course of investigation, it would have been
imperative for the investigating agency to have
immediately approached PW6, to record his
statement, but his statement was recorded for the
first time on 4.3.2003. No reason is forthcoming why
his statement was not recorded either on 1.3.2003, or
on the intervening dates before 4.3.2003. The
inordinate delay by the investigating agency, in
confirming the version of the accused, in respect of
the weapon of the crime, renders the prosecution
version suspicious. Such delay would not have
taken place in the ordinary course of investigation.
This fact too raises a doubt about the correctness of
the prosecution version of the incident. [para 12(j)]
[237-G-H; 238-B-D]
1.3. The prosecution case which mainly rests on the
testimony of PW2, PW5 and PW6, is unreliable because
G of the glairing inconsistencies in their statements. The
testimony of the investigating officer PW13 shows
fudging
and
padding,
making
his deposition
untrustworthy. In the absence of direct oral evidence, the
prosecution case almost wholly rested on these
witnesses. The evidence produced to prove the charges
H has been systematically shattered, thereby demolishing
STATE OF GUJARAT v. KISHANBHAI
207
the prosecution version. More than all that is the non· A
production of evidence which the prosecution has
unjustifiably withheld, resulting in dashing all the State
efforts to the ground. Therefore, the High Court through
the impugned order, rightly considered it just and
appropriate to grant the accused-respondent, the benefit
B
of doubt. [para 12] [238-F-H; 239-A]
1.4. Having considered the totality of the facts and
circumstances of the case, specially the glaring lapses
committed in the investigation and prosecution of the C
case as also the inconsistencies in the evidence
produced by the prosecution, this Court is of the
considered view that judgment of acquittal passed by the
High Court needs no interference. [para 14] [242-G-H; 243·
A and F]
Ram Prasad & Ors. v. State of UP (1974) 1 SCR 650;
Takhaji Hiraji v. Thakore Kubersing Camansing & Ors.,
(2001) 6 SCC 145; Laxman Naik v. State of Orissa, 1994
D
(2) SCR 94 = (1994) 3 SCC 381, State of Maharashtra v.
Suresh, 1999 (5) Suppl. SCR 215 = (2000) 1SCC471, Amar E
Singh v. Ba/winder Singh 2003 (1) SCR 754 =2003 (2) SCC
518; State Government of NCT Delhi v. Sunil 2000 (5)
Suppl. SCR 144 = (2001) 1 SCC 652; Joseph v. State of
Kera/a, (2005) 5 SCC 197; State of UP v. Satish 2005
(2) SCR 1132 = (2005) 3 SCC 114; Bishnu Prasad Sinha v
F
State of Assam 2007 (1) SCR 916 = (2007) 11 SCC 467;
Aftab Ahmad Anasari v. State of Uttaranchal 2010 (1)
SCR 1027 = (2010) 2 SCC 583; Sambhu Das v. State of
Assam 2010 (11) SCR 493 = (2010) 10 SCC 374; Haresh
Mohandas Rajput v. State of Maharashtra 2011 (14) SCR 921
G
= (2011) 12 SCC 56; Rajendra Prahladrao Wasnik v. State
of Maharashtra 2012 (2) SCR 225 = (2012) 4 SCC 37 - cited.
2.1. The investigating officials and the prosecutors
involved in presenting the instant case, have miserably
failed in discharging their duties. They have been
H
208
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A instrumental in denying to serve the cause of justice. The
misery of the family of the victim has remained
unredressed. At the same time, it is necessary not to
overlook even the hardship suffered by the accused, first
during the trial of the case, and then at the appellate
B stages. An innocent person does not deserve to suffer
the turmoil of a long drawn litigation, spanning over a
decade, or more. [para 15 and 17] (243-G; 245-8]
2.2. Just like it is the bounden duty of a court to
serve the cause of justice to the victim, so also, it is the
C bounden duty of a court to ensure that an innocent
person is not subjected to the rigours of criminal
prosecution. The situation needs to be remedied. For the
said purpose, adherence to a simple procedure could
serve the objective. It is, therefore, directed that on the
D completion of the investigation in a criminal case, the
prosecuting agency should apply its independent mind,
and ensure that all shortcomings are rectified, if
necessary by requiring further investigation. It should
also be ensured, that the evidence gathered during
E investigation is truly and faithfully utilized, by confirming
that all relevant witnesses and materials for proving the
charges are conscientiously presented during the trial of
a case. This would achieve two purposes - (1) only
persons against whom there is sufficient evidence, will
F have to suffer the rigors of criminal prosecution; and (2)
in most criminal prosecutions, the agencies concerned
will be able to successfully establish the guilt of the
accused. [para 18 and 19] [246-8-C and D-F]
2.3. Every acquittal should be understood as a failure
G of the justice delivery system, in serving the cause of
justice. Likewise, every acquittal should ordinarily lead to
the inference, that an innocent person was wrongfully
prosecuted. It is therefore, essential that every State
should put in place a procedural mechanism, which
H
STATE OF GUJARAT v. KISHANBHAI
209
A
would ensure that the cause of justice is served, and
would simultaneously ensure the safeguard of interest of
those. who are innocent. It is, therefore, directed:
(i) The Home Department of every State shall
examine all orders of acquittal and record reasons
B
for the failure of each prosecution case. A standing
committee of senior officers of the police and
prosecution departments should be vested with this
responsibility. The consideration at the hands of
such committee should be utilized for crystalizing c
mistakes committed during investigation, and/or
prosecution, or both. The Home Department of every
State Government will incorporate in its existing
training programmes for junior investigation/
prosecution officials course-content drawn in the' o
light of the instant judgment. The same should also
constitute course-content of refresher training
programmes, for senior investigating/prosecuting
officials. Judgments like the one in hand (depicting
more than 10 glaring lapses in the investigation/ E
prosecution of the case), and similar other
judgments, may also be added to the training
programmes. [para 20] [246-G-H; 247-A-C]
(ii) On the culmination of a criminal case in acquittal,
the investigating/prosecuting official(s) concerned
F
responsible for such acquittal must necessarily be
identified. A finding needs to be recorded in each ·
case, whether the lapse was innocent or /
blameworthy. [para 21] [247-G-H]
'
(iii) The Home Department of every State Government
shall formulate a procedure for taking action against
all erring investigating/prosecuting officials/officers.
All such erring officials/officers identified, as
responsible for failure of a prosecution case, on
G
H
210
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A
account of sheer negligence or because of culpable
lapses, must suffer departmental action. All the Home
Se~retaries concerned shall ensure compliance. The
records of consideration, in compliance with the
direction, shall be maintained. [para 21-22] [248-C
B
and E-F]
(iv) The Home Department of the State will identify
the erring officers in the instant case, and will take
appropriate departmental action against them, as
c
may be considered appropriate, in accordance with
law. [para 23) [248-F-G]
Case Law Reference:
(1974) 1 SCR 650
cited
para 12
D
(2001) 6 sec 145
cited
para 12
1994 (2) SCR 94
cited
para 12
1999 (5) Suppl. SCR 215 cited
para 12
E
2003 (1) SCR 754
cited
para 12
2000 (5) Suppl. SCR 144 cited
para 12
(2005) 5 sec 191
cited
para 12
2005 (2) SCR 1132
cited
para 12
F
2007 (1) SCR 916
cited
para 12
2010 (1) SCR 1027
cited
para 12
2010 (11) SCR 493
cited
para 12
G
2011 (14) SCR 921
cited
para 12
2012 (2) SCR 225
cited
para 12
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
H No. 1485 of 2008.
STATE OF GUJARAT v. KISHANBHAI
211
From the Judgment & Order dated 30.8.2005 of the High
A
Court of Gujarat at Ahmedabad in Crl. Confirmation Case No.
7 of 2004 with Crl. Appeal No. 1549 of 2004.
Vibha Dutta Makhija, Archi Agnihotri, Hemantika Wahi for
the Appellant.
B
Rishi Malhotra for the Respondent.
The Judgment of the Court was delivered by
JAGDISH SINGH KHEHAR, J. 1. A complaint was
lodged at Navrangpura Police Station, Ahmedabad, alleging
C
the kidnapping/abduction of a six year old girl child Gomi
daughter of Keshabhai Mathabhai Solanki and Laliben on
27.2.2003 at around 6:00 p.m. by the accused Kishanbhai son
of Velabhai Vanabhai Marwadi. It was alleged, that the
accused had enticed Gomi with a "gola" (crushed ice, with
D
sweet flavoured syrup), and thereupon had taken her to Jivi's
field, where he raped her. He had murdered her by inflicting
injuries on her head and other parts of the body with bricks. In
order to steal the "jhanjris" (anklets) worn by her, he had
chopped off her feet just above her ankles. The aforesaid
E
complaint was lodgerd, after the body of the deceased Gomi
was found from Jivi's field, at the instance of the accused
Kishanbhai. On the receipt of the above complaint, the first
information report came to be registered at Navrangpur Police
Station, Ahmedabad.
F
2. The prosecution version which emerged consequent
upon the completion of the investigation reveals, that the family
pf the deceased Gomi was distantly related to the family of the
accused Kishanbhai. In this behalf it would be pertinent to
G
mention that Baghabhai Naranbhai Solanki was a resident of
Gulbai Tekra, in the Navrangpura area of Ahmedabad. He
resided there, along with his family. For his livelihood,
Baghabhai Naranbhai Solanki was running a shop in the name
of Mahakali Pan Centre. The said shop was located near his
H
212
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A residence. Baghabhai Naranbhai Solanki was running the
business of selling "pan and bidi" in his shop. Naranbhai
Manabhai Solanki, father of Baghabhai Naranbhai Solanki
used to live in the peon's quarters at Ambavadi in Ahmedabad.
Modabhai Manabhai Solanki, uncle of Baghabhai Naranbhai
8 Solanki, had expired. His son Devabhai's daughter Laliben,
was married to Keshabhai Mathabhai Solanki. Keshabhai
Mathabhai Solanki and Laliben were residing at
Shabamukhiwas, Gulbai Tekra in Ahmedabad. Keshabhai
Mathabhai Solanki and Laliben had two children, a daughter
C Gomi aged six years, and a son Himat aged three years.
Laliben's sister-in-law (her husband's, elder brother's wife)
Fuliben Valabhai was residing near the residence of Keshabhai
Mathabhai Solanki and Laliben. Kishanbhai the accused, is the
brother of Fuliben, and was residing with her. It is therefore, that
the family of the deceased as also the accused, besides being
D distantly related, were acquainted with one another as they were
residing close to one another.
3. Insofar as the occurrence is concerned, according to the
prosecution, on 27.2.2003 Laliben, niece of Baghabhai, was
E confined to her residence, as she was expecting. At about 6:00
p.m. her daughter Gomi, then aged 6 years, had wandered out
of her house. The accused Kishanbhai then aged 19 years,
entice her by giviny her a "gola". Having enticed her he had
carried Gomi to Jivi's field. On the way to Jivi's field, he stole
F a knife with an 8 inch blade from Dineshbhai Karsanbhai
Thakore PW6, a "dabeli" (bread/bun, with spiced potato filling)
seller. Having taken Gomi to Jivi's field he had raped her. He
had then killed her by causing injuries on her head and other
parts of the body with bricks. In order to remove the "jhanjris"
G worn by her, he had amputated her legs with the knife stolen
by him, from just above her ankles. He had then covered her
body with his shirt, and had left Jivi's field. Kishanbhai the
accused, then took the anklets stolen by him to Mahavir
Jewellers, a shop owned by Premchand Shankerlal. He
H pledged the anklets at the above shop, for a sum of Rs.1,000/
STATE OF GUJARAT v. KISHANBHAI
213
[JAGDISH' SINGH KHEHAR; J.]
-. The accused Kishanbhai was confronted by Baghabhai and
A
others constituting the search party, whilst he was on his way
back to his residence. Kishanbhai, despite stating that he had
not taken her away, had informed those searching for Gomi,
that she could be at Jivi's field. On the suggestion of
Kishanbhai, the search party had gone to Jivi's farm, where
B
they found the body of Gomi.
4. Based on the aforesaid fact situation, confirmed through
the investigation carried on by the Police, a charge-sheet was
framed against the accused Kishanbhai under Sections 363,
C
369, 376, 394, 302 and 201 of the Indian Penal Code, and
Section 135(1) of the Bombay Police Act. The above chargesheet was filed before the Metropolitan Magistrate,
Ahmedabad. Since the offences involved could be tried only
by a Court of Session, the Metropolitan Magistrate, committed
the matter to the Court of Session. On 8.3.2004, the Sessions
D
Court to which the matter came to be assigned, for trial, framed
charges. Since the accused Kishanbhai denied his involvement
in the matter, the court permitted the prosecution to lead
evidence.
5. The prosecution examined 14 witnesses. The statement
E
of the accused Kishanbhai was thereafter recorded under
Section 313 of the Code of Criminal Procedure. In his above
statement, the accused Kishanbhai denied his involvement.
Even though an opportunity was afforded to Kishanbhai, he did · F
not lead any evidence in his defence. After examining the
evidence produced by the prosecution, the Trial Court vide its
judgment dated 18.8.2004, arrived at the conclusion that
prosecution had successfully proved its case beyond
reasonable doubt. By a separate order dated 18.8.2004 the
G
Trial Court sentenced Kishanbhai to death by hanging, subject
to confirmation of the said sentence by the High Court of
Gujarat at Ahmedabad (hereinafter referred to as the 'High
Court') under Section 366 of the Code of Criminal Procedure.
6. In the above view of the matter, the proceedings
H
214
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A conducted by the Court of Session, were placed before the
High Court at the behest of the State of Gujarat, as
Confirmation Case No. 7 of 2004. Independently of the
confirmation proceedings, the accused Kishanbhai, aggrieved
by the judgment and order of sentence dated 18.8.2004, in
B Sessions Case No. 346 of 2003, filed Criminal Appeal No.
1549 of 2004 before the High Court.
7. The criminal appeal filed by the accused Kishanbhai
was accepted by the High Court. Kishanbhai was acquitted by
C giving him the benefit of doubt. The Confirmation Case No. 7
of 2004 was turned down in view of the judgment of acquittal
rendered by the High Court while allowing Criminal Appeal no.
1549 of 2004.
8. Dissatisfied with the order passed by the High Court,
D the State of Gujarat approached this Court by filing Petition for
Special Leave to Appeal (Crl.) No. 599 of 2006. On 11.9.2008
leave to appeal was granted. Thereupon, the matter came to
be registered as Criminal Appeal No. 1485 of 2008.
E
9. Before this Court, learned counsel for the appellant, in
order to substantiate the guilt of the accused-respondent
Kishanbhai, has tried to project that the prosecution was
successful in demonstrating an unbroken chain of
circumstances, clearly establishing the culpability of the
accused. In fact, the endeavour at the hands of the learned
F counsel for the appellant was to project an unbroken chain of
circumstances to establish the guilt of the accused. Despite the
defects in investigation and the prosecution of the case, as
also, the inconsistencies highlighted by the High Court in the
evidence produced by the prosecution, learned counsel for the
G State expressed confidence, to establish the guilt of the
accused-respondent. In this behalf, it is essential to record the
various heads under which submissions were advanced at the
hands of the learned counsel for the appellant-State. We shall,
therefore, briefly summarise all the contentions, and while doing
H so, refer to the evidence brought to our notice b~.' the learned
STATE OF GUJARAT v. KISHANBHAI
215
[JAGDISH SINGH KHEHAR, J.]
counsel for the appellant, to establish the guilt of the accusedA
respondent, Kishanbhai. The submissions advanced qefore us
are accordingly being recorded hereunder :
(a) First and foremost, learned counsel for the appellant,
in order to connect the accused with the crime under reference,
8
extensively relied upon the evidence produced by the
prosecution to show that the accused-respondent Kishanbhai
was last seen with the victim. He was seen taking away the
victim Gomi. For the above, reliance was placed on the
statement of Naranbhai Manabhai Solanki PW5, who had
C
deposed that he had seen the deceased Gomi with the
accused-respondent Kishanbhai on 27.2.2003 at around 6:00
p.m. As per his deposition, he had seen Gomi eating a "gola"
outside his (the witness's) residence. At the same juncture, he
. had also seen the accused-respondent Kishanbhai coming
from the side of Polytechnic. Kishanbhai, according to the
D
deposition of PW5, had approached Gomi. Thereafter, as per
the statement of PW5, the accused had carried away Gomi
towards the side of the Polytechnic. In his testimony, Naranbhai
Manabhai Solanki PW5, had also stated, that at about 9:00 pm,
when he had again seen the accused-respondent Kishanbhai
E
coming from the road leading to the Gulbai Tekra Police
Chowki, he was asked, by those who were searching for Gomi,
about her whereabouts. The accused was also asked about the
whereabouts of Gomi, by Naranbhai Manabhai Solanki PW5
and by the son of PW 5 i.e., by Bababhai Naranbhai Solanki
F
PW2. To the aforesaid queries, according to Naranbhai
Manabhai Solanki 'pws, the accused-respondent Kishanbhai
had stated, that she might be sitting in Jivi's field. In addition
to the testimony of Naranbhai Manabhai Solanki PW5,
reference was also made to the testimony of Dinesh
G
Karshanbhai Thakore PW6. PW6, during his deposition, had
asserted, that the accused-respondent Kishanbhai had come
to his "lari" (handcart used by hawkers, to sell their products)
for purchasing a "dabeli". It was pointed out by Dinesh
Karshanbhai Thakore PW6, that he had noticed the accused
H
216
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A carrying a child aged about seven years, wearing a red frock.
In his statement, he also affirmed that the accused-respondent
Kishanbhai, had asked him for a knife but he had declined to
give it to him. Thereupon, whilst leaving his "lari", Kishanbhai
had stolen a knife from his "lari". It was also pointed out, that
B the knife recovered at the instance of the accused-respondent
Kishanbhai, was identified by him as the one stolen from his
"lari". According to the learned counsel for the appellant, the last
seen evidence referred to above stands duly corroborated by
the deposition of Bababhai Naranbhai Solanki PW2, not only
C in his deposition before the Trial Court, but also in the complaint
filed by him at the first instance at Navrangpur Police Station,
Ahmedabad, immediately after the recovery of the dead body
of Gomi from Jivi's field.
(b) Learned counsel for the appellant also laid emphasis
D on the recovery of the weapon of offence, i.e., a blood stained
knife, at the instance of none other than the accused-respondent
Kishanbhai himself. In order to substantiate the instant aspect
of the matter, learned counsel placed reliance on the testimony
of Dinesh Karshanbhai Thakore PW6, who deposed that the
E accused had visited his "lari" on the evening of 27.2.2003 for
the purchase of a "dabeli". The accused respondent, as noticed
earlier, as per the statement of Dinesh Karshanbhai Thakore
PW6, was carrying a small girl aged about 7 years. He also
deposed, that the accused-respondent had asked him for his
F
knife, but upon his refusal, had stolen the same from his "lari".
Dinesh Karshanbhai Thakore PW6, had identified the knife
which had been recovered at the instance of the accused, as
the one stolen by the accused-respondent Kishanbhai from his
"lari". Additionally it was submitted, that the accused had led
G the police to Jivi's field, from where he got recovered the murder
weapon, i.e., the same knife which he had stolen from the "lari"
of Dinesh Karshanbhai Thakore PW6. The above knife had a
blade measuring eight inches, including a steel handle of four
inches. At the time of recovery of the knife, the same had stains
H of blood. The above knife was recovered by the police on
STATE OF GUJARAT v. KISHANBHAI
217
[JAGDISH SINGH KHEHAR, J.]
1.3.2003, in the presence of an independent witness, namely,
A
Rameshbhai Lakhabhai Bhati PW1, who in his deposition
clearly narrated, that the knife in question was recovered from
Jivi's ,field, from under some stones at the instance of the
accused-respondent Kishanbhai.
(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
B
of the accused-respondent Kishanbhai. For this, learned
C
counsel placed reliance on the statem.ent of Dr. Saumil
Premchandbhai Merchant PW8, who had conducted the postmortem 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
D
Kishanbhai. In this respect, reference was made to serial No.14
of the post-mortem notes (Exhibit 29) proved by Dr. Saumil
Prenichandbhai 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 · E
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
F
Gomi. This document. according to the. learned counsel, also
indicates the use of a knife in the occurrence under reference.
(d} It was also the submission of the learned counsel for
the appellant, that at the time of recovery of the body of the
G
victim from Jivi's field, the same was found to be covered with
a shirt with stripes. It WCIS submitted, that the aforesaid shirt )IVaS
identified as the shirt worn by the accused-respondent
Kishanbhai, when he was seen carrying away the victim Gomi,
on 27.2.2003. In this behalf, reliance was placed by the learned
H
218
SUPREME COURT REPORTS
[2014] 1 S.C.R.
A counsel for the appellant, on the testimony of Naranbhai
Manabhai Solanki PW5. The above witnesses had identified
the shirt as a white shirt with lines. To give credence to the
testimony of Naranbhai Manabhai Solanki PW5, learned
counsel also pointed out, that when the accused was found
B coming from the direction of the police station after the
commission of the crime, he was seen wearing a black T-shirt.
The statement of Naranbhai Manabhai Solanki PW5, was
sought to be corroborated with the statement of Dinesh
Karshanbhai Thakore PW6. The accused respondent is stated
c to have approached the "lari" of Dinesh Karshanbhai Thakore
PW6 for purchasing a "dabeli", and at that juncture, the
accused-respondent is stated to have been wearing a white
lined shirt, and a green trouser. On the recovery of the shirt and
trouser, they were marked as Mudammal Articles 8 and 14
D respectively. Dinesh Karshanbhai Thakore PW6 had identified
the shirt, as also, the trouser during the course of his deposition
before the Trial Court. The green trouser worn by the accusedrespondent was also identified by Bababhai Naranbhai Solanki
PW2.