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‘  REPORTABLE’   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1485 OF 2008

State of Gujarat … Appellant

Versus

Kishanbhai Etc. … Respondents

J U D G M E N T

Jagdish Singh Khehar, J.

1. A  complaint  was  lodged  at  Navrangpura  Police  Station,  

Ahmedabad,  alleging  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 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  

complaint was lodged, 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.  

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2.   The  prosecution  version  which  emerged  consequent  upon  the  

completion of the investigation reveals, that the family of the deceased  

Gomi was distantly related to the family of the accused Kishanbhai.  In  

this behalf it  would be pertinent to 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 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 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 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 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 confined to  

her residence, as she was expecting.  At about 6:00 p.m. her daughter  

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Gomi, then aged 6 years, had wandered out of her house.  The accused  

Kishanbhai  then  aged  19  years,  entice  her  by  giving  her  a  “gola”.  

Having enticed her he had carried Gomi to Jivi’s field.  On the way to  

Jivi’s  field,  he  stole  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” 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  

pledged the anklets at the above shop, for a sum of Rs.1,000/-.  The  

accused  Kishanbhai  was  confronted  by  Baghabhai  and  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 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, 369, 376, 394, 302  

and 201 of the Indian Penal Code, and Section 135(1) of the Bombay  

Police Act.  The above charge-sheet 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  

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matter to the Court of  Session.  On 8.3.2004, the Sessions 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  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 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  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 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 Sessions Case No.  

346 of 2003, filed Criminal Appeal No. 1549 of 2004 before the High  

Court.

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7. The  criminal  appeal  filed  by  the  accused  Kishanbhai  was  

accepted by the High Court.  Kishanbhai was acquitted by 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, 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.

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 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 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 so, refer to the evidence  

brought  to  our  notice  by  the  learned  counsel  for  the  appellant,  to  

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establish  the  guilt  of  the  accused-respondent,  Kishanbhai.   The  

submissions  advanced  before  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, 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  

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 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  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  PW2.   To  the  aforesaid  queries,  according  to  

Naranbhai Manabhai Solanki PW5, the accused-respondent Kishanbhai  

had stated, that she might be sitting in Jivi’s field.   In addition to the  

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testimony  of  Naranbhai  Manabhai  Solanki  PW5,  reference was  also  

made to the testimony of  Dinesh 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 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 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 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  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 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  

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PW6, was carrying a small girl aged about 7 years.  He also deposed,  

that the accused-respondent had asked him for his 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 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 of blood.  The  

above knife was recovered by the police on 1.3.2003, in the presence of  

an independent witness, namely,  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 of the accused-respondent Kishanbhai.  

For this, learned counsel placed reliance on the statement of Dr. Saumil  

Premchandbhai  Merchant PW8,  who had conducted the post-mortem  

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  Kishanbhai.   In  this  respect,  reference  was  

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made to serial No.14 of the post-mortem notes (Exhibit 29) proved by  

Dr. Saumil  Premchandbhai 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 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 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 victim from Jivi’s  

field, the same was found to be covered with a shirt with stripes.  It was  

submitted, that the aforesaid shirt was 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  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 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  to  have  approached  the  “lari”  of  

Dinesh Karshanbhai Thakore PW6 for purchasing a “dabeli”, and at that  

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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 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  accused-respondent  was  also  identified  by  

Bababhai Naranbhai Solanki  PW2.  Additionally,  Bababhai  Naranbhai  

Solanki  PW2  deposed  that  a  black  colour  T-shirt  was  worn  by  the  

accused-respondent  when  he  was  apprehended  and  brought  to  the  

police  station.   The  above  articles  were  also  identified  by  Angha  

Lalabhai Marwadi PW12 and Naranbhai Lalbhai Desai PW13 who were  

the  panch  witnesses  at  the  time  of  seizure  of  the  abovementioned  

clothing.

(e) It  was  also  the  submission  of  the  learned  counsel  for  the  

appellant, that the report of the forensic science laboratory was sufficient  

to confirm, that the accused respondent was the one who was involved  

in the commission of the crime under reference.  In this behalf, it was  

pointed out that the victim Gomi was shown to have blood group “B+ve”.  

According to the report of the Forensic Science Laboratory, the bricks  

recovered  from  the  place  of  occurrence  (which  had  been  used  in  

causing injuries on the head and other body parts of the victim),  the  

panties worn by the deceased victim Gomi, the white shirt which was  

found on the body of the victim at the time of its recovery from Jivi’s  

field, the T-shirt and the green trouser worn by the accused respondent  

Kishanbhai (at the time he was apprehended), and even the weapon of  

the crime, namely, the knife recovered at the instance of the accused-

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respondent,  were  all  found  with  blood  stains.   The  forensic  report  

reveals that the blood stains on all  the above articles  were of  blood  

group “B+ve”.  It was, therefore, the submission of the learned counsel  

for the appellant, that the accused-respondent was unmistakably shown  

to be connected with the crime under reference.

(f) In order  to  substantiate  the motive  of  the accused-respondent,  

learned  counsel  for  the  appellant  relied  upon  the  statement  of  the  

investigating  officer  Ranchhodji  Bhojrajji  Chauhan  PW14,  who  had  

stated  in  his  deposition  that  the  owner  of  Mahavir  Jewellers,  i.e.,  

Premchand  Shankarlal  Mehta  had  presented  himself  at  the  police  

station.  The abovementioned jeweler  is  stated to have informed the  

police, that the accused respondent Kishanbhai had pawned the anklets  

belonging to the victim Gomi with him for a sum of Rs.1,000/-.  Insofar  

as the identification of the anklets is concerned, reference was made to  

the statement of Keshobhai Madanbhai Solanki PW7, i.e., father of the  

victim  who  had  identified  the  anklets  marked  as  Muddamal  Article  

No.18, as belonging to his daughter Gomi, which she was wearing when  

she had gone missing.  Reference was also made to the statement of  

Jagdishbhai  Bhagabhai  Marwadi  PW11,  as  also,  the  panchnama of  

recovery of the silver anklets which also, according to learned counsel,  

connects the accused to the crime.

(g) Last but not the least, learned counsel for the appellant invited  

this Court’s attention to the statement tendered by the accused under  

Section 313 of the Code of Criminal Procedure.  During the course of his  

above testimony, he was confronted with the evidence of the relevant  

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witnesses depicting, that the victim Gomi was last seen in his company  

at 6:00 p.m. on 27.2.2003.  He was also confronted with the fact, that he  

himself had informed the search party, that Gomi may be found at Jivi’s  

field.  It is submitted, that the accused-respondent Kishanbhai, who had  

special knowledge about the whereabouts of the deceased, was bound  

to explain and prove when and where he had parted from the company  

of  the  victim  Gomi.   It  was  submitted  that  during  the  course  of  his  

deposition under Section 313 of the Code of Criminal  Procedure, the  

accused could not tender any satisfactory explanation.

Based on the above evidence,  it  was the submission of  the learned  

counsel for the appellant, that even in the absence of any eye witness  

account,  the prosecution should  be held  to  have been successful  in  

establishing  the  guilt  of  the  accused-respondent  Kishanbhai  through  

circumstantial evidence.  The claim of circumstantial evidence emerging  

from different witnesses summarized above, according to the learned  

counsel,  leads  to  one  and  only  one  conclusion,  namely,  that  the  

accused-respondent Kishanbhai alone had committed the criminal acts  

under  reference.   It  was  submitted,  that  the  chain  of  circumstantial  

evidence, was sufficient to establish, that none other than the accused-

respondent could have committed the alleged criminal actions.  It was  

also contended, that no link in the chain of circumstantial evidence was  

missing, so as to render any ambiguity in the matter.

10.  We have heard the learned counsels for the parties.  To determine  

the controversy arising out of the instant criminal appeal, we shall first  

endeavour to summarise the conclusions drawn by the High Court under  

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different  heads.   We  have decided to adopt  the above procedure to  

understand the implications of various aspects of the evidence produced  

by the prosecution before the Trial  Court.   This  procedure has been  

adopted by us (even though the same was neither adopted by the Trial  

Court,  or  by  the  High  Court)  so  as  to  effectively  understand,  and  

thereupon,  to  adequately  deal  with  the contentions  advanced at  the  

hands of the appellant, before this Court.

11.  We would first of all, like to deal with the lapses committed by the  

investigating and prosecuting agencies in the process of  establishing  

the guilt  of the accused before the Trial  Court.   It  will  be relevant to  

mention  that  all  these  lacunae/deficiencies,  during  the  course  of  

investigation and prosecution, were pointed out by the High Court, in the  

impugned judgment.  These constitute relevant aspects, which are liable  

to be taken into consideration while examining the evidence relied upon  

by  the  prosecution.   We  have  summarised  the  aforesaid  lapses,  

pointedly to enable us to correctly deal with the submissions advanced  

at the behest of the State.  Since the guilt of the accused in the instant  

case is to be based on circumstantial evidence, it is essential for us to  

determine whether or not a complete chain of events stand established  

from the evidence produced by the prosecution.  The above deficiencies  

and shortcomings are being summarised below:

(a) According  to  the  prosecution  story  after  having  removed  the  

anklets from Gomi’s feet, the accused Kishanbai had taken the anklets  

to  Mahavir  Jewellers,  a shop owned by Premchand Shankerlal.   He  

pledged aforesaid anklets with Premchand Shankerlal, for a sum of Rs.  

1,000/-.  The anklets under reference, were handed over by Premchand  

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Shankerlal to the investing officer on 1.3.2003, in the presence of two  

panch witnesses.  According to the prosecution case, the jeweller had  

gone to the police station with the anklets on his own, after having read  

newspaper  reports  to  the  effect,  that  a  girl  had  been  raped  and  

murdered and her anklets had been taken away.  He had approached  

the police station under the suspicion, that the anklets pledged with him,  

might have belonged to the girl  mentioned in the newspaper reports.  

One of the panch witnesses, namely, Jagdishbhai Marwari PW15 had  

deposed, that above Premchand Shankerlal had identified the accused  

Kishanbhai, as the very person who had pledged the anklets with him.  

In this behalf it is relevant to mention, that Premchand Shankerlal was  

not produced as a prosecution witness.  It is important to notice, that the  

anklets handed over to the Police, were successfully established by the  

prosecution as the ones worn by the deceased Gomi.  The lapse of the  

prosecution  on  account  of  not  producing  Premchand  Shankerlal  as  

prosecution witness, according to the High Court, resulted in a missing  

link in the chain of events which would have established the link of the  

accused  Kishanbhai,  with  the  anklets,  and  thereby  convulsively  

connecting him with the crime.

(b)  The prosecution story further discloses, that Premchand Shankerlal  

the  owner  of  Mahavir  Jewellers,  had  executed  a  receipt  with  the  

accused Kishanbhai, depicting the pledging of the anklets for a sum of  

Rs.1,000/-.   The aforesaid  receipt  was placed on record of  the Trial  

Court  as  exhibit  52.   The  above  receipt  according  to  Premchand  

Shankerlal,  was  thumb  marked  by  the  accused  Kishanbhai.   Even  

though the receipt indicates the name of the person who had pledged  

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the anklets as Rajubhai, the same could clearly be a false name given  

by the person who pledged the anklets.  Certainly, there could be no  

mistake in the identity of the thumb mark affixed on the said receipt.  

The  prosecution  could  have  easily  established  the  identity  of  the  

pledger, by comparing the thumb impression on the receipt (exhibit 52),  

with the thumb impression of the accused-respondent Kishanbhai.  This  

was however not done.  The lapse committed by the prosecution in not  

producing Premchand Shankerlal as a witness, could have easily been  

overcome by proving the identity of the person who had pledged the  

anklets, by identifying the thumb impression on the receipt (exhibit 52),  

in accordance with law.  In case the thumb impression turned out to be  

that of the accused Kishanbhai, he would be unmistakably linked with  

the crime.  In case it was found not to be the thumb impression of the  

accused  Kishanbhai,  his  innocence  could  also  have  been  inferred.  

According  to  the  High  Court  this  important  lapse  in  proving  the  

prosecution  case  before  the  Trial  Court,  had  resulted  in  a  major  

obstacle in establishing the guilt/innocence of the accused.

(c)   It  is  also  the  case  of  the  prosecution,  that  when the  accused  

Kishanbhai was apprehended, a sum of Rs.940/- was recovered from  

his  possession.   According  to  the  prosecution  story  the  accused  

Kishanbhai  had  pledged  the  anklets  at  Mahavir  Jewellers  with  

Premchand Shankerlal  for a sum of Rs. 1,000/-.  In order to link the  

money recovered from his possession at the time of his detention, it was  

imperative  for  the  prosecution  to  establish  how and  why  a  sum of  

Rs.940/-  only,  was  recovered  from  the  possession  of  the  accused  

Kishanbhai.  He ought to have been in possession of at least Rs.1,000/-  

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i.e.,  the  amount  given  to  him  by  Premchand  Shankerlal   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.  This important link  

having not been established by the prosecution,  breaks the chain of  

events necessary to establish the guilt of the accused Kishanbhai, and  

constitutes a serious lapse in the prosecution evidence.

(d)  It is apparent from the prosecution story, that the victim Gomi was  

raped.  In establishing the factum of the rape the prosecution had relied  

upon the  note  prepared  at  the  time  of  conducting  the  post-mortem  

examination of the deceased Gomi.  The same inter alia reveals, that  

dry  blood  was  present  over  the  labia,  and  deep  laceration  of  

subcutaneous tissues  was  present  on the  left  margin  of  the  vaginal  

opening, just  above the posterior  commission.  The hymen was also  

found ruptured at 3 and 6,O’ clock.  It is therefore, that the accused was  

deputed for being subjected to medical examination, during the course  

of investigation.  For the above purpose he was examined by Dr. P.D.  

Shah.  In fact Dr. P.D. Shah was a cited witness before the Trial Court.  

Despite the above Dr. P.D. Shah was not examined as a prosecution  

witness.  Clearly a vital link in a chain of events, to establish the rape of  

the  victim  Gomi  came  to  be  broken  consequent  upon  by  the  non-

examination of Dr. P.D. Shah as a prosecution witness.

(e)  The High Court has also noticed, that even the report/certificate  

given by the medical officer relating to the medical examination of the  

accused Kishanbhai  was not produced by the prosecution before the  

Trial Court.  It is apparent, that the lapse in not producing Dr. P.D. Shah  

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as  a  prosecution  witness,  may  have  been  overcome  if  the  report  

prepared by him (after examining the accused Kishanbhai) was placed  

on the record of the Trial Court, after being proved in accordance with  

law.  The action of prosecution in not producing the aforesaid report  

before the Trial  Court, was another serious lapse in proving the case  

before the Trial Court.  This had also resulted a missing vital link, in the  

chain of events which could have established, whether or not accused  

Kishanbhai had committed rape on victim Gomi.

(f)  The High Court having noticed the injuries suffered by Gomi, a six  

year  old  girl  child  on her genitals,  had expressed the view,  that  the  

same would have resulted in reciprocal injuries to the male organ of the  

person who had committed rape on her.  It was pointed out, that if the  

accused  Kishanbhai  had  been  sent  for  medical  examination  the  

testimony or the report of the medical officer would have revealed the  

presence  of  smegma  around  the  corona-glandis,  which  would  have  

either  established innocence or  guilt  of  the accused,  specially  if  the  

accused had been medically examined within 24 hours.  In the instant  

case the sequence of the events reveal, that the occurrence had been  

committed between 6:00 p.m. to 8:00 p.m. on 27.2.2003.  At the time of  

recovery of the body of deceased Gomi from Jivi’s field, at about 9:00  

pm, it came to be believed that she had been subjected to rape.  The  

accused Kishanbhai was shown to have been formerly arrested at 6:40  

a.m. on 28.2.2003 (even if the inference drawn by the High Court, that  

the  accused  Kishanbhai  was  in  police  custody  since  9:00  p.m.  on  

27.2.2003 itself, is ignored).  The accused could have been medically  

examined  within  a  period  of  24  hours  of  the  occurrence.   The  

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prosecution case does not show whether or not such action was taken.  

This  lapse  in  the  investigation  of  the  case,  had  also  resulted  the  

omission  of  a  vital  link  in  the  chain  of  events  which  would  have  

unquestionably  established  the  guilt  of  the  accused  Kishanbhai  of  

having committed rape (or possibly his innocence).

(g)   It  needs  to  be  noticed,  that  when the accused Kishanbhai  was  

arrested, there were several injuries on his person.  The said injuries  

were also depicted in his arrest panchnama.  At 7:15 am on 28.2.2003,  

the accused Kishanbhai filed a first information report alleging, that he  

was beaten by some of the relatives of the victim Gomi,  as also,  by  

some  unknown  persons  accompanying  the  search  party,  under  the  

suspicion/belief,  that  he was responsible  for  the occurrence.   In the  

above  first  information  report,  the  accused  Kishanbhai  had  also  

depicted the nature of injuries suffered by him.  The statement of the  

investigating officer Ranchodji Bhojrajji Chauhan PW14 reveals, that the  

accused Kishanbhai had been sent to Civil Hospital, Ahmedabad, for his  

medical  examination.   Neither  the  doctor  who  had  examined  the  

accused  was  produced  as  a  prosecution  witness,  nor  the  

report/certificate given by the medical officer disclosing the details of his  

observations/findings was placed on record.  This evidence was vital for  

the success of the prosecution case.  According to the High Court, blood  

of group “B +ve” was found on the clothes of the accused Kishanbhai.  

The important question to be determined thereupon was, whether it was  

his  own  blood  or  blood  of  the  victim  Gomi.   The  statement  of  the  

medical officer who had examined the accused Kishabhai, when he was  

sent for medical examination to Civil Hospital, Ahmedabad, would have  

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disclose whether or not accused Kishanbhai had any bleeding injuries.  

The  importance  of  nature  of  the  injuries  suffered  by  the  accused  

Kishanbhai  emerges from the fact,  that both the accused Kishanbhai  

and the victim Gomi had the same blood group        “B +ve”.   An  

inference could have only been drawn that the blood on his clothes was  

that  of  the  victim,  in  case  it  was  established  that  the  accused-

respondent  Kishanbhai  had  not  suffered  any  bleeding  injuries,  and  

therefore, the possibility of his own blood being on his clothes was ruled  

out.  This important link in the chain of events is also missing from the  

evidence produced by the prosecution, and constitutes a serious lapse  

in the investigation/prosecution of the case.

In view of the above factual position, the High Court made the following  

observations  “Looking  to  the  advancement  in  the  field  of  medical  

science, the investigating agency should not have stopped at this stage.  

Though ABO system of blood grouping is  one of  the most important  

system, which is being normally used for distinguishing blood of different  

persons,  there  are  about  19  genetically  determined  blood  grouping  

systems known to the present day science, and it  is  also known that  

there are about 200 different blood groups, which have been identified  

by the modern scientific methods (Source: Mc-Graw-Hill  Encyclopedia  

of Science and Technology, Vol.2).  Had such an effort been made by  

the prosecution, the outcome of the said effort would have helped a lot  

to the trial Court in ascertaining whether the accused had in fact visited  

the  scene  of  offence.”   This  also  constitutes  a  glaring  lapse  in  the  

investigation of the crime under reference.

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There has now been a great advancement in scientific investigation on  

the instant aspect of the matter.  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 Gomi was, in fact on  

the  clothes  of  the  accused-respondent  Kishanbhai.   This  scientific  

investigation would have unquestionably determined whether or not the  

accused-respondent  was  linked  with  the  crime.   Additionally,  DNA  

profiling of the blood found on the knife used in the commission of the  

crime (which the accused-respondent, Kishanbhai had allegedly stolen  

from Dinesh Karshanbhai Thakore PW6), would have uncontrovertibly  

determined, whether or not the said knife had been used for severing the  

legs of the victim Gomi,  to remove her anklets.   In spite of so much  

advancement in the field of forensic science, the investigating agency  

seriously  erred in  carrying out  an effective  investigation to  genuinely  

determine the culpability of the accused-respondent Kishanbhai.

(h)   It  is  also  apparent  from  the  complaint  submitted  by  Bababhai  

Naranbhai Solanki PW 2, that he had been informed by one Kalabhai  

Ganeshbhai,  that  he had seen the accused Kishanbhai  taking  away  

Gomi.  In such an event, the proof of the fact of the accused-respondent  

having abducted Gomi could have only been substantiated, through the  

statement of Kalabhai Ganeshbhai who had allegedly actually seen the  

accused Kishanbhai taking her away.  According to the High Court, for  

the reasons best known to it, the prosecution did not produce Kalabhai  

Ganeshbhai as a witness.  Even though according to the High Court the  

above-mentioned Kalabhai  Ganeshbhai  was a resident  in  one of  the  

peon quarters, and was also a government servant, the absence of the  

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evidence of  the above factual  position,  results  in  a deficiency in the  

confirmation of  a factual  position of  substantial  importance,  from the  

chain of events necessary for establishing the last seen evidence.

(i)  It is also apparent, that there is no dispute about the recovery of a  

green blood stained “dupatta”, from the person of the victim.  The green  

blood stained “dupatta”  (veil)  was found by the medical  officer  while  

conducting the post-mortem examination on Gomi.  The existence of the  

green “dupatta”  was  also  duly  mentioned in  the post-mortem report.  

According to the High Court,  none of  the prosecution witnesses had  

referred  to  the  factum of  the  victim  having  worn  a  green “dupatta”.  

According to the prosecution evidence, the deceased was wearing a red  

frock and panties, whereas, the accused was wearing a full sleeve white  

shirt  and green trousers.   According to the High Court,  if  neither the  

victim nor the accused had a green “dupatta”, a question would arise, as  

to how the green blood stained “dupatta” was found on the dead body of  

the victim.  Even leading to the inference of the presence of a third party  

at the time of occurrence.  The above omission in not explaining the  

presence of the green “dupatta”, has also been taken by the High Court,  

as a glaring omission at the hands of the prosecution in the process of  

investigation/prosecution of  the charges levelled  against  the accused  

Kishanbhai.

(j) While  deposing  before  the  Trial  Court,  Dinesh  Karshanbhai  

Thakore  PW6,  affirmed  that  the accused-respondent  Kishanbhai  had  

approached  his  “lari”  for  the  first  time  to  purchase  a  “dabeli”  on  

27.2.2003.  It is, therefore, apparent that Dinesh Karshanbhai Thakore  

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PW6 had not known the accused-respondent before 27.2.2003.  In the  

above view of the matter, it was imperative for the investigating agency  

to hold a test identification parade in order to determine whether Dinesh  

Karshanbhai  Thakore  PW6,  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.  This is also a serious  

deficiency in the investigation/prosecution of the case.  

(k) Bababhai Naranbhai Solanki PW2, the complainant in the present  

case, during the course of his examination-in-chief, observed as under :

“This  incident  was  occurred  on  27/2/2003,  on  that  day  Lilaben came to my house for pregnancy.  On the day of the  incident at 6.00 o clock in the evening I came to know that  Gomiben the daughter of Lilaben is not found.  Therefore,  all our relatives have started searching her.  We went to the  quarter of my father, and inquired about the Gomiben, my  father  told  that  I  saw  Gomiben  with  Lalis  Sister  in  law  brother Kisan, he gave ice cream to Gomi.  Therefore, we  have searched in the quarters and other places.  At around  8.00 o clock in the night kishan was coming from police  Station, we have started asking him, at that time along with  me Shri Jagabhai Molabhai, Mohanbhai Molabhai, Hirabhai  were  present.   This  police  Chawky means Gulbai  Tekra  Police Chawky.  He told me that I have left her at Jivivala  Field.  Therefore, we went at the Jivivala Field, at around  8.00 or 9.00 o clock, we went there and we found Gomiben  in dead conditions, she had a several injuries on her head  and other parts of the body.  She was being raped.”

From the above statement, it is apparent that Gomi was found missing  

for the first  time at 6:00 pm.  The search for her began immediately  

thereafter.  The search party met the accused-respondent Kishanbhai  

coming  from  the  side  of  the  police  station  at  8:00  p.m.   All  the  

prosecution witnesses have been equivocal  about the fact  that Gomi  

went missing at about 6:00 p.m., i.e., the time when she was last seen in  

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the company of the accused-respondent Kishanbhai, and thereafter, the  

search party met Kishanbhai at 8:00 pm.  In order to give credence to  

the  prosecution  version,  it  was  imperative  to  establish  that  it  was  

possible  for  the  accused-respondent  Kishanbhai,  after  having  taken  

Gomi at 6:00 p.m., to have stopped at the “lari” of Dinesh Karshanbhai  

Thakore PW6, purchased a “dabeli” from him. Thereupon, to have had  

time to steal his knife, the accused-respondent proceeded on with Gomi  

to Jivi’s field.  There ought to have been enough time for him thereafter  

to have raped her, then assaulted her with bricks on her head and other  

parts of the body leading to her death, and finally to cut her legs just  

above her ankles, to remove her anklets.  He should thereupon have  

also had time to hide the knife used in the commission of the crime,  

under the stones. And thereafter further time, to have taken the anklets  

to  Mahavir  Jewellers  so  as  to  pawn  the  same  with  Premchand  

Shankarlal  Mehta, as also, time to execute a receipt in token thereof.  

Over  and  above  the  above,  he  ought  have  had  time,  to  visit  his  

residence so as to able to wear a fresh shirt i.e., the shirt which he was  

wearing when he was detained.  After all that, he should have had time  

to cover the area from Jivi’s field to Premchand Shankarlal Mehta’s shop  

and further on from the above shop to his residence and finally from his  

residence  till  the  place  where  he  was  detained.   It  is  difficult  to  

appreciate how all the activities depicted in the prosecution story, could  

have been carried out from 6:00 p.m. on 27.2.2003 to 8:00 p.m. on the  

same day, i.e., all in all within a period of two hours.  It is in the above  

context  that  the  cross-examination  of  Naranbhai  Manabhai  Solanki  

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PW5, assume significance.  Relevant extract from his cross-examination  

is being reproduced hereunder :

“It is true that the accused was coming from police Chawky  at around 8.00 or 8.30 p.m. as I was not wearing the watch I  cannot say the exact time.  It is true that it takes 15 to 20  minutes to go to Panjrapole from my quarters, and  it  will  take 30 to 35 minutes to go to the field of JIVI.  It is true that  it  will  taken half  an hour to come to the Office of  BSNL  through Jivi’s  Field  and C.N. Vidhayalaya.   It  is  true that  from  the  Jivis  field  towards  Panjrapole  and  through  Panjrapole main road towards BSNL office,  by walking it  will take 40 minutes.  It is true that both the roads are public  roads, and many people are passing through this road.”

(emphasis is ours)

Whether or not the above sequence of events could have taken place in  

the time referred  to  above,  would  have been easily  overcome if  the  

prosecution had placed on record a sketch map providing details with  

regard to the distance between different places.  In that event, it would  

have become possible to determine whether the activities at different  

places, projected through the prosecution version of the incident were  

possible.  In the absence of any knowledge about the distance between  

the residence of the victim Gomi as well as that of the accused from the  

Polytechnic or from Jivi’s field; it would be impossible to ascertain the  

questions  which  emerge  from  the  cross-examination  of  Naranbhai  

Manabhai Solanki PW5.  Had a sketch map been prepared or details  

with regard to the distance been given, the courts concerned would have  

been able to determine all that was alleged in the prosecution version of  

the  incident.   This  deficiency  in  the  prosecution  evidence,  must  be  

construed as a serious infirmity in the matter.

12. We would now like to deal  with the discrepancies found in the  

evidence produced by the prosecution before the Trial Court.  We would  

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also simultaneously summarise the effect of defences adopted on behalf  

of the accused-respondent Kishanbhai.  These aspects of the matter are  

also being summerised hereunder, so as to enable us to effectively deal  

with  the  submissions  advanced  at  the  behest  of  the  State.   These  

aspects  of  the  matter  are  liable  to  be  taken  into  consideration,  to  

determine whether or not, a complete chain of events stands proved to  

establish the guilt of the accused-respondent.  The above considerations  

are summarized hereunder:

(a) The post mortem report relied upon by the prosecution leaves no  

room for  any  doubt  that  injuries  on the genitals  of  Gomi  were  post  

mortem in  nature.   The  question  which  arises  for  consideration  is  

whether the injuries  under reference had been inflicted on the victim  

first, and thereupon, rape was committed on the victim.  It is natural to  

assume,  that  the  first  act  of  aggression  by  the  person  who  had  

committed assault on Gomi, was by inflicting injuries on her head and  

other parts of the body, only thereafter the legs just above the ankles,  

would have been cut (with the object of removing her anklets).  It is not  

possible for us to contemplate that the legs of the deceased were cut  

whilst she was in her senses, is incomprehensible and therefore, most  

unlikely.  Now, the question to be considered is, whether it was 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.  We would  

have no hesitation by responding in the negative.  The prosecution in the  

instant case apparently  projected a version including an act  of  rape,  

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which is impossible to accept on the touchstone of logic and common  

sense.

(b) The  evidence  produced  by  the  prosecution  also  reveals,  that  

pubic hair of the accused-respondent Kishanbhai, had been examined  

by the scientific officer of the Forensic Science Laboratory.  The report  

submitted by the Forensic Science Laboratory (Exhibit 48) reveals, that  

there was neither any semen nor any blood on the pubic hair  of  the  

accused.  Reference to the possibility of there being blood on the public  

hair of the accused-respondent Kishanbhai emerges from the fact, that  

the post mortem report of the deceased revealed, that there was blood  

on  the  vagina  of  the  deceased.   Whilst  accusing  the  respondent-

Kishanbhai of the offence under Section 376 of the Indian Penal Code, it  

was imperative for the prosecution to have kept in its mind the aforesaid  

aspects of the matter.  Absence of semen or blood from the pubic hair of  

the  accused-respondent,  would  prima  facie  exculpate  him  from  the  

offence of rape.

(c) According  to  the  testimony  of  the  complainant  Bababhai  

Naranbhai  Solanki  PW2,  the  accused-respondent  Kishanbhai  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 Gomi, he had  

identified  the  same  as  the  shirt  which  the  accused-respondent  

Kishanbhai was wearing, before the offence was committed.  From the  

prosecution  story,  as  it  emerged  from  the  statements  of  different  

witnesses, it  is  apparent that Bababhai  Naranbhai  Solanki  PW2,  had  

had  no  occasion  to  have  seen  the  accused-respondent  Kishanbhai,  

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wearing the said white shirt.  When Bababhai Naranbhai Solanki PW2,  

was questioned as to how he knew that the accused-respondent was  

wearing a white shirt, when he first saw the shirt covering the dead body  

of the victim, his response was, that he had been told about that by his  

father  Naranbhai  Manabhai  Solanki  PW5.   In the above view of  the  

matter,  the  question  arises  whether  the  testimony  of  Bababhai,  

Naranbhai Solanki PW2 about the shirt referred to above was truthful.  

And whether his testimony can be described as fair and honest.

(d) Additionally  when  the  accused–respondent  Kishanbhai  was  

arrested, the T-shirt worn by him, was taken from him by recording a  

panchnama.  The said  T-shirt  is  available  on the record of  the Trial  

Court as Exhibit-39.  It is not a matter of dispute that the T-shirt (Exhibit  

39),  worn by  the  accused-respondent,  Kishanbhai  at  the time  of  his  

arrest, is actually a white T-shirt with a trident design on it.  But, as per  

the narration recorded by Bababhai Naranbhai PW2, contained in the  

complaint which constituted the basis of registering the first information,  

it is mentioned that the accused-respondent Kishanbhai was wearing a  

black T-shirt at the time of his detention.  It is apparent from the factual  

position noticed hereinabove, that the factual position expressed by the  

complainant  Bababhai  Naranbhai  Solanki  PW2  was  absolutely  

incorrect, and contrary to the factual position.  In the above view of the  

matter,  a  question  would  arise,  whether  the  deposition  of  Bababhai  

Naranbhai Solanki PW2 was fair and honest.

(e) According to the prosecution version of the incident, the search  

party met the accused-respondent Kishanbhai at about 8:00 p.m.  The  

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said party had thereupon proceeded to Jivi’s field, from where the dead  

body of the victim was recovered.  According to Naranbhai Manabhai  

Solanki  PW5,  after  finding the dead body,  he had proceeded to  the  

police  station.   At  the  police  station,  he  had  requested  the  police  

personnel  to visit  the site  of  occurrence.   Simultaneously,  Naranbhai  

Manabhai  Solanki  PW5  had stated,  that  when enquiries  were  being  

made from Kishanbhai, police personnel had taken away the accused-

respondent.  According to the testimony of Naranbhai Manabhai Solanki  

PW5, therefore, at the most, the accused-respondent must be deemed  

to  have  been  taken  into  police  custody  from  about  9:00  p.m.  on  

27.2.2003.   It  is  apparent,  that  the  occurrence  had  come  to  the  

knowledge of a large number of persons constituting the search party,  

when the victim’s body was found on Jivi’s field.  Even before that, the  

accused-respondent was already in police custody.  As if, the police had  

already concluded on the guilt of Kishanbhai, even before the recovery  

of Gomi’s body from Jivi’s farm.  Despite the above, the arrest of the  

accused-respondent Kishanbhai was shown at 6.40 a.m. on 28.3.2003.  

The detention of the accused-respondent Kishanbhai from 9:00 pm on  

27.2.2003 to 6.40 a.m. on 28.2.2003, shows that the prosecution has not  

presented  the  case  in  the  manner  the  events  unfolded  to  the  

investigating agencies.

(f) It also needs to be noticed, that the inquest panchnama besides  

mentioning the amputation of the legs of the victim above her ankles,  

also records, that the silver anklets worn by Gomi were missing.  In this  

behalf, it would also be relevant to mention, that even though the inquest  

panchnama  was  drawn  at  0030  a.m.  on  28.2.2003,  the  complaint  

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resulting in the registration of the first information report was lodged by  

Bababhai  Naranbhai  Solanki  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.  There was no occasion  

for the panchas to have known, that Gomi used to wear silver anklets.  

Accordingly, there was no occasion for them to have recorded that the  

silver  anklets  usually  worn  by  Gomi  had  been  taken  away  by  the  

offender.

(g) From  the  prosecution  version  (emerging  from  the  evidence  

recorded before the Trial Court), it is apparent, that the search party, as  

also,  the  relatives  of  the  victim  were  aware  at  about  8:00  p.m.  on  

27.2.2003 that Gomi had been murdered, with a possibility of her having  

been raped also, and her silver anklets had been stolen.  Despite the  

above, no complaint whatsoever came to be filed in connection with the  

above occurrence at the police station on 27.2.2003, despite the close  

coordination  between the search party  and the police  from 8:00  pm  

onwards no 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  

ununderstandable, but the same is also rendered extremely suspicious,  

on the account of the fact that the accused-respondent Kishanbhai  is  

acknowledged to be in police detention since 9:00 p.m. on 27.2.2003  

itself.  This may be the result of fudging the time and date at which the  

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victim Gomi 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.   The  question  which  arises  for  consideration  is,  whether  the  

investigation agency adopted the usual  practice  of  padding so as to  

depict the occurrence in a manner different from the actual occurrence.  

A question also arises as to why it was necessary for the investigating  

agency to adopt the above practice, despite the fact that it was depicted  

as an open and shut case.  

(h) As  noticed  above,  that  from  the  statements  of  Bababhai  

Naranbhai  Solanki  PW2 and Naranbhai  Manabhai  Solanki  PW5,  it  is  

apparent that the accused was detained by the police informally around  

9:00  p.m.  on  27.2.2003.   It  is  also  essential  to  notice,  that  an  

acknowledgement was made to the above effect even by Sub Inspector  

Naranbhai Lalbhai Desai PW13, who had commenced investigation of  

the crime under reference.  It is apparent that when Bababhai Naranbhai  

Solanki PW2, had contacted him with details about the offence under  

reference,  he had not  recorded any entry  in  the station diary  before  

leaving the police station.  This constitutes a serious lapse in itself.  In  

his cross-examination, he had affirmed that he was taken by Bababhai  

Naranbhai  Solanki  PW2,  i.e.,  the  complainant  to  the  scene  of  

occurrence.  Having gone to the scene of occurrence, and having made  

on the spot investigation, he acknowledged having returned to the police  

station.  In his statement, he accepted, that when he had returned to the  

police  station  after  visiting  the  site  of  occurrence,  the  accused-

respondent Kishanbhai was already present at the police station.  When  

questioned, he could not tender any explanation, as to how the accused-

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respondent Kishanbhai had come to the police station.  In his statement  

as a witness, he had expressed, that for the first time he had seen the  

accused-respondent Kishanbhai 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  

(Bababhai Naranbhai Solanki PW2) and his father (Naranbhai Manabhai  

Solanki PW5) on the one hand, and by Sub-Inspector Naranbhai Lalbhai  

Desai PW13 on the other, discloses a serious contradiction with respect  

to the time of the detention of the accused-respondent Kishanbhai.  It  

needs to be noticed,  that it  was an aberration for  Naranbhai  Lalbhai  

Desai PW13, to have left the police station without making an entry in  

the station diary.  Why should a police officer, investigating a crime of  

such a heinous nature, commit such a lapse?  The fact that he did so, is  

not  a  matter  of  dispute.   The truth of  the matter  is,  that  Naranbhai  

Lalbhai Desai PW13, did not make any note either in the station diary or  

in any other register; he did not take any informal complaint from the  

complainant, even though he had been apprised about the commission  

of an offence.  It is therefore clear that Naranbhai Lalbhai Desai PW13,  

had left the police station without making an entry depicting the purpose  

of his departure.  All this further adds to the suspicion of the manner in  

which investigation of the matter was conducted.

(i) So far as the statement of Dinesh Karshanbhai Thakore PW6 is  

concerned, he had supported the prosecution story by deposing, that the  

accused had visited his “lari” with a small child, about seven years old.  

He had further asserted, that the accused-respondent Kishanbhai had  

purchased a “dabeli” from him.  He had also testified that the accused –

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respondent had asked for a knife but he had refused to give it to him  

because, at the time when the accused-respondent had visited the “lari”,  

there  were  several  customers  waiting  for  purchasing  “dabelis”.   He  

further confirmed, that the accused-respondent had stolen a knife, used  

by him for cutting vegetables from his “lari”.  Another important aspect of  

the matter, out of the statement of Dinesh Karshanbhai Thakore PW6 is,  

that he identified the shirt that the accused-respondent Kishanbhai was  

wearing,  at  the time  when he had visited  his  “lari”  for  purchasing a  

“dabeli”  on 27.2.2003.  He had also identified the red frock which the  

victim was wearing at the said juncture.  Additionally, he identified the  

knife  which  the  accused-respondent  Kishanbhai  had  stolen  from  his  

“lari”.   The  statement  of  Dinesh  Karshanbhai  Thakore  PW6  was  

considered  to  be  untrustworthy  by  the  High  Court,  primarily  for  the  

reason that he could identify the shirt worn by the accused-respondent,  

Kishanbhai  when he had approached his  “lari”  for  the purchase of  a  

“dabeli”,  at  which  juncture,  the  accused-respondent  Kishanbhai  may  

have remained at the “lari” at the most for 10 to 15 minutes, when there  

was a rush of customers.  As against the above, he had remained with  

the  accused-respondent  Kishanbhai  at  Navrangpur  Police  Station,  

Ahmedabad,  for  approximately  four  hours.   During the course of  his  

cross-examination, he could not depose about the sort of shirt which the  

accused  respondent  was  wearing,  at  the Navrangpur  Police  Station,  

Ahmedabad.  It is, therefore, apparent that Dinesh Karshanbhai Thakore  

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  

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tutored witness.  This aspect of the matter also renders the testimony of  

Dinesh Karshanbhai Thakore PW6, suspicious.

(j) There is yet another aspect of the controversy relating to Dinesh  

Karshanbhai Thakore PW6.  The investigating agency became aware  

from the disclosure statement  of  the accused-respondent  Kishanbhai  

tendered on 1.3.2003, that he had procured the weapon of offence by  

way of theft from the “lari” of Dinesh Karshanbhai Thakore PW6.  The  

above knife was recovered at the instance of the accused-respondent  

Kishanbhai  on 1.3.2003, in the presence of  panch witnesses.  In the  

above view of the matter, in the ordinary course of investigation, it would  

have been imperative for the investigating agency to have immediately  

approached Dinesh Karshanbhai Thakore PW6, to record his statement.  

His  statement was extremely  important  for  the simple  reason, that  it  

would  have connected  the  accused with  the  weapon with  which the  

crime had been committed, as also with the victim.  Despite the above,  

the investigating agency recorded the statement of Dinesh Karshanbhai  

Thakore PW6, 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-

respondent,  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.  If there were good reasons for  

the delay, they ought to have been made known to the Trial  Court by  

way  of  reliable  evidence.   This  fact  too  raises  a  doubt  about  the  

correctness of the prosecution version of the incident.

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The above discrepancies in the prosecution version, were duly noticed  

by  the  High  Court.   These  constitute  some of  the  glaring  instances  

recorded in the impugned order.  Other instances of contradiction were  

also noticed in the impugned order.  It is not necessary for us to record  

all of them, since the above instances themselves are sufficient to draw  

some vitally important inferences.  Some of the inferences drawn from  

the  above,  are  being  noticed  below.   The prosecution’s  case  which  

mainly  rests  on the testimony of  Bababhai  Naranbhai  Solanki  PW2,  

Naranbhai  Manabhai  Solanki  PW5  and Dinesh Karshanbhai  Thakore  

PW6,  is  unreliable  because  of  the  glairing  inconsistencies  in  their  

statements.  The testimony of the investigating officer Naranbhai Lalbhai  

Desai  PW13  shows  fudging  and  padding,  making  his  deposition  

untrustworthy.  In the absence of direct oral evidence, the prosecution  

case almost wholly rested on the above mentioned witnesses.  It is for  

the above reasons, that  the High Court  through the impugned order,  

considered  it  just  and  appropriate  to  grant  the  accused-respondent  

Kishanbhai, the benefit of doubt.

13. Learned  counsel  for  the  appellant,  in  order  to  support  the  

submissions advanced before this Court in the present criminal appeal  

(which have been recorded in paragraph 9 hereinabove), with judicial  

precedent, placed reliance on a number of judgments rendered by this  

Court.  We shall now summarise hereunder, the judgment relied upon,  

as also, the submissions of the learned counsel on the basis thereof:

(a) Referring to the judgment rendered by this Court in Ram Prasad &  

Ors. v. State of UP, (1974) 1 SCR 650, it was asserted at the hands of  

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the learned counsel for the appellant, that non-examination of some of  

the eye-witnesses would not introduce a fatal infirmity to the prosecution  

case, specially when conviction could be based on evidence produced  

by the prosecution.

(b) Reference was also made to Takhaji Hiraji v. Thakore Kubersing  

Camansing & Ors., (2001) 6 SCC 145, and it was pointed out, that this  

Court has ruled that in cases where witnesses already examined were  

reliable, and the testimony coming from the mouth was unimpeachable,  

a court could safely act upon the same uninfluenced by the factum of  

non-examination of other witnesses.  Yet again the conclusion was, that  

reliable evidence should be available, to determine the culpability of an  

accused,  and in  the above view of  the matter  it  would  be irrelevant  

whether some others who could have deposed on the facts in issue had  

not been examined.

(c) Based  on  the  judgment  rendered  in  Laxman Naik  v.  State  of  

Orissa, (1994) 3 SCC 381, it was submitted, that in a case relating to a  

seven year old child, who had been raped and murdered by her own  

uncle, relying upon incriminating evidence and testimony of witnesses, it  

came to be held  that  when circumstances form a complete  chain of  

incidents, then the same is sufficient to establish, that the accused is the  

perpetrator of the crime and conviction can be based on the complete  

chain of circumstantial evidence.   

(d) Based on the judgment in State of Maharashtra v. Suresh, (2000)  

1 SCC 471, where four years’ girl child was a victim of rape and murder,  

it was contended, that this Court had held that it was open to a court to  

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presume that the accused knew about the incriminating material or dead  

body due to his involvement in the alleged offence.  When he discloses  

the location of such incriminating material without disclosing the manner  

in which he came to know of the same, the Court would presume that  

the accused knew about the incriminating material.   

(e) Relying on the judgment in Amar Singh v. Balwinder Singh, 2003  

(2) SCC 518, it was contended, that where the prosecution case is fully  

established by the testimony of witnesses which stood corroborated by  

medical  evidence,  any failure  or  omission of  the investigating officer  

could not be treated as sufficient to render the prosecution case doubtful  

or unworthy of belief.  This determination leads to the same inference,  

namely,  when reliable  evidence  to  prove  the  guilt  of  an  accused  is  

available, lapses in investigation would not result in grant of the benefit  

of doubt to an accused.

(f) Referring to State Government of NCT Delhi  v. Sunil,  (2001) 1  

SCC 652, it was asserted, that in a case where a child of four years was  

brutally raped and murdered and incriminating articles were recovered  

on the basis of the statement of the accused, the same could not be  

discarded  on the  technical  ground that  no independent  witness  was  

examined.   

(g) Referring to the judgment in Joseph v. State of Kerala, (2005) 5  

SCC 197, wherein, according to the learned counsel, it  was held that  

where the circumstances proved form themselves into a complete chain  

unerringly pointing to the guilt of the appellant, then the same can be the  

basis  of  the  conviction  of  the  accused.   This,  according  to  learned  

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counsel, represents the manner of proving the guilt of an accused based  

on circumstantial evidence.

(h) Based on the judgment in State of UP v. Satish (2005) 3 SCC  

114,  it  was  contended  that  it  could  not  be  laid  down as  a  rule  of  

universal  application  that  if  there  is  any  delay  in  examination  of  a  

particular  witness,  the  prosecution  version  becomes  suspect.  

Therefore,  the facts surrounding the delay  ought to be considered in  

every  case  to  determine  whether  or  not  the  testimony  is  rendered  

suspicious.

(i) Relying  on  the  judgment  in  Bishnu  Prasad  Sinha  v  State  of  

Assam, (2007) 11 SCC 467, it  was submitted, that in the above case  

where a child of 7-8 years was a victim of rape and murder, the grounds  

that the investigation was done in an improper manner did not render  

the  entire  prosecution  case  to  be  false.   Namely,  where  reliable  

evidence  is  available,  the  same  would  determine  the  guilt  of  an  

accused.

(j) Referring  to  the judgment  in  Aftab  Ahmad Anasari  v.  State  of  

Uttaranchal, (2010) 2 SCC 583, it was asserted, that where a child of  

five years was a victim of rape and murder and the accused disclosed  

the location of the crime as also of the incriminating articles, the said  

disclosure was admissible and would constitute a complete chain in the  

circumstances.  Further, according to the learned counsel, it  was held  

that  the  inquest  panchnama  may  not  contain  every  detail  and  the  

absence of some details would not affect the veracity of the deposition  

made by witnesses.  Needless to mention, that absence of vital links in  

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the claim of circumstantial evidence would result in the exoneration of  

the accused.  

(k) Reliance was placed on Sambhu Das v. State of Assam, (2010)  

10 SCC 374, so as to contend, that any discrepancy occurring in the  

inquest report or the post mortem report could neither be fatal nor be  

termed as a suspicious circumstance as would warrant a benefit to the  

accused and the resultant dismissal of the prosecution case.  Needless  

to add, that there should be sufficient independent evidence to establish  

the guilt of the accused.

(l) Based on the judgment in Haresh Mohandas Rajput v. State of  

Maharashtra, (2011) 12 SCC 56, it  was contended, that in a case of  

murder and rape of a ten year old child,  it  was found that where the  

circumstances taken cumulatively led to the conclusion of guilt and no  

alternative explanation is given by the accused, the conviction ought to  

be upheld.  This case reiterates that in a case based on circumstantial  

evidence the evidence should be such as would point to the inference of  

guilt of the accused alone and none others.

(m) Relying on Rajendra PrahladraoWasnik v. State of Maharashtra,  

(2012) 4 SCC 37, it was submitted that where a three years old child  

was a victim of rape and murder by the accused who lured her under the  

pretext of buying biscuits, circumstances showed the manner in which  

the trust/belief/relationship was violated resulting in affirming the death  

penalty imposed on the accused.

14. We have given our thoughtful  consideration to the submissions  

advanced at the hands of the learned counsel for the appellant, which  

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have been duly noticed in paragraph 9 hereinabove.  It is also relevant  

for  us  to  record,  that  the  learned  counsel  for  the  appellant  did  not  

advance a single  submission in  addition to  the contentions we have  

noticed in paragraph 9 above.  The submissions advanced at the hands  

of the learned counsel for the appellant, were sought to be supported by  

judgments rendered by this Court, all of which have been referred to in  

paragraph 13 above.  The submissions advanced at the hands of the  

learned counsel for the appellant, based on each of the judgments cited,  

have  also  been  recorded  by  us  in  the  said  paragraph.   Having  

considered  the  totality  of  the  facts  and  circumstances  of  this  case,  

specially  the  glaring  lapses  committed  in  the  investigation  and  

prosecution  of  the  case  (recorded  in  paragraph  11  of  the  instant  

judgment), as also the inconsistencies in the evidence produced by the  

prosecution (summarized in paragraph 12 hereinabove), we are of the  

considered  view,  that  each one of  the submissions  advanced at  the  

hands of  the learned counsel  for  the appellant is  meritless.   For the  

circumstantial  evidence produced by the prosecution, primary reliance  

has  been placed  on  the  statements  of  Bababhai  Naranbhai  Solanki  

PW2,  Naranbhai  Manabhai  Solanki  PW5,  and  Dinesh  Karshanbhai  

Thakore PW6.  By demonstrating inconsistencies and infirmities in the  

statements of  the above witnesses,  their  statements have also  been  

rendered suspicious and accordingly unreliable.  There is also a serious  

impression  of  fudging  and  padding  at  the  hands  of  the  agencies  

involved.  As a matter of fact, the lack of truthfulness of the statements  

of witnesses has been demonstrated by means of simple logic emerging  

from  the  factual  position  expressed  through  different  prosecution  

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witnesses (summarized in paragraphs 11 and 12 above).  The evidence  

produced  to  prove  the  charges,  has  been  systematically  shattered,  

thereby demolishing the prosecution version.  More than all that, is the  

non  production  of  evidence  which  the  prosecution  has  unjustifiably  

withheld, resulting in dashing all  the States efforts to the ground.  It is  

not  necessary  for  us  to  record  our  detailed  determination  on  the  

submissions  advanced  at  the  hands  of  the  learned  counsel  for  the  

appellant,  for  such reasons  clearly  emerge  from the  factual  position  

noticed in paragraphs 11 and 12 hereinabove.  Recording of reasons all  

over again, would just be a matter of repetition.  In view of the above,  

we find no merit in this appeal and the same is accordingly dismissed.

15. The  investigating  officials  and  the  prosecutors  involved  in  

presenting this case, have miserably failed in discharging their duties.  

They have been instrumental in denying to serve the cause of justice.  

The misery of the family of the victim Gomi has remained unredressed.  

The perpetrators  of  a  horrendous crime,  involving  extremely  ruthless  

and savage  treatment  to  the  victim,  have  remained  unpunished.   A  

heartless  and  merciless  criminal,  who  has  committed  an  extremely  

heinous  crime,  has  gone  scot-free.   He  must  be  walking  around in  

Ahmedabad, or some other city/town in India, with his head held high.  A  

criminal on the move.  Fearless and fearsome.  Fearless now, because  

he could not be administered the punishment, he ought to have suffered.  

And fearsome,  on account of  his  having remained unaffected by the  

brutal crime committed by him.  His actions now, know of no barriers.  

He  could  be  expected  to  act  in  an  unfathomable  savage  manner,  

uncomprehendable to a sane mind.

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16. As we discharge our responsibility in deciding the instant criminal  

appeal,  we proceed to  apply  principles  of  law,  and draw inferences.  

For,  that is  our job.   We are trained, not to be swayed by mercy or  

compassion.   We  are trained to adjudicate without taking sides,  and  

without  being  mindful  of  the  consequences.   We  are  required  to  

adjudicate on the basis of well  drawn parameters.  We have done all  

that.   Despite thereof,  we feel  crestfallen,  heartbroken and sorrowful.  

We could not serve the cause of justice, to an innocent child.  We could  

not  even serve  the  cause of  justice,  to  her  immediate  family.   The  

members  of  the  family  of  Gomi  must  never  have  stopped  cursing  

themselves, for not adequately protecting their child from a prowler, who  

had  snatched  an  opportunity  to  brutalise  her,  during  their  lapse  in  

attentiveness.  And if  the prosecution version about motive is correct,  

the crime was committed for a mere consideration of Rs.1,000/-.   

17. Every time there is an acquittal,  the consequences are just the  

same, as have been noticed hereinabove.  The purpose of justice has  

not  been  achieved.   There  is  also  another  side  to  be  taken  into  

consideration.  We have declared the accused-respondent innocent, by  

upholding the order of the High Court, giving him the benefit of doubt.  

He may be truly innocent, or he may have succeeded because of the  

lapses  committed  by  the investigating/prosecuting  teams.   If  he has  

escaped,  despite  being  guilty,  the  investigating  and  the  prosecution  

agencies must be deemed to have seriously messed it all up.  And if the  

accused was wrongfully prosecuted, his suffering is unfathomable.  Here  

also, the investigating and prosecuting agencies are blameworthy.  It is  

therefore necessary, not to overlook even the hardship suffered by the  

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accused,  first  during  the trial  of  the case,  and then at  the appellate  

stages.  An innocent person does not deserve to suffer the turmoil of a  

long drawn litigation, spanning over a decade, or more.  The expenses  

incurred  by  an  accused  in  his  defence  can  dry  up  all  his  financial  

resources  –  ancestral  or  personal.   Criminal  litigation  could  also  

ordinarily involve financial borrowings.  An accused can be expected to  

be under a financial debt, by the time his ordeal is over.   

18. Numerous  petitions  are  filed  before  this  Court,  praying  for  

anticipatory bail (under Section 438 of the Code of Criminal Procedure)  

at the behest of persons apprehending arrest, or for bail (under Section  

439 of the Code of Criminal Procedure) at the behest of persons already  

under  detention.   In  a  large  number  of  such  petitions,  the  main  

contention  is  of  false  implication.   Likewise,  many  petitions  seeking  

quashing of criminal proceeding (filed under Section 482 of the Code of  

Criminal Procedure) come up for hearing day after day, wherein also,  

the  main  contention  is  of  fraudulent  entanglement/involvement.   In  

matters  where  prayers  for  anticipatory  bail  or  for  bail  made  under  

Sections 438 and 439 are denied,  or where a quashing petition filed  

under Section 482 of the Code of Criminal Procedure is declined, the  

person  concerned  may  have  to  suffer  periods  of  incarceration  for  

different lengths of time.  They suffer captivity and confinement most of  

the times (at least where they are accused of serious offences), till  the  

culmination of their trial.  In case of their conviction, they would continue  

in confinement during the appellate stages also, and in matters which  

reach the Supreme Court, till the disposal of their appeals by this Court.  

By the time they are acquitted at the appellate stage, they may have  

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undergone long years of custody.  When acquitted by this Court, they  

may have suffered imprisonment of 10 years, or more.  When they are  

acquitted (by the trial  or the appellate court), no one returns to them;  

what was wrongfully taken away from them.  The system responsible for  

the administration of justice, is responsible for having deprived them of  

their lives, equivalent to the period of their detention.   It is not untrue,  

that for all the wrong reasons, innocent persons are subjected to suffer  

the  ignominy  of  criminal  prosecution  and  to  suffer  shame  and  

humiliation.  Just like it is the bounden duty of a court to serve the cause  

of  justice to the victim,  so also,  it  is  the bounden duty of  a court  to  

ensure that an innocent person is not subjected to the rigours of criminal  

prosecution.

19. The situation referred to above needs to be remedied.  For the  

said  purpose,  adherence  to  a  simple  procedure  could  serve  the  

objective.   We  accordingly  direct,  that  on  the  completion  of  the  

investigation in a criminal case, the prosecuting agency should apply its  

independent  mind,  and  require  all  shortcomings  to  be  rectified,  if  

necessary by requiring further investigation.  It should also be ensured,  

that  the  evidence gathered during  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.  Only persons against whom  

there  is  sufficient  evidence,  will  have to  suffer  the rigors  of  criminal  

prosecution.   By  following  the  above  procedure,  in  most  criminal  

prosecutions,  the  concerned  agencies  will  be  able  to  successfully  

establish the guilt of the accused.

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20. Every acquittal  should be understood as a failure 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 would ensure that  

the cause of justice is served, which would simultaneously ensure the  

safeguard of interest of those who are innocent.  In furtherance of the  

above purpose, it is considered essential to direct the Home Department  

of every State, to examine all orders of acquittal and to record reasons  

for the failure of each prosecution case.  A standing committee of senior  

officers of  the police and prosecution departments, should be vested  

with  aforesaid  responsibility.   The consideration  at  the hands of  the  

above committee, should be utilized for crystalizing 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 from the above consideration.  The same should also constitute  

course-content  of  refresher  training  programmes,  for  senior  

investigating/prosecuting  officials.   The  above  responsibility  for  

preparing  training  programmes  for  officials,  should  be  vested  in  the  

same committee of senior officers referred to above.  Judgments like the  

one  in  hand  (depicting  more  than  10  glaring  lapses  in  the  

investigation/prosecution of the case), and similar other judgments, may  

also be added to the training programmes.  The course content will be  

reviewed by the above committee annually, on the basis of fresh inputs,  

including emerging scientific tools of investigation, judgments of Courts,  

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and on the basis of experiences gained by the standing committee while  

examining failures,  in unsuccessful prosecution of cases.  We further  

direct,  that  the  above  training  programme  be  put  in  place  within  6  

months.  This  would  ensure that  those persons who handle  sensitive  

matters concerning investigation/prosecution are fully trained to handle  

the same.  Thereupon, if any lapses are committed by them, they would  

not be able  to feign innocence,  when they are made liable  to suffer  

departmental action, for their lapses.

21. On the culmination of a criminal case in acquittal, the concerned  

investigating/prosecuting official(s)  responsible for such acquittal  must  

necessarily be identified.  A finding needs to be recorded in each case,  

whether the lapse was innocent or blameworthy.   Each erring officer  

must suffer the consequences of his lapse, by appropriate departmental  

action, whenever called for.  Taking into consideration the seriousness  

of the matter, the concerned official may be withdrawn from investigative  

responsibilities,  permanently  or  temporarily,  depending  purely  on his  

culpability.   We  also feel  compelled to require the adoption of  some  

indispensable  measures,  which  may  reduce  the  malady  suffered  by  

parties on both sides of criminal  litigation.  Accordingly we direct, the  

Home Department of every State Government, to 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  account  of  sheer  

negligence  or  because of  culpable  lapses,  must  suffer  departmental  

action.  The above mechanism formulated would infuse seriousness in  

the  performance  of  investigating  and  prosecuting  duties,  and  would  

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ensure that investigation and prosecution are purposeful and decisive.  

The instant direction shall also be given effect to within 6 months.

22. A  copy  of  the  instant  judgment  shall  be  transmitted  by  the  

Registry of this Court, to the Home Secretaries of all State Governments  

and  Union  Territories,  within  one  week.   All  the  concerned  Home  

Secretaries, shall ensure compliance of the directions recorded above.  

The records of consideration, in compliance with the above direction,  

shall be maintained.

23. We hope and trust the Home Department of the State of Gujarat,  

will  identify  the  erring  officers  in  the  instant  case,  and  will  take  

appropriate  departmental  action against  them, as may be considered  

appropriate, in accordance with law.

24. The instant criminal appeal is accordingly disposed of.  

…………………………….J. (C.K. Prasad)

…………………………….J. (Jagdish Singh Khehar)

New Delhi; January 7, 2014

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