CR.A/96019/1986 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 960 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== STATE OF GUJARAT Versus THAKORE MANGAJI KARNAJI ====================================== Appearance : Mr Maulik Nanavati, Additional Public Prosecutor for the Appellant Mrs DT SHAH for Opponent(s) : 1, MR YM THAKORE for Opponent(s) : 1, ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT CR.A/96019/1986 2/5 JUDGMENT Date : 13/08/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal calls in question the correctness of judgment and order dated 14.05.1986 passed by the Sessions Judge, Mehsana in Sessions Case No. 97 of 1985 acquitting the present respondent of offences punishable under Sections 302 and 376 of the Indian Penal Code and Section 135 of the Bombay Police Act. The case of the prosecution in brief is that girls Savita (deceased), Kanta (PW-2) and Kailash were playing in the field of Joitabhai Patel in the afternoon. At that time, accused is stated is to have come there and taken away Savita by holding her hand towards the field of Chasatia. On seeing this, Kanta and Kailash went to the house of Bhalabhai (PW-1), father of Savita, and informed him about the incident. Thereupon, Bhalabhai, Dahyabhai (PW-3) and one Amratbhai came to the field of Chasatia and started looking for Savita. After looking around for a while, they saw the accused running away from the field. Dayabhai and Amratbhai chased the accused and nabbed him. Bhalabhai saw Savita lying dead on the ground with her throat slit. The accused was then taken to the school and beaten up by villagers. Police was informed and a complaint was registered. Investigation was completed and the accused was sent for trial. After examining the evidence led by the prosecution, the learned Sessions Judge held that the case against accused was not proved beyond reasonable doubt and acquitted him of all charges. Aggrieved by the acquittal, State preferred the present appeal which was admitted by an order dated 19.11.1986 and accused was directed to be CR.A/96019/1986 3/5 JUDGMENT released on bail. Thereafter on 19.04.2004, when the matter was taken up for final hearing, no one appeared for the respondent as his earlier lawyer, Mrs. D. T. Shah had sought a discharge. Accordingly, a non- bailable warrant was issued to secure presence of the accused. The same remained unexecuted and a fresh warrant therefore came to be issued on 9.07.2008. Pursuant to the said warrant, the accused was arrested and is presently in judicial custody. On 8.08.2008, Mr. Yogesh Thakor, Advocate appeared on behalf of the accused and sought time and on his request the matter was adjourned to 13.08.2008 Today, we have heard Mr. Maulik Nanavati, Additional Public Prosecutor for the State and Mr. Yogesh Thakor, Advocate for the respondent accused. We have perused the judgment of the Trial Court and have also gone through the entire record of the case. The case of the prosecution primarily rests on the evidence of child-witness Kanta (PW-2), aged about 11 years. In her examination-in- chief, she has stated that the accused took away deceased Savita from the field of Joitabhai where they were all playing but she has not seen anything thereafter as she had gone to the house of Bhalabhai to call him. In her cross examination, she states that she did not shout for help on seeing accused taking away Savita as she was scared. She also admits that she is identifying the accused in the Court on being pointed out by her father. The evidence of this witness is not very convincing and the possibility of her being tutored cannot be ruled out. The other witnesses examined by the prosecution – Bhalabhai (PW-1), Dahyabhai (PW-3) and Jesabhai (PW-4), do not say anything that directly connects the accused with the crime. They only say that they saw the accused running from the field and therefore suspected him of having committed the crime. Now the serological report does not indicate any stains of CR.A/96019/1986 4/5 JUDGMENT semen on the clothes of either the accused or deceased. The medical evidence also is not conclusive of rape. No spermatozoa is noticed on the vaginal slides but only on the basis of a slight injury on the genitals of the girl, the doctor has opined that there is a possibility of rape. Lastly, the circumstance of recovery of weapon of offence, i.e., knife, is also of no avail as the said knife has been recovered from an open area in the nearby field which is accessible to the public. It is now well-settled that in a case of circumstantial evidence, all the circumstances relied upon by the prosecution against the accused must definitely and unerringly point towards the guilt of the accused and taken cumulatively form a chain so complete that there is no escape from the conclusion that the crime was committed by the respondent accused and none else. In the present case, the evidence led by the prosecution is too sketchy and the circumstances do not conclusively point to the guilt of the accused. We are, therefore, in agreement with the conclusion arrived at by the Trial Court of acquitting the respondent. The best witness of the prosecution is PW 2, Kanta, a child witness. She admits that she has identified the accused on being instructed by her father. This introduces another infirmity in her evidence than a child witness. The law regarding child witness is clear. They live in a make believe world. If she admits tutoring, then, she has to be excluded from consideration. The other witness only states that they saw the accused running. This excludes his presence near the scene of occurrence. If he was not close to scene of occurrence and there are no circumstances indicating the presence on the scene of occurrence, then his connection with the crime cannot be established. In view of the above circumstances relied upon by the prosecution falls short of having being incriminatory. CR.A/96019/1986 5/5 JUDGMENT In the result, State appeal fails and the same is accordingly dismissed. Bail bonds stand cancelled. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd