CR.A/64619/1987 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 646 of 1987 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 ISHWARBHAI PRABHUBHAI PATEL & OTHERS ====================================== Appearance : Mr Maulik Nanavati, Additional Public Prosecutor for the Appellant MS BANNA S DUTTA for the Respondents ====================================== CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 28/08/2008 CR.A/64619/1987 2/7 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) The present appeal has been preferred by the State of Gujarat against the judgment and order dated 28.05.1987 passed by the Additional Sessions Judge, Valsad at Navsari in Sessions Case No. 27 of 1986 acquitting all the accused persons for the offences punishable under Section 302 read with Section 114 of Indian Penal Code. Four persons – Ishwarbhai Parbhubhai Patel, Bhikubhai Shankarbhai Patel, Rameshbhai Dahyabhai Patel and Kishorbhai @ Kaliyo Nathubhai Patel were accused of having conspired to kill Nathubhai Patel, father of accused no. 4, and in furtherance of their conspiracy assaulted Nathubhai on 20.12.1985 at about 9:00pm when Nathubhai alongwith Jagdishbhai Dhirubhai (PW-4) were going on their cycle towards their place of work – Gaekwad Mills at Bilimora. At the trial, the only witness to the incident, Jagdishbhai Dhirubhai (PW-4) who had left together with the deceased and was last seen with the deceased at the time of assault, did not support the prosecution case. In absence of direct evidence and finding the other circumstances relied upon by the prosecution as not having been proved conclusively, the Trial Court acquitted all the four accused. Aggrieved by the said judgment, the State has preferred the present appeal. We have heard Mr. Maulik Nanavati, learned Additional Public Prosecutor for the State and Ms. Banna Dutta, learned Advocate for the respondent-accused. We have also gone through the record of the case. Assailing the judgment of acquittal, Mr Nanavati, learned counsel for the State, submitted that some of the circumstances like the pointing CR.A/64619/1987 3/7 JUDGMENT out of the respondents by the dogs of the dog squad, after picking up the scent from the place of occurrence; the disclosure statement and the recovery of weapon of offence as a consequence thereof at the instance of the accused and the presence of injuries on the person of accused, were of such a conclusive and clinching nature that they left no doubt that the accused had committed the crime; and that this aspect has been completely over-looked by the Trial Judge. It was submitted that some of the accused persons had made attempt to mislead the investigating officer by giving a false version with a view to screen themselves. According to the learned counsel the established circumstance could only lead to the hypothesis consistent with the guilt of the appellant and not with his innocence. Appearing for the respondent accused, Ms. Banna Dutta, learned Advocate submitted that the Trial Court has by a well-considered and well-reasoned judgment acquitted the accused after considering the material discrepancies and infirmities in the prosecution evidence which not only did not establish various circumstances but which also showed that the chain of circumstantial evidence was wholly incomplete. Learned Advocate submitted that the accused had been roped in on the basis of misguided suspicion and that the circumstances relied upon by the prosecution were not of any conclusive nature and they did not exclude the hypothesis, other than that of the guilt of the respondents. It was emphasised that the investigating officer had created false clues and suppressed material which went against the prosecution version and supported the defence version. She therefore submitted that this Court may not interfere with the decision of acquittal and dismiss the State appeal. CR.A/64619/1987 4/7 JUDGMENT The only witness who according to the prosecution was with the deceased at the time of assault and who allegedly witnesses the attack has not supported the prosecution case and has been declared hostile. Even in his cross-examination, nothing has been elicited on behalf of the prosecution which would connect any of the accused with the crime. There being no ocular evidence, the only other evidence relied upon by the prosecution is that of circumstance indicating the guilt of the accused persons – motive to commit the crime, identification of accused no. 1 by the sniffer dog and discovery of weapons at the instance of accused persons. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and those circumstances must be conclusive in nature. Moreover, the established facts should be consistent only with the hypothesis of the guilt of the accused alone and totally inconsistent with his innocence. We shall now consider various circumstances with a view to determine whether the circumstances alleged against the accused have been established and the chain of evidence is so complete as to lead to no other hypothesis except the one consistent with the guilt of the accused. There is no motive established in this case by the prosecution for the accused no. 4 to commit murder of his father. Though it has come in the evidence of complainant and wife of deceased Jashiben (PW-1) that relations between father and son were strained and that there was an altercation some days prior to the date of incident between the deceased CR.A/64619/1987 5/7 JUDGMENT and accused persons, Raghubhai Parbhubhai (PW-2) has denied any such quarrel between the deceased and accused no. accused no. 1. In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case. The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof. Apart from the motive, the only other incriminating circumstance is the pointing out of the house of accused no. 1 by the dogs of the dog squad after picking up scent from the place of occurrence and the alleged joint discovery of weapons of offence at the instance of the accused. It is true that the sniffer dog had gone near the house of accused no. 1 and had thereafter returned to the place of occurrence. So far as the evidence relating to the reaction of sniffer dog is concerned, the Supreme Court in Abdul Rajak Murtaja Dafedar v. State of Maharashtra (1969) 2 SCC 234 stated the law, thus: (SCC p.239, para 11) “11. … There are three objections which are usually advanced against the reception of [the evidence of dog tracking.] First, since it is manifest that the dog cannot go into the box and give his evidence on oath, and consequently submit himself to cross-examination, the dog’s human companion must go into the box and report the dog’s evidence, and this is clearly hearsay. Secondly, there is a feeling that in criminal cases the life and liberty of a human being should not be dependent on canine inferences.” Yet again in Gade Lakshmi Mangaraju v. State of A.P. (2001) 6 SCC 205 the Apex Court opined: (SCC p. 206a-c) “There are inherent frailties in the evidence based on sniffer or tracker dogs. The possibility of an error on the part of the dog or its master is the first among them. ... The possibility of a misrepresentation or a wrong inference from the behaviour of the dog could not be ruled out. Last, but not the least, is CR.A/64619/1987 6/7 JUDGMENT the fact that from a scientific point of view, there is little knowledge and much uncertainty as to the precise faculties which enable police dogs to track and identify criminals. … Investigating exercises can afford to make attempts or forays with the help of canine faculties but judicial exercise can ill- afford them.” The law in this behalf, therefore, is settled that while the services of a sniffer dog may be taken for the purpose of investigation, its faculties cannot be taken as evidence for the purpose of establishing the guilt of an accused. Now coming to the evidence of discovery, it is not in dispute that there is joint discovery of weapons at the instance of all accused. The learned Sessions Judge carefully considered the evidence led by the prosecution with regard to the disclosure statement and the recovery of weapon of offence observed that such disclosure and pointing out attributed to all the accused simultaneously cannot fall within the ken of Section 27. That apart, the learned Judge has found several infirmities with regard to such disclosure and therefore found the circumstance as not proved. In view of the serious discrepancies, contradictions and the attempt of the Investigating Officer to create false clues, we are of the opinion that the learned Sessions Judge was perfectly justified in rejecting the prosecution evidence relating to the disclosure statement and the consequent recovery of the weapons. The prosecution has failed to establish that any of the accused persons did make the disclosure statement as alleged by the prosecution or led to the recovery of the weapons in the manner suggested by the prosecution. This piece of circumstantial evidence, therefore, has not at all been established, much less conclusively. On an independent appraisal of the evidence on the record, we have therefore unhesitatingly come to the conclusion that the learned Sessions CR.A/64619/1987 7/7 JUDGMENT Judge was perfectly justified in acquitting the respondents of all the charges and the reasoning given and the findings recorded by him are sound, cogent and reasonable. We agree with the learned Sessions Judge that the prosecution has not established the case against the respondents beyond a reasonable doubt. We, accordingly, confirm the judgment of the Trial Court acquitting the respondents. The appeal is therefore dismissed. The respondents are on bail, their bail bonds shall stand discharged. (Bhagwati Prasad, J.) (S.R.Brahmbhatt, J.) *mohd