JUDGMENT : N.J. Pandya, J. The accused of Sessions Case No. 109 of 1992 of the Court of learned Additional Sessions Judge, Mehsana after holding him guilty for offence under Section 302 of Indian Penal Code was awarded capital punishment. This requires confirmation by this Court and hence, on receiving a reference in that regard, it was registered as Confirmation Case of No. 1 of 1993. The convict-accused had filed an Appal which has been registered as Criminal Appeal No. 485 of 1993. He is challenging the conviction as well as the sentence awarded to him. 2. The accused was defended by an Advocate appointed at the expenses of the State, as he was not in a position to afford the expenses. The appeal of the convict-accused is also similarly dealt with. The difference, however, is that a fairly experienced Lawyer Mr. Budhbhati has been appearing as Advocate for the accused-appellant in both the matters and he has been assisted by a Senior Advocate Mr. Maganbhai Barot and that is how, both the matters have been dealt with on behalf of the convict-accused by these two learned Advocates. In both these matters the State is represented by the learned Public Prosecutor Mr. D.K. Trivedi. 3. Very rarely in these days we come across conviction orders entailing capital punishments and this being one of those rare cases, we would like to give details and that would otherwise be also necessary for appreciating the rival contentions. 4. The case against the accused-appellant is that on the evening of 28th December, 1991 he was in the company of deceased Gandaji and on that evening, they had decided to have a feast, wherein they would be drinking liquor and eating food like egg-curry. This was, indeed, a feast for them, as in the Rural area it would be a rare occasion of this nature. However, this occasion turned severe, because in the course of the festivity, according to the prosecution case, the elder brother of Gandaji picked up quarrel with the accused saying that he being an Adivasi from Rajasthan he is exploiting rates by charging as much as Rs. 5/- to Rs. 10/- less per day, the prevalent rate being Rs. 20/- to Rs. 25/- per day and the accused was charging Rs. 15/- per day. 5/- to Rs. 10/- less per day, the prevalent rate being Rs. 20/- to Rs. 25/- per day and the accused was charging Rs. 15/- per day. One thing led to the other and ultimately, the accused left the place and hided himself somewhere waiting for an appropriate opportunity. 5. At about 12.00 midnight when the deceased Devaji elder brother of said Gandaji got up for watering the field, the accused took the opportunity and killed up with an axe. At that time, on hearing the shout of Devaji, Gandaji, who was asleep in a nearby hut, woke up and was coming to the accused and further it is the case of the prosecution that the accused was also proceeding towards the said hut, and when they 'came upon each other, the accused gave axe blows to Gandaji and done him to death. The accused was not satisfied, may be his lust for blood or had lost his control or maybe, as per the prosecution, he wanted to do away with all possible witnesses and he had proceeded towards the hut where the wife of Gandaji, their 2 children and young daughter of the brother of the wife of Gandaji were asleep. According to the prosecution, the accused went to the said hut and with an axe that he was carrying, he killed all four of them. Baluben, wife of Gandaji, was aged about 22 years, their two children were respectively aged 4 years and 4 months and Keshi about 12 years. Death of each of these persons is, indeed, gruesome, as can be seen from the medical papers. They have been hacked to death with an axe and there are several incised wounds all over the body of the adult persons including Bai Keshi. Heads of the children have been virtually smashed. As is this is not enough from the medical evidence and from the other materials on record, it can be seen that both the legs of Baluben have been completely cut and severed and they were almost thrown away at a distance of about 1½" feet from the body. According to the prosecution case, from the severed loss of Baluben, silver ornaments known as Kadla, a pair of them was removed from each of thus severed legs and so was Kambi and Chuni respectively worn on hand and nose. According to the prosecution case, from the severed loss of Baluben, silver ornaments known as Kadla, a pair of them was removed from each of thus severed legs and so was Kambi and Chuni respectively worn on hand and nose. Later on, the last two articles Kambi and Chuni were recovered from the house of Candaji. However, missing Kadlas, according to the prosecution case, were found from the-accused. The manner in which they were found and from the place where they were found, the details will be given hereafter. 6. Looking to the aforesaid brief description, it is quite clear that the case against the accused would rest only on the circumstantial evidence. The persons who could have given direct evidence with regard to the incident, have been done to death, one and all, and as such, the prosecution, indeed, is suffering from a very serious handicap. However, the prosecution has to take the case as it is and has to carry out its duty of proving the same beyond doubt and with absolute certainty. 7. Needless to say, according to the learned trial Judge, the prosecution has succeeded in doing so and that is why he has recorded the finding of guilt and has awarded the capital punishment. However, we will first deal with the appeal filed by the accused. That will be necessary for more than one reason. It will give us an opportunity of considering the evidence in its entirety on its own merit and secondly that will bring out the circumstances which will be necessary for us to consider whether the case, if held to be proved against the accused, would call for the capital punishment or not? In other words, the entire discussion of both the aspect will be common, but, with regard to the question involved, wherever necessary at appropriate stage, they will be dealt with separately. 8. The learned Judge, when the case was committed and placed before him for trial, had proceeded to frame charge at Exh.4 which is at paper book page 31. In other words, the entire discussion of both the aspect will be common, but, with regard to the question involved, wherever necessary at appropriate stage, they will be dealt with separately. 8. The learned Judge, when the case was committed and placed before him for trial, had proceeded to frame charge at Exh.4 which is at paper book page 31. The charge roughly translated into English is on the following line: "On the night of 28th/29th December, 1991 between 8.00 p.m. to 5.30 a.m. in the sim of village Techava in the field of deceased Gandaji Vechatji the accused was there and at about 8.00 p.m. on 28th December, 1991 at the hut of Gandaji, they had arranged for a programme of eating and drinking and at that place elder brother Devaji had also come and all of them together (Gandaji, Devaji and the accused) had taken liquor and at that time. Devaji told the accused that why Adivasies have been allowed to enter here. Labour charges per day are Rs. 20/- to Rs. 25/- and that is what we charge, while the accused is charging only Rs. 15 per day. This led to verbal altercation between accused and Gandaji and Devaji and therefore, the accused got enraged and he i.e. the accused hid himself in the nearby field where crop of Raida was there. Thereafter at 12.00 in the midnight when Devaji was watering his field and he was all alone, the accused stealthily went there and with an intention to kill him gave axe blow causing him serious injuries leading to his death. Moreover, on hearing shot of Devaji, his brother Gandaji was also coming towards the place when accused after killing Devaji was proceeding towards Gandaji's hut and on the way when he met Gandaji, the accused gave axe blows to him also and these blows were on the head of the deceased which caused him fatal injuries leading to his death. Moreover, on hearing shot of Devaji, his brother Gandaji was also coming towards the place when accused after killing Devaji was proceeding towards Gandaji's hut and on the way when he met Gandaji, the accused gave axe blows to him also and these blows were on the head of the deceased which caused him fatal injuries leading to his death. Thereafter, the accused felt that there are persons who are present in the hut and who know that the deceased as well as the accused had taker drinks together and they had a quarrel and this fact is known to Bai Balu, wife of Gandaji as well as Keshiben (said young girl) and others and they may inform the police and get the accused arrested and therefore, with a view to destroy the evidence, the accused killed the said wife of Gandaji, Keshiben, Nathaji and Mukesh. Their death was carried out in a cool-headed manner by causing injury to each of them with the help of axe and that is how offence under Sections 302 as well as 201 of Indian Penal Code has been registered in respect of deaths of the aforesaid persons. At the same place and time, according to the learned Judge, the accused had removed silver ornaments-Kadlas, Chuni and other ornaments from the person of Baluben and that is how offence under Section 397 was committed." 9. As noted above, the incident happened on the night of 28th and 29th December, 1991. The complaint came to be lodged by Revaben, widow of deceased Devaji on 29th December, 1992 and the FIR is at Exh.104 page 250 on the paper book. This has been recorded by Police Inspector Mr. Barot of Vijapur Police Station at village Techava. He had come there because the police was informed from telephone No. 243 of village Techava by the person having the telephone connection informing that as many as six deaths have occurred in the village and therefore police should come. This has been noted by Vijapur Police Station as a message received on phone. The fact has been deposed to by PW 16 Exh. 18 page 236 and copy thereof is to be found at Exh.35 page 103. The message was received at 10.10,.m. on December 29,1991. The telephonic message disclosed death of one man and one woman and 3 children. The fact has been deposed to by PW 16 Exh. 18 page 236 and copy thereof is to be found at Exh.35 page 103. The message was received at 10.10,.m. on December 29,1991. The telephonic message disclosed death of one man and one woman and 3 children. By the time the police came and recorded the said complaint, the death of second man had become known and that is why, details thereof are given in the said complaint. However, what is of interest in the said complaint is the fact that the complainant Revaben has indicated her suspicions and they are not mere vague suspicious. At the end part of the complaint, she has in clear terms indicated the possibility of the involvement of their near relatives and the names of the relatives are also given. They number as many as six. This has resulted into registration of an offence under Indian Penal Code for offences punishable under Sections 302, 147, 148, 149 and other related offences. The investigation started after the said FIR was recorded, inquest was filled in, dead bodies were sent for post mortem and general interrogation with regard to the crime was put in motion. Dog squad was also called in. In the course thereof, the attention of the investigating agency for cussed on the accused being the sole person responsible for the crime. We do not have on record any material to indicate as to the exact point at which this shift in the investigation occurred. Nor do we have the material to indicate as to why the shift occurred. But it is very clear that there was a shift and instead of the investigation proceedings against the persons categorically named in the FIR, it changed the track and concentrated entirely on the alleged involvement of the accused. This can be seen clearly from the deposition of Rajasthan Police Inspector Mr. Bhati who has been examined almost at the end of the trial as witness No. 28, Exh.134 page 332 of the paper book. This can be seen clearly from the deposition of Rajasthan Police Inspector Mr. Bhati who has been examined almost at the end of the trial as witness No. 28, Exh.134 page 332 of the paper book. He has stated that on 30th December, 1991 he received a message from DSP Banswada District Rajasthan, that DSP of Mehsana District, Gujarat has informed that in respect of murder committed in Vijapur Taluka Police Station area, name of one suspect is disclosed and that is an Adivasi and his name is Ratna and his village is situated in Kalinjara Police Station area. Said witness Mr. Bhati being incharge of the Police Station, he moved in the matter, but on 31st December, 1991 he could not find said Adivasi Ratna. However on 1.1.1992, he received information that the accused has relatives at village Khundani. The said Officer therefore, went there and he saw the accused asleep at the back of a hut belonging to the relatives of the accused. On interrogation, the accused revealed his name to be Ratna Sutpal. He was arrested and Mr.Bhati carried out investigation as expect of a Police Officer. In the process, he called Panchas, went to the house of the accused situated in the nearby village and recovered the aforesaid Kadlas which have been produced in the Trial Court as article No. 60 (hereinafter they shall be referred to as article No. 60 or as Kadlas.). Till the next day, no one from Gujarat Police came to take away the accused. Hence, within the permitted limit of 24 hours, the accused was produced before the concerned Magistrate of Rajasthan and a remand was also obtained of one day. Thereafter, the Police Officer from Gujarat came and the accused was handed over to the Gujarat Police. 10. Initially P.I. Mr. Barot of Vijapur had carried out the investigation and later on, it was handed over to P.I. Mr. Vaghela, who was attached to LCB of Mehsana District. That is how Mr.Vaghela came to visit Kalinjara Police Station at Rajasthan to take the accused from the judicial custody of the Magistrate and bring him as an accused of Vijapur Police Station in connection with the present case. 11. Mr. Vaghela, who was attached to LCB of Mehsana District. That is how Mr.Vaghela came to visit Kalinjara Police Station at Rajasthan to take the accused from the judicial custody of the Magistrate and bring him as an accused of Vijapur Police Station in connection with the present case. 11. Mr. Vaghela carried out his part of the investigation here and in the course thereof, he obtained remand orders for 14 days and in the presence of Panchas and other witnesses, certain recoveries were made at the instance of the accused and in the meantime, muddamal articles were sent to Forensic Science Laboratory (for short "FSI") for examination and report and this happened on 16.1.1992. The articles were received by the FSL Ahmedabad on 18.1.1992. Copy of the forwarding note has been produced before the Trial Court at Exh.120 page 275 of the paper book and the said acknowledgement is at Exh.121 page 284 of the paper book. Along with other articles, the aforesaid article No. 60 was also sent to the FSL. 12. The case came to be committed before the learned Sessions Judge on 27.4.1992. The FSL report was received on 22.4.1992. As stated above, the charge was framed in the month of November, 1992 and the trial commenced on 6.1.1993. 13. By very nature, when the prosecution is relying on circumstantial evidence, it has to build case almost brick by brick and to the extent possible it has been done before the Trial Court. The very first witness is complainant Revaben PW 1 Exh.88 page 1064 of paper book. According to her testimony, she had seen the accused along with the deceased on the previous evening when she had gone to her field for gathering fodder. She was accompanied by one Jijiben. This Jijiben though cited as witness. has not been examined and in fact, as per pursis Exh. 63 she has been dropped. Her name is shown at serial No. 3. One more witness who has not been examined, though cited is Somaben and her name appeared at serial No. 4 in the pursis Exh. 63. This Jijiben though cited as witness. has not been examined and in fact, as per pursis Exh. 63 she has been dropped. Her name is shown at serial No. 3. One more witness who has not been examined, though cited is Somaben and her name appeared at serial No. 4 in the pursis Exh. 63. The deposition of said complainant after referring to the presence of the accused along with the deceased at the field further proceeds to say that when she was coming back to her home at about 6.00 to 6.30 p.m. carrying a head load of fodder along with said Jijiben, she again saw the accused in company of the deceased coming back to the village and at that time, they met at Canan. She inquired of Gandaji, the deceased, who happens to be the younger brother of her husband as to where had he been and why he had gone to that village. Answer given was that he had to make some purchases and thereafter, she and Jijiben went to her house. 14. Her husband Devaji left the house at about 10.00 p.m. because, he wanted to water the field in which wheat crops was standing. Next day morning, when she was to take food for her husband she made some people of her village and they informed her that there are dead bodies lying in the field. She, therefore, proceeded there and found the dead body of her husband and rest of the dead bodies also. Nearby the place where the dead body of her husband was lying, there was an agricultural implement called Pavda. Then she refers to the ornaments worn by deceased Baluben and also the fact that those ornaments were missing including Kadlas article No. 60. In the course of her deposition, she refers to the fact that when she had seen the accused along with her husband and he was wearing Dhoti and an upper garment or Bundi and he had also a rug worn around his person. She is able to identify the rug at article 61. 15. In the cross-examination, she admits that she had seen the accused and the deceased from a distance and at nearby the canal also she could have seen him hardly for a minute and at that time, it had become dark and she was carrying head load of fodder. She is able to identify the rug at article 61. 15. In the cross-examination, she admits that she had seen the accused and the deceased from a distance and at nearby the canal also she could have seen him hardly for a minute and at that time, it had become dark and she was carrying head load of fodder. In spite of that she maintains that she had been able to see the younger brother of her husband as well as the accused very clearly and as a result, on the day, after the accused was brought to Gujarat, when identification parade was held, she was able to identify him. In her cross-examination it has come out that her husband had left her house on the fateful night after taking his meal. She says that at about 7.00 p.m. her husband had taken his meal and he had eaten potato and bread what would be referred to in the rural area as Rotla and he left at about 2.00 p.m. for watering the field. She admits that Kambi, which was born by deceased Baluben was subsequently found out from her house i.e. Baluben's house. 16. With regard to said FIR, she had to admit in the cross-examination that she had given those names in the FIR as suspects because of pending disputes as to the land. However, she maintains that from the next day itself, she had gathered from the general talk going on in the village that an Adivasi was involved in the incident. She denies that she had gone to the accused when she was brought to the village. She had to admit that in the FIR she has not referred to accused and deceased having been together. That is short in her deposition. 17. The next evidence required to be considered is that of Anarji Amaraji Thakor PW 2 Exh. 39 page 111. According to this witness Gandaji and the accused had met him and had inquired about the availability of eggs from him. This had led the deceased and the accused to the next witness PW 3 Exh. 40 page 113 Sabbir Usman Memon, from whom eggs and onions were purchased. 18. The net result of the aforesaid evidence, therefore is that till the time eggs and onions were purchased according to these witnesses, accused and the deceased were seen together. This had led the deceased and the accused to the next witness PW 3 Exh. 40 page 113 Sabbir Usman Memon, from whom eggs and onions were purchased. 18. The net result of the aforesaid evidence, therefore is that till the time eggs and onions were purchased according to these witnesses, accused and the deceased were seen together. The Panchnama of the scene of offence Exh.42 page 118 clearly refers to the presence of a curry containing eggs and onions lying therein a vessel in which it was cooked. This was found in the hut where four dead bodies were recovered. Nearby that vessel there was a plate containing some food articles presumably a part of the said cooked material found in the vessel. As against the prosecution case of there being a feasts in which drinking and eating was to take place, the position that emerges now is that substantial portion of cooked food was left unused and untouched and Devaji-the deceased had taken his meal at his place and that too at about 7.00 p.m. 19. The next witness to speak about the accused directly is PW 18 Exh. 80 Bikusinh Motisinh who was approached by the accused to borrow a bag. The description given by this witness of the accused is that he has covered himself completely with a rug. Its significance is that according to prosecution the Dhoti which according to Revaben, the accused was wearing when she had seen him was found at the scene of offence and so was his upper garment referred to as bush-shirt later on. This would mean that if these two garments are removed from the person of the deceased he was left with wearing only an underwear referred to in the course of evidence as "jangia" which is article 62. Thus, after he deposition of Sabbir who carries the case of the prosecution of the accused and deceased being together till about 6.30 p.m. to 7.00 p.m. straight away we get the trace of the accused from the deposition of Bikusinh Motisinh PW 18 Exh.80 early in the morning next day. In between that, about the prosecution case, as referred in the aforesaid charge, admittedly there is no material whatsoever on record. 20. The accused resurfaces in the direct evidence of the prosecution when the aforesaid PI Mr. In between that, about the prosecution case, as referred in the aforesaid charge, admittedly there is no material whatsoever on record. 20. The accused resurfaces in the direct evidence of the prosecution when the aforesaid PI Mr. Bhatia of Rajasthan Police apprehends him on 1.1.1992 in the manner described above. The prosecution case against the accused, therefore is that he was seen by the aforesaid witnesses with deceased Gandaji till about 7.00 to 7.30 p.m. on 28th December, 1991 and thereafter, he was seen alone covering himself with a rug on the next day morning i.e. on 29th December, 1991. Straightaway, thereafter, on 1st January, 1992, he was apprehended by Mr. Bhati with article 60. The importance of article 60 is that, according to the prosecution these were Kadlas worn by deceased Baluben at the time of the incident. P.W.1 Ravaben is categorical about this in her deposit in Exh. 38 and has identified them for the first time in the course of the investigation on 25.8.1992 when her third reply was recorded. When we say that it is a third reply it includes the complaint also. She has been able to identify it on several counts - that she had seen the deceased wearing it, she claims that was given to the deceased at the time of her marriage by her husband and that it had engraved on it letters in Gujarati "Ta De Va". This according to the prosecution would mean "Thakardas Devaji Vechat". The first three letters of each of these names taken as initial would read "Ta Da Va". About the existence of these three letters we have the deposition of Rajasthan PSI Mr. Bhati Exh. 134 PW 28 page 332 of the paper book as well as Panch witness from Rajasthan PW 27 Exh. 127 p.321 of the paper book. In the deposition Mr. Jain has categorically referred to the presence of those 3 letters and they are also equally recorded in the Panchnama Exh. 128 proved through Mr. Jain which is at page 327 of the paper book. 21. The net result, therefore, is that according to the aforesaid witnesses, after the accused was last seen together with deceased Gandaji on 28th December, 1991, he was seen all alone by the said witness Bikusinh early in the morning and thereafter on 1st he was apprehended and article 60 was found from his hose. 21. The net result, therefore, is that according to the aforesaid witnesses, after the accused was last seen together with deceased Gandaji on 28th December, 1991, he was seen all alone by the said witness Bikusinh early in the morning and thereafter on 1st he was apprehended and article 60 was found from his hose. Taking the prosecution case at its best, therefore, and without categorically analysing any of these evidence from the defence point of view and let us be clear that learned Counsel has many things to say about each of these evidences in its entirety and segmented individually for critical analysis, even then, what has been done by the prosecution is that the accused was seen together with deceased and thereafter he was seen alone next day and on 1st after apprehension by Rajasthan Police article 60 was recovered. 22. When the aforesaid evidence therefore, is taken at its face value as led by the prosecution before the Trial Court and the charge Exh.4 page 31 of the paper book is read along with it, what can be said to have been proved is that upto 7 o'clock or 7.30 p.m. deceased Gandaji and accused were together. The substantive part of the charge that at about 8.00 p.m. at the hut of Gandaji in the field accused, Gandaji and Devaji had gathered together and had taken drinks and in the course of which there was a quarrel as a result of which the accused had hidden himself waiting for an opportunity to wreck vengeance which he did at 12.00 midnight and thereafter, he killed Gandaji, followed by 4 further murders and in that, he severed both legs of Baluben and from that he removed article 60 Kadlas we have no evidence whatsoever. The prosecution wants the Court to accept the case of the prosecution as given in the aforesaid charge on the basis that the accused and deceased Gandaji were seen last together as discussed more than once and Article 60 was recovered from him. 23. There was considerable heat generated in the course of the hearing when said Panchnama Exh. 128 was read with regard to article 60. In that Panchnama there is no mention whatsoever of Kadlas being blood stained. In the forwarding Note Exh. 120 with regard to article 60, the Investigating Officer has specifically mentioned in the description the Kadlas being blood stained. 128 was read with regard to article 60. In that Panchnama there is no mention whatsoever of Kadlas being blood stained. In the forwarding Note Exh. 120 with regard to article 60, the Investigating Officer has specifically mentioned in the description the Kadlas being blood stained. In the forwarding note there is a reference to four specimen of seals having forwarded to the FSL for the purpose of their identification at the time of examination of each of the article. The forwarding note Exh.120 is required to be understood and read properly along with the deposition of Investigating Officer Mr. Vaghela who subsequently took over the investigation. Has deposition is at Exh.116 paper book page 264 onwards. 24. The forwarding note is silent about Rajasthan seal. It is categorically proved from the evidence of Mr. Bhati as well as evidence of Mr. Jain that Kadlas when seized, were duly packed and sealed and seal was that of Rajasthan Police more particularly described in the slip Exh. 30 as well as the Panchnama Exh. 128 and the description being the usual round circle carrying in it English letters "ASB". These letters are nothing else, but the initials of Mr. Bhati. This along with other material had prompted the learned Advocate Mr.Barot to suggest and submit with all seriousness that the parcel received from Rajasthan was opened and thereafter, Kadlas were sent to FSL. But these exercises on the part of the Investigating officer, which from his point of view might be legitimate would be totally inexplicable. However, the learned PP Mr. DK Trivedi, when faced with this situation, had taken pains to ascertain from the Investigating Officer Mr. Vaghela who remained present through out the hearing and thereafter from FSL Ahmedabad, the factual position. 25. The original file with regard to the examination of various articles was kept present in the Court yesterday and we have scrutinised the original forwarding note copy of which is at Exh. 120 and along with that forwarding note we had seen next to it as many as two sets of seals, signature and designation of Mr. Bhati of Rajasthan Police. Moreover, the slip Exh. 130 proved by Mr. Jain refers to that Kadlas only. This we are saying not only on the basis of deposition of Mr. Jain but also on the basis of slip Exh.130 itself. On top of that Mr. Bhati of Rajasthan Police. Moreover, the slip Exh. 130 proved by Mr. Jain refers to that Kadlas only. This we are saying not only on the basis of deposition of Mr. Jain but also on the basis of slip Exh.130 itself. On top of that Mr. Vaghela Exh.116 in the cross examination has also indicated that Rajasthan seal was sent by him but he is not very sure about it. Now, we are satisfied about the factual position and hence, we have no hesitation in recording that the parcel which was received from Rajasthan was sent in tact to FSL for necessary examination and analysis. 26. However, the situation with regard to the prosecution case against the accused, In spite of the industry and efforts put in by the learned Public Prosecutor Mr. Trivedi with the help of Investigating Officer Mr. Vaghela and the prompt response of FSL remains that blood stained Kadlas Art.60 were found from the possession of the accused at the time when Rajasthan Police after apprehending him in presence of Panchas had gone to his house, of course, according to the prosecution, at the intence of the accused. Again we are not critically analysing Panchnama Exh.128 whether it fulfils the requirement of discovery Panchnama under Section 27 of the Indian Evidence Act and we are taking it at its face value for the present. 27. The situation therefore, that emerges is that the prosecution wants us to hold the accused guilty of as many as six murders on the strength of the aforesaid evidence that the accused was last seen with deceased Gandaji by those witnesses and next day, he was found all alone at the house of said witness Bikusinh coupled with of course, the said discovery of Kadlas-article 60. In other words, because the accused was last seen together with deceased Gandaji and Kadlas Exh.60 were recovered from him who are found to be blood stained and containing blood similar to the group of blood that of deceased Baluben, we have to hold that the accused had committed six murders. In our opinion, this can hardly be said to be a fit case bringing out the circumstances link by link as a result of which we will be left with no alternative but to hold that the circumstances point towards the guilt of the accused and there is no other possibility at all. 28. In our opinion, this can hardly be said to be a fit case bringing out the circumstances link by link as a result of which we will be left with no alternative but to hold that the circumstances point towards the guilt of the accused and there is no other possibility at all. 28. Now, let us examine the situation that emerges from the Panchnama of the scene of offence and the post mortem notes in respect of the six dead bodies. The Panchnama of the scene of offence Exh. 42 page 118 clearly indicates that there were scuffle at two places one at the place where the dead body was found and another in the but of Gandaji. The hut has hardly the height of about 5.2" according to the description given in the Panchnama. In that hut, on a cot which is sent as parcel No. 3 to FSL, Keshiben and 2 sons of the deceased Gandaji and Baluben were asleep. These three persons were thus lying on a cot which of the height of 1' to 1- feets. The muddamal axe which according to the prosecution was recovered from the scene of offence is article 14 and that was called for from the Trial Court for the purpose of appreciating certain submissions made with regard to it. We ourselves have measured with foot-ruler the length of its ankle and the sharp edge of that weapon. The handle admeasures about 2- frets and that is what has been recorded in the Panchnama also and the edge is about 3" long. That fact is also recorded in the Panchnama. 29. The accused is fairly built and has a height of more than 5 feets. If in a house of the aforesaid description he has wielded a weapon like this, it becomes indeed very difficult for any one to wield it effectively particularly in the manner in which it must have been wielded and used when we refer to the medical evidence as to the injuries found in the four dead bodies that were in the hut. 30. The nothings of the injuries found on Devaji and Gandaji make very interesting reading. Gandaji's post mortem note is at Exh.70. By a separate sheet column No. 17 has been attached to the said post mortem notes and its copy is at page No. 218 of the paper book. 30. The nothings of the injuries found on Devaji and Gandaji make very interesting reading. Gandaji's post mortem note is at Exh.70. By a separate sheet column No. 17 has been attached to the said post mortem notes and its copy is at page No. 218 of the paper book. There are four injuries on the head of the deceased and the very first injury is of 4" x 2" bone deep. With a weapon like axe art.14, its plate having length of 4" and it being a sharp edged and very thin so far as the width is concerned, if injury is caused admeasuring 4" x 2" bone deep, it is indeed very perplexing. We agree with the submission of Mr. Barot that had it been an injury on a fleshy part of the body, there could be a possibility of its length being more than the length of the weapon used and width also could correspondingly more because, while entering the body and while pulling out the weapon, there could be some movement -leading to this distortion. On a bony place like head, distortion of this nature cannot be under- stood. Injury No. 2 has a dimension of 3½" x 0.03" and injury No. 3 has a diamention of 2'4 x ½". Injury No. 4 has a length of 9" and its width is 2.5" and is described as bone-deep. Thus rest of the injuries are also on the back so far as Gandaji is concerned. 31. Now, if we recall the details of the charge, the case of the prosecution against accused with regard to Gandaji is that he had proceeded towards the hut and Gandaji was also proceeding towards the place where sounds were heard on account of the incident relating to Devaji. The accused and deceased Gandaji met in between and the incident as to Gandaji took place. This would necessarily mean that during some part of their meeting, they would have been face to face and therefore, one would have expected some injuries on the front part of Gandaji. All the injuries are on the back of Gandaji. Not only that, but according to the Panchnama of the scene of offence the distance between the spot where Devaji's dead body was lying and the spot where Gandaji's dead body was lying is 661 feets. All the injuries are on the back of Gandaji. Not only that, but according to the Panchnama of the scene of offence the distance between the spot where Devaji's dead body was lying and the spot where Gandaji's dead body was lying is 661 feets. If at all the accused was proceeding to- wards the hut from the spot where he had done Devaji to death, one would have expected them to meet somewhere in the mid-line between the spot where Devaji was lying and the hut. In- stead, it is at a considerable distance either with reference to the hut or with reference to the spot where Devaji's body was lying. We have got the exact distance between the two spots where two dead bodies were lying. This situation would indicate that the accused was rather waiting in ambush for the deceased to appear. 32. Now, looking to the prosecution case put before the Trial Court, there was some eruption of immediate enmity between the deceased and the accused that too, while they were taking Alcoholic drinks together. In spite of that and if for this reason when accused has done Devaji to death why should he wait for Gandaji to appear and give blows on his back side occipital region and scapular region, it is difficulty to under- stand. After doing Devaji to death, the accused could have very well escaped. But. then, what was the thought process of the accused at that time we do not know and therefore, we will for the time being travel with the prosecution with regard to the remaining part of the case. After beating Gandaji to death, for no apparent reason whatsoever, the accused proceeded towards the but and killed all the four inmates who were fast asleep. 33. Now, according to the prosecution, Devaji, Gandaji and accused all the three had taken Alcoholic drinks and according to the prosecution again they were also to eat. Probably, the accused left them when eating but Gandaji must have taken some meal as indicated by the Panchnama of the scene of offence. However, except for the food particles having been found in the stomach of the deceased. Devaji, nothing has been found from the remaining 5 dead bodies. Probably, the accused left them when eating but Gandaji must have taken some meal as indicated by the Panchnama of the scene of offence. However, except for the food particles having been found in the stomach of the deceased. Devaji, nothing has been found from the remaining 5 dead bodies. From the mouth of Gandaji At least some fluids having alcoholic smell was expected, but that also is not found and food particles being absent from all the five dead bodies it means that the last meal was consumed considerable time prior to their death. 34. Then comes the aspect of removal of ornaments. These ornaments are not only article 60 which were subsequently recovered, but even Kambi and Chuni. Curiously, after 2/3 days they are found, according to the prosecution witness Revaben from the house of Gandaji and for that her second statement is recorded and with regard to recovery of Kambi and Chuni, a Panchnama is also drawn and it is Exh.27. The case, therefore, put forward by the prosecution against the accused is that after reeking his vengeance at Devaji maybe he was cold-blooded enough to calculate and put the plan in removing all possible evidence against him, he suddenly develops the intention of removing ornaments from the person of Baluben. She was not the only one who was wearing ornaments, but according to the material on record, the remaining 3 dead bodies had also one or the other ornaments. The child of 4 months old had Kambi which is worn around the wrist, the 4 years old child had ornaments worn in the ear referred to as Butti and Keshi had also some ornaments in her ears. These discrepancies are to be found in the inquest Panchnamas Exhs.13, 14 and 15. Here is an accused, therefore, who goes to the extent of cutting the legs of deceased Balu for removing Kadlas and Kambi probably till recovered, they were said to have been taken away by him and could have been removed from the body of Baluben without cutting of the upper limb and yet, he does not remove anything from the remaining three dead bodies. If a person has a murder on his head and having done to death as many as six persons and in the process has decided also to indulge into further heinousness of removing ornaments from the dead body of one of them, why should he not indulge into the said activity and thereby further gratify his pervented lust in respect of the remaining bodies is indeed inexplicable. 35. We have already referred to the mention of scuffle at 2 places in the Panchnama of the scene of incident. Scuffle in the hut indicates that whatever articles may be meagre in number, that were lying in the hut were scattered clearly indicating disturbance on account of scuffle. To except a scuffle to ensue when two children one adolescent and one adult, are asleep again is difficult to understand. The scuffle at the place where dead body of Devaji was found that too with a pavda nearby, without there being any attempt on the part of the victim to use the same is again difficult to understand. 36. The learned Public Prosecutor Mr. Trivedi had very bravely tried to make out a case that because Devaji was busy watering the field and as for that purpose he is required to tend to various channels, which would necessitate bending on his part, he would hardly be award of the presence of the accused till a blow lands on his own person. We admit of this possibility, but, in our opinion, this attempt of Mr. Trivedi will not help the prosecution. The reason is that witness Manibhai PW 17 Exh. 79 p.237 of the paper book has stated in his deposition that next day morning when he got up, he saw that water instead of going to the field where wheat crops was standing and was to be watered by Devaji, it had collected in a portion of the field where cotton crops was standing. This witness Manibhai is an important witness from the prosecution point of view as well as from defence view. 37. The field where the wheat crops was standing was, in fact, of his ownership. This witness Manibhai is an important witness from the prosecution point of view as well as from defence view. 37. The field where the wheat crops was standing was, in fact, of his ownership. He had an arrangement with Devaji with regard to the wheat crop and therefore, Devaji was to attend to the crop including the watering thereof and this was the reason why he had left his place at about 10.00 p.m. after taking his evening meal at his residence, and had come to the pump room. Devaji had gone to sleep because water was being tended by Manibhai in the remaining part of his field. At about 12.00 midnight he woke up Devaji for the purpose of watering the wheat crop and thereafter, according to the prosecution, the incident happened. Now, if the incident happened soon after Devaji was waken up in this manner by Manibhai, as rightly submitted on behalf of the defence, we would have expected this witness Manibhai either to see some- thing or at least to hear something. He does not do either of the two. The explanation given by the prosecution is that he was much too tired and on being relieved by Devaji, he promptly went to sleep and because the motor of the pump room was operating, he may not have heard anything. Assuming that the motor had run for the entire night which would be unusual in a way and therefore, he could not heard anything, if Devaji was done to death before he could actually direct the water flow into the wheat crop as indicated by said deposition of Manibhai, the incident would have happened immediately after Devaji got up from the pump room and went towards the wheat field where accused, according to the prosecution was lying in wait for Devaji. 38. Coupled with the aforesaid position, if we again recall the said description given in the Panchnama of scene of offence about the scuffle, it is not possible to understand as to how there could be a scuffle and if there was a scuffle, then said deceased Devaji who was carrying the pavda specifically for the purpose of regulating the water channel and controlling the water flow would not make use thereof and thereby cause some injury to his assailant. 39. 39. If the evidence of the witnesses sup- porting the prosecution is analysed critically, it will soon be found that there are many infirmities, if not outright probabilities. For example, we have widow Revaben coming out with a case that she had seen the accused with the younger brother of her husband on the fateful evening. If at all she had seen him, it would have been for a fleeting moment. He was apparently a stranger to her and hence, she would be talking to the younger brother of her husband and not to the accused. It is not her claim either. It may be recalled that she had gone there in the evening for collecting fodder and while passing she had some talk with deceased Gandaji. While returning again when she met him, she was carrying a head-load of fodder. It being winter-evening it had turned dark and while passing each other, if at all she had seen the accused, with the deceased Gandaji, again it would be for a very brief period. 40. Based on this, if we are to accept that she had seen the accused with the deceased, in our opinion, it would be most unsafe. No doubt, the learned Public Prosecutor has relied on the identification parade. Least said the better about the identification parade. The accused was admittedly brought in the village on the day light when the parade was held and in the evening according to witness Revaben herself, they waited for 2 hours outside the office of the Executive Magistrate and during that period quite a number of people from the village had collected. This is quite natural, because, there were as many as six deaths in the village and 2 of them were that of a child aged 4 years and another child hardly of 4 months old. Under the circumstances, the identification parade based on the aforesaid fleeting acquaintance can hardly be considered safe. 41. The early morning visit of the accused to Bikuji's house to borrow a cloth-bag and in the meantime to take a cup of tea with him would hardly be comparable to the preceding nights deed of the accused, where according to the prosecution, he has done away with as many as six lives. Under the circumstances, the accused would be eager to be away as far as possible from the scene of offence. Under the circumstances, the accused would be eager to be away as far as possible from the scene of offence. This act of the accused seems to be most unnatural. The same thing will apply to the alleged purchase of a bush shirt from a vendor at Mansa. The prosecution is relying on that witness who has participated in the identification parade with admittedly a very weak vision, if not an impaired vision. 42. The defence has relied on a Supreme Court decision reported in AIR 1981 SC 765 wherein considering the case based on circumstantial evidence, the learned Judges had pointed out that if the key circumstance is removed, what remains is tit bits. The key circumstance in the case before their lordships was the presence of the accused at the house where the incident had occurred. The incident was that of murder of a young girl after rape. The house belonged to the accused. It transpired that the accused was not present. Rest of the circumstances therefore, turned into mere tit-bits. In the case before us, we are of the opinion that the circumstances that remained are only tit-bits. The main circumstance sought to be relied on by the prosecution is that of recovery of Kadlas which we have dealt with elaborately. 43. Once the aforesaid situation is taken into consideration from the material which is on record and about which there cannot be any dispute because the Panchnama of the scene of offence is naturally heavily relied on by the prosecution as a part of its very case, and that being the physical description of the situation found on the scene in presence of the Panchas, the defence also may not be able to dispute the same except for challenging the panch witnesses as to their veracity, in our opinion, when its analysis bring about the aforesaid inexplicable circumstances, to accept the case of the prosecution that on the basis of the aforesaid direct evidence as to accused having been last seen together with Gandaji and thereafter, on the next day accused having been seen by Bikusinh and on 1st of January 1992 Kadlas having been recovered, we should hold that the accused had done the aforesaid dastardly deed of doing away with all the six persons. This too, when he had some quarrel with Devaji only and Gandaji being his brother, according to the prosecution case, when it happened in his presence, he might have sided with Devaji and the accused had some grudge against Gandaji also, but why kill the four remaining innocent deceased is anybody's guess. 44. This being the nature of the circumstantial evidence, in our opinion, it will not be possible to agree with the prosecution that the charge be carried home to the accused. 45. We have so far referred to the injury of one of the deceased namely Gandaji. Injuries to Baluben and Devaji also make an interesting reading. The injuries are on the same line as were found on the person of Devaji. Several injuries are there on the person of Baluben. Exh.66 is the post mortem note. At page 180 of the paper book we have got separate description of the injuries. Of them, six are on head and there again some discrepancies about the length and breadth are to be noticed in respect of injury No. 1 which is said to be 5" x 2" bone deep. Injury No.7 on right side of face is 4.5" x 2" and injury No. 11-an incised wound on ear is 15" x .2". The post mortem note of Devaji is at Exh.71 page 220 of the paper book. The description of injury is to be found at page 228. They are 16 in number. Injury No. 2 is 5" x 1.5" bone deep and injury No. 5 on right side upper limb is 15" x .1" muscle deep. Injury No. 13 is an incised wound on left side of chin which is 18" x.2" muscle deep. Injury No.15 is on right palm which is 18" x .2" skin deep. Looking to the aforesaid diamentions of injuries coupled with the fact that at two places there were scuffle marks and the manner in which the deceased were lying leaving no chance of resisting which would be naturally the tendency on account of the instinct of self preservation, there is a distinct probability of the incident being the result of more than one weapon used by more than one person. 46. These various circumstances, in our opinion, would be enough to hold with the defence that the evidence that has been led in respect of charge Exh. 46. These various circumstances, in our opinion, would be enough to hold with the defence that the evidence that has been led in respect of charge Exh. 4 as framed by the Trial Court will not be sufficient to complete the chain in the manner required under the criminal jurisprudence. The learned trial Judge, in our opinion, has failed to notice these various circumstances and has gone by the fact that accused was last seen in the aforesaid manner and there- after these Kadlas article 60 were recovered and therefore, he seems to be the person who has done this act and that conclusion on the basis of the material brought on record by the prosecution as discussion above, in our opinion, is not warranted and not justified at all. 47. After Bikusingh, one more witness required to be considered is Dayaram PW 14, Exh. 62 page 161. According to him, the accused is the person who had purchased a bush shirt from him about 7 days prior to the date on which the witness was brought to identify the accused by the Investigating Officer. It may be noted that the accused was brought to this witness while he was under-treatment and that too before a witness, who has not identified the accused in T.I. parade and he is speaking about purchase of a bush shirt by a person whom he may not have been except for the said purpose. If at all what he says is correct there being no opportunity for the witness to see the accused again, it will be difficult for us to accept this testimony. The defence was prompt to point out that there was no need for the accused who would be in hurry to escape after his booty to go from Vijapur to Modasa on his way to Bajda where he is residing. 48. We are, therefore, of the opinion that when it is not possible to completely discard the' evidence led by the prosecution, it can at best be said for the prosecution that they have been able to create suspicion with regard to the involvement of the accused. However, suspicion would never be enough to hold a person guilty. 48. We are, therefore, of the opinion that when it is not possible to completely discard the' evidence led by the prosecution, it can at best be said for the prosecution that they have been able to create suspicion with regard to the involvement of the accused. However, suspicion would never be enough to hold a person guilty. There being considerable room for doubt of the guilt of the accused, the benefit thereof will go to the accused and accordingly, we decide Criminal Appeal No. 485 of 1983 in favour of the accused. 49. This would not have left any reason for us to enter into the question whether confirmation, as called for because of the order of the Trial Court, is necessary. Obviously, it would not survive. However, with a view to complete our judgment, we would like to express our opinion about the confirmation, taking the judgment of the learned trial Judge as it is. We are of the firm opinion that when conviction is based on circumstantial evidence, to award capital punishment, may be even in a case where as many as six deaths are there, it would not be at all safe because the circumstances being what they are, it will indeed be a very tricky situation and relying solely on that, we do. not feel that the accused can not be held guilty in this or in any other case, though on merits we have held otherwise in the instant case. But assuming that there were circumstances indicating the guilt of the accused, it will be not at all safe to award capital punishment. The circumstances, in the instant case, have been narrated and that alone would, in our opinion, be enough, if at all there was a possibility of withholding the order of conviction to show that the sentence of death awarded by the Trial Court cannot be confirmed. 50. In view of the aforesaid circumstances, we answer the confirmation case accordingly and allow Criminal Appeal No. 485 of 1993. The accused is given benefit of doubt and is ordered to be released forthwith if not required in any other case. 51. We may, before parting with the matter, place on record our appreciation of great labour and industry put in by L.A. Mr. Budhbhati. Normally the feeling is that in assigned briefs, the Advocates do not put in that labour. 51. We may, before parting with the matter, place on record our appreciation of great labour and industry put in by L.A. Mr. Budhbhati. Normally the feeling is that in assigned briefs, the Advocates do not put in that labour. We are happy to note on record that whenever the Advocates of the Court assigned with similar work, they have shown the example of efforts and industry put by them in conducting the matters assigned to them, but in the instant case, Mr. Budhbhati has gone beyond that and but for his industry and assistance to go through the entire voluminous record, it would have been very difficult for both L.A. Mr. Barot and Mr. Budhbhati to submit on behalf of the accused and also for the learned P.P. to submit on behalf of the prosecution. We have equal full of praise for the pains taken by the learned P.P. Mr. D.K. Trivedi to bring the facts before the Court and we are happy to place on record our further appreciation with regard to the most able manner in which the case of the accused was put before us by the learned Senior Advocate Mr. Maganbhai Barot. Crl. A. No. 485/93 allowed & Conf. C. No. 1/93 dismissed.