ANIL R. DAVE, J. ( 1 ) THE facts and circumstances giving rise to Sessions Case No. 346/03 filed in the court of the learned Additional City Sessions Judge at Ahmedabad, in a nutshell, are as under: ( 2 ) KISHAN, son of Shri Velabhai Marwadi, had carried away a six years old girl, named, Gomi, on 27th February, 2003 around 6 p. m. when she was eating a gola (crushed ice with essence of syrup added thereon) and had taken her to Jivis field and thereafter he had raped her and had chopped off her legs from ankle so as to take jhanjri (a type of heavy anklets made of silver worn on ankles by women and they have been referred to as "anklets" hereinafter ). Before taking Gomi to the field of Jivi, the accused was in need of a knife because, the anklets, which the victim had put on her legs, were quite heavy and strong and were welded in such a manner that it was physically impossible to take out the anklets from her feet without either cutting off the feet or the anklets. For the purpose of having a knife, the accused had gone to a hawker, named, Dineshbhai Karsanbhai Thakore, who was selling dabeli (bun/bread containing spicy meshed potato filling) and had requested him to give his knife which was being used by him for cutting bun/bread, but as he had refused to spare his knife, the accused had swiftly stolen the knife and had gone with the victim to Jivis field, where he had raped and murdered the victim. ( 3 ) UPON the feet being cut off, the victim had died. Thereafter, the accused had covered the dead body of the victim with a shirt which he had put on and went to a shop, named, Mahavir Jewellers, belonging to Shri Premchand Shankerlal and pledged the anklets for Rs. 1000/ -. Thereafter, while he was returning to his residence, relatives and neighbours of Gomi were searching for Gomi and when somebody asked him as to where Gomi was, he replied that, possibly, Gomi might be in Jivis field. ( 4 ) THUS, according to the prosecution, the accused had committed offences punishable under the provisions of sections 363, 369, 376, 394, 302 and 201 of the Indian Penal Code and section 135 (1) of the Bombay Police Act. ( 4 ) THUS, according to the prosecution, the accused had committed offences punishable under the provisions of sections 363, 369, 376, 394, 302 and 201 of the Indian Penal Code and section 135 (1) of the Bombay Police Act. ( 5 ) A complaint to the above effect had been filed at Navrangpura Police Station, Ahmedabad. After investigation, the accused had been chargesheeted and as the Metropolitan Magistrate, Ahmedabad was not having jurisdiction to conduct the case, under sec. 209 of the Criminal Procedure Code, the case was committed to the Sessions Court for trial. On 8th March, 2004, the charge was framed (Exh. 1) which was read over to the accused. He pleaded not guilty to the charges levelled. ( 6 ) IN the course of the trial, in all, 14 witnesses were examined by the prosecution and several documents were exhibited at the instance of the prosecution. No witness was examined on behalf of the accused for his defence. ( 7 ) AFTER the prosecution witnesses had been examined, the accused neither pleaded guilty, nor gave any explanation with regard to the offences alleged to have been committed by him when he was called upon to make his statement under sec. 313 of the Cr. P. C. He had only submitted that he had not committed any offence. ( 8 ) THE trial court, after considering the evidence, which had been adduced before it, came to the conclusion that the prosecution had proved its case beyond reasonable doubt and, therefore, held the accused guilty of the charges levelled against him and sentenced him to death. For confirmation of the said punishment, the proceedings have been submitted to this court as Confirmation Case No. 7 of 2004, whereas, the accused, being aggrieved by the judgment and order, has filed Criminal Appeal No. 1549 of 2004. Both, the Confirmation Case as well as the Appeal, have been heard together and are decided by this common judgment. ( 9 ) ACCORDING to the trial court, though there was no eye witness to the incident, the entire chain of events leading to the guilt of the accused had been duly established by the prosecution and, therefore, the prosecution had successfully proved its case beyond reasonable doubt. It came to the said conclusion in the light of the following evidence. It came to the said conclusion in the light of the following evidence. ( 10 ) ACCORDING to the evidence, Naranbhai (P. W. No. 5) had seen the accused and the victim together on 27th February, 2003 around 6 p. m. He has stated that on 27. 2. 2003 around 6 p. m. , when he was sitting outside his residence, he had seen Gomi eating a gola and at that time the accused had come near her and thereafter he had carried her and then he had gone towards Polytechnic. According to him, the accused had put on a white shirt with stripes and blue trousers. As Gomi could not be found till 7 p. m. , her family members and others had tried to find her out and at that time he had told Badhabhai (PW No. 2), uncle of Gomi, that he had seen the accused taking away Gomi. When efforts were being made to find out Gomi, the accused was seen coming to that place and thereupon he was asked as to where Gomi was. The accused had said that he had not taken away Gomi, but she might be at Jivis field. Thereafter, the police had arrived and the police had taken away the accused. Thereafter, Badhabhai and others had gone to Jivis field, where they had found the dead body of Gomi. Naranbhai (PW No. 5) had identified the accused and had also identified the shirt and trousers which the accused had put on on the fateful day. Thus, this witness had seen the accused taking away Gomi. ( 11 ) ANOTHER prosecution witness, who has been relied upon by the trial court, is Dineshbhai Thakore (P. W. No. 6, Exh. 26 ). He is a person selling dabeli near the entrance of Polytechnic. He has stated that he used to do his business of selling dabeli in front of Polytechnic from 8 am to 7 pm. According to him, on 27th February, 2003 around 6 p. m. , the accused had come to his "lari" (a sort of cart used by hawkers) and therefore he knew him. He has deposed that dabeli had been purchased by the accused and thereafter he had asked for his knife. According to him, on 27th February, 2003 around 6 p. m. , the accused had come to his "lari" (a sort of cart used by hawkers) and therefore he knew him. He has deposed that dabeli had been purchased by the accused and thereafter he had asked for his knife. He did not give his knife to the accused as he required the same because there were many customers around his lari at that time, but when he was attending to his business, the accused had swiftly stolen away his knife. He has stated that the accused was carrying a girl aged about seven years, who was wearing a red frock. Dineshbhai Thakore (PW No. 6) has identified his knife and also the clothes of the accused as well as the frock of the victim. He has also identified the accused in the Court. ( 12 ) AN inquest panchnama was drawn and postmortem was also performed on the dead body of the victim. Several injuries were found on the dead body. More important and relevant injuries were on the skull of the dead body, which had been caused with a brick and the said injuries were such that they could have caused her death. Apart from that, the feet of the victim had been amputated from the ankles and the feet were lying near the dead body. Upon perusal of the postmortem report, it was found by the trial court that severe injuries had been caused on the vagina, which could have resulted on account of rape. It is pertinent to note that the victim was hardly six years old, whereas the accused was aged about 19 years. ( 13 ) DR. Soumil Merchant (P. W. No. 8, Exh. 28), the doctor who had performed postmortem of the dead body, had found the following external injuries on the dead body:" (1) Contuse lacerated wound, reddish, size 6. 5 x 2. 5 cm. X bone deep present on mid of forehead-placed- obliquely. (2) Contuse lacerated wound, reddish size, 2 cm x 1 cm x bone deep present on inner end of left eyebrow. (3) Cut mark with sharp edge present on left pinna at the junction of upper 1/3 and lower 2/3 level, size 0. 8 cm x 0. 2 cm x subcutaneous tissue deep. (4) Scratch abrasion present, reddish colour, varying in size from 1. 5x0. (3) Cut mark with sharp edge present on left pinna at the junction of upper 1/3 and lower 2/3 level, size 0. 8 cm x 0. 2 cm x subcutaneous tissue deep. (4) Scratch abrasion present, reddish colour, varying in size from 1. 5x0. 2 cm, to 1. 5x0. 5 at following areas: Back-at shoulder mid of left scapula, right abdomen and between the anterior and posterior axillary plane. (5) Bruise abrasion present on the knees and thighs, size 4. 5x5 cm each, reddish. (6) Incise wound present on just above the left ear going obliquely, size 5 cm x subcutaneous tissue deep. (7) Both legs are transected just above ankle with reflexed skin on either side, margin are sharply cut edges of the skin are red contuse. All tissues coming in place of transection which is above horizontal and are sharply cut divided including bone, retracted ends of cut vessels very well seen. " ( 14 ) WHEREAS, upon examination of the external portion of the genitals of the body, he had found the following injuries:" (1) Dry blood present over the labia laceration of subcutaneous tissues deep type present on left margin of vaginal opening just above posterior commission. (2) Hymen is found ruptured at 3 and 6 Oclock without vital reaction. This injuries are postmortem in nature. "the postmortem notes (Exh. 29) have been proved by Dr. Merchant. ( 15 ) DR. Merchant (P. W. No. 8)in his examination-in-chief has stated that the injury caused to the victim, which has been referred to at Sl. No. 7, could have been caused with the knife (Muddamal Article No. 19), which had been discovered at the instance of the accused. ( 16 ) AN inquest panchnama (Exh. 14) of the dead body was made wherein it was recorded that the victim was raped and with help of a sharp weapon, her both legs were amputated from ankle and her silver anklets were stolen by someone. It was also recorded in the inquest panchnama that the deceased was given blows on her forehead as well as near her left ear with a stone and the dead body was covered with a white full-sleeved shirt. It was also recorded in the inquest panchnama that the deceased was given blows on her forehead as well as near her left ear with a stone and the dead body was covered with a white full-sleeved shirt. ( 17 ) MAINLY in view of the aforesaid evidence adduced before the trial court and in view of discovery of the knife, and as the accused and the victim were last seen together, the trial court was of the view that the prosecution had established its case against the accused beyond reasonable doubt and, therefore, the accused has been convicted and has been awarded death sentence, subject to confirmation by this court. ( 18 ) THIS court is not only concerned with the confirmation of the death sentence awarded by the trial court, but is also concerned with the appeal, which has been filed by the accused against the order of conviction. Learned advocate Shri B. S. Supehia has appeared for the accused-convict, whereas learned APP Shri Sudhansu Patel has appeared for the prosecution. ( 19 ) LOOKING to the facts and circumstances of the case, this court was of the view that it would be much better if assistance of another advocate is taken. Therefore, learned advocate Shri Nitin Amin, at the instance of both the learned advocates appearing in the matter, was requested to render assistance to this court as an amicus curiae. Learned advocate Shri Amin has willingly offered his services as an amicus curiae to this court and we would like to record our appreciation for the assistance rendered by learned advocate Shri Amin. ( 20 ) LEARNED advocate Shri Supehia appearing for the accused has submitted that the accused has been charged with the offences of rape and murder though he has not committed the said offences. According to him, the accused is absolutely innocent and, therefore, he deserves to be acquitted of the charges levelled against him. It has been submitted by him that the prosecution has not proved its case beyond reasonable doubt and the trial court has not appreciated the evidence adduced before it in a proper manner and as a result thereof, the accused has been convicted and sentenced to death. It has been submitted by him that the prosecution has not proved its case beyond reasonable doubt and the trial court has not appreciated the evidence adduced before it in a proper manner and as a result thereof, the accused has been convicted and sentenced to death. ( 21 ) SO as to substantiate his arguments, he has submitted that there are many factors which have not been duly considered or appreciated by the trial court while coming to the conclusion that the accused is guilty of the offences charged against him. ( 22 ) IT has been submitted by him that it is a well-known fact that golas are relished by children only during summer and not in the winter. He has drawn our attention to the fact that the fateful event had taken place on 27. 2. 2003. In the month of February, due to cold, hardly anybody would eat gola, and even according to the evidence of Naranbhai (P. W. No. 5, Exh. 23) as recorded in his cross-examination, there was only one lari, where golas were being sold in the vicinity of the residence of the victim and the golawala used to sell golas only during summer. As per submission of the learned advocate, in fact, there was no golawala and the victim had not at all been carried away by the accused. If, in fact, the golawala had been there, the prosecution would have examined him, but as he was not there at all, he has not been examined by the prosecution. ( 23 ) IT has been also submitted by him that Dineshbhai Thakore (P. W. No. 6, Exh. 26), from whom dabeli was purchased by the accused, when he was carrying the victim, could not have remembered or identified the accused even if, in fact, dabeli had been purchased by the accused from him, for the reason that at the time when dabeli was alleged to have been purchased by the accused, there were several customers around him. Even according to the said witness, there was heavy rush around his lari, and if at that time the accused had swiftly stolen away his knife, he could not have known as to who had stolen the knife. No test identification parade had been carried out and therefore Dineshbhai Thakore (PW No. 6) should not have been relied upon. Even according to the said witness, there was heavy rush around his lari, and if at that time the accused had swiftly stolen away his knife, he could not have known as to who had stolen the knife. No test identification parade had been carried out and therefore Dineshbhai Thakore (PW No. 6) should not have been relied upon. ( 24 ) HE has further submitted that for the purpose of taking out the anklets, it might not have been necessary for the accused to chop off the legs of the victim from ankle because the anklets could have been easily broken or taken off the hook by unlocking the hook and he has further submitted that with an ordinary knife, which was being used for cutting bun/bread by Dineshbhaih Thakore, it would not have been possible for the accused to cut the feet from the ankle of the victim. ( 25 ) HE has also drawn our attention to the postmortem report, which reveals that all injuries on the genitals of the victim were postmortem injuries and, therefore, it cannot be said that the accused had raped the victim. Moreover, he has submitted that no semen was found on the body of the deceased and, therefore also, it cannot be said that the victim had been raped by the accused. The injuries on the genitals of the deceased could be for any other reason but it could not have been on account of rape, as alleged by the prosecution. ( 26 ) THE learned advocate has then submitted that in pursuance of a question as to where Gomi was, the accused had stated that, possibly, she might be at the field of Jivi. According to him, Jivis field was being used by poor residents of the vicinity for answering call of nature and as he was asked whether he had seen Gomi, he thought that being evening time, possibly, Gomi might have gone to answer the call of nature at Jivis field. In fact, a suggestion was made by Badhabhai (PW No. 2) and Naranbhai (PW No. 5) in their cross-examination to the effect that Jivis field was being used by poor residents of the vicinity for answering the call of nature. This would not mean that the accused had raped and murdered the victim and had kept the dead body at Jivis field. This would not mean that the accused had raped and murdered the victim and had kept the dead body at Jivis field. ( 27 ) MOREOVER, he has submitted that the area, where the dead body was found, was in fact visited by several residents of that locality for answering the call of nature and, therefore, it would not have been possible for the accused to commit rape and murder of the victim and amputate her legs at the place where the dead body was found. For commission of the offences alleged against him, the accused ought to have remained there at least for an hour or so, and during that period, he ought to have been noticed by someone visiting the place for answering the call of nature, but as nobody had seen him there, according to the learned advocate, the entire story has been cooked up by the prosecution to involve the accused simply because he had told about the possibility of the victim being at Jivis field. ( 28 ) HE has further submitted that if the accused had in fact committed rape and murder and had taken out the anklets after cutting legs of the victim, his clothes ought to have been stained with blood of the victim, but there was no blood of the victim on the clothes of the accused and, therefore, the case of the prosecution ought not to have been believed by the trial court. He has however submitted that the accused was beaten by some persons as it was believed that the accused had kidnapped the victim and thereafter he had started bleeding. He had also filed a complaint (Exh. 44) about the injuries caused to him and, therefore, the blood found on the clothes of the accused was his own blood. ( 29 ) HE has further submitted that upon being arrested on the charge of rape, the accused ought to have been sent for medical examination. In fact, the accused had been sent for medical examination, but the report given by the medical officer has not been adduced as an evidence before the trial court. He has, therefore, submitted that, possibly, the medical evidence might not have been favourable to the prosecution, and by withholding such an important evidence, the prosecution wanted to misguide the trial court. He has, therefore, submitted that, possibly, the medical evidence might not have been favourable to the prosecution, and by withholding such an important evidence, the prosecution wanted to misguide the trial court. ( 30 ) HE has thereafter submitted that no semen was found on the body of the victim or the accused and, therefore, the accused could not have been held guilty of committing rape and more particularly when all injuries on the vagina of the victim were postmortem injuries. ( 31 ) IT has been further submitted that Shri Premchand, who has not been examined as a witness at all, had approached the Investigating Officer with the anklets by stating that when he learnt from the newspaper reports that a girl had been raped and murdered and her anklets were taken away, he thought that the anklets, which had been pledged with him by someone, might be the anklets taken from the dead body of the victim. In the police station the anklets were handed over to the I. O. on 1st March, 2003 in presence of two panchas. One of the panch witnesses has submitted that Shri Premchand had identified the accused as the person who had pledged the anklets with him for Rs. 1,000/ -. Under Exh. 39, a panchnama had been drawn when Shri Premchand had handed over the anklets to the I. O. It has been submitted by learned advocate Shri Supehia that the story with regard to recovery of the anklets cannot be believed as Shri Premchand, a material witness, has not been examined. ( 32 ) HE has further submitted that at the time when the dead body was sent for postmortem, a green bloodstained dupatta was found on the dead body as observed in the postmortem report. The postmortem report was made on 28. 2. 2003 at 8. 30 a. m. According to him, this fact reveals that someone else was also present at the place of offence and in that event it cannot be said conclusively that the accused was the only person at the scene of offence and he had raped and murdered the victim. The postmortem report was made on 28. 2. 2003 at 8. 30 a. m. According to him, this fact reveals that someone else was also present at the place of offence and in that event it cannot be said conclusively that the accused was the only person at the scene of offence and he had raped and murdered the victim. According to him, possibility of someone else being there would raise a doubt about someone else having committed the offence and, therefore, if there is such a possibility, the benefit of doubt must be given to the accused and, therefore, the trial court ought not to have held the accused guilty of the charges levelled against him. ( 33 ) ACCORDING to the learned advocate, complainant Badhabhai (P. W. No. 2) has stated that the accused had put on a white shirt and he had identified the shirt covering dead body of the victim as a shirt which was put on by the accused before the offence was committed. In fact, he had never seen the accused with the said shirt which was on the dead body of the victim because, Badhabhai, when asked as to how he knew that the accused had put on the said white shirt, he had stated that he was told the said fact by his father, Naranbhai (PW No. 5 ). Thus, according to learned advocate Shri Supehia, as the said witness had not seen the shirt earlier, his evidence should not have been relied upon by the trial court. ( 34 ) WITH regard to deposition of Naranbhai (P. W. No. 5), it has been submitted that he was about 66 years old at the relevant time and he had seen the accused from a distant place and yet he has stated that the white shirt which the accused had put on had stripes and the learned advocate has submitted that the stripes were so light that a person aged about 66 years could not have noticed such stripes from a distance. He has, therefore, submitted that the evidence of Naranbhai is also not trustworthy. ( 35 ) IN addition to dealing with the above oral evidence, it has been submitted by him that the burden of establishing guilt of the accused lies on the prosecution and the burden must be discharged by the prosecution. He has, therefore, submitted that the evidence of Naranbhai is also not trustworthy. ( 35 ) IN addition to dealing with the above oral evidence, it has been submitted by him that the burden of establishing guilt of the accused lies on the prosecution and the burden must be discharged by the prosecution. According to him, in the instant case, as there is no eye witness, the chain of evidence leading to the guilt of the accused ought to have been completely established by the prosecution, but as the prosecution has not established the same, the trial court ought not to have held the accused guilty of the charged levelled against him. ( 36 ) HE has further submitted that as per the case of the prosecution, the accused was seen by Naranbhai (PW No. 5) around 6 p. m. when the victim was eating gola. Thereafter, the accused had gone towards the entrance of Polytechnic alongwith the victim and had purchased dabeli. After purchase of dabeli, the accused had also stolen a knife and had taken the victim to the field of Jivi. Then the accused had raped the victim and had cut her legs and had taken out her silver anklets, which had been pledged with Shri Premchand and thereafter, possibly, after getting a new shirt from somewhere, had gone to the area where he was staying and at that time he was found by the relatives of the victim, who were searching for the victim. The time when the accused was found after commission of the offence was around 8 p. m. It is his case that within such a short span of about 2 hrs. or so, it is physically impossible to move at different places with a young girl and to commit the alleged offences and to pledge the anklets with Shri Premchand. He has, therefore, submitted that the allegations are absolutely baseless and the order of conviction is not justifiable. ( 37 ) HE has lastly submitted that in the instant case, the FIR had been filed after investigation had commenced and, therefore, the FIR loses its value. ( 38 ) SO as to substantiate his arguments, the learned advocate has relied upon the following judgments: 1. Rahim Beg Vs State of UP, AIR 1973 SC 343 2. Ram Kala Vs Emperor, AIR (33) 1946 Allahabad 191 3. ( 38 ) SO as to substantiate his arguments, the learned advocate has relied upon the following judgments: 1. Rahim Beg Vs State of UP, AIR 1973 SC 343 2. Ram Kala Vs Emperor, AIR (33) 1946 Allahabad 191 3. Subhash Chand Vs State of Rajasthan, JT 2001 (8) sc 505 4. State of Gujarat Vs Mahmad @ Munno Usmanbhai Chauhan, 1996 (2) GLR 821 5. Karnesh Kurmar Singh and ors Vs State of UP, AIR 1968 SC 1402 6. Pohalya Motya Valvi Vs State of Maharashtra, AIR 1979 sc 1949 7. Punabhai Jitabhai Baria Vs State of Gujarat, 1998 Cr. L. J. 4421 8. L/nk Mehraj Singh Vs State of UP, 1994 Cr. L. R (SC) 455 9. Mohd. Chaman Vs State (NCT of Delhi), 2001 (2) SCC 28 10. Raju Vs. State of Haryana, 2001 (9) SCC 50 ( 39 ) ON the other hand, learned APP Shri Sudhansu Patel has vehemently argued in favour of the prosecution and has tried to support the reasons given by the trial court for conviction of the accused. He has submitted that the chain of events has been completely established to prove the guilt of the accused by the prosecution beyond any reasonable doubt. As discussed in the judgment, the findings arrived at by the trial court, after appreciation of evidence, are correct and, therefore, there is no reason to disturb the same. He has submitted that the accused was last seen together with the victim by Naranbhai (P. W. No. 5) and Dineshbhai Thakore (P. W. No. 6), who had sold dabeli to the accused, and had identified the accused. Therefore, the prosecution has discharged its burden to show that the victim and the accused were last seen together immediately before the offence had been committed. ( 40 ) HE has also submitted that the accused was having knowledge about the victims body lying in Jivis field and, therefore, upon being asked, where Gomi was, he had told that she was at Jivis field. ( 41 ) MOREOVER, the accused had tried to hide the body of the victim by covering it with his shirt and as his shirt was duly identified by Naranbhai (PW No. 5) and Dineshbhai (PW No. 6), an important link in the chain of the events has been established. ( 41 ) MOREOVER, the accused had tried to hide the body of the victim by covering it with his shirt and as his shirt was duly identified by Naranbhai (PW No. 5) and Dineshbhai (PW No. 6), an important link in the chain of the events has been established. ( 42 ) ACCORDING to him, blood stained clothes of the accused also established that he had committed the offence. Blood group of the deceased was B+ve and blood found on the clothes of the accused, as per the report of FSL, also belonged to the said group. ( 43 ) HE has also added that Rs. 940/- were found from the accused when he was arrested and, according to him, the accused had pledged the anklets with Premchand and had got Rs. 1,000/- from him. This fact establishes that the anklets were taken by the accused and he had pledged the same with Premchand. ( 44 ) HE has also stressed the fact that, at the instance of the accused, blood stained knife used in the offence had been discovered. As Dineshbhai Thakore (PW No. 6) and Premchand had also identified the accused, according to the learned APP, a case has been successfully made out against the accused by the prosecution and, therefore, the appeal filed by the accused should be dismissed, and looking to the heinous nature of the crime committed by the accused, death sentence should be awarded to the accused. He has further added that the way in which the accused had raped and murdered a young girl aged 6 years and had amputated her legs for anklets worth about Rs. 1,000/-, and the case being the rarest of rare, so as to set an example, deterrent punishment is required to be imposed and in that view of the matter, the trial court has rightly awarded death sentence to the accused. He has submitted that the accused has shown the height of cruelty and perversity by chopping off legs of the the victim and by committing rape on the dead body of the girl and, therefore, he does not deserve any sympathy from this court. ( 45 ) THE learned APP has relied upon the following judgments to substantiate his case. 1. Dhananjoy Chatterjee Vs State of W. B. , 1994 (1) Crimes 319 2. ( 45 ) THE learned APP has relied upon the following judgments to substantiate his case. 1. Dhananjoy Chatterjee Vs State of W. B. , 1994 (1) Crimes 319 2. Kamta Tiwari Vs Stte of M. P. , 1996 SCC Cri 1298 3. State of Rajasthan Vs. Kheraj Ram, 2003 SCC (Cri) 1979 4. Babu S/o Raveendran Vs. baby S/o Bahuleyan and Anr, 2003 SCC (Cri) 1569 5. State of UP Vs Satish, (2005) 3 SCC 114 6. Golokonda Venkateswara Rao Vs State of AP, AIR 2003 SC 2846 7. Amit alias Ammu Vs. State of Maharashtra, AIR 2003 SC 3131 8. Vinugiri Motigiri Vs. State of Gujarat, 2002 (1) GLH 176 9. State of Karnataka Vs. David Razario and Anr, AIR 2002 SC 3272 10. Sheikh Zakir Vs. State of Bihar, AIR 1983 SC 911 . ( 46 ) LEARNED advocate Shri Nitin Amin, amicus curiae, has submitted that he is of the humble view that the prosecution has not established its case against the accused beyond reasonable doubt. He has pointed out several lacunae in the investigation and has also submitted that the prosecution has withheld certain things which would have indicated that the accused might not have committed the offence alleged against him. The learned advocate has submitted that, leave alone the punishment of death sentence, this is not a case where even the conviction can be upheld. ( 47 ) AS stated hereinabove, he has made an effort to make out a case for acquittal of the accused not only for the reasons stated by learned advocate Shri Supehia, but also for some additional reasons, which, according to him, would go to show that the accused cannot be convicted. ( 48 ) LEARNED advocate Shri Amin has referred to the evidence of complainant Badhabhai (PW No. 2), who has stated that on the fateful day around 6 p. m. , it was known that Gomi was missing and, therefore, inquiries were made by her family members and others. Thereupon, it was known from Naranbhai (PW No. 5) that Gomi was with the accused and she was eating gola. When search was going on, around 7 or 8 p. m. , the accused was seen when he was coming from police chowky side and upon being asked, the accused had said that he had left Gomi near the field of Jivi. When search was going on, around 7 or 8 p. m. , the accused was seen when he was coming from police chowky side and upon being asked, the accused had said that he had left Gomi near the field of Jivi. Thereupon, alongwith others, he had proceeded towards the field of Jivi, where the dead body of the victim was found. Upon finding the dead body, he had gone to police station and thus police was called at that place. Similarly, Naranbhai (PW No. 5)has stated in his deposition that at the time when inquiries were being made, the police had arrived and the police had taken away the accused. Thus, from the deposition of the aforesaid two witnesses, it is clear that the accused was in police custody since 9 or 10 p. m. on 27. 2. 2003. The incident came to the knowledge of people at large at that time as the dead body was seen by all and the accused was in custody of the police since 9 or 10 p. m. and yet the accused had been shown as arrested at 6. 40 a. m. on 28. 2. 2003. According to him, the police had illegally detained the accused from 9 p. m. on 27. 2. 2003 to 6. 40 a. m. on 28. 2. 2003. According to him, this illegal detention of the accused was with some oblique motive. ( 49 ) IT has been submitted by the learned advocate that in the inquest panchnama the fact with regard to amputation of legs of the victim from ankles has been narrated and it has also been stated that the silver anklets put on by her were missing. The said inquest panchnama was drawn at 00. 30 hrs. on 28. 2. 2003 though the FIR was filed by the complainant Badhabhai (PW No. 2) around 3. 05 a. m. on 28. 2. 2003. He has submitted that if the FIR had been filed around 3 a. m. on 28. 2. 2003, it was strange as to how, while drawing the inquest panchnama, the panchas recorded the fact that after amputation of the legs of the victim, her silver anklets had been taken away by someone. The panchas could not have recorded as to what was not in existence or something ought to have been there but was not there as it was stolen. The panchas could not have recorded as to what was not in existence or something ought to have been there but was not there as it was stolen. According to the learned advocate, this fact clearly shows that before the inquest panchnama was drawn, the panchas and the concerned police officer, who was present at that time, were aware of certain facts which could have been included only in the FIR. This generates a serious doubt about the manner in which the investigation was made. ( 50 ) IT has been further submitted by him that from the deposition of the investigating officer, Shri Ranchodji Chauhan (PW No. 14), it is clear that the accused had been sent for medical examination as he was alleged to have committed rape. Though he was sent for medical examination, the report given by the medical officer was not placed on record. This shows a serious lacuna in investigation because, in a case where the accused is alleged to have committed rape and he has been examined by a medical officer, the medical report must be placed on record. ( 51 ) IT has been thereafter submitted by him that goldsmith Premchand, from whom the silver anklets were recovered, was not examined at all. One of the panchas, Jagdish Marwari (PW No. 11), has stated that Premchand had come to police station to hand over silver anklets on 1st March, 2003, and he had identified the accused on that day as the accused was in the police custody. If the anklets had been pledged by the accused with Premchand for Rs. 1,000/-, and if Premchand had identified the accused while handing over the anklets to the police authorities, the prosecution ought to have examined Premchand so as to establish the identity of the accused and to identify the anklets which had been delivered to him by the accused. By not doing so, a very important evidence with regard to identification of the accused as well as the anklets has been withheld. ( 52 ) THE learned advocate has further submitted that no explanation has been offered with regard to existence of a green bloodstained duppatta, which was found by the medical officer during postmortem and which has been also recorded in the postmortem report. ( 52 ) THE learned advocate has further submitted that no explanation has been offered with regard to existence of a green bloodstained duppatta, which was found by the medical officer during postmortem and which has been also recorded in the postmortem report. Existence of a bloodstained duppatta, according to him, indicates that someone else must also be present at the scene of offence because, the duppatta has not been referred to anywhere by any of the witnesses, who had either seen Gomi or the accused. The deceased had put on a frock and panties, whereas the accused had put on a shirt/t-shirt and trousers. If neither the victim, nor the accused, had a green duppatta, a question arises as to how the green bloodstained duppatta was found on the dead body of the victim. This indicates presence of a third person and, therefore, it cannot be said emphatically that the accused is the only person, who could have committed the offences alleged against him. ( 53 ) HE has further submitted that statement of Dineshbhai Thakore (PW No. 6) was recorded after 4 days. No explanation is coming forward as to why his statement was recorded so late, which is fatal to the case of the prosecution. ( 54 ) HE has thereafter submitted that from the bloodstains, which were found on the clothes of the accused, it was found that the said blood belonged to B+ve group. It was the case of the accused that he was beaten by people and due to the injuries inflicted on his body, he had started bleeding. He had also given a complaint to that effect (Exh. 44 ). The blood group of the deceased victim was also B+ve. Looking to the said fact, it cannot be said that the blood found on the clothes of the accused was that of the victim. Due to the said reason, it cannot be emphatically said that the victim was raped and murdered by the accused. ( 55 ) HE has further submitted that the complainant, Badhabhai (PW No. 2) had stated that he was informed by one Kalabhai Ganeshbhai that Kalabhai Ganeshbhai had seen the accused going with Gomi. This statement made by Badhabhai (PW No. 2) is not an evidence, but it is only a hearsay. ( 55 ) HE has further submitted that the complainant, Badhabhai (PW No. 2) had stated that he was informed by one Kalabhai Ganeshbhai that Kalabhai Ganeshbhai had seen the accused going with Gomi. This statement made by Badhabhai (PW No. 2) is not an evidence, but it is only a hearsay. In such an event, Kalabhai Ganeshbhai ought to have been examined by the prosecution so as to establish that, in fact, the accused was seen with the victim. For the reasons best known to the prosecution, Kalabhai Ganeshbhai was not examined on the pretext that he was not found at his residence, though it is a fact that Kalabhai Ganeshbhai was residing in the adjoining quarters and he was a government servant. ( 56 ) HE has further submitted that when the accused was arrested, there were several injuries on his body as revealed from the arrest panchnama, but those injuries have not been explained by the prosecution. ( 57 ) HE has thereafter submitted that the knife, which had been discovered in pursuance of a statement made by the accused, did bear bloodstains but the knife was found from a place which was accessible to anyone. This fact raises some doubt whether the same knife was used for amputation of the legs of the victim. ( 58 ) THE learned advocate has put much stress on his argument that the FIR was filed much after the inquest panchnama had been drawn. In the circumstances, according to him, the FIR lost its significance because, certain facts were very much known to the complainant/prosecution at the time when the FIR was filed as the inquest panchnama had been drawn much earlier. ( 59 ) FOR the aforesaid reasons, learned advocate Shri Amin has submitted that this is a case where the accused could not have been held guilty of the charges levelled against him. In fact, the accused is required to be acquitted of the charges levelled against him as the prosecution has not been able to prove the charges beyond reasonable doubt. In support of his submissions, he has relied upon the following judgments delivered by the Honble Supreme Court: 1. Balaka Singh and Ors Vs. State of Punjab, AIR 1975 SC 1962 2. Kishore Chand Vs. State of Him. Pradesh, AIR 1990 SC 2140 3. State of Tamil Nadu Vs Sundar, 2005 SCC Cri 844 4. In support of his submissions, he has relied upon the following judgments delivered by the Honble Supreme Court: 1. Balaka Singh and Ors Vs. State of Punjab, AIR 1975 SC 1962 2. Kishore Chand Vs. State of Him. Pradesh, AIR 1990 SC 2140 3. State of Tamil Nadu Vs Sundar, 2005 SCC Cri 844 4. Somabhai Vs State of Gujarat, 1975 SCC Cri 515 5. Bachhu Narain Singh Vs Naresh Yadav and Ors, 2005 SCC Cri 805 ( 60 ) WE have heard the learned advocates at length and have carefully gone through the evidence adduced before the trial court. Upon carefully going through the evidence which had been adduced, in our opinion, it cannot be said that the prosecution has proved its case against the accused beyond reasonable doubt. Not only we find several lacunae in investigation, but we feel that benefit of doubt will have to be given to the accused for the reason that, in absence of any eye witness, the entire chain of events sought to be completed by the prosecution has not been completely established and, therefore, in our opinion, for the reasons stated hereinbelow, the appeal deserves to be allowed and the accused deserves to be acquitted of the charges levelled against him. ( 61 ) AS we have already narrated the case of the prosecution, we need not repeat what has been alleged to have been done by the accused. ( 62 ) THE fateful incident must have taken place on 27. 2. 2003 around 7 p. m. It appears from the deposition that around that time, family members and other neighbours of the victim had started looking for Gomi. It was known to them that she had gone somewhere with the accused because Naranbhai (PW No. 5) had last seen her with the accused. Around 8 p. m. when the accused was coming back to his residence, he was asked as to where Gomi was, and when he told that, possibly, she might be in the field of Jivi. Thereupon, some persons had gone to that field and there they found the dead body of the victim. Around 8 p. m. when the accused was coming back to his residence, he was asked as to where Gomi was, and when he told that, possibly, she might be in the field of Jivi. Thereupon, some persons had gone to that field and there they found the dead body of the victim. Complainant Badhabhai (PW No. 2) and Naranbhai (PW No. 5) have stated the above facts and they have also stated that immediately thereafter the police came, the accused was taken to police station around 9 p. m. The facts with regard to the incident were also known immediately after 8 p. m. when the accused was found going to his residence. ( 63 ) THE above facts denote that though it was known to the police and the relatives of the victim around 8 p. m. that Gomi had been killed and her dead body was in the field of Jivi, no complaint was filed and yet the accused was taken to police custody in an informal manner. It is a strange thing that the inquest panchnama was drawn at 00. 30 hrs. on 28. 2. 2003, but the F. I. R. had been filed subsequently around 3. 05 a. m. and the accused was informally in police custody since 9 p. m. of 27. 2. 2003. ( 64 ) THE aforesaid facts appear to be quite strange because, in normal circumstances, a First Information Report ought to have been filed with the police either with regard to missing of the victim or death of the victim first in point of time, and thereafter the inquest panchnama should have been drawn. It is worth noting here that though Badhabhai (PW No. 2) had called police upon knowing the incident and in fact PSI Naranbhai Desai (PW No 13) had left his police station on 27. 2. 2003, he did not make any entry in the police station diary or record FIR from Badhabhai (PW No. 2 ). ( 65 ) THE above facts reveal that all facts which were known at the time of drawing the inquest panchnama were very much within the knowledge of the complainant and, therefore, the details given in the complaint were based more on the facts revealed from the inquest panchnama rather than what was within the knowledge of the complainant before the inquest panchnama had been drawn. We fail to understand as to why the complaint was recorded so late though around 9 p. m. on 27. 2. 2003, all knew about the incident. ( 66 ) THERE is yet another fact which is worth noting. From the evidence, which has been adduced by complainant Badhabhai (PW No. 2) and Naranbhai (PW No. 5), the accused was taken away by police in an informal manner (without arrest) around 9 p. m. on 27. 2. 2003 and yet the accused has been shown as arrested around 6. 40 a. m. on 28. 2. 2003. Drawing of arrest panchnama had commenced at 5. 40 a. m. on 28. 2. 2003, and it was concluded at 6. 40 a. m. Thus, the accused was arrested at 6. 40 a. m. on 28. 2. 2003, though the accused was in police custody since 9 p. m. on 27. 2. 2003. No explanation with regard to this informal custody of the accused in the police station has been given by the prosecution. Even if one looks at the cross-examination of Naranbhai Desai (PW No. 13), the Police Sub-Inspector, who had commenced investigation of the offence, it is very clear that when the complainant Badhabhai (PW No. 2) had contacted him with details about the offence, he had not made any note in the station diary before leaving the police station and he has also stated that he was taken by the complainant to the scene of offence and when, after completion of the investigation, he had returned to the police station, the accused was present in the police station. He was unable to state as to how the accused was brought to or had come to the police station. He has stated that for the first time he had seen the accused on 28. 2. 2003 around 5. 30 a. m. and the accused was arrested by him at 6. 40 a. m. Thus, there appears to be contradiction between the statements made by the complainant and his father Naranbhai (PW No. 5) on one hand and PSI Naranbhai Desai (PW No. 13) on the other with regard to the time when the accused was brought to the police station. This fact does not inspire confidence in the deposition of PSI, Naranbhai Desai (PW No. 13 ). This fact does not inspire confidence in the deposition of PSI, Naranbhai Desai (PW No. 13 ). There does not appear to be any justifiable reason for detaining the accused in the police station without formal arrest or without making any entry in the police record. ( 67 ) AT this juncture, we also feel that there are other lapses on the part of the investigating agency. Though the complainant had approached PSI Shri Naranbhai Desai (PW No. 13) at Navrangpura Police Station, he did not make any note in the station diary or in any register or did not take any formal complaint from the complainant, even though he was informed about commission of the offence and he left the police station for investigation. Immediately upon knowing that a cognizable offence had been committed, it was his duty to record the said fact and take an FIR from the complainant immediately. We fail to understand as to why this normal practice was not followed in the course of investigation. ( 68 ) ANOTHER major lapse or lacuna, which we have found, is with regard to not placing on record the medical certificate given by the medical officer of Civil Hospital in respect of medical examination of the accused. ( 69 ) AROUND 7. 15 a. m. on 28. 2. 2003, the accused had filed an FIR making a grievance that he was beaten by some relatives of the victim because they had come to know that the victim had been taken away by him. He had also stated briefly the nature of injuries inflicted upon him. ( 70 ) AS the accused had been arrested in relation to offences pertaining to murder and rape, and he had also complained that he was beaten by some unknown persons, he had been sent to the Civil Hospital, Ahmedabad, for his medical examination. The investigating officer Shri Ranchodbhai G. Chauhan (PW No. 14) has stated in his examination-in-chief that the accused had been sent to the Civil Surgeon, Civil Hospital, Ahmedabad, alongwith a yadi (Exh. 51) for his medical examination. ( 71 ) THE most shocking thing which we find is that neither the doctor, who had examined the accused has been examined as a witness by the prosecution, nor the report/certificate given by the medical officer relating to medical examination of the accused has been produced before the trial court. 51) for his medical examination. ( 71 ) THE most shocking thing which we find is that neither the doctor, who had examined the accused has been examined as a witness by the prosecution, nor the report/certificate given by the medical officer relating to medical examination of the accused has been produced before the trial court. It is pertinent to note that Dr. P. D. Shah, the medical officer, who had examined the accused, had been cited as a witness before the trial court and yet he was not examined as a prosecution witness. ( 72 ) IN a case where charge of rape is levelled against the accused, and if the accused has been sent for medical examination, the report given by the medical officer, upon his medical examination, must be placed on record because medical examination of the accused would reveal certain most relevant facts with regard to possibility of his having committed the offence. Presence of smegma around the corona glandis would surely rule out possibility of rape having been committed by the accused, if the accused is examined within about 24 hrs. In the instant case, the offence alleged against the accused had been committed between 6 p. m. and 9 p. m. on 27. 2. 2003. Though the accused was arrested at 6. 40 a. m. on 28. 2. 2003, as seen earlier, the accused was in police custody at least since the night of 27. 2. 2003. While in police custody, the accused had also filed an FIR stating that he had been beaten by the relatives of the victim. For the aforesaid two reasons, the accused had been sent to the medical officer for his medical examination, but for the reasons best known to the prosecution, neither the medical officer has been examined, nor the report given by the medical officer, upon examination of the accused has been placed on record. ( 73 ) HERE, we feel that the prosecution is making an effort to withhold something from the court. The medical report of the accused ought to have been placed on record by examining the medical officer, who had been also cited as a witness. Presence of smegma would have possibly given a clean chit to the accused. ( 73 ) HERE, we feel that the prosecution is making an effort to withhold something from the court. The medical report of the accused ought to have been placed on record by examining the medical officer, who had been also cited as a witness. Presence of smegma would have possibly given a clean chit to the accused. ( 74 ) THERE is one more important thing which could have been revealed if the report of the medical officer had been placed on record. Upon perusal of the postmortem notes, it is clear that the deceased, who was hardly 6 years old, had suffered severe injuries on her genitals. Relevant portion of the postmortem notes reveals as under:" (1) Dry blood present over the labia laceration of subcutaneous tissues deep type present on left margin of vaginal opening just above posterior commission. (2) Hymen is found ruptured at 3 and 6 Oclock without vital reaction. This injuries are postmortem in nature. " ( 75 ) LOOKING to the above injuries, which the deceased had suffered, some injuries must have been caused on the male organ of the accused. Not only medical experts believe that rape on such a kid results into injuries on the male organ of the accused, but even Courts have taken judicial notice of the said fact. Looking to the law laid down by the Honble Supreme Court in the case of Rahim Beg v. State of Uttar Pradesh, AIR 1973 SC 343 , and in the case of State of Gujarat v. Mahmad @ Munno Usmanbhi Chauhan, 1996 (2) GLR 821 and upon perusal of the judgment delivered in the case of Ram Kala v. Emperor, AIR (33) 1946 Allahabad 191, it is clear that the report given by the medical officer, upon medical examination of the accused, would have thrown sufficient light on the fact whether the accused had in fact committed rape. ( 76 ) IT is unfortunate that the investigating agency did not think it proper to adduce evidence, which must have been gathered upon medical examination of the accused by the prosecution. ( 77 ) THERE is another thing which we feel that the investigating agency ought to have done and that is with regard to detailed examination of blood samples by the FSL. Looking to the evidence, the panties of the victim was stained with B+ve blood (Exh. 49 ). ( 77 ) THERE is another thing which we feel that the investigating agency ought to have done and that is with regard to detailed examination of blood samples by the FSL. Looking to the evidence, the panties of the victim was stained with B+ve blood (Exh. 49 ). Even the frock of the deceased was stained with blood belonging to B+ve group. The blood which was found from the clothes of the accused was also of B+ve group. Report submitted by the FSL (Exh. 49), shows that blood found from the scene of offence and from the clothes of the victim was also B+ve ( 78 ) THE above facts reveal that, possibly, the victim and the accused, both were having the same blood group, namely, B+ve. 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 ). In addition to knowing the identity of a person with the help of blood grouping, the investigating agency and the FSL ought to have carried out DNA test of the blood belonging to the accused as well as the victim so as to ascertain whether blood of the victim was in fact on the clothes of the accused. 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. The DNA profiling could have given a clear picture as to whether the blood of the victim was in fact on the clothes of the accused. Even without resorting to DNA test, possibly, by trying other methods of blood grouping, some light could have been thrown on the aforesaid subject. The DNA profiling could have given a clear picture as to whether the blood of the victim was in fact on the clothes of the accused. Even without resorting to DNA test, possibly, by trying other methods of blood grouping, some light could have been thrown on the aforesaid subject. It is really deplorable that in spite of so much of advancement in the field of forensic science, the investigating agency did not think it proper to resort to DNA test, and stopped the investigation just by getting the blood classified as per ABO method. ( 79 ) WE feel that the investigating agency should take serious note of this and should henceforth avail of all modern scientific facilities so as to have more details and reliable evidence especially in cases where, by a coincidence, both, the accused and the victim, are having the same blood group as classified under ABO system of blood grouping. ( 80 ) IN case of rape, where injuries on the vagina of the victim are so grave and serious, in our opinion, either pubic hair or semen of the accused ought to have been found from the body of the victim. If one looks at Exh. 48, it is very clear that neither pubic hair nor semen of the accused was found from the samples of blood, etc. collected from the body of the victim. ( 81 ) WHILE looking at the medical evidence, we find that pubic hair of the accused had also been examined by the scientific officer of the FSL. From the report, which has been submitted by the FSL (Exh. 48), it is clear that neither semen nor blood was found from the pubic hair of the accused. The aforesaid medical evidence also goes against the case of the prosecution. ( 82 ) AT this juncture, we should think it necessary to note that as per the evidence of complainant Badhabhai (PW No. 2) and Naranbhai (PW No. 5), the accused was taken to police station around 9 p. m. on 27. 2. 2005. It appears that thereafter the accused had remained in the police station. Formal arrest of the accused was effected at 6. 40 a. m. on 28. 2. 2005. Thus, for the entire night, after commission of the alleged offence, the accused was in Navrangpura Police Station and he had no opportunity to leave the police station. 2. 2005. It appears that thereafter the accused had remained in the police station. Formal arrest of the accused was effected at 6. 40 a. m. on 28. 2. 2005. Thus, for the entire night, after commission of the alleged offence, the accused was in Navrangpura Police Station and he had no opportunity to leave the police station. This denotes that the accused had no opportunity to take bath, and in that event, if, in fact, he had committed rape, possibly, his pubic hair would have contained some semen or blood because, looking to the postmortem report of the deceased victim, blood was seen on the vagina of the deceased. Absence of blood or semen in the pubic hair would indicate innocence of the accused as regards rape. In addition to the above factor, we reiterate that the prosecution did not think it proper to place on record the medical report of the accused, which possibly might have shown smegma on his male organ. As stated earlier existence of smegma or injury on the male organ of the accused would have given some indication regarding innocence of the accused but for the reasons best known to the prosecution, it did not think it proper to place the medical report given by Dr. P. D. Shah before the Trial Court. ( 83 ) HERE, we are constrained to observe that function of the prosecution is to see that correct facts are brought to light and relevant evidence is placed before the trial court. If the medical report was absolutely against the prosecution, that is, in favour of the accused, in our opinion, it was the bounden duty of the prosecution to place it before the court so as to assist the court in coming to the right conclusion in the matter of deciding the case and to see that someone, who is in fact innocent, is not held guilty. ( 84 ) APART from the aforesaid medical evidence, which, in our opinion, is not supporting the prosecution for establishing the guilt of the accused, even other witnesses, who have deposed in favour of the prosecution, do not inspire confidence. ( 85 ) FIRST of all, we deal with the evidence of Badhabhai (PW No. 2), who is also a complainant and relative of the victim. In his examination-in-chief, he has identified a white shirt, which the accused had put on. ( 85 ) FIRST of all, we deal with the evidence of Badhabhai (PW No. 2), who is also a complainant and relative of the victim. In his examination-in-chief, he has identified a white shirt, which the accused had put on. The said shirt was described by him as a white shirt with stripes. It is the case of the prosecution that after committing the offence, the accused had covered the dead body with his white shirt with stripes. The offence had been committed between 6 p. m. and 9 p. m. on 27. 2. 2003. Badhabhai (PW No. 2) had not seen the accused before the offence had been committed. After commission of the alleged offence, when the accused was proceeding to his residence, Badhabhai had seem him and in the FIR, which he had filed at 03. 05 hrs. on 28. 2. 2003, he has stated that the accused had put on a black shirt. Thus, with regard to the shirt of the accused, the said witness has revealed two things, (i) he has identified that the white shirt, with which the dead body was covered, was of the accused, (ii) he has stated that the accused had put on a black shirt when he found the accused while going to his residence around 8 p. m. ( 86 ) FACTUALLY, the above version given by the witness does not inspire any confidence for the reason that the said witness could not have identified the white shirt with stripes because he had never seen the accused with the said shirt. He had seen the accused only after the alleged offence had been committed and as per the prosecution case, the shirt put on by him was used for covering the dead body. So, the said witness could not have identified the white shirt with stripes, which was used by the accused for covering the dead body, as the shirt belonging to the accused. ( 87 ) THE second statement of the said witness, made in the FIR, that the accused had put on a black shirt, is absolutely incorrect because, the T-shirt which the accused had put on when he was arrested, has been described as a white T-shirt with a design of trident in a panchnama (Exh. 39 ). ( 87 ) THE second statement of the said witness, made in the FIR, that the accused had put on a black shirt, is absolutely incorrect because, the T-shirt which the accused had put on when he was arrested, has been described as a white T-shirt with a design of trident in a panchnama (Exh. 39 ). ( 88 ) THUS, both the statements giving identification of the accused made by Badhabhai (PW No. 2) in his deposition and in the FIR are incorrect but the trial court has put much reliance on the statements made by Badhabhai (PW No. 2 ). ( 89 ) ACCORDING to the case of the prosecution the murder had been committed by the accused because he wanted to take out the anklets of the victim and perhaps he also he wanted to rape her. The anklets have been recovered at the instance of a goldsmith and/or Shroff, named, Premchand. Premchand has not been examined. A panch witness, who was present in Navrangpura Police Station, named, Jagdishbhai Marwari (PW No. 15), has stated in his deposition that when he was in Navrangpura Police Station, Premchand had also visited the police station and at that time, Premchand had identified the accused. This is not an evidence but only a hearsay. Premchand is the person with whom the deceased had pledged the anklets and had taken Rs. 1,000/ -. Premchand is a shroff having his shop in the vicinity where the accused resides. His whereabouts are clearly known to the prosecution because, a copy of the receipt which had been given by Premchand to the accused has been placed on record as Exh. 52. If Premchand is a person to whom the anklets had been pledged by the accused, and Premchand had given Rs. 1,000/- to the accused, in our opinion, Premchand is a very important witness, who ought to have been examined by the prosecution. Though he has been cited as a witness in the list of witnesses, he has not been examined. We would like to draw an adverse inference against the prosecution because of non-examination of Premchand. ( 90 ) SOMETHING which is more pertinent than non-examination of Premchand is non-comparison of thumb mark which has been put on the receipt, which Premchand was having (Exh. 52 ). We would like to draw an adverse inference against the prosecution because of non-examination of Premchand. ( 90 ) SOMETHING which is more pertinent than non-examination of Premchand is non-comparison of thumb mark which has been put on the receipt, which Premchand was having (Exh. 52 ). The investigating officer has produced a copy of the receipt which is said to be a carbon copy of the receipt, which was given to the accused by Premchand when the anklets had been pledged by the accused with Premchand. Though name of rajubhai has been stated as a person who had pledged the anklets, one might believe that possibly incorrect name might have been given by the accused to hide his identity, if, in fact, he had pledged the anklets. On the copy of the said receipt, we see a thumb mark at the place where the person who was pledging the ornaments was supposed to put his signature or thumb mark. It means that the one who had pledged the anklets with Premchand had put his thumb mark on that receipt. It is really deplorable that the prosecution has not compared the said thumb mark with the thumb mark of the accused. Had it been compared with the help of a fingerprint expert, the prosecution could have established that the accused was the person, who had pledged the anklets with Shri Premchand. Had the thumb mark of the accused been different from the one which had been put on the said receipt, the trial court would have perhaps given a clean chit to the accused because, in that event, it can be very well said that somebody else, and not the accused, had given the anklets to Premchand. ( 91 ) SO far as the evidence of Dineshbhai Thakore (PW No. 5) is concerned, he has supported the prosecution story by saying that along with a 6-year old girl, the accused had come to his lari and had purchased a dabeli. The accused had asked for his knife, but he had refused to give it as his knife was required for the purpose of doing his business of preparing dabeli, and more particularly because, at the time when the accused had visited the lari, there were several customers who had come for purchase of dabeli. The accused had asked for his knife, but he had refused to give it as his knife was required for the purpose of doing his business of preparing dabeli, and more particularly because, at the time when the accused had visited the lari, there were several customers who had come for purchase of dabeli. He has further stated that as the accused was not given the knife, he had stolen the knife. The said witness has stated that he was not knowing the accused earlier but he remembered the accused because he had purchased a dabeli from him. ( 92 ) THE said witness has identified the shirt, which the accused had put on, and the frock which the victim had worn. According to the prosecution, he is an important witness because the knife, which had been used by the accused, belonged to him and the said knife had been identified by him when the knife had been discovered at the instance of the accused. ( 93 ) WE do not consider deposition of Dineshbhai Thakore (PW No. 5) much trustworthy. He has identified the shirt of the accused immediately, but he could not say as to which shirt the accused had put on at the time when he had met the accused in the police station. It is pertinent to note that when the accused had gone to purchase dabeli at the lari of this witness, he must have remained near the lari hardly for 10-15 mts. and that too at the time when there was a rush of customers, whereas when he had met the accused in Navrangpura Police Station, even according to him, he and the accused were together for about 4 hrs. In spite of that fact, in his cross-examination, this witness failed to remember as to what sort of shirt the accused had put on when the accused had met him at Navrangpura Police Station. ( 94 ) ANOTHER most important thing is with regard to the delay caused by the investigating agency for recording statement of this witness. The knife had been discovered at the instance of the accused on 1st March 2003. At that time, the accused had stated that the knife had been stolen by him from the lari of Dineshbhai Thakore (PW No. 6) He had also stated as to where the said witness was doing his business. The knife had been discovered at the instance of the accused on 1st March 2003. At that time, the accused had stated that the knife had been stolen by him from the lari of Dineshbhai Thakore (PW No. 6) He had also stated as to where the said witness was doing his business. In spite of that fact, the police had recorded statement of this witness for the first time on 4th March, 2003. No explanation has been given by the investigating officer for the said delay. While investigating an offence involving a murder and rape, the investigating officer, in normal circumstances, would have rushed to the said witness immediately upon getting some information about him from the accused. Though the investigating agency was informed about the said witness on 1st March, 2003, in fact, statement of the said witness was recorded by police on 4th March, 2003. We fail to understand as to why the said delay had been caused by the police authorities. This raises some doubt with regard to the correctness of the deposition of this witness. ( 95 ) IT is also important to note that no test identification parade had been carried out so as to know whether, in fact, witness Dineshbhai Thakore (PW No. 6) had identified the accused. We fail to understand as to why no test identification parade had been carried out though, in our opinion, it was very much required because, as per depositon of the said witness in cross-examination, he had specifically stated that he had seen the accused for the first time on 27. 02. 2003 and that too at a time when there was heavy rush of customers at his lari. The said witness had also stated that the accused was not his regular customer ( 96 ) IT appears from the postmortem notes that not only a white shirt with stripes, but a green duppatta was also found on the dead body. Thus, it indicates that there was someone else also with a duppatta at the scene of offence. According to the case of the prosecution, the accused was seen with the victim by Naranbai (PW No. 5) and by Dineshbhai Thakore (PW No. 6) before the offence was committed. Both these witnesses have given details about the clothes put on by the deceased as well as the accused. According to the case of the prosecution, the accused was seen with the victim by Naranbai (PW No. 5) and by Dineshbhai Thakore (PW No. 6) before the offence was committed. Both these witnesses have given details about the clothes put on by the deceased as well as the accused. None has said that the victim, a 6-year old girl, had put on a duppatta. Normally, a girl who is very young and who has put on a frock would not use duppatta as part of her dress. The presence of a duppatta raises suspicion that there might have been someone else also at the place where the offence had been committed. Nothing has been said by the prosecution with regard to the possibility of someone else being there. There remains a mystery as to how a green duppatta was found on the body of the deceased. This raises a suspicion because one would immediately feel that someone else with a green duppatta was there, who has either deliberately left his/her duppatta or because of some mistake or in hurry, that person dropped the duppatta there. ( 97 ) IF this is the position, we cannot say with confidence that the accused was the person who had committed the offence alleged against him. If someone else was also there, then one cannot rule out the possibility of that person having committed the offence. In such a case, looking to the system of law which we are following, it would not be possible to convict the accused of the charges levelled against him because looking to the facts of the case benefit of doubt will have to be given to him. ( 98 ) WE have to remember that this is a case where the prosecution wants to establish its case only on the basis of circumstantial evidence as there is no eye witness. Looking to the settled legal position that in a case resting on circumstantial evidence, the chain of evidence must be such that it excludes every hypothesis, but the one, which is proposed to be proved. It must show that the offence must have been committed by the accused and none else. Any missing link would be fatal to the prosecution case. In this case, we do find missing links. The link which connects the accused and the victim by way of medical evidence is missing. It must show that the offence must have been committed by the accused and none else. Any missing link would be fatal to the prosecution case. In this case, we do find missing links. The link which connects the accused and the victim by way of medical evidence is missing. The medical evidence, whatsoever is on record, is against the prosecution. Moreover, another vital link about taking the anklets and pledging the same with Premchand has also not been established due to non examination of Premchand. ( 99 ) NON-EXAMINATION of Dr. P. D. Shah, the medical officer who had examined the accused and who was cited as a witness, and Premchand, with whom the anklets had been pledged by the accused, constrains us to draw inference adverse to the prosecution. It is the duty of the prosecution to examine all material witnesses who can prove establishment of all links connecting the accused with the offence alleged against him. In this case, for the reasons best known to the prosecution, it has withheld the best evidence, which it could have adduced. The persons named hereinabove could have given first hand account of the matters in controversy and thereby could have thrown sufficient light on the facts which could have led the Court to reach a particular conclusion regarding guilt or innocence of the accused. Where the prosecution has withheld the evidence of its principal witnesses, in our opinion, the Court is entitled to draw inference adverse to the prosecution. More particularly, in case of medical evidence, in absence of any semen or blood found from the pubic hair of the accused, we feel that possibly there might be smegma on the male organ of the accused and, therefore, the prosecution must not have adduced evidence of the medical officer, who had examined the accused. Similarly, non examination of Premchand might also be for some reason which, according to the prosecution, might be adverse to it. ( 100 ) MOREOVER, we would like to note one thing. If, in fact, the accused had committed the offences alleged against him, possibly, he would not have returned to his place with blood stained clothes so soon and, in any case, he would not have told people searching the victim that she might be in the field of Jivi. No culprit would ordinarily behave in such a manner. If, in fact, the accused had committed the offences alleged against him, possibly, he would not have returned to his place with blood stained clothes so soon and, in any case, he would not have told people searching the victim that she might be in the field of Jivi. No culprit would ordinarily behave in such a manner. He would have either pleaded ignorance or would have tried to misguide people, but in the instant case, the accused had indicated a place, where, according to him, Gomi might have gone. ( 101 ) THUS, in our view, upon appreciation of the evidence adduced before the trial court, the accused cannot be convicted of the charges levelled against him. The reasons for coming to such a conclusion, in summary, are as under: (1) Though the accused was in police custody from around 9 p. m. on 27. 2. 2003, his arrest was shown at 6. 40 a. m. on 28. 2. 2003. Though the accused was very much in police custody and was medically examined, the report of his medical examination is not forthcoming from the prosecution. The doctor who examined the accused, though cited as a witness, has not been examined. In case where there is an allegation of rape, normally, medical examination of the accused is a must especially when the accused has been arrested immediately after the offence has been committed. In the instant case, the offence is alleged to have been committed between 6 p. m. and 9 p. m. on 27. 2. 2003 and around 9 p. m. on the same day, the whereabouts of the accused were known to the police and in fact in an informal manner he was in police custody thereafter. This shows that the prosecution is hiding something. (2) Important witnesses have not been examined. In our opinion, the anklets, if sold to Premchand, Premchand ought to have been examined so that he can identify not only the anklets but also the accused. Premchand is not a person who cannot be traced as he is having his shop at a particular place and is a licensed money-lender. (3) Thumb mark on the receipt issued by Premchand and the thumb mark of the accused had not been compared by any fingerprint expert and this also speaks volumes about the inadequacy of the investigation. Premchand is not a person who cannot be traced as he is having his shop at a particular place and is a licensed money-lender. (3) Thumb mark on the receipt issued by Premchand and the thumb mark of the accused had not been compared by any fingerprint expert and this also speaks volumes about the inadequacy of the investigation. For identification of the accused, comparison of the thumb mark would have been the best evidence, but for the reasons best known to the prosecution, it has not been done. (4) As discussed hereinabove, the evidence adduced by complainant Badhabhai (PW No. 2) and Naranbhai (PW No. 5) does not appear to be so trustworthy so as to link the offence with the accused. We are constrained to observe again that scientific methods of investigation have not been used by the investigating agency. We could not find a single photograph of the dead body or the scene of offence. Videography or photography of the scene of offence and at least the photograph of the dead body could have given some vital clue to the investigating agency especially when the inquest panchnama was drawn at midnight. Moreover, detailed examination of blood found on the clothes of the accused as well as the victim could have helped the prosecution and the court in coming to the conclusion whether the accused had in fact committed the offence. Upon knowing that the victim and the accused were having the same blood group, the investigating agency ought not to have stopped further investigation. They ought to have taken help of other methods whereby blood can be properly distinguished. Such method can be either use of another method of blood grouping or DNA test. (5) We also feel that a map giving details with regard to distance between different places ought to have been prepared by the prosecution so that it becomes possible for the court to know whether movement of accused with the victim child to different places was possible. We do not have any idea as to how far the residence of the victim as well as the accused is from the Polytechnic or from the field of Jiviben. It is also not known as to how far Jivibens field is from the Polytechnic. We do not have any idea as to how far the residence of the victim as well as the accused is from the Polytechnic or from the field of Jiviben. It is also not known as to how far Jivibens field is from the Polytechnic. Had a sketch/map been prepared or details with regard to distance been given, possibly, the court could have had a better idea about the possibilities of the alleged activities done by the accused within such a short span of about 2 hrs. We feel that in all such cases, where the accused has travelled from one place to another, either details with regard to distance travelled by the accused should be given, or a map/sketch giving details about the location of relevant places should be given. ( 102 ) WE hope that at least in future, the investigating agency shall see that detailed scientific investigation is made in all cases and we also hope that the State of Gujarat shall give necessary direction to all investigating agencies to see that benefit of scientific developments is availed by investigating agencies in the field of crime detection so that the work with regard to investigation can be undertaken more effectively by the concerned agency. ( 103 ) FOR the aforestated reasons, the appeal is allowed. The conviction of the accused recorded by the trial court in Sessions Case No. 346/03 is set aside. The accused is acquitted of the charges for which he has been convicted by the impugned judgment in Sessions Case No. 346/03. The accused is ordered to be set at liberty forthwith, if he is not required in connection with any other case. ( 104 ) ALL Muddamal articles, except silver anklets, are ordered to be disposed of in accordance with law. So far as the silver anklets are concerned, they may be disposed of after holding an inquiry under the provisions of Section 452 of the Criminal Procedure Code. ( 105 ) SINCE the conviction is set aside, the question of confirmation of death sentence does not arise and, therefore, Criminal Confirmation Case No. 7 of 2004 is disposed of accordingly. .