JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) These two appeals arise out of the judgment and order rendered by the Sessions Court, Mehsana on 8.8.2005 in Sessions Case No.97 of 2005. Appellant Narendra @ Apo Ashokkumar Thakkar in Criminal Appeal No.1774 of 2005 was accused No.1 before the trial Court and appellant Mahmad Hanif @ Bunty Dilawarbhai Makwana in Criminal Appeal No.1852 of 2005 was accused No.2 before the trial Court. They were tried along with accused No.3 Khojani Yasinbhai Mahmadbhai. The charges against the accused persons before the trial Court were for the offence punishable under sections 302, 364, 120-B, 201 and 394 of the IPC. The trial Court, at the end of the trial, convicted original accused Nos.1 and 2 – appellants herein and acquitted original accused No.3 Khojani Yasinbhai Mahmadbhai. The convicts have preferred these two appeals, whereas the State has chosen not to prefer any appeal against acquittal of accused No.3. 1.1 For sake of convenience, both the appellants are referred to by their original status of accused No.1 and accused No.2 respectively in this judgment. 2. The prosecution case in brief is that accused Nos.1 and 2 went to the taxi stand at Mehsana and hired a vehicle being Qualis No. GJ 2K 7443 belonging to Kiritsinh Ganeshji and driven by Barkatshah Husainsha Diwan. This happened on 26.3.2005 at about 8:00 p.m. Thereafter, on 27.3.2005, a secret information was received by Police Constable Bahadursinh, who in turn, intimated to PSI Tahirmiya Malik to the effect that a Qualis vehicle was moving in and around Satellite area in suspicious condition and was likely to pass by Honest – 3 Roads within the jurisdiction of the Satellite Police Station. The PSI therefore, arranged for a watch in the area and upon noticing a Qualis vehicle of a similar description, intercepted the same. As per the prosecution case, in that vehicle, three accused persons and one Javed @ Jon Dariyakhan Baloch, a Juvenile in conflict with law were found. They could not reply to the questions by the Police satisfactorily and therefore, they were proceeded under the provisions of section 41(1)(d) of the Code of Criminal Procedure, 1973. A Panchnama was drawn and the persons traveling in the vehicle were apprehended. They could not reply to the questions by the Police satisfactorily and therefore, they were proceeded under the provisions of section 41(1)(d) of the Code of Criminal Procedure, 1973. A Panchnama was drawn and the persons traveling in the vehicle were apprehended. Somehow, the original owner of the vehicle was informed telephonically and he came down to Ahmedabad from Mehsana at 5:00 p.m. and his FIR was recorded at 10:00 p.m. Since, it was found by the Police that a serious cognizable offence might have occurred within the jurisdiction of Mehsana Police Station, the case and the papers relating thereto were made over to Mehsana Police and therefrom onwards, investigation was made by Mehsana Police. Upon investigation, it was found by the investigating agency that the accused persons had committed murder of driver Barkatsha and were to dispose of the vehicle. A chargesheet was therefore, filed in the Court of Chief Judicial Magistrate, Mehsana, who in turn, committed the case to the Court of Sessions and Sessions Case No.97 of 2005 came to be registered. Charge was framed against the accused at Exh-1. All the three accused persons pleaded not guilty to the charge and claimed to be tried. 2.1 The trial Court found that the prosecution was successful in proving charges for the offences punishable under sections 364, 302 r/w sections 34, 394, 201 and 120-B of the IPC against accused Nos.1 and 2 – appellants herein and acquitted accused No.3 holding that the prosecution could not prove the case against him and hence, these appeals. 3. We have heard learned advocate Mr. YS Lakhani appearing with Mr. Ashish Dagli for accused No.2, learned advocate Mr. Unwala for accused No.1 and learned APP Mr. Pandya for the State. 4. Learned advocates for the accused contended that the entire prosecution case is concoction. To support their submission, they have indicated following aspects. i. Dead body of Barkatsha is not found. Obviously, cause of his death, if at all, is not known. Therefore, there is no proof of death of Barkatsha, leaving aside his murder. ii. No attempt is shown to have been made by the prosecution to trace the dead body of Barkatsha. iii. As per the prosecution case, accused Nos.1 and 2 were noticed hiring the vehicle by the owner of the vehicle Kiritsinh Ganeshji and three other witnesses. Therefore, there is no proof of death of Barkatsha, leaving aside his murder. ii. No attempt is shown to have been made by the prosecution to trace the dead body of Barkatsha. iii. As per the prosecution case, accused Nos.1 and 2 were noticed hiring the vehicle by the owner of the vehicle Kiritsinh Ganeshji and three other witnesses. They have identified the accused in a TI parade, but it is pointed out that TI parade would be vitiated, because before the TI parade was held, photographs of the accused persons were published in the newspaper. iv. The evidence of apprehension of the vehicle and the accused persons at Satellite circle is self conflicting and contradictory. As per Panchnama Exh-26, it was drawn in presence of Panch witnesses at the spot i.e. near Honest circle on the SG Highway, whereas both the Police personnels from Satellite Police Station namely PSI Tahirmiya Malik and Police Constable Adesinh have, in terms, deposed that the Panchnama was drawn at the Satellite Police Station. It was therefore, contended that apprehension of the accused persons from or with the vehicle at the Honest junction is not proved beyond reasonable doubt. v. None of the Panch witnesses except one have been examined in respect of the Panchnama drawn about the area, about the condition of the vehicle and about the place of offence. vi. The blood samples of the parents of Barkatsha -driver of the vehicle were taken and sent to the FSL for determination of DNA. It is contended that DNA report is suppressed by the prosecution and adverse inference therefore, may be drawn. The factum of suppression is pressed on the ground that forwarding letter of the FSL addressed to Police Inspector, Mehsana Police Station, forwarding therewith the report of DNA was placed before the Court, but not the DNA report and this is because of a possibility that the DNA report was adverse to the prosecution case. vii. It was contended that the prosecution case depends on circumstantial evidence and the prosecution has failed to establish a complete chain of circumstances connecting the accused with the offence and endorsing the only and only possibility of the accused persons having intentionally caused homicidal death of the deceased. The conviction is therefore, ill-founded and may be set aside. 5. Learned APP Mr. Pandya has opposed these appeals. The conviction is therefore, ill-founded and may be set aside. 5. Learned APP Mr. Pandya has opposed these appeals. According to him, in a case of circumstantial evidence, the prosecution has to show the circumstances. In the instant case, the deceased is proved to have left the company of the accused persons and when the accused persons were apprehended, the deceased was missing, his whereabouts were not known and an attempt was made to sell off music system from the vehicle by the accused persons. The accused persons were properly identified in the TI parade, clothes of accused No.1 were found to be stained with blood of group 'O', whereas his blood group is 'B' and accused No.1 has failed to explain the presence of blood on his clothes. Mr. Pandya therefore, submitted that once it is proved that the deceased left in company of the accused and that he was not found since then, inference may be drawn that he has met with his death and the accused persons, in whose company he left, were responsible for his death unless they have an explanation therefor. Mr. Pandya therefore, submitted that the appeals may be dismissed. 6. We have examined record and proceedings in context of rival submissions. 7. The first chain of circumstances projected by the prosecution is that the deceased left in company of the accused persons last and was last seen together in their company. This is sought to be proved through evidence of Kiritsinh Ganeshji Exh-10 – owner of the vehicle, Raju Goswami Exh-16, Jayeshbhai Parmar Exh-17 and Vasantbhai Chauhan Exh-21. They all have deposed to the effect that accused Nos.1 and 2 contacted Kiritsinh Ganeshji through Vasantbhai Chauhan; that they had gone there in an auto rickshaw driven by Raju Goswami and after finalizing the deal, left with the deceased in the said vehicle. This departure was noticed by Jayeshbhai Parmar, another taxi driver standing at the taxi stand. All these persons do not claim to be knowing accused No.1 and/or accused No.2 before hand and therefore, the investigating agency, in order to make sure that the persons apprehended were the correct persons, arranged for a TI parade before Executive Magistrate Rasiklal Vyas, who has been examined at Exh-18. All these persons do not claim to be knowing accused No.1 and/or accused No.2 before hand and therefore, the investigating agency, in order to make sure that the persons apprehended were the correct persons, arranged for a TI parade before Executive Magistrate Rasiklal Vyas, who has been examined at Exh-18. All these witnesses, in the TI parade, identified accused Nos.1 and 2 properly, but during cross examination, it emerges that photographs of the accused persons were published in the newspaper before the TI parade was conducted. The TI parade was conducted on 31.3.2005, whereas the photographs were published on 29.3.2005 along with newspaper report. This would vitiate the entire TI parade proceedings and no weightage can be given to evidence of witnesses, who claimed that they had seen the deceased leaving in company of the accused persons. Therefore, the first link of the prosecution case of having seen the deceased last in company of the accused does not hold the ground. 8. The second aspect of the prosecution case is that on the next day i.e. on 27.3.2005, a secret information was received by Police Constable Bahadursinh of Satellite Police Station that a Qualis vehicle bearing registration No.GJ 2K 7443 was moving in suspicious circumstances in Satellite area. Bahadursinh therefore, conveyed this information to PSI Tahirmiya Malik and Tahirmiya Malik, in turn, arranged for a secret watch near Honest circle. It may be recorded here that the secret information, which is claimed to have been received by Bahadursinh, was not reduced to writing nor was it conveyed in writing to Tahirmiya Malik. Although, the law does not require mandatorily to reduce such information to writing, but such lapse in this particular case, is of seizable value, which would be reflected in the paragraphs to follow. Bahadursinh is not examined as a witness. The fact that secret watch was arranged near Honest circle and Tahirmiya had gone there, is not established through contemporaneous record. No vehicle log book is produced on record to show that Tahirmiya Malik had visited the said place and an attempt was made by Adesinh to explain this situation by saying that he had gone on his motorcycle, whereas, the case of the prosecution is that Tahirmiya Malik was accompanied by Bahadursinh, Adesinh and other Police personnels from the Police Chowki. 8.1 The next step in prosecution case is that the vehicle, number of which was given in the information, while passing nearby Honest circle, was intercepted and accused persons were found to be occupying the vehicle. Clothes of the accused persons were stained with blood and there were also some blood stains in the vehicle. The accused persons could not give any satisfactory reply and therefore, a Panchnama was drawn at the place in presence of Panch witnesses. The said Panchnama is at Exh-26. The said Panchnama also speaks about it having been drawn near Honest circle. The Panch witnesses have not been examined, but both PSI Tahirmiya Malik Exh-25 and Adesinh Exh-23 have stated in their depositions that the Panchnama was drawn not on the spot i.e. near Honest circle, but at the Police Station. The resultant effect is that the version of the prosecution as emerging from the documentary evidence Exh26 and evidence of the police witnesses, Adesinh and Tahirmiya Malik, run contrary to each other. In a given case, such lapse may not be very significant, but in the instant case, it assumes great significance, because this would render the apprehension of the vehicle and the accused persons at Honest circle as per prosecution case, doubtful. The prosecution therefore, cannot be said to have proved that the accused persons were found in possession of the vehicle on 27.3.2005 at about 3:00 p.m. near Honest circle. This link to the offence therefore, snaps. 9. During the course of investigation as is revealed from the evidence of PSI Tahirmiya Malik Exh-25, the accused persons showed the spot, wherefrom they had thrown the dead body of Barkatsha in the Narmada canal and as per the prosecution case, at that spot, on the parapet, blood was found. That sample was taken, sent to the FSL and the blood was found to be of group 'O'. At the cost of repetition, it would be stated that there is nothing on record to show that Barkatsha has expired, least, to show that he was killed. There is no material to show the blood group of the deceased. Therefore, the blood which was found on the parapet of the canal cannot be said to have been proved to be that of group “B”. Again, the Panch witnesses are not examined. There is no material to show the blood group of the deceased. Therefore, the blood which was found on the parapet of the canal cannot be said to have been proved to be that of group “B”. Again, the Panch witnesses are not examined. In this context, it would be also relevant to record that according to Tahirmiya Malik, he had instructed Patadi Police through his superior to make arrangement for search of dead body, but thereafter, what has happened is not brought on record, whether any search was arranged, whether it was made and what was the outcome thereof is not brought on record. The necessary inference therefore, is that the dead body of Barkatsha is not traced. The dead body will not remain undetected from a canal, because canal has gates at distant places and the dead body would stop flowing. Further, even if, all gates were presumed to be open and the water was flowing, then also, at some stage, there would be an end of the canal and dead body would be detected. The dead body does not remain submerge into water for a long time and it is not the prosecution case that the dead body was ever found from the canal. If the prosecution story is that body of Barkatsha was thrown into the canal after committing his murder, his dead body ought to have been found out and therefore, missing of corpse would be fatal to the prosecution case in the backdrop of circumstances discussed herein above. 10. Last but not the least, again to repeat, the prosecution has not examined any of the Panch witnesses except one to prove the Panchnama. 11. All the above stated defects, contradictions and inconsistency in the evidence of the prosecution would lead us to conclude that the conviction is not well founded and cannot be sustained. 12. In the result, the appeals deserve to be allowed and are allowed. 11. All the above stated defects, contradictions and inconsistency in the evidence of the prosecution would lead us to conclude that the conviction is not well founded and cannot be sustained. 12. In the result, the appeals deserve to be allowed and are allowed. The judgment and order of conviction and sentence dated 8.8.2005 passed by the learned Principal Sessions Judge, Mehsana in Sessions Case No. 97 of 2005 is set aside and appellants accused namely Narendra @ Apo Ashokkumar Thakkar in Criminal Appeal No.1774 of 2005 and Mahmad Hanif @ Bunty Dilawarbhai Makwana in Criminal Appeal No.1852 of 2005 are acquitted of the charges levelled against them and they are ordered to be set free forthwith if not required in any other case. Fine, if paid, be refunded to the appellants concerned.