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2013 DIGILAW 398 (GUJ)

MOHANBHAI GORJIBHAI PARGI v. STATE OF GUJARAT

2013-07-11

AKIL KURESHI, R.P.DHOLAKIA

body2013
JUDGMENT : PER MR. AKIL KURESHI, J.: 1. This appeal is filed by the original accused who has been convicted by the learned Additional Sessions Judge, Amreli by judgment dated 16.02.2008 rendered in Sessions Case No.102 of 2006 for offences punishable under Sections 302 and 323 of the Indian Penal Code. He has been sentenced to imprisonment for life. 2. Briefly stated the prosecution version is as follows: 2.1. Mohan Gorji – the accused was looking after the field of one Mohanbhai Nanjibhai and staying there in a small hut. Adjacent to this field there was an agricultural land of Kalubhai Parshottumbhai where in a small hut Natubhai Rambhai lived. The accused Mohan Gorji suspected that the deceased was having illicit relation with his wife. On 18.09.2006, at about 7:00 O'clock in the evening, the accused hit deceased Natubhai with an axe on the head causing fatal injuries. This incident was reported to Kalubhai Parshottumbhai at his residence. He, thereupon, along with Mohanbhai Nanjibhai and others went to the site in a tractor. They saw Natubhai lying bleeding. He was dead. They saw accused Mohan Gorji at some distance with an axe. He was instructed to drop the axe which he did. He was thereupon caught and later on handed over to the police. Kalubhai Parshottumbhai lodged FIR in the early hours on 19.09.2006. 3. Investigation was carried out, statements of witnesses were recorded. Several articles were seized. Charge-sheet was presented before the Magistrate who, in turn, committed the case for sessions trial. The learned Additional Sessions Judge framed charge at Exh.11. It was alleged that the accused had caused death of Natubhai Rambhai by giving an axe blow. He had also caused simple injuries to his wife, brother-in-law, witnesses Shankarbhai Dhulabhai and Vinodbhai Luvji with the axe. 4. Doctor Krishna Haryani – P.W. 1 – Exh.13 had carried out the postmortem of the body of the deceased. She had noted following injuries: “1.Incised wound on Rt. Occipital – temporal region behind to Rt.Ear -Triangular M shape -vertical in size -well define edge/and deep to #bone CLW 4 inch / and parallel to 2 in No. size 2X2 inch/size 4 inch with small bone pasticle 2. incised wound on Rt. Occipital Region (3) in No. a. parallel to each other also 2 inch size b. 2 inch size c. 1 inch size -vertical -tissue tear -sharp edges” 4.1. incised wound on Rt. Occipital Region (3) in No. a. parallel to each other also 2 inch size b. 2 inch size c. 1 inch size -vertical -tissue tear -sharp edges” 4.1. In her opinion, the cause of death was “cardio respiratory failure due to shock due to intra cranial hemorrhage” 4.2. This Doctor also had treated the witnesses Vinod Luvji and Shankarbhai Dhudabhai. She had, in her case papers recorded the history of “injuries by the handle of the axe on/e pain/tenderness on Rt. shoulder joint.” 5. Kalubhai Parshottumbhai – first informant – P.W.2 was examined at Exh.20. Before the Court he stated that on the date of the incident, at about 7:00 O'clock, the labours working on his field had come to his house and informed him that there had been a quarrel on the field between Natubhai and Mohan Gorji and Mohan Gorji had hit Natubhai with an axe. The witness, therefore, along with Mohanbhai and Rasikbhai proceeded to the field. On the way they met Shankarbhai and Vinubhai who told them that Mohan had hit them with the blunt part of the axe on the shoulder. They were also taken in the tractor. While walking over to the field after parking the tractor, they saw Natubhai lying dead on the edge of the field. He was bleeding from the nose. When they reached the field of Rasikbhai, about 100 feet away in the field of Mohanbhai, accused Mohan Gorji was standing with an axe in his hand. One of the persons, Goganbhai told the accused to put down the axe and come over to them. The accused Mohan Gorji, thereupon, dropped the axe and came over there. He was then tied to a tree and the police was informed about the incident. He was shown the muddamal article 10, the axe. He stated that it was the same axe which the accused Mohan Gorji was carrying. 5.1. In his cross-examination he agreed that he had seen the axe properly for the first time in the Court. On the date of the incident, due to the darkness, he had not seen the axe properly. He had identified the axe only because it formed part of the muddamal articles. 6. In the FIR Exh.21 recorded by the police at 1:30 hours on 19.09.2006, he had given the similar version. 7. On the date of the incident, due to the darkness, he had not seen the axe properly. He had identified the axe only because it formed part of the muddamal articles. 6. In the FIR Exh.21 recorded by the police at 1:30 hours on 19.09.2006, he had given the similar version. 7. Witness Shankarbhai Dhulabhai – P.W. 3 – Exh.24 who was allegedly hit with blunt part of the axe by the accused turned hostile. He was permitted to be cross-examined by the prosecution. In his cross-examination, however, he was not confronted with his statement before the police but was generally questioned by the learned APP. 8. Another person Vinod Luvji who also allegedly received similar injury on the shoulder on the night of the incident was not examined. 9. One Shantibhai Khatubhai – P.W. 10, Exh.37 who also was allegedly a person present when the alleged incident took place turned hostile. He was also cross-examined by the learned APP. Here also the witness was not confronted in order to contradict him on the strength of his statement before the police. 10. Yet another witness Sureshbhai Luvjibhai – P.W.11, Exh.38 also did not support the prosecution. He was also supposed to be present at the site. His cross-examination also had no reference to his statement made to the police. 11. The axe allegedly used for commission of the offence was recovered under a Panchnama Exh.31. Panch witness Kanubhai Shambhubhai – P.W. 6, Exh.30 deposed that he was called as panch witness before the Bagsara Police Station on 19.09.2006 at about 3:00 O'clock. The accused who was arrested was asked about the axe to which he stated that he had kept it in the field of Rasikbhai. Thereafter the Panch witness, the policy party and the accused reached the field of Rasikbhai in a police jeep. The vehicle was stopped by the accused. They, thereafter, covered a distance of about 50 mts. after which the accused Mohanbhai, from the standing crop, searched out an axe which had blood stains. It was recovered under the Panchnama. 11.1. In the cross-examination, he agreed that to the place where they had gone, anybody could enter. 12. Discovery Panchnama – Exh.31 records that the accused Mohan Gorji had shown willingness to recover the axe which he had thrown away in the field of Rasikbhai in the groundnut plantation. It was recovered under the Panchnama. 11.1. In the cross-examination, he agreed that to the place where they had gone, anybody could enter. 12. Discovery Panchnama – Exh.31 records that the accused Mohan Gorji had shown willingness to recover the axe which he had thrown away in the field of Rasikbhai in the groundnut plantation. The panch witness, the police and the accused thereupon travelled by a jeep to Hamapur village. The jeep was stopped near the field. They had, thereupon, got down from the jeep and walked down to the field of Rasikbhai. On the Western side of the field there was groundnut plantation from which the accused took out the axe with which Natubhai was hit. It carried scattered blood marks. 13. The accused was arrested under a Panchnama Exh.35. Panch witness Rafikbhai Kasambhai – P.W.8 - Exh.34 however, turned hostile and stated that he had merely signed the document on being instructed by the police. The Panchnama – Exh.35 records that upon arrest, clothes of the accused were recovered which showed blood marks. 14. The various muddamal articles such as the clothes of the deceased, those of the accused, the murder weapon were all sent for forensic analysis. The FSL report, along with letter Exh.65 showed presence of human blood of group 'B' from the shirt of the accused as well as from the axe. The pants of the accused detected blood of group 'A'. We may notice that the deceased had blood group 'B' and the blood group of accused was 'A'. 15. Lalitkumar – P.W. 18 – Exh.57, Investigating Officer described the steps taken by him during the course of investigation. He narrated the discovery of the axe at the instance of the accused. This witness also was asked detailed questions about the statements of various hostile witnesses recorded by him. 16. This in the nutshell is the relevant evidence on record. On the basis of such evidence, the discovery of the murder weapon, the clothes of the accused and the weapon showing the blood of the accused and the deposition of the Doctor who had carried out the postmortem of the deceased, the learned Judge proceeded to hold that the charges against the accused were proved. 17. Learned counsel Shri Lakhani for the appellant contended that the learned Judge committed a grave error in convicting the accused. 17. Learned counsel Shri Lakhani for the appellant contended that the learned Judge committed a grave error in convicting the accused. He submitted that the entire case was based on circumstantial evidence. He submitted that the axe was found from an open field. Even the statement leading to the discovery was not specific on involvement of the accused. In his contention, therefore, section 27 of the Indian Evidence Act, 1872 would not apply. No reliance, therefore, can be placed on such discovery. 17.1. Counsel further submitted that since the discovery of the weapon itself was rendered ineffective, any presence of human blood on the weapon would be of no consequence. 17.2. Counsel contended that only circumstance against the accused was presence of blood of group 'B' on the shirt of the accused. He submitted that this by itself would not be sufficient to convict the accused. 17.3. Counsel further contended that the prosecution has failed to establish any motive. 17.4. In support of his contentions, counsel relied on following decisions: (i) In case of Chandrasinh @ Chandubha Lalubha v. State of Gujarat reported in 2002(2) G.L.R. 960 , in which the Division Bench of this Court had discussed the provisions of Section 161 and 162 of the Criminal Procedure Code and Section 145 of the Evidence Act, 1872 in the context of proving contradictions and omissions. (ii) In case of Mer Veja Meraman v. State of Gujarat reported in 1988(2) G.L.H. 515 , in which it was observed that before a Panchnama is exhibited it must be read over to the Panch. Such Panchnama can be used only to corroborate the panch witness. (iii) In case of Sirajbhai Gulambhai v. State of Gujarat reported in 1996 Cri. L.J. 1541, in which the learned Single Judge of this Court observed that when the accused person makes a statement under Section 27 of the Evidence Act and such statement is sought to be proved under Section 27 of the Evidence Act, it should be clearly and carefully recorded by the Police Officer concerned in the actual words of the accused. (iv) In case of Patel Himat Mohanbhai v. State of Gujarat reported in 1996(3) G.L.R. 593 , in which the Court observed that the Panchnama under which the garments of the accused came to be recovered loses the significance of a discovery panchnama, in view of the fact that the panch witness had not said that the accused No.2 had said that he was the author of the concealment and that he would discover the garments and later on he had discovered the same. (v) In case of State of Karnataka v. M.V. Mahesh reported in (2003) 3 SCC 353 , in which the Supreme Court in context of the discovery observed that whether the statement by the accused really led to the discovery itself is in doubt inasmuch as the police had already information through another witness. The view of the High Court not to rely on such discovery on the ground that the statement made by the accused did not lead to any discovery as the information was already in possession of the police was upheld. (vi) In case of Koli Ramsing Gandabhai v. State of Gujarat reported in 1998 (1) GLR 116 in which it was observed that: “It hardly needs to be stated that essential ingredient of Sec. 27 is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information and only such portion of the information given as is distinctly connected with the said discovery is admissible against accused, but confessional statement made by the accused and allegedly recorded in the panchnama prepared under Section 27 of the Evidence Act cannot be relied on for the purpose of basing conviction.” 18. On the other hand, learned APP Ms. Punani opposed the appeal contending that though there was sufficient evidence to convict the accused, the learned Judge has given cogent reasons. She heavily relied on the discovery of the murder weapon at the instance of the accused, presence of blood of the deceased on such weapon as well as on the clothes of the accused and the history given by the two of the witnesses before the doctor of having been assaulted with the axe to contend that the learned Judge committed no error. 19. 19. Having thus heard learned advocates for the parties, in present case all the so-called eyewitnesses did not support the prosecution. Nothing worthwhile has come in the depositions of these witnesses either in the chief or cross-examination by the prosecution which would be of any use to the prosecution. We are conscious that it is not always that the entire evidence of a hostile witness must be discarded. If a portion of such deposition which is otherwise found reliable and dependable supports the prosecution, merely because the witness was declared hostile it would not prevent the Court from relying upon such portion of the testimony of a hostile witness. In the present case, however, there is no portion of testimony of any of the hostile eyewitnesses which can be of any meaningful help to the prosecution. Surely, on the basis of the police statements of the witnesses, the accused cannot be convicted. 20. In absence of any eye witness account before the Court entire case depends on circumstantial evidence. The evidence relevant for our purpose is as follows: (A) The P.M. Report of Dr. Krishna Haryani – P.W. 1, Exh.13 which recorded head injuries. She deposed that such injuries could have been caused by the muddamal article 17, the axe. (B) The history recorded by said Doctor of Shankarbhai Dhudabhai and Vinodbhai Luvjibhai of being hit with the handle of the axe causing tenderness on the shoulder. (C) Testimony of the first informant – Kalubhai Parshottumbhai – P.W.2, Exh.20, who upon being informed about the quarrel in his field, immediately rushed to the spot along with other persons at which point he found that the accused was present with an axe. (D) Similar is the testimony of Mohanbhai Nanjibhai – P.W.12, Exh.41. He had accompanied the complainant in the tractor on the date of the incident. He also stated that when he reached the place, accused Mohan Gorji was standing in the field. (E) Arrest panchnama, Exh.35 and the blood stained clothes worn by the accused at the time of his arrest. (F) The discovery panchnama, Exh.31 under which the axe was recovered. This recovery would have to be viewed in the context of the testimony of the panch witness Kanubhai Shambhubhai – P.W.6, Exh.30. (E) Arrest panchnama, Exh.35 and the blood stained clothes worn by the accused at the time of his arrest. (F) The discovery panchnama, Exh.31 under which the axe was recovered. This recovery would have to be viewed in the context of the testimony of the panch witness Kanubhai Shambhubhai – P.W.6, Exh.30. (G) The presence of human blood of 'B' group (corresponding to the blood group of the deceased) on the axe as well as on the shirt of the accused. 21. We may assess such evidence to ascertain whether the chain of circumstantial evidence is complete so as to unerringly point to one and only one conclusion viz. that of the guilt of the accused ruling out any of the other possibility. To begin with, we may note that neither Kalubhai Parshottumbhai – P.W. 2 nor Mohanbhai Nanjibhai – P.W.12 were the eyewitnesses. They, of course, reached the spot shortly after the incident took place upon being informed about the same. Their testimonies at the best can be relied upon to believe that the accused was present at the field on the date of the incident with an axe. This factor by itself is neither here nor there. He was admittedly a labourer in the field of Mohanbhai Nanjibhai. The axe is a common agricultural implement often carried by agriculturist and agricultural labour. His mere presence there, with an axe therefore, is of no consequence. 22. Even otherwise there is considerable controversy about the possession of the axe. Kalubhai Parshotambhai – P.W.2 stated that the accused was standing with an axe in his hand, the same axe which was shown to him in the Court. He agreed that he had not seen the axe on the night of the incident because of dim-light and identified the same before the Court only because it formed part of the muddamal articles. He had also deposed that upon being instructed to drop the axe and to come over, the accused had put down the axe and came close to him. In contrast, Mohanbhai Nanjibhai – P.W.12 has stated that when the accused was standing in the field, he did not have anything with him. 23. Two things, thus, emerge from these depositions. Firstly, two important prosecution witnesses are at variance whether the accused was carrying the murder weapon or not. In contrast, Mohanbhai Nanjibhai – P.W.12 has stated that when the accused was standing in the field, he did not have anything with him. 23. Two things, thus, emerge from these depositions. Firstly, two important prosecution witnesses are at variance whether the accused was carrying the murder weapon or not. Mohanbhai Nanjibhai further agreed that he had identified the same weapon merely because it was shown to him before the Court as part of the muddamal article. The proof of the accused carrying the murder weapon and its identification even if he was carrying an axe thus remained inconclusive. .Second thing which emerges is that according to Kalubhai Parshottumbhai – P.W.2 the accused had dropped the weapon upon being instructed to do so. This would become relevant when we discuss the reliability of the discovery of the weapon. 24. Coming to the question of the so-called discovery, the panchnama recorded that the accused stated that he had thrown the axe used for commission of the offence in the groundnut field of Rasikbhai and showed his willingness to show the same. The panchnama further recorded that when the police party and the panch witness along with accused went to the field, they had to walk for a short distance after which from the field of Rasikbhai from the groundnut cultivation the accused unearthed an axe. 25. To our mind, the so-called discovery is of no value. 26. Section 25 of the Indian Evidence Act, 1872 provides that no confession made to a police officer shall be proved as against a person accused of any offence. Section 26 goes a step further and provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved against such person. The above limitations, however, come with an exception under Section 27 which provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. This proceeds on the principle that in relation to any information provided by the accused any fact is discovered, such information immediately becomes reliable. This proceeds on the principle that in relation to any information provided by the accused any fact is discovered, such information immediately becomes reliable. It is in this context that we need to assess the value of the discovery. 27. As already noted, as per the prosecution witness 2 – Kalubhai Parshottumbhai, the accused was found on the field with an axe in his hand shortly after the incident. The accused was instructed to drop the weapon and come over to them by Goganbhai – the companion of Kalubhai Parshottumbhai. The accused accordingly put down the axe and walked over to them. If we believe this prosecution witness, the contents of the discovery panchnama immediately stand falsified. If the accused was carrying the murder weapon in the field in presence of several persons and if he as instructed in full view of these people put down the weapon and thereafter walked over to the complainant and others from where he was caught, the question of concealing the weapon simply does not arise. This information formed part of the FIR itself. Even before the so-called discovery, the police, therefore, had precise information about the location of the weapon. In case of Aher Raja Khima v. State of Saurashtra reported in AIR 1956 SC 217 it was observed as under: “(20) Then we come to the recoveries. The false beard and mask were found buried in the grounds of Dewayat's house and the appellant is said to have recovered them in the presence of panchas. But those discoveries are inadmissible in evidence because the police already knew where they were hidden. Their information was not derived from the appellant but from Dewayat (one of the other suspects).” (21) Lastly, there is the recovery of the axe. But this was not hidden. It was kept behind an earthen jar in the appellant's house just as an axe might be normally kept in any average household. The only point of suspicion is that the axe had stains of human blood on it. But the difficulty we are faced with there is that the extent of the stains and their position is not disclosed.” 27.1. In case of Jaffer Husain Dastagir v. The State of Maharashtra reported in AIR 1970 SC 1934 it was observed as under: “4. But the difficulty we are faced with there is that the extent of the stains and their position is not disclosed.” 27.1. In case of Jaffer Husain Dastagir v. The State of Maharashtra reported in AIR 1970 SC 1934 it was observed as under: “4. The High Court came to the conclusion that the complicity of the appellant with the crime alleged rested only on two pieces of evidence brought forward at the trial. The first was his identification by Mehta and his companion at the identification parade to the effect that he was present in the train on the material date and at the material hour. By itself this means nothing because there were a number of other persons who were standing in the passage at the same time and there is no suggestion – and indeed there could be none-that any of these persons were connected with the crime. To fasten the guilt on the appellant the prosecution had to rely on the evidence furnished by the statement alleged to have been made by the appellant to the police and the panchas in consequence whereof he was said to have led the police party to the Bombay Central Railway station waiting hall and to the discovery of the diamonds from accused No. 3. As the statement of the accused recorded above was in the nature of a confession it would come under the embargo of section 26 of the Evidence Act unless it can be brought within the ambit of S. 27 of the Evidence Act which reads: “Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” In order that the section may apply the prosecution must establish that the information given by the appellant led to the discovery of some fact deposed to by him. It is evident that the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by accused. It is evident that the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by accused. If the police had no information before of the complicity of accused No. 3 with the crime and had no idea as to whether the diamonds would be found with him and the appellant had made a statement to the police that he knew where the diamonds were and would lead them to the person who had them, it can be said that the discovery of the diamonds with the third accused was a fact deposed to by the appellant and admissible in evidence under S. 27. However, if it be shown that the police already knew that accused No. 3 had got the diamonds but did not know where the said accused was to be found, it can not be said that the information given by the appellant that accused No. 3 had the diamonds and could be pointed out in a large crowd at the waiting hall led to the discovery of fact proving his complicity with any crime within the meaning of S. 27. The fact deposed to by him would at best lead to the discovery of the whereabouts of accused No. 3. 11. In our view Gaud must have learnt that Parekh and/or accused No. 3 had the custody of the diamonds. Therefore the statement of the appellant that accused No. 3 had the custody of the diamonds would not be something unknown to the police so as to constitute “a fact deposed to as discovered in consequence of the information received” from the appellant. The discovery, if any, merely related to the whereabouts of accused No. 3. There was no discovery of any fact deposed to by the appellant within the meaning of S. 27.If the police had not gone to the office of the Bombay Samachar and had not learnt of the complicity of the third accused with the crime, the statement of the appellant would amount to information received from him relating to the discovery of the diamonds in the custody of accused No. 3. 12. 12. In the result although the statement might otherwise have been admissible in evidence, there was no discovery of a fact connecting the appellant with the receipt of the diamonds which were stolen within the meaning of S. 27 of the Evidence Act because the police already knew that the third and/or the fourth accused had the diamonds. The appeal must be allowed and the appellant directed to be set at liberty.” 27.2. In case of Thimma v. State of Mysore reported in AIR 1971 SC 1871 it was observed as under: “10. Reliance on behalf of the prosecution was also placed on the information given by the appellant which led to the discovery of the dead body and other articles found at the spot. It was contended that the information received from him related distinctly to the facts discovered and, therefore, the statement conveying the information was admissible in evidence under Section 27 of the Indian Evidence Act. This information it was argued also lends support to the appellant's guilt. It appears to us that when P. W. 4 was suspected of complicity in this offence he would in all probability have disclosed to the police the existence of the dead body and the other articles at the place where they were actually found. Once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by the mere manipulation of the record of case diary. It would, in the circumstances be somewhat unsafe to rely on this information for proving the appellant's guilt. We are accordingly disinclined to take into consideration this statement.” 28. In view of this, mere fact that the accused, along with the police party and panch witness reached the spot and recovered the axe would not amount to discovery at the instance of the accused. As already observed, discovery of a fact in relation to any information supplied by the accused assumes considerable importance. If the discovery itself fails, any information which the accused might have supplied would be rendered inadmissible in evidence. As already observed, discovery of a fact in relation to any information supplied by the accused assumes considerable importance. If the discovery itself fails, any information which the accused might have supplied would be rendered inadmissible in evidence. In case of Anter Singh v. State of Rajasthan reported in AIR 2004 SC 2865 it was observed as under: “16. The various requirements of the Section can be summed up as follows : (1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible. (2) The fact must have been discovered. (3) The discovery must have been in consequence of some information received from the accused and not by accused's own act. (4) The persons giving the information must be accused of any offence. (5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to. (7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.” 29. We may now address to the issue of the clothes of the accused carrying blood. The clothes worn by the accused recovered at the time of his arrest suffer from serious doubt. To begin with, the panch witness of the arrest panchnama – Rafikbhai Hasambhai, Exh.34 turned hostile. The Investigating Officer in whose presence such arrest was made and as per the panchnama the clothes of the accused were recovered, in his deposition Exh.57 did not indicate that such clothes were in fact recovered from the body of the accused. The very fact of the recovery of the clothes of the accused which were ultimately sent for FSL thus remained highly suspicious. Additionally, if we discard the other evidence from consideration, the sole factor which would be against the accused was the presence of human blood from his clothes. The very fact of the recovery of the clothes of the accused which were ultimately sent for FSL thus remained highly suspicious. Additionally, if we discard the other evidence from consideration, the sole factor which would be against the accused was the presence of human blood from his clothes. We have already dealt with the discovery of the murder weapon and any presence of human blood on such axe therefore would not in any manner co-relate to the accused. When the entire case is based on circumstantial evidence, the sole factor of the clothes of the accused carrying human blood, in our opinion, would not be sufficient to convict him for the offence of murder. In the present case, in fact, the recovery of the clothes itself is doubtful. 30. Even the motive was not established. Barring a suggestion that the deceased had developed illicit relation with the wife of the accused which also did not come in the testimony of any of the prosecution witnesses, the prosecution has failed to lead any cogent evidence of the motive for committing the offence. 31. Before closing, we would like to touch upon one more aspect of the matter. While referring to the hostile witnesses, we had recorded that in cross-examination by the prosecution the witnesses were not confronted with their police statements. The law on the issue was discussed at length in the decision in case of Chandrasinh v. State of Gujarat (supra) wherein the Division Bench has made observations which, in our opinion, need to be reminded to the prosecuting agency and may also be useful to the Presiding Officers conducting the trial. The observations read as under:- 27. Under section 145 of the Evidence Act, when it is intended to contradict the witness by his previous statement reduced into writing, the attention of such witness must be called to those parts of it which are to be used for the purpose of contradicting him, before the writing can be proved. The idea behind this provision is to enable the witness to explain his statement in the deposition which is to be contradicted by his previous statement. The parts of the police statement to which attention is so drawn can now be proved and read in evidence. A part of police statement can thus be used for the purpose of contradicting the witness deposing at the trial. The parts of the police statement to which attention is so drawn can now be proved and read in evidence. A part of police statement can thus be used for the purpose of contradicting the witness deposing at the trial. While recording the deposition of a witness, it, therefore, becomes the duty of the trial Court to ensure that the part of the police statement with which it is intended to contradict the witness is brought to the notice of the witness in his cross-examination. This necessarily would entail referring to the police statement for the purpose of drawing the attention of the witness to that part of the police statement with which he is to be contradicted. The process of bringing such part of the police statement to the attention of the witness would involve correctly indentifying that part from the police statement. The attention of witness is drawn to that part, and this must reflect in his cross-examination by reproducing it. If the witness admits the part intended to contradict him, it stands proved and it will be read while appreciating the evidence. If he refuses to have made that part of the statement, it will then be proved in the deposition of the investigating officer who again by referring to the police statement will depose about the witness having made that statement. The process again involves referring to the police statement and culling out that part with which the maker of the statement was intended to be contradicted. When it is the duty of the trial court to ensure that the attention of the witness to the part of his police statement with which he is to be contradicted is drawn in his cross-examination, it follows that such part must be correctly reproduced in his cross-examination and duly proved, when disputed, in the evidence of the investigating or authorised officer. All this necessarily involves referring to and reading of the police statement. All this necessarily involves referring to and reading of the police statement. It is within the ambit of the powers of the appellate Court to consider whether the process of confronting the witness with the part of his police statement was correctly followed during the trial and for this purpose, the police statements which are amongst the miscellaneous record and were used at the trial for the purpose of contradicting can always be referred and read in order to ascertain whether the part of the police statement with which the witness was to be contradicted was correctly shown to him or not. It is within the ambit of the appellate jurisdiction of this Court to verify from the record whether any error has crept in the trial in the process of confronting the witness with a part of the police statement with which he was required to be confronted. 28. In cases of contractions which are not omissions, the process is simply of checking up the part which was purported to have been brought to the attention of the witness as reproduced in his cross-examination from the police statement from which it was shown to him and by comparison, the court can ascertain whether there is any error. The part of the police statement with which the witness is contradicted is already proved by the investigating officer and forms part of the evidence and can always be read to find out whether the part which is referred in the cross-examination for drawing the attention of that witness is the same. 28.1. In cases where omission amounts to contradiction, the omission in the police statement of the witness is required to be put in his cross-examination under section 145 (second part) of the Evidence Act read with section 162(2) and the Explanation to section 162 by drawing his attention to the fact that what he is now stating at the trial was not stated by him in the police statement. This process necessarily entails the reading of the entire police statement and if the omission brought to the attention of the witness is admitted, then it stands proved, otherwise, it will have to be proved in the evidence of the investigation agency, where again the process of referring and reading the police statement takes place. This process necessarily entails the reading of the entire police statement and if the omission brought to the attention of the witness is admitted, then it stands proved, otherwise, it will have to be proved in the evidence of the investigation agency, where again the process of referring and reading the police statement takes place. The omission to state a fact or circumstance in the police statement which appears to be significant and is relevant having regard to the context in which such omission in the police statement occurs may amount to contradiction, as provided by the Explanation to section 162 of the Cr.P.C. Thus, only material omissions which amount to contradiction can be proved at the trial. For finding out whether there is such omission (as was put to the witness) proved, one has necessarily to read the police statement from which the omission was to be proved. Whether the omission exists and was duly proved at the trial is a matter which can be considered by the appellate Court and such consideration would involve and justify referring to the police statement to ascertain whether the provisions of section 145 of the Evidence Act read with section 162(2) and the Explanation to section 162 of the Cr.P.C. Have been duly observed by the trial Court, and whether the omission really is there or not. Albeit, the exercise of power by the appellate Court is circumscribed by the provision of section 162 about the purpose for which any part of a police statement can be used at the trial. However, within the above permissible limits, the appellate court is empowered to verify the material which forms part of the evidence by virtue of the attention of the witness being drawn to that material in his cross-examination under section 145 of the Evidence Act to contradict him and the proof of such contradiction or omission as adduced at the trial. One has necessarily to read that portion of the statement which is used for contradiction and which is said to be duly proved in order to decide whether it really was duly proved. One has necessarily to read that portion of the statement which is used for contradiction and which is said to be duly proved in order to decide whether it really was duly proved. It would, therefore, be too naïve to suggest that the appellate Court cannot even refer to or read that part of the police statement which has already been used for the purpose of contradicting the witness, for deciding whether any error is committed in drawing the attention of the witness to that part in his cross-examination as required by section 145 of the Evidence Act read with section 162 (1) of the Code and whether such part was duly proved in the deposition of the investigating officer, if disputed by the witness. 32. In the result, the appeal is allowed. The conviction and sentence of the appellant recorded by the learned Additional Sessions Judge, Amreli under his judgment dated 16.02.2008 in Sessions Case No.102 of 2006 is reversed. He shall be released forthwith if not required in any other case. R & P be transmitted to the trial Court forthwith. Appeal allowed.