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2014 DIGILAW 574 (GUJ)

JAYUBHAI JAYRAM SOMUBHAI BHIL v. STATE OF GUJARAT

2014-04-25

BHASKAR BHATTACHARYA, J.B.PARDIWALA

body2014
JUDGMENT : J.B.PARDIWALA, J. 1. The present appeal is at the instance of a convict-accused of the offence of murder and is directed against an order of conviction and sentence dated 23rd June 2008, passed by the learned Additional Sessions Judge and Presiding Officer, rd Fast Track Court, Surat at Vyara, in Sessions Case No.21 of 2008. By the aforesaid order, the learned Additional Sessions Judge found the appellant guilty of the offences punishable under Sections 302 and 201 of the Indian Penal Code, and consequently, sentenced him to suffer life imprisonment and a fine of Rs.10,000/-for the offence punishable under Section 302 of the Indian Penal Code. In default of payment of fine, the appellant was directed to undergo further simple imprisonment for 60 days. In the same manner, the learned Additional Sessions Judge sentenced the accused-appellant to suffer rigorous imprisonment of three years and fine of Rs.5,000/-for the offence punishable under Section 201 of the Indian Penal Code. In default of payment of fine, the appellant was directed to undergo further simple imprisonment for 30 days. The learned Additional Sessions Judge also convicted the accused-appellant of the offence under Section 135 of the Bombay Police Act and sentenced him to undergo simple imprisonment of one month and fine of Rs.100/-. In default of payment of fine, the appellant was directed to undergo further simple imprisonment of three days. 2. CASE OF THE PROSECUTION:- 2.1 The prosecution case as unfolded from the charge, Exh.4, framed by the trial Court is that the accused was in love with the deceased, viz., Surmaben Gangaji Bhil, a resident of Pipalvada, Nagji Faliya and was having an illicit affair with her, despite the fact that the accused is a married person. It is the case of the prosecution that being married and having extramarital relations with the deceased, the accused might have thought that the deceased would not leave him and would insist on maintaining her for all times to come, the accused any time between 2nd April 2007 and 6th April 2007 committed the murder of the deceased by inflicting injuries on her neck with a knife and, thereafter, dumped the dead body in a forest with the intention to destroy evidence. 2.2 It appears that the PW-1, Gangajibhai Bhil, the father of the deceased lodged a complaint, Exh.8, in this regard on 6th April 2007 at the Vyara Police Station. 2.2 It appears that the PW-1, Gangajibhai Bhil, the father of the deceased lodged a complaint, Exh.8, in this regard on 6th April 2007 at the Vyara Police Station. In the complaint, the PW-1, stated that he resides at the address indicated in the complaint with his son, viz., Ilku, elder daughter, viz., Sarika, and the younger daughter, viz., Surma. He has stated that his wife viz., Jivli, had died before around 10 to 12 years. His elder daughter, Sarika had been married and at the time of the incident was living with her husband. He has further stated that at the time of the incident he himself, his son, Ilku, and his daughter, Surma, the deceased, were staying together and used to earn their livelihood by doing labour work. He has further stated that Surma at the time of incident was 19 years old and was not married. However, Surma was in love with Jayubhai Bhil, the accused, residing in the same village. He has further stated that as the accused was a married man and was having an illicit relation with Surma, a meeting had been convened on 24th October 2006 in the village and in the said meeting the mediators took a decision that the accused shall not maintain any illicit relations with Surma and despite such decision being arrived at, if the accused would continue to maintain such illicit relations with Surma then the mediators would impose a fine of Rs.5,000/-on the accused. He has further stated that thereafter the accused had stopped meeting his daughter, Surma, for few days. However, after some time when the complainant used to go to work, the accused once again started coming at his house to meet Surma. Such fact was disclosed to the complainant by his son, Ilku. He has further stated that ten days before the date of filing of the complaint, he had gone for labour work with other persons of the village to another village. On 4th April 2007, the identity cards for assembly election were to be issued and for that purpose as photographs were to be clicked, the PW-1 came back home at around 5 hours in the evening on 3rd April 2007. He has stated that at that point of time, his son was at the house but his daughter, Surma, was not seen. He has stated that at that point of time, his son was at the house but his daughter, Surma, was not seen. The complainant inquired with his son as regards Surma, and he was informed by his son that on the previous day at around 3 O' clock in the afternoon the accused had come at their house and had taken Surma along with him on his bicycle. The complainant was further informed that since then Surma had not returned home. He has further stated in the complaint that thereafter they started searching for Surma with the help of other relatives but Surma could not be located. On the date of the filing of the complaint at around 9 O' clock in the morning, he heard in the village that a foul stench was coming from the direction of Nida Dungar and everybody felt that someone had died and due to de-composition of the body such foul smell was sensed coming from the direction of Nida Dungar. He has stated that thereafter he himself in company of around 30 to 35 persons of his village went in the direction of the jungle and at around 1 O' clock in the afternoon, the dead body of his daughter, Surma, was spotted lying in a dry valley at the foot of Nida Dungar. He has further stated that wild animals had mutilated one hand and one leg and the same were lying in a decomposed state. He has stated in the complaint that although the accused had given an undertaking in writing that he would discontinue his relations with Surma yet he committed breach of such undertaking and continued to maintain the illicit relations with Surma despite being a married man. He has alleged in the complaint that the accused inflicted injuries on the throat of his daughter and after committing the murder threw away the dead body in the deep ravines of the jungle with the intention to destroy the evidence. 2.3 On the strength of the complaint filed by the father of the deceased the investigation had commenced. The inquest panchnama of the dead body of the deceased, Exh.118, was drawn in presence of the panch witnesses. The scene of offence panchnama, Exh.14, was drawn in presence of the panch witnesses. 2.3 On the strength of the complaint filed by the father of the deceased the investigation had commenced. The inquest panchnama of the dead body of the deceased, Exh.118, was drawn in presence of the panch witnesses. The scene of offence panchnama, Exh.14, was drawn in presence of the panch witnesses. As the dead body of the deceased was in a highly decomposed condition, arrangements were made by the investigating officer to perform the postmortem examination at the very place where the dead body was lying and the postmortem report, Exh.22, revealed that the deceased had sustained injury over her neck and the cause of death was hemorrhage due to grievous injuries over the chest. The accused was arrested and the arrest panchnama, Exh.19, of the person of the accused was drawn in presence of the panch witnesses. The discovery panchnama of the place of occurrence and the weapon of offence, the knife, Exh.10, under Section 27 of the Evidence Act was drawn in presence of the panch witnesses. The statements of various witnesses were recorded. Finally, charge sheet was filed against the accused-appellant in the Court of the learned Judicial Magistrate, First Class, Vyara. 2.4 As the case was exclusively triable by the Sessions Court, the learned Judicial Magistrate, First Class, Vyara, committed the case to the Sessions Court under Section 209 of the Criminal Procedure Code. The Sessions Court framed the charge against the accused, Exh.4, and the statement of the accused was recorded. The accused did not admit the charge and claimed to be tried. 2.5 Prosecution adduced the following oral evidence in support of its case. PW-1 Gangajibhai Divalubhai Bhil (the complainant) Exh.7 PW-2 Gamanbhai Dharmubhai (Panch witness) Exh.9 PW-3 Karshanbhai Lahnubhai Bhil (Panch witness) Exh.13 PW-4 Dr.Parimala Jagubhai Gamit (Medical officer) Exh.20 PW-5 Bachubhai Chingubhai Kokni (witness) Exh.24 PW-6 Bharatbhai Uttambhai Gamit (Witness) Exh.25 PW-7 Dhanjibhai Ukadiyabhai Gamit (witness) Exh.26 PW-8 Urmilaben Jayubhai (witness) Exh.27 PW-9 Kamubhai Kuhalbhai Bhil (witness) Exh.29 PW-10 Rameshbhai Gangajibhai Bhil (witness) Exh.32 PW-11 Shankarbhai Radvabhai Vasava, PSI (Investigating Officer) Exh.33 PW-12 Virbhadrasinh Mahipatsinh Jadeja, PSI (Investigating Officer) Exh.34 2.6 The following pieces of documentary evidence were adduced by the prosecution. 1 The original complaint. Exh.8 2 Discovery panchnama. Exh.10 3 Slip bearing signatures of panchas. Exh.11, 12 4 Panchnama of the place of offence. Exh.14 5 Slip bearing signatures of panchas. Exh.15, 16 6 Inquest panchnama. 1 The original complaint. Exh.8 2 Discovery panchnama. Exh.10 3 Slip bearing signatures of panchas. Exh.11, 12 4 Panchnama of the place of offence. Exh.14 5 Slip bearing signatures of panchas. Exh.15, 16 6 Inquest panchnama. Exh.18 7 Arrest panchnama of the accused. Exh.19 8 Yadi for conducting PM of the deceased made to Medical Officer. Exh.21 9 PM Note of deceased. Exh.22 10 Certificate of cause of death. Exh.23 11 Notification of District Magistrate of prohibition to keep arms. Exh.35 2.7 After completion of oral as well as documentary evidence of the prosecution, the statement of the accused under Section 313 of the Criminal Procedure Code was recorded in which the accused stated that the complaint was a false one and he was innocent. 2.8 At the conclusion of the trial, the learned trial Judge convicted the accused for the offences punishable under Sections 302 and 201 of the Indian Penal Code and sentenced PW-1 Gangajibhai Divalubhai Bhil (the complainant) Exh.7 PW-2 Gamanbhai Dharmubhai (Panch witness) Exh.9 PW-3 Karshanbhai Lahnubhai Bhil (Panch witness) Exh.13 PW-4 Dr.Parimala Jagubhai Gamit (Medical officer) Exh.20 PW-5 Bachubhai Chingubhai Kokni (witness) Exh.24 PW-6 Bharatbhai Uttambhai Gamit (Witness) Exh.25 PW-7 Dhanjibhai Ukadiyabhai Gamit (witness) Exh.26 PW-8 Urmilaben Jayubhai (witness) Exh.27 PW-9 Kamubhai Kuhalbhai Bhil (witness) Exh.29 PW-10 Rameshbhai Gangajibhai Bhil (witness) Exh.32 PW-11 Shankarbhai Radvabhai Vasava, PSI (Investigating Officer) Exh.33 PW-12 Virbhadrasinh Mahipatsinh Jadeja, PSI (Investigating Officer) Exh.34 1 The original complaint. Exh.8 2 Discovery panchnama. Exh.10 3 Slip bearing signatures of panchas. Exh.11, 12 4 Panchnama of the place of offence. Exh.14 5 Slip bearing signatures of panchas. Exh.15, 16 6 Inquest panchnama. Exh.18 7 Arrest panchnama of the accused. Exh.19 8 Yadi for conducting PM of the deceased made to Medical Officer. Exh.21 9 PM Note of deceased. Exh.22 10 Certificate of cause of death. Exh.23 11 Notification of District Magistrate of prohibition to keep arms. Exh.35 him, as stated herein before. 2.9 Being dissatisfied the accused-appellant has come up with this appeal. 3. SUBMISSIONS ON BEHALF OF THE ACCUSEDAPPELLANT:- 3.1 Mr. P.B.Goswami, the learned advocate appearing for the accused-appellant vehemently submitted that the trial Court committed a serious error in finding the accused guilty of the offence of murder. Mr. Exh.35 him, as stated herein before. 2.9 Being dissatisfied the accused-appellant has come up with this appeal. 3. SUBMISSIONS ON BEHALF OF THE ACCUSEDAPPELLANT:- 3.1 Mr. P.B.Goswami, the learned advocate appearing for the accused-appellant vehemently submitted that the trial Court committed a serious error in finding the accused guilty of the offence of murder. Mr. Goswami submitted that the entire case of the prosecution hinges on the circumstantial evidence and the circumstances relied upon by the trial Court for holding the accused guilty of the offence of murder do not form a complete chain pointing only towards the guilt of the accused. 3.2 Mr. Goswami submitted that in a case which hinges on the circumstantial evidence, motive plays a very vital role and in the present case, the prosecution has not been able to lead an iota of evidence to even remotely suggest that the accused had any motive to kill the deceased. Mr. Goswami laid much stress on the fact that on the contrary the accused was very much in love with the deceased and there was no reason for the accused to kill her. 3.3 Mr. Goswami further submitted that the trial Court also committed a serious error in relying on the discovery panchnama drawn under Section 27 of the Evidence Act, more particularly, when the panch witnesses to such a panchnama failed to support the case of the prosecution and were declared as hostile witnesses. 3.4 Mr. Goswami further submitted that even the circumstance of last seen together, by itself, would not be sufficient to point a finger towards the accused. 3.5 Mr. Goswami lastly submitted that the case of the prosecution that the accused made an extra-judicial confession before the PW-5 regarding the crime is also a highly doubtful circumstance and the trial Court ought not to have relied on such a weak piece of evidence. 3.6 In such circumstances, referred to above, Mr. Goswami prays that there being merit in this appeal, the same may be allowed and the order of conviction and sentence passed by the trial Court be set aside. 4. SUBMISSIONS ON BEHALF OF THE STATE:- 4.1 Mr. K.P.Raval, the learned Additional Public Prosecutor appearing for the State has vehemently opposed this appeal. Mr. Goswami prays that there being merit in this appeal, the same may be allowed and the order of conviction and sentence passed by the trial Court be set aside. 4. SUBMISSIONS ON BEHALF OF THE STATE:- 4.1 Mr. K.P.Raval, the learned Additional Public Prosecutor appearing for the State has vehemently opposed this appeal. Mr. Raval submits that the trial Court committed no error in holding the accused guilty of the offences of murder punishable under Section 302 of the Indian Penal Code and Section 201 of the Indian Penal Code for destroying the evidence. 4.2 Mr.Raval submits that all the incriminating circumstances relied upon by the trial Court while holding the accused guilty of the offences form a complete chain pointing towards the guilt of the accused. 4.3 Mr.Raval, in such circumstances, prays that there being no merit in this appeal, the same may be dismissed. 5. ORAL EVIDENCE ON RECORD:- 5.1 The PW-1, Gangajibhai Bhil is the father of the deceased. The PW-1, in his evidence, Exh.7 has proved the contents of the First Information Report, Exh.8 lodged by him. In his oral evidence, he has reiterated what he has stated in the complaint, Exh.8. In his cross-examination, he has deposed that the day on which Surma died he had gone for labour work. He has deposed that he learnt regarding his daughter leaving the house through his son, Ilku. He has also deposed that the accused was professing Christianity and used to go to the Church. He has deposed that he himself follows the Hindu religion and his colleague, Nanubhai is a preacher of Hindu religion. He has also deposed that at the time of lodging the complaint at the police station, Nanubhai was all along with him. He has deposed that at the time when the police arrived at the village, it was Nanubhai, who had disclosed all the relevant facts of the incident before the police. He denied the suggestion that the complaint was dictated by Nanubhai. He has deposed that the persons following the Hindu religion do not get along well with those following the Christian religion in the village. He has also deposed that he had no idea as to what type of compromise was reduced into writing regarding the illicit relations between the accused and his daughter, Surma. He has deposed that he had no idea even regarding the date of such writing. He has also deposed that he had no idea as to what type of compromise was reduced into writing regarding the illicit relations between the accused and his daughter, Surma. He has deposed that he had no idea even regarding the date of such writing. He has deposed that although the mediators had prepared the writing regarding the settlement or the understanding yet he had not put his signature on such writing. He has deposed that even his daughter, Surma, had not put her signature on such settlement reduced into writing. He has deposed that he had disclosed the name of the accused in the complaint on the say of Nanubhai, Dhanjibhai and Jayantibhai. He has also deposed that he learnt regarding the dead body of Surma lying in the forest through other people residing in the village. 5.2 The PW-2, Gamanbhai Dharmubhai, has been examined by the prosecution as one of the panch witnesses to the discovery panchnama of the weapon of offence, Exh.10, drawn in terms of Section 27 of the Evidence Act. The PW-2, in his evidence, has deposed that on 16th April 2007, he was called at the police station by the Vyara Police. At that point of time, the second panch witness, viz. Pradipbhai Chaudhary was also present. He has further deposed that while at the police station the accused stated before them regarding the search of the knife and the stone. Thereafter, this witness along with the second panch witness and the police party left in a government vehicle as led by the accused. He has deposed that just around 100 meters from the house of the accused, the accused pointed out the place from where the accused took out a knife which was collected by the police. He has deposed that there was blood on the knife. Thereafter, the accused led the panch witnesses and the police party to the place where the deceased was killed. The said place was around 7 feet deep. He has deposed that one stone weighing around 5 kilos was lying over there stained with blood. The stone was shown by the accused. He has deposed that at that point of time, the accused made a statement that he had killed, Surmi, with the said stone. The stone was collected by the investigating officer. He has deposed that thereafter the panchnama was reduced into writing. The stone was shown by the accused. He has deposed that at that point of time, the accused made a statement that he had killed, Surmi, with the said stone. The stone was collected by the investigating officer. He has deposed that thereafter the panchnama was reduced into writing. He identified his signature on the panchnama. 5.3 In his cross-examination, he deposed that the PW-1, the father of the deceased, belongs to his community. He has deposed that the police had not given any intimation in writing to them to act as panch witnesses. He denied the suggestion that he had not gone to the police station and had put his signature on the readymade panchnama. He denied the suggestion that the stone, knife and hair were not collected in his presence. 5.4 The PW-3, Karshanbhai Bhil, has been examined as panch witness of the scene of offence panchnama, Exh.14. The PW-3 has proved the scene of offence panchnama, Exh.14. Nothing turns around on the evidence of the PW-3. However, in his cross-examination, the PW-3 has deposed that when the panchnama, Exh.14, was drawn many persons of the village were present over there. He has deposed that Nanubhai was also present at that point of time. He has deposed that Nanubhai is one of the leading persons of the village. He has also deposed that all the relevant facts regarding the incident were narrated by Nanubhai before the police. He has deposed that after preparing the necessary papers, as dictated by Nanubhai, they were told to put their signatures on the same. He has denied the suggestion that as Nanubhai is a preacher of Hindu religion and the accused was following Christianity they were not getting along well. 5.5 The PW-4, Dr.Parimala Gamit, in her evidence, Exh.20, has deposed that on 7th April 2007, while on duty a yadi was received for performing postmortem of the deceased Surmaben. The PW-4 produced the yadi, which was admitted and marked as Exh.21. The PW-4 has deposed that the postmortem examination of the dead body revealed the following features and injuries. • Whole body decomposed Margoles present all over the body also inside the body tissues whole body become blackish, Abdomen burst. Foul smelling dark blood stained fluid present in body cavillers. • Mouth opened and potently protruded tongue. Both eyes closed. • Whole body decomposed Margoles present all over the body. • Whole body decomposed Margoles present all over the body also inside the body tissues whole body become blackish, Abdomen burst. Foul smelling dark blood stained fluid present in body cavillers. • Mouth opened and potently protruded tongue. Both eyes closed. • Whole body decomposed Margoles present all over the body. Skin become blackish. • Margoles present over the external genitive region. • 3 cm. cut injury over the neck. (Rt) sided hared below humerus is not present, only humerus bone is present. (Rt) thigh is present below thigh leg is not present. (Lt) sided leg any metal sakdu was wear. • 7 rib fracture on (Lt) side. 8 rib fracture on (Rt) side. Both clavicle are fractured mandible fracture is present, hyoid bone fracture. • Fracture of occipital bone about 4 X 0.5 cm. • Liquefaction of the Brain tissue. • 7 ribs fracture on (Lt) side. 8 ribs fracture on (Rt) side. 5.6 She has deposed that the cause of death was hemorrhage due to the grievous injury over the vital organs of chest. The PW-4 deposed on being shown muddamal article no.6, the weapon of offence, i.e. the knife, that the injury sustained by the deceased on her neck can be caused by such a knife. She has deposed on being shown the muddamal article no.7, stone, that all the injuries mentioned in column nos.18 and 19 of the postmortem report can be caused if the stone is hit on the head of the person. In her cross-examination, she has deposed that 90% of the body of the deceased had decomposed and entire body was infested with maggots. 5.7 The PW-5, Bachubhai Kokni, has been examined by the prosecution to prove the extra-judicial confession alleged to have been made by the accused regarding the crime before this witness. The PW-5, in his evidence, Exh.24, has deposed that on 2nd April 2007, he himself along with one Ramesh Chambhal had gone deep in the jungle to fetch wood. The PW5 has deposed that at that point of time he and Ramesh Chambhar heard shrieks of a girl due to which the PW-5 and his companion climbed on two different trees and from the top of the trees, they saw the accused in the ravines. The accused was passing through the road and at that time, his companion Ramesh blew a whistle through his mouth. The accused was passing through the road and at that time, his companion Ramesh blew a whistle through his mouth. On hearing the whistle, the accused came near them and stated that he had an altercation with Surma, as a result he had killed Surma. The PW-5 has further deposed that stating so, the accused threatened him as well as his companion, Ramesh, that if they would disclose anything regarding the same they would face the consequences. The PW-5 has deposed that thereafter the accused went away in the jungle. He has deposed that thereafter he and his companion, Ramesh, went in the deep dry ravines of the forest and saw the dead body of a girl lying over there. He has deposed that blood was oozing from the neck and the head of the dead body. 5.8 In his cross-examination, he has deposed that he had studied up to 10th standard, while his companion Ramesh is uneducated. He has also deposed that he knows the place where the office of the Mamlatdar and the police station are situated at Vyara. He has also deposed that the father of the deceased Gangajibhai resides in his locality of the village. He has also deposed that the police had come to the village for drawing of panchnamas and at that point of time he had not disclosed anything before the police regarding the incident. The police had come on 7th April 2007, at the village and long thereafter his statement was recorded. He denied the suggestion given to him that police had come on 7th April 2007 and, ten days thereafter his statement was recorded. He deposed that his statement was recorded on 9th April 2007. He has also deposed that he had not lodged any complaint at the police station regarding the threats which were administered by the accused. He has also deposed that after the incident, Gangajibhai, the father of the deceased had come at his place for work and had actually worked for five days. He has deposed that even during those five days, he had not disclosed anything regarding the incident to Gangaji. He has also deposed that his companion Ramesh and Gangajibhai know each other very well, as both belong to the same village. According to this witness, his house is at a distance of one and a half kilometer from the place of occurrence. He has also deposed that his companion Ramesh and Gangajibhai know each other very well, as both belong to the same village. According to this witness, his house is at a distance of one and a half kilometer from the place of occurrence. The distance between his house and the house of the father of the deceased is around 200 meters. He has also deposed that before the police recorded his statement he had the occasion to visit the house of Gangaji many a times. He has also deposed that the accused was arrested after a period of ten days from the date of the incident and even after the arrest of the accused he had not informed the police nor the father of the deceased regarding the incident or the extra-judicial confession alleged to have been made by the accused before him and his friend, Ramesh. 5.9 The PW-6, Bharatbhai Gamit, has deposed that he had accompanied the father of the deceased and the other persons of the village while going in search of the deceased. He has deposed that they all had left at 9 O' clock in the morning and at around 1:30 in the afternoon they were able to spot a dead body in a highly decomposed state. The dead body was identified as that of the deceased by her father, the PW-1. He has also deposed that thereafter along with the sarpanch and other leading persons of the village, they all had gone to the police station to lodge the complaint. He has deposed that the deceased was unmarried and was having a love affair with the accused. The accused is a married person. On 24th October 2007, the father of the deceased had complained before the sarpanch and the police patel of the village regarding the affair of the accused with his daughter, Surma. Few persons from the village decided to act as mediators. Before the mediators the family members of both the accused and the deceased had remained present. On 24th October 2007, the father of the deceased had complained before the sarpanch and the police patel of the village regarding the affair of the accused with his daughter, Surma. Few persons from the village decided to act as mediators. Before the mediators the family members of both the accused and the deceased had remained present. The mediators decided that Urmila, the lawfully wedded wife of the accused, was to obtain legal separation from the accused but as they have a minor son and keeping the interest of the son in mind the mediators asked the accused not to maintain any relation with the deceased and if he would continue to do so then a fine of Rs.10,000/-would be imposed upon him and he would also be handed over to the police. 5.10 The PW-7, Dhanjibhai Gamit, has deposed practically on the same line with that of the PW-6. The PW-7 is also one of the residents of the village and has deposed about the affair which was going on between the accused and the deceased. 5.11 The PW-8, Urmilaben, is the lawfully wedded wife of the accused. The PW-8 in her evidence, Exh.27, failed to support the case of the prosecution and was declared as hostile witness. Nothing turns around much on the evidence of the PW-8. 5.12 The PW-9, Kanubhai Bhil, at the relevant point of time was the deputy sarpanch of Village-Pipalvada. This witness has deposed that if there is any quarrel between any of the parties in the village then a panch is asked to resolve the dispute. The panch would consist of few leading members of the village. In the said panch, the sarpanch or the deputy sarpanch would be an important member. This witness has also deposed regarding the meeting which was convened on th October 2006 and the settlement which was reduced into writing. He has deposed that before the panchayat, the deceased and the accused both had admitted of having an affair. This witness has also deposed that the deceased and the accused had put their signatures on such document reduced into writing. The PW-9 has deposed that the accused had affixed his thumb impression whereas the deceased had put her signature. 5.13 The PW-10, Rameshbhai Bhil, is the brother of the deceased. This witness has also deposed that the deceased and the accused had put their signatures on such document reduced into writing. The PW-9 has deposed that the accused had affixed his thumb impression whereas the deceased had put her signature. 5.13 The PW-10, Rameshbhai Bhil, is the brother of the deceased. The PW-10, in his evidence, Exh.32 has deposed that on 2nd April 2007 the accused had come to his house and had taken his sister, Surma, the deceased, along with him on his bicycle. The PW-10 has deposed that the day his sister, Surma, and the accused left on the bicycle he was at his house. He has deposed that the accused had relations with his sister, Surma. He has deposed that his father had gone for work to the village. His father returned home on the next day. On return of his father, he had informed him that Surma had gone with the accused. He has deposed that thereafter he himself along with his father started searching for Surma at the house of their relatives. Despite extensive search, Surma could not be located. He has deposed that thereafter they received information that Surma had been killed by someone in the forest. Thereafter, they all went in the direction from where the rotten smell was flowing. 5.14 In his cross-examination, he has deposed that he had not lodged any complaint with the sarpanch of the village or the police regarding his sister, going away with the accused. He has also deposed that he had not lodged any complaint regarding the affair between the accused and his sister. He has deposed that he does not know to read and write in Gujarati. His statement was dictated before the police by Nanubhai, Jayantibhai and the sarpanch of the village and had no idea as to what type of statement was dictated by those people to the police. 5.15 The PW-11, Shakrabhai Vasava, has deposed that on 7th April 2007 he was on duty as 2nd PSI at the Vyara Police Station. He has deposed that the senior police sub-inspector, Mr.Jadeja had handed him over the investigation of the CR No.I-53/2007 registered with the Vyara Police Station for the offences under Sections 302 and 201 of the Indian Penal Code and Section 135 of the Bombay Police Act. He has deposed that the senior police sub-inspector, Mr.Jadeja had handed him over the investigation of the CR No.I-53/2007 registered with the Vyara Police Station for the offences under Sections 302 and 201 of the Indian Penal Code and Section 135 of the Bombay Police Act. This witness has deposed regarding the various stages of investigation like drawing of panchnamas etc. 5.16 The PW-12, Virbhadrasinh Jadeja, in his evidence has deposed that on 6th April 2007 he was on duty as a police sub-inspector at the Vyara Police Station. While on duty he received information regarding a murder at village-Pipalvada, and had accordingly taken down the complaint of Gangajibhai Bhil, the father of the deceased. He has deposed regarding the inquest panchnama of the dead body drawn in presence of the panch witnesses. He has also deposed regarding sending of the dead body to the hospital for the postmortem examination. 6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this appeal is whether the trial Court committed any error in holding the accused guilty of the offence of murder punishable under Section 302 of the Indian Penal Code. 7. The picture that emerges on cumulative assessment of he materials on record, leaves no doubt that the accused had an illicit relation with the deceased, Surma. The accused is a married man but was in love with the deceased. It also appears from the evidence on record that the village panchayat, in a meeting, which was attended by the family members of both the sides had asked the accused not to maintain relations with the deceased as he was married having a wife and minor son. 8. It appears that the trial Court while convicting the accused placed reliance on the following circumstances. (i) On 2nd April 2007, the accused had come to the house of the deceased and had taken the deceased along with him on his bicycle. According to the trial Court, this fact has been deposed by the PW-10, Ramesh, the brother of the deceased. This circumstance has been relied upon by the trial Court to advance the theory of last seen together. According to the trial Court, this fact has been deposed by the PW-10, Ramesh, the brother of the deceased. This circumstance has been relied upon by the trial Court to advance the theory of last seen together. (ii) The second circumstance relied upon by the trial Court is that on 6th April 2007 the dead body of the deceased was recovered from the forest in a highly decomposed state. (iii) The third circumstance relied upon by the trial Court is that the accused after committing the murder of the deceased made an extra-judicial confession before the PW-5, Bachubhai Kokni and his friend, Ramesh Chambhar. (iv) The fourth circumstance relied upon by the trial Court is that the accused was arrested on 15th April 2007 and while in police custody on the next day, i.e. on 16th April 2007, he expressed his willingness to point out the knife and the stone with which he had killed the deceased. Pursuant to such statement made by the accused the discovery panchnama, Exh.10, under Section 27 of the Evidence Act was drawn in presence of the panch witnesses. (v) The fifth and the last circumstance relied upon by the trial Court is that the accused had a strong motive to commit the crime as he was quite annoyed with the villagers, who reprimanded him and had threatened him that if he would continue with the illicit relation then he would be imposed with heavy fine. In the alternative, the trial Court relied on the fact that perhaps the accused might have felt that Surma would not live him for his entire life and for such reason decided to do away with the deceased. 9. We start with the last circumstance of motive first. Indisputably, the entire case of the prosecution hinges on the circumstantial evidence. It is well to remember that in cases where the evidence is of circumstantial nature, the circumstance from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 10. We are of the opinion that the trial Court was not fully alive to the aforesaid principles and has failed to assess the evidence in the correct perspective. 11. We find that in the present case the prosecution has miserably failed to establish any motive on the part of the accused to commit the crime. In cases based on circumstantial evidence motive for committing the crime assumes great importance. In such circumstances, absence of motive would put the Court on its guard to scrutinize the evidence very closely to ensure that suspicion, emotion or conjecture do not take the place of proof. In the present case, the accused being a married man and a father of a minor son was in love with the deceased. It appears from the tenor of the evidence of the father and the brother of the deceased that they all knew regarding the same very well. If the father and the other family members had complained about the same before the village panchayat and if the leading persons of the village had in a meeting convened for such purpose reprimanded the accused and the deceased, then in such circumstances, we find it very difficult to believe that on 2nd April 2007 the accused had come to the house of the deceased and had taken her away on his bicycle without any objection or resistance at the end of the brother of the deceased. According to the brother of the deceased, his father had gone to the village for work. Despite all odds if the accused refused to pay heed to the so-called warning given to him by the village panchayat as regards his relations with the deceased, and continued to visit at the house of the deceased, it would suggest that he was very much in love with the deceased. Despite all odds if the accused refused to pay heed to the so-called warning given to him by the village panchayat as regards his relations with the deceased, and continued to visit at the house of the deceased, it would suggest that he was very much in love with the deceased. We fail to understand that on what basis the trial Court recorded the finding that the accused killed the deceased as he must have felt that the deceased would not spare him for his entire life. There is no evidence worth the name even to remotely suggest that at a point of time the accused was not inclined to maintain the relations with the deceased. If he wanted to go back to his legally wedded wife he could have easily done so and there was no reason for him to kill the deceased. Thus, we are of the view that the prosecution has not been able to prove or establish the movie for the commission of the crime and with motive not being proved the chain of circumstances gets snapped at this stage itself. In a case based on circumstantial evidence, if the motive goes, which is the foundation, the superstructure would also fall, i.e. the other circumstances. 12. Normally, there is a motive behind every criminal act and that is why the investigating agency as well as the Court while examining the complicity of an accused try to ascertain as to what was the motive on the part of the accused to commit the crime in question. It has been repeatedly pointed out by the Supreme Court in a catena of decisions that where the case of the prosecution has been proved beyond all reasonable doubts on the basis of the materials produced before the Court, the motive loses importance. But in a case which is based on circumstantial evidence, like the case at hand, the motive for committing the crime on the part of the accused assumes greater importance. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for the purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of motive for commission of such a crime, the accused can be convicted. Of course, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for the purpose of recording a finding that it was the accused who committed the crime in question, even in absence of proof of motive for commission of such a crime, the accused can be convicted. But the investigating agency as well as the Court should ascertain as far as possible as to what was the immediate impelling motive on the part of the accused which led him to commit the crime in question. In the present case, the motive on the part of the appellant to commit the murder of Surma, as suggested by the prosecution, not only appears to be vague but somewhat illogical. It cannot be said that the prosecution has established the motive on the part of the accused-appellant to commit the crime. It appears to us that having realized such deficiencies in the course of investigation, the investigating officer, after a long lapse of time, introduced the story of extra-judicial confession alleged to have been made by the accused regarding the crime before the PW-5. This is the only way perhaps the investigating agency could have put forward some evidence with regard to the motive. We shall discuss the circumstance of extra-judicial confession a little later but a strong doubt has arisen in our mind that as there was no motive the version of the extra-judicial confession came to be fabricated. 13. So far as the circumstance of last seen together is concerned, we fail to understand how this circumstance, by itself, would be sufficient to connect the accused with the crime. It was nothing unusual for the deceased to leave the house and go along with the accused riding on his bicycle as it appears that the family members were also very much aware of the relations between the accused and the deceased. Therefore, assuming for the moment that the accused had come to the house of the deceased on 2nd April 2007 and had taken the deceased along with him on his bicycle would hardly be termed as an incriminating circumstance going against the accused. The theory of last seen together advanced by the prosecution hardly connects the accused with the crime. 14. The theory of last seen together advanced by the prosecution hardly connects the accused with the crime. 14. The trial Court has placed strong reliance on the circumstance of the extra-judicial confession said to have been made by the accused before the PW-5. It appears that the learned Sessions Judge has based the conviction on confession made before the PW-5, Bachubhai Kokni by the accused, and thereafter tried to find out corroboration by other evidence. That should not be the approach of the Sessions Court as held by the Supreme Court in the case of Chandrakant Chimanlal Desai vs. State of Gujarat reported in 1992 Criminal Law Journal 2757. The following observation of the Supreme Court in the said decision is relevant and is quoted below: “5. The confession of the first accused was retracted at the time when the accused was questioned under Sec. 313. In considering the reliability of this confessional statement the High Court had not kept in view the observations of this Court in Kashmira Singh vs. State of M.P., ( AIR 1952 SC 159 ) : (1952 Cri.L.J. 839). In this decision the Supreme Court had observed: “The confession of an accused person is not evidence in the ordinary sense of the term as defined in S. 3. It cannot be made the foundation of a conviction and can only be used in support of other evidence. The proper way is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safelybe based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.”” 15. On consideration of the entire materials on record, we, therefore, find that in the facts before us, the prosecution based its case on extra-judicial confession alleged to have been made before the PW-5, Bachubhai Kokni. On consideration of the entire materials on record, we, therefore, find that in the facts before us, the prosecution based its case on extra-judicial confession alleged to have been made before the PW-5, Bachubhai Kokni. We have assessed the oral evidence of the PW-5 and are of the view that the PW-5 could not be termed as a 'reliable witness'. It appears that when the investigation was practically over with the recording of the statement of various witnesses, long thereafter the investigating officer recorded the statement of the PW-5 with the story of extra-judicial confession alleged to have been made by the accused before this witness. As usual, the PW-5 has deposed that he had not stated regarding the incident of 2nd April 2007 and the so-called extra-judicial confession made by the accused before him due to the threats which were administered by the accused. Let us assume for the moment that such threats were administered and due to such fear of the accused, the PW-5 kept himself quiet but there was no reason for the PW-5 to keep quiet at least after the arrest of the accused. It appears from the materials on record that the statement of the PW-5 was recorded by the investigating officer long after the arrest of the accused and was made a part of the charge sheet. We are not convinced with the overall evidence of the PW-5 as we do not find any ring of truth in his evidence. From the tenor of his evidence and the way he has faired in his cross-examination it appears to us that his statement was recorded by the police only with a view to introduce the story of extra-judicial confession which appears to be fabricated. 16. The fourth circumstance relied upon by the trial Court in the chain of circumstances is the discovery of the weapon of offence i.e. the knife and the stone. This circumstance also, in our opinion, could hardly be termed as an incriminating circumstance considering the manner in which the discovery panchnama, Exh.10, has been proved through the evidence of the PW-2, Gamanbhai. From the evidence of the PW-2, it is evident that he was called at the Vyara Police Station on 16th April 2007 to act as a panch witness along with one another panch witness viz. Pradipbhai. From the evidence of the PW-2, it is evident that he was called at the Vyara Police Station on 16th April 2007 to act as a panch witness along with one another panch witness viz. Pradipbhai. From the evidence of the PW-2, it is clear that no statement of any nature was made by the accused in his presence regarding the willingness to point out the place where the knife and the stone had been concealed. The evidence of the PW-2 starts with the statement that the police had called him for the purpose of searching the knife and the stone. The PW-2 has further deposed that thereafter they all left in the government vehicle. At a distance of about 100 meters from the house of the accused, the accused took out the knife which was collected by the investigating officer. From there they all went to the place where the deceased was killed and at that place, the accused pointed out a stone stained with blood. From the evidence of the PW-2, it is difficult to confer the authorship of concealment of the weapon of offence and it could not be said that the discovery panchnama under Section 27 of the Evidence Act has been proved by the prosecution in accordance with law. 17. In the present appeal, we have noticed something very unique and shocking. Although the prosecution seeks to rely on the evidence of discovery of weapon of offence, i.e. the knife and the stone said to be stained with blood, yet it appears that none of the muddamal articles collected in the course of investigation were sent to the Forensic Science Laboratory for chemical analysis. In absence of any such serological test report of the Forensic Science Laboratory, we fail to understand how the discovery of the knife and the stone said to be stained with blood could be connected with the crime. Assuming for the moment that there is a discovery of the weapon of offence, but such weapon must have nexus with the crime. 18. We have also noticed that the so-called settlement deed reduced into writing regarding the illicit relations of the accused and the deceased has not been exhibited in evidence as the original was not produced at the time of trial. 18. We have also noticed that the so-called settlement deed reduced into writing regarding the illicit relations of the accused and the deceased has not been exhibited in evidence as the original was not produced at the time of trial. Despite the fact that the same has not been exhibited the trial Court read the contents of the same as it appears from paragraph 32 of the judgment. 19. We find considerable force in the submission of Mr.Goswami, the learned advocate appearing for the accused that as the accused was professing Christianity there was lot of opposition in the village. On the other hand, Nanubhai, one of the leading persons of the village is a preacher of Hinduism. The evidence on record indicates that there is a conflict between those professing Christianity and those following the Hindu religion. It also appears from the evidence on record that Nanubhai had played a major role in lodging of the complaint and all throughout the course of investigation, he was present with the investigating officer. Our doubt is further fortified by the evidence of the PW-10, Ramesh, the brother of the deceased. The PW-10 has deposed that he does not know to read and write in Gujarati and his entire police statement was dictated by Nanubhai. 20. Thus, in the overall view of the matter, we have reached to the conclusion that the trial Court committed a serious error in holding the accused guilty of the offence of murder. None of the circumstances, referred to above, could be said to be fully established consistent only with the hypothesis of the guilt of the accused. It is settled law that suspicion howsoever strong cannot take the place of proof. 21. Resultantly, this appeal succeeds and is allowed. The order of conviction and sentence passed by the Sessions Court are hereby set aside. The accused is ordered to be released forthwith, if not required in any other case.