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2017 DIGILAW 186 (GUJ)

Paresh Bhupendrabhai v. State of Gujarat

2017-01-24

AKIL ABDUL HAMID KURESHI, BIREN VAISHNAV

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JUDGMENT : Biren Vaishnav, J. 1. Original accused in Special Case No. 150 of 2005, has approached this Court challenging the judgment and order dated 30.09.2006, by which, the accused has been convicted for the offences punishable under Section 302 of the Indian Penal Code and under Section 3(2)(5) of the Atrocities Act. The judgment was rendered by the learned Additional Sessions Judge, Second Fast Track Court, Palanpur. The case of the prosecution, as is evident from the charge framed at Exh. 6 is as under: 1.1 The accused Paresh was married to one Trupti Parmar on 24.04.2003. On differences having surfaced in their matrimonial life, they separated on 12.01.2004. Nanjibhai Karsanbhai Parmar and Pravinbhai V Parmar, was looking for a suitable match for Trupti and the deceased-Chandrakant Jeevanlal was the individual, with whom it was decided that Trupti would get engaged. According to the prosecution, the fact that Trupti was to be engaged was not to the liking of accused Paresh, and therefore, on 16.09.2005, he left Ahmedabad for Deesa, purchased a knife from a store of one Kantilal Dhinganmal Shah, looked for Chandrakant, accompanied him to his room in the evening at 5 and stabbed him to death. The prosecution case further is that, it was Maksoodbhai, who had guided the accused to Chandrakant, when he had come to inquire of him. A charge, accordingly, was framed implicating the accused Paresh for the offences committed under Section 302 of the IPC, Section 135 of the Bombay Police Act and Section 3(2) (5) of the Atrocities Act. 2. The First Information Report at Exh. 11 was filed on 16.09.2005, by Chintan Vasantkumar Panchal, who was a room partner and shared room with Chandrakant-the deceased. According to the version in the complaint, he together with Ashokbhai Gunvantlal, Modh Parth Ratilal and Chandrakant-the deceased, were staying at a room of Shri Ramabhai Jodhabhai Patel. On 16.09.2005, at around 9 O'clock in the morning, all four of them left for their respective jobs, as they were serving as Vidya-Sahayaks in different schools. On way to their workplace, Chandrakant briefly stopped at the STD/PCO of Navinbhai and made a call, which according to the complainant's version as explained to him by Chandrakant got disconnected, and therefore, he could not complete the conversation. All four of them, thereafter, from the bus-stand separated. On way to their workplace, Chandrakant briefly stopped at the STD/PCO of Navinbhai and made a call, which according to the complainant's version as explained to him by Chandrakant got disconnected, and therefore, he could not complete the conversation. All four of them, thereafter, from the bus-stand separated. In the evening at 5:30, when Chintan- the Complainant returned to the room, on opening the door of the room he found Chandrakant's body lying in a pool of blood. On seeing this, he called Natwarbhai Barot, next door neighbour and Sanjaybhai Patel and other shop keepers. In the meantime, the other room partners arrived on the scene. According to the complainant, one Hareshbhai Soni and Chelabhai Patel, who had shops in the vicinity informed him that he had seen Chandrakant in the company of an individual, who was wearing a black trouser. Both, Chandrakant and this individual went to the room, the person wearing the black trouser came down the stairs and left. Complaint/First Information Report is at Exh. 11. 3. Chintan Panchal-the Complainant was examined as prosecution witness 1 at Exh. 10. He has in his deposition stated that he was staying in a room of Ramabhai and, Ashok Gunvantlal, Parth Modh and Chandrakant Parmar were also staying together in the same room. Chandrakant was serving at Kesharpura Primary School. There were two rooms, one was used as Kitchen and one as bed room. Natwarlal Barot was a next door neighbour. 3.1 On the date of the incident, at 10:00 in the morning, all the four left together for their job, briefly stopped at the STD/PCO of Navinbhai, where Chandrakant made a call. Thereafter, all of them went to their respective schools to attend to their jobs. Chandrakant left for Kesharpura, while he left for Asaasan. Parth left for Jadeshwar Mahadev Primary School at Laakhani and Ashokbhai went to Mafi Farm Primary School. On leaving School at 05:00, at 05:30 in the evening, he reached Laakhani Road Bus-Stand and walked to his room. On opening the door of the room, he found Chandrakant lying in a pool of blood. On seeing this he immediately, called Natwarlal Barot and other shop keepers on the ground floor. In the meantime Ashokbhai and Parthbhai also returned from their schools. On opening the door of the room, he found Chandrakant lying in a pool of blood. On seeing this he immediately, called Natwarlal Barot and other shop keepers on the ground floor. In the meantime Ashokbhai and Parthbhai also returned from their schools. Chelabhai and Hareshbhai, who had their shops adjacent to the room informed him that at 05:00 in the evening, they had seen Chandrakant in the company of a person who was wearing a black trouser who had gone up the stairs with Chandrakant. Hence, the complaint, initially, was against an unknown person. Chandrakant was already dead when he opened the room. He had sustained injuries on his neck. This witness further states that approximately seven days after the complaint was lodged that he came to know that Chandrakant was engaged and Paresh was earlier married to the girl. According to his information the accused was responsible for this act. On the date of the incident, Pareshbhai had come to the Laakhani School and met Maksoodbhai and inquired of him regarding Chandrakant. Maksoodbhai in order to facilitate locating the school where Chandrakant was working, sent Vagha a student to Chandrakant's school. Both, Chandrakant and Paresh, thereafter, returned to the room, at which point of time the incident is supposed to have happened. This witness was cross examined and in his cross-examination, he states that he was an occupant of this room at least eight months before the incident and Chandrakant had informed him that he was engaged to a girl from Ahmedabad. Chandrakant did not specify the fact that the girl had a previous affair with any other individual. He admits that there were about three to four shops on the ground floor and there was also a godown adjacent to the staircase. Chelabhai's shop was next to the godown and so also was Hirabhai's shop. The neighbourhood of Laakhani bus-stand was a busy thoroughfare. If one was to walk from Laakhani bus-stand to Kesharpura, it would take half an hour. Chandrakant's school would come after that of Parth. In his cross-examination, this witness further states that, they were occupying two rooms and the next door neighbour was one Natubhai, who was also a tenant. Natubhai was staying in a room with his family. If one was to go up-stairs, Natubhai's room would be the first to come, and thereafter, the room of the complainant. In his cross-examination, this witness further states that, they were occupying two rooms and the next door neighbour was one Natubhai, who was also a tenant. Natubhai was staying in a room with his family. If one was to go up-stairs, Natubhai's room would be the first to come, and thereafter, the room of the complainant. According to the further testimony of this witness, he admits that Chandrakant had met Maksoodbhai, who was also staying close by at a walking distance of about five minutes from his room. According to him, Chelabhai had not given any description of the person who had accompanied Chandrakantbhai, except stating that this individual was wearing a black trouser. 3.2 Prosecution Witness No. 4, Trupti has been examined at Exh. 21. In her testimony, she states that Pravinbhai was looking for a suitable match for her and a family from Mehsana S.T Colony had come to see her. Chandrakant was a person, with whom it was decided that she would be engaged to. The families had met on an occasion of Labh-Pancham. It was on the 20th that she came to know that Chandrakant had been done to death. According to this witness, when she was in College, she had an affair with one Paresh. She had married Paresh, however, they had separated later. Paresh was no longer in contact with her. He was working at a Diamond Polishing Unit. Chandrakant was working at Laakhani as a Vidya-Sahayak. She had spoken once over telephone with Chandrakant after her engagement. Paresh had once at Ahmedabad inquired about Chandrakant, when he met her at Khodiyarnagar. After the 20th, she had asked Paresh about Chandrakant's well being. This witness further testifies that when a specific question was put to Paresh, as to whether he had murdered Chandrakant, Paresh denied the same. In her cross-examination, she states that both of them separated after having been married for about seven months. She denied a suggestion that after having separated she was meeting. She also denied a suggestion that Paresh was threatening her in the event she had decided to get married again. She admitted that Paresh had inquired of her well being, after she had been engaged to Chandrakant. She admits that, thereafter, that it was on their volition that she and Paresh have decided that they would not meet each other. 4. She admitted that Paresh had inquired of her well being, after she had been engaged to Chandrakant. She admits that, thereafter, that it was on their volition that she and Paresh have decided that they would not meet each other. 4. Maksoodbhai Karimbhai Adhariya, Prosecution Witness No. 2 has been examined at Exh. 12. According to this witness, he was serving as a Vidya-Sahayak at Laakhani Primary School. He was serving there for the last three years and was staying at a rented house owned by Bhurabhai, which was close to Ramabhai Patel's house, where Ashokbhai, Chintan, Parth Modh and Chandrakant were staying. According to this witness, he had more affinity with Parth of the four that were staying in the room. On the date of the incident, at 10:30, according to the version of this witness, he left for the school, marked his presence in the register, attended the prayer and went to teach in standard six. After the first period was over, he went to take a class at 11:55. Five minutes thereafter, a man approached him and stood at the door of the class, on being asked, this man inquired from Maksoodbhai as to where Chandrakant was working. Maksoodbhai responded by saying that Chandrakant was serving at Kesharpura. The individual, therefore, asked for the complete address of the Kesharpura School, at which stage, according to this witness he volunteered to send one of his student to accompany him to Kesharpura. Vagha- a student studying in the class volunteered for accompanying this person to Kesharpura. This witness further stated that, his interaction with the person lasted for sometime. He was wearing a black coloured shirt and carrying a shoulder bag. According to him, he was about 25 to 26 years of age. The shirt that the person was wearing was a readymade shirt. He was dark skinned. This witness further states that he had not noticed as to what time Vagha returned after being sent to Kesharpura. At 05:00 in the evening, after school hours he went to his room and then went on to the road to have a cup of tea, where he was informed that Chandrakantbhai had been done to death. He went to the scene, stood downstairs, the police recorded his statement. This witness was cross examined. In his cross-examination, he stated that he was called to the Mamlatdar's Office on 26/09/2005. He went to the scene, stood downstairs, the police recorded his statement. This witness was cross examined. In his cross-examination, he stated that he was called to the Mamlatdar's Office on 26/09/2005. He was called to participate in a Test Identification Parade. He was made to sit at the records branch of the Revenue Department. Panchas were called thereafter, in whose presence individuals were lined up and out of these persons, he identified the accused as Paresh. He further identified Paresh-the accused who was present in the Court. In his cross-examination, the defense sought to bring out certain contradictions. He states that, when he was called for a Test Identification Parade, the accused was standing in the queue in order at number seven. Vagha was thereafter called for identifying the accused. He denied a suggestion that before the Identification Parade was carried out the accused was brought to Laakhani village with panchas on more than one occasion. 5. Child witness Vagha has been examined as Prosecution Witness No. 10 at Exh. 31. He has, however, turned hostile. In his examination in chief, he stated that he was studying at a Primary School at Laakhani. That, on the date of the incident, he had gone to the school at 10:00 in the morning. After having completed the Maths period, he was attending a period of Science. He admits that Maksoodbhai was taking Science period. He, thereafter, denied having information about anything that happened after the Science lecture or the fact of having participated in the Test Identification Parade at the Mamlatdar's Office. He also denied that any person had approached Maksoodbhai. 6. Prosecution Witness No. 11 at Exh. 33 Hathibhai Fatabhai Kaarat is the official who carried out the Test Identification Parade. According to this witness, the Test Identification Parade was carried out on 26.09.2005 at 04: 30 in the evening. Ten persons were called to his chamber and asked to stand in a line. The accused was brought to the Office, his face covered and he was asked to stand between No. six and No. eight in the line. Maksoodbhai was called in the company of the Pancha. Maksoodbhai identified the accused in presence of the panch witness. Thereafter, in his testimony he extensively narrates the manner and the method in which the Test Identification Parade was carried out. Maksoodbhai was called in the company of the Pancha. Maksoodbhai identified the accused in presence of the panch witness. Thereafter, in his testimony he extensively narrates the manner and the method in which the Test Identification Parade was carried out. Vagha Chaudhary, also according to this witness, in the presence of panch witness identified Paresh. This witness was cross examined. According to him, when he received a Yadi, the Test Identification Parade was for 29.09.2005 at 02:00 in the afternoon, which was subsequently changed to 26.09.2005 at 04:30 in the evening. Exh. 34 is the Yadi dated 24.09.2005 pursuant to which the Test Identification Parade was carried out at Exh. 35 as the panchnama of the Test Identification Parade. 7. Prosecution witness No. 12 Kushuji Bhemarji Thakor was examined at Exh. 31, who is a panch witness to the Test Identification Parade. However, he has turned hostile. Merajbhai Desai-PW 13 at Exh. 38 is also the panch witness to the Test Identification Parade. Doctor Atharhussain Vahidkhan. 7.1 PW- 14 is the doctor at Exh. 39 who carried out the Post Mortem of Chandrakant. According to the testimony of this witness, the deceased Chandrakant suffered the following external injuries: "(1) Sharp cut wound on the frontal neck, directed Rt to left, margin clear, shape spindle with clotted blood on the wound. Size 10 cm 4 cm 4cm. (2) Sharp cut wound Rt forearm situated 1" above Rt wrist dorsal side, directed left to Right, with clotted blood on wound, size 4 cm* 1/2 cm* 1cm (3) Sharp cut wound on Rt (unread) side of forearm, just above wrist joint size 4 cm* 1/2* 1/2 angle is sharp. (4) Sharp cut on left dorsal of wrist shape spindle size 2 cm* 1/2 cm* 1 cm. The cause of death according to the Post Mortem Report as confirmed by the doctor was due to hemorrhage shock due to sharp cutting wound of neck. In the opinion of this doctor, due to the injuries sustained as a result of the sharp cutting wounds on the neck and the resultant loss of blood, Chandrakant succumbed to injuries. According to the doctor, injury No. 1 was in the ordinary course sufficient to cause death. The accused Paresh, who according to the defense had sustained injuries was examined by this doctor. According to the doctor, injury No. 1 was in the ordinary course sufficient to cause death. The accused Paresh, who according to the defense had sustained injuries was examined by this doctor. In the history narrated by the accused, he had stated that he had sustained injuries on the hand, because he was bit by Chandrakant. Injury Certificate is at Exh. 44. The injuries that the accused has sustained as per the certificate are as under: "(1) Abrasion on 2nd finger of left hand, situated dorsally, at second Ring finger phalanges, size 1cm, shape irregular, seal formation present. (2). Abrasion on left middle finger of hand, situated dorsally size 1 cm* 1/2 cm, shape irregular, seal fallen off, (3). Abrasion on left index finger of left hand, situated dorsally at proximal phalanges, size 1 cm* 4 cm, shape irregular, with seal formation. Patient was refer to for further examination and treatment According to my opinion the above injuries are likely to be caused by H.B.S. According to the doctor these injuries were possible due to hard and blunt substances." 8. Kantilal Dhinganmal Shah, Prosecution witness No. 6 is examined at Exh. 23. He is the shop owner from whom, according to the prosecution version, the accused has purchased a knife used in the incident. In his testimony, the witness testifies that his shop is open from 08:30 in the morning to 08:30 in the evening. He further states that, the police had come to his shop with a person whom he identified as the one who had purchased the knife, eight days prior to the time when the police came to his shop. He did not issue any receipt, but made a note on a rough piece of paper. He identified the accused Paresh, who was present in the Court. The knife was sold at Rs. 10/- He then states that, he does not clearly remember as to who had come to purchase the knife, as there were several customers at his shop. He therefore cannot clearly identify whether it was the accused who had come to the shop. In his cross-examination, he admits that there were at one point of time several customers, and therefore, identifying an individual becomes difficult. 9. In order to bring home the charges, the prosecution has sought to support their case through set of discovery panchnamas. He therefore cannot clearly identify whether it was the accused who had come to the shop. In his cross-examination, he admits that there were at one point of time several customers, and therefore, identifying an individual becomes difficult. 9. In order to bring home the charges, the prosecution has sought to support their case through set of discovery panchnamas. Prosecution witness No. 3 Badarsinh Dhanji Vaghela is a witness to a panchnama at Exh. 15. According to this witness on 24.09.2005, he was asked to be a panch witness as the accused, on his own volition had volunteered to show the place where a knife, shirt and the water bottle which he had hidden after carrying out the act in question. According to this witness, as guided by the accused, the investigating authority together with this witness discovered the shirt, the knife and the water bottle from the bushes. This witness has been cross examined. Suggestions have been put to him to dent his credibility and question the discovery of the items which has been discovered by the panch witness on account of the fact that the recovery was made from a public place and not that the articles were hidden and cannot be easily found. Suggestions have been denied by this witness. The panchnama is at Exh. 15. 10. Similarly, PW No. 8 Virendrakumar Ramswaroop Gupta and prosecution witness No. 9 at Exh. 30 are panch witnesses to the discovery panchnama at Exh. 29. The prosecution has tried to corroborate its case through the discovery of a pair of socks, which according to the prosecution the accused was wearing at the time of the incident and which the accused led the investigating machinery to discover at a place suggested by him. 10.1. Police witnesses have been examined. Prosecution witness NO. 15 Udaysinh Abjiji Parmar, who registered the FIR has been examined at Exh. 46. Trikamlal Tabiyar- PW-16 at Exh. 48 is the investigating officer, who initially carried out the investigation. This witness in his examination in chief, has stated that on 24.09.2005, a non cognizable complaint being N.C No. 26 of 2005 was registered at the behest of the accused under Section 323 of the Indian Penal Code implicating the deceased Chandrakant. This complaint was registered on 24th at 02:00 p.m. The investigation, subsequently, was taken over by one Shri Amrutbhai Heerabhai Chaudhary- prosecution witness No. 18 at Exh. This complaint was registered on 24th at 02:00 p.m. The investigation, subsequently, was taken over by one Shri Amrutbhai Heerabhai Chaudhary- prosecution witness No. 18 at Exh. 52. Prosecution witness No. 9 is the Investigating Officer again who also took over the investigation from Amrutbhai Chaudhary. He has extensively explained the investigation that has been carried out. In his testimony, he has stated that the accused was arrested at 12:30. Thereafter, a N.C Complaint was recorded and registered and the same is produced at Exh. 55. Reports of the Forensic Science Laboratory and the Serological Report have been brought on record to support the prosecution case, in as much as, the buttons that broke off from the shirt of the accused, a pair of socks and a spectacle frame, the knife and the clothes of the deceased have been recovered and sent for examination. On the shirt of the accused and the knife blood group 'B' which according to the prosecution is that of the deceased have been found. The prosecution case, therefore, is evidence to support the story that it was beyond doubt that it was the accused Paresh, who had entered Chandrakant's room, stabbed him with knife and carried out the act for which he has been charged. 11. From the reproduction of the ocular, medical evidence and the corroborative evidence on record namely the discovery panchnamas and the scientific reports, it is evident that it is not a case when there is an eye witness to the incident in question. The evidence, therefore, is purely circumstantial in nature. 12. Needless to say that when the prosecution case is based on circumstantial evidence, the Court is to examine whether the facts are such that can only lead to a conclusion of establishing the guilt. The circumstances must be of a conclusive nature. A chain of events must be so complete that only a conclusion except that of holding the accused guilty of the offences can be established. All the links in the chain must be complete, so as to, arrive at a conclusion that it is only the accused who has carried out the offending act. A chain of events must be so complete that only a conclusion except that of holding the accused guilty of the offences can be established. All the links in the chain must be complete, so as to, arrive at a conclusion that it is only the accused who has carried out the offending act. Keeping this in mind, we need to see whether any circumstantial evidence is on record and that the links in the chain have been established for us to only come to a conclusion that it is the accused who has carried out the act in question. The facts should be so consistent, circumstances so conclusive and the chain so complete as not to leave any reasonable ground consistent only with the hypothesis of guilt of the accused. 13. According to the version as made out in the complaint which is at Exh. 11, the motive behind carrying out the act at the hands of the accused, to end Chandrakant's life in the manner which he committed such an act was a result of a fact that the accused did not like the fact that Chandrakant was engaged with Trupti, who had earlier married to the accused. The complainant in his testimony at Exh. 10 does not support the stand in the complaint, however, in the evidence to examine the testimony of Trupti with whom the deceased was engaged to and the centre of the motive behind the act Exh 21 is her testimony. In the cross-examination of this witness, it categorically comes out that Paresh, in fact, was only keen to know her well being of her being engaged to the deceased. Apparently, therefore, based on the testimony of Trupti motive cannot be said to have been established. The motive may assume significance in case of circumstantial evidence, but, if otherwise on the basis of the evidence if the link in the chain is not established, merely because there is a motive to carry out the act would not lead us to otherwise hold the accused guilty of the offence. If there are gaps in the chain, which fail to establish the complete link in the chain, the chain is not complete so as to come to the only conclusion that is of guilt. 14. If there are gaps in the chain, which fail to establish the complete link in the chain, the chain is not complete so as to come to the only conclusion that is of guilt. 14. According to the prosecution, which seeks to support its case based on the "last seen theory", the evidence of Maksoodbhai Prosecution witness 2 who is examined at Exh. 12 is sufficient to nail the accused. This witness in his deposition has confirmed that the accused Paresh on 16.09.2005 had come to his school to inquire about Chandrakant. In his interaction with Chandrakant for over two to three minutes, he was in a position to clearly identify Chandrakant from the clothes that he was wearing and the manner in which he carried himself. At Chandrakant's request to know the whereabouts of the deceased, it was this witness who guided the accused and led him to Chandrakant at his school Kesharpura. The link to lead him to Kesharpura was, through child witness Vagha. Vagha has been examined as prosecution witness No. 10 at Exh. 31. He, however, has turned hostile. The prosecution would want us to believe that even though the witness has turned hostile, he had confirmed of the fact that Paresh had accompanied Vaagha at Kesharpura and that Chandrakant had met him. 15. The second factor that according to the prosecution would implicate the accused is the exercise of having carried out Test Identification Parade. In the Test Identification Parade so carried out, it has come from the evidence on record of the Officer who carried out the Test Identification Parade, and the panchnamas, that Paresh was identified by both Maksoodbhai and the child witness Vagha. Accordingly, the first link according to the prosecution story was established as the accused did meet Chandrakant and was so identified by both these witnesses under Test Identification Parade. 16. Discovery panchnamas have been brought on record through the panch witness, by which, the prosecution has sought to support to implicate the accused, in as much as according to the prosecution, it is at the instance of the accused that the knife that was used to carry out the act, the shirt that the accused was wearing have been discovered and also the socks that he was wearing. Scientific Reports namely the FSL and the Serological Report are pressed into service to show that the knife that was used by the accused and the clothes of the accused on which blood stains were found were of the Blood Group 'B', which was also Blood Group of the deceased, therefore there was enough evidence to implicate the accused for the offence in question. Kantilal Dhindadmal Shah, prosecution witness No. 6, is the utensils shop owner, who according to the prosecution had sold the knife to the accused pursuant to which the act in question was carried out. 17. The other factor, which according to the prosecution establishes the presence of the accused is the testimony of the doctor, prosecution witness No. 14, who has treated the accused of the injuries sustained by him. A complaint at Exh. 55 has also been brought on record to establish the fact that his presence at the scene of the offence was made out in view of the fact that even he had sustained injuries in a scuffle that ensued between him and the deceased. 18. Links in the chain, therefore, were complete in as much as if the evidence of the prosecution witness Maksood and Vagha read in conjunction of the corroborative evidence of the discovery panchnamas together with the FSL and Serological Reports and the N.C complaint would establish a fool proof case, which according to the prosecution would lead only to one hypothesis that is to the guilt of the accused. The links in the chain were complete and the guilt therefore was established. 19. The learned trial judge also based on such material on record, thought it fit to convict the accused of the offences under section 302 r/w. Section 3(2)(5) of the Atrocities Act. 20. The question, therefore, which needs to be answered is whether in fact, the links in the chain are so complete that the only conclusion that we can draw is that the accused is guilty, on the basis of circumstantial evidence. 21. It is in light of this that, we need to first read the First Information Report, which was filed on 16.09.2005, which is at Exh. 11. 21. It is in light of this that, we need to first read the First Information Report, which was filed on 16.09.2005, which is at Exh. 11. As the narrative proceeds, the complainant has in his complaint stated that one Hareshbhai Soni and Chelabhai Patel had seen Chandrakant in the company of one unknown person wearing a black trouser, go up to his room at 05:00 hrs in the evening of 16.09.2005. After sometime, the man wearing black trousers came down alone. 21.1 Both Hareshbhai Soni and Chelabhai Patel, who appear to have according to the complainant's version seen the deceased in the company of the accused have not been examined as witnesses in this case. On reading the testimony of the complainant, which is at Exh. 10, it has come out that it was Chelabhai and Hareshbhai, who informed the complainant that they had seen the deceased in the company of one person wearing a black trouser. Therefore if the prosecution based its case on the "last seen theory" by Haresh and Chelabhai who had last seen the deceased in the company of the accused are not examined. 22. Maksoodbhai, Prosecution witness No. 2, is the witness who has met the accused. It comes out in his version that Paresh- the accused came to him on 16.09.2005 at around 12:00 hrs in the noon inquiring of the whereabouts of Chandrakant. He informed the accused that Chandrakant was working as a Vidya-Sahayak at Kesharpura and also volunteered to send a student to Kesharpura with him. Vagha- prosecution witness No. 10 is the child witness, who according to the testimony of Maksoodbhai accompanied the accused to the school. Maksoodbhai in his cross-examination admits that he had not noticed as to when Vagha returned. Vagha-the child witness, who according to Maksoodbhai's testimony has accompanied the accused had turned hostile. On the basis of the evidence of these two witnesses, the only and the sole link that is established, if any, is that the accused had come and met Maksoodbhai and was then guided to Kesharpura. Since the prosecution witness No. 10 Vagha has turned hostile, nothing has come to record, as to whether, in fact, Chandrakant and the accused did meet. Therefore the link snaps here as nothing has come on record to support the fact that the two in-fact met or had accompanied each other to the room. 23. Since the prosecution witness No. 10 Vagha has turned hostile, nothing has come to record, as to whether, in fact, Chandrakant and the accused did meet. Therefore the link snaps here as nothing has come on record to support the fact that the two in-fact met or had accompanied each other to the room. 23. Kantilal Dhingadmal Shah in his testimony has stated that he has sold the knife to the accused. It has come out in his testimony that he had only made a rough note of the transaction, which he had sold at Rs. 10/- He further in his testimony states that he does not actually recollect the identity of the accused as there were many customers at the relevant time. In his cross examination also, he admits that any customer who comes to his shop need not be identified. It may be worth noting that Kantilal D. Shah, has not been part of the Test Identification Parade like the other two, Maksood and Vaagha and identified the accused for the first time in the court. Testimony of this witness, therefore, is not above board. Hence the link sought to be established by this witness does not complete the chain. 23.1 So far as, the question of discovery and recovery panchnama is concerned, it is a settled position of law with regard to Section 27 of the Evidence Act that the discovery of the material object at the hands of the accused alone would not automatically lead to the conclusion that the offence was committed by the accused. Thereafter, in fact, the burden lies on the prosecution to establish a link between a discovery of the object and the commission of the offence. At one stage, even suggestion was put by the defence in the cross-examination of the panch witnesses that the discovery of the clothes in question was made from a public place on a busy road. 24. Implication of the accused solely on the basis of a non cognizable complaint at Exh. 53, which according to the prosecution version has been filed on 24.09.2005, at 14:05 p.m cannot be used against the accused in view of the statutory bar. It has come on record that the accused was arrested on 24.09.2005 at 12:30 in the afternoon and the complaint was recorded at 14:00 hrs, when the accused was in police custody. 53, which according to the prosecution version has been filed on 24.09.2005, at 14:05 p.m cannot be used against the accused in view of the statutory bar. It has come on record that the accused was arrested on 24.09.2005 at 12:30 in the afternoon and the complaint was recorded at 14:00 hrs, when the accused was in police custody. The complaint and the post complaint theory and the injury sustained by him has come out from the deposition of the doctor, cannot be held to establish his presence and a consequential inference against the accused. 25. If the evidence of Maksoodbhai is seen in light of the Forensic and the Serological Reports, even the colour of the shirt which Maksoodbhai has said was green, is at variance with the report which in fact states that the colour was black. 26. From the set of evidences on record, therefore, the link in the chain, snaps at various places and gaps in the link, in as much as, Maksood and vagha if are to be believed, it only establishes the presence of the accused at the school inquiring of Chandrakant. From that point onwards, there is a gap in the link, in as much as, there is nothing connecting presence of the accused at the scene of the offence except the version in the complaint of Hareshbhai and Chelabhai, of having seen the individual with Chandrakant. Both of them have not been examined as witnesses by the investigation. The vendor, who sold the knife also does not bridge the link or the gap, as his testimony is seriously in doubt, in as much as, that he has not clearly identified the accused as the customer who had come to purchase the knife. The link in the chain cannot merely be bridged by corroborative evidence in terms of discovery and recovery panchnamas and the scientific reports. Therefore, the links in the chain are not so complete, so as to, hold that the only hypothesis that can be established of the guilt of the accused. 27. Based on the appreciation of evidences independently at our hands, in our opinion, there is no complete link in the chain and the circumstantial evidence on record would rather lead us to believe that the accused must be given the benefit of doubt. 28. In the result, the appeal is accordingly, allowed. 27. Based on the appreciation of evidences independently at our hands, in our opinion, there is no complete link in the chain and the circumstantial evidence on record would rather lead us to believe that the accused must be given the benefit of doubt. 28. In the result, the appeal is accordingly, allowed. The judgment and order dated 30.09.2006, rendered by the learned Additional Sessions Judge, Second Fast Track Court, Palanpur, for the offences punishable under Sections 302 r/w. Section 3(2)(5) of the Atrocities Act, is hereby set aside. R & P be transmitted to the court below forthwith. Bail bonds, if any, stands cancelled.