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2019 DIGILAW 750 (GUJ)

Ramsubhavan v. State of Gujarat

2019-07-22

HARSHA DEVANI, VIRESHKUMAR B.MAYANI

body2019
JUDGMENT : V.B. Mayani, J. 1. This appeal has been filed by the convict under Section 374 of the Code of Criminal Procedure, 1973 against the judgment of conviction and sentence dated 26.6.2014 passed by the learned Third Additional Sessions Judge, Surat in Sessions Case No. 41 of 2011 convicting the appellant-accused for the offence punishable under Sections 376 and 302 of the Indian Penal Code. 2. Heard Mrs. Rekha H. Kapadia, learned Advocate for the appellant and Mr. H.K. Patel, learned Additional Public Prosecutor for the respondent -State. 3. Mrs. Rekha H. Kapadia, learned Advocate for the appellant has mainly submitted that this is the case of circumstantial evidence. The charge has been framed for Sections 376 and 302 of the Indian Penal Code. The main circumstances shown by the prosecution during the trial while recording of the evidence are that wrapper of parle biscuit had been found by the investigating agency from the place of offence and the same had been purchased by the present appellant as per the case of the prosecution, the second circumstance shown by the prosecution regarding mother of the victim had seen the present appellant at the gallery where the mother of the victim was feeding food to the victim, another circumstance shown by the prosecution is regarding the blood stain on the clothes of the present appellant, and another circumstance is DNA test of the blood on the underwear of the appellant as well as deceased victim which matched with each other. In this regard, she has mainly submitted that purchase of biscuit by the appellant is not proved by the prosecution, as in the cross-examination it has been recorded that shop-keeper had given the xerox of the book in which the note regarding the purchase of parle biscuit has been mentioned, but it is not produced by the prosecution in the trial. Moreover, the shop-keeper cannot remember all the persons who had purchased which thing. Therefore, his testimony cannot be believed. The another circumstance is regarding presence of the accused at the time of feeding the food to the victim by her mother but they are neighbour and if the appellant was standing in the gallery then it will not be incriminating evidence. Therefore, his testimony cannot be believed. The another circumstance is regarding presence of the accused at the time of feeding the food to the victim by her mother but they are neighbour and if the appellant was standing in the gallery then it will not be incriminating evidence. As per the serological report the blood stains found on the clothes of the appellant and the blood stains of the victim are of the same group but at the same time it is required to be noted that the blood group of the present appellant is of the same group which has been recorded, the blood group of the victim and, therefore, the blood group of present appellant as well as victim is one and the same. She has also mentioned that there are so many infirmities and shortfall in the DNA report. The DNA report apparently describe that DNA of the blood on the under-wear (chaddi) and the DNA and blood of the victim are same and, therefore; it connects with the crime. But the specimens which are sent to DNA Department were not sent by the Investigating Officer and there are so many infirmities in the evidence. At last, she has submitted that the prosecution has not proved its case beyond reasonable doubt. The whole case of the prosecution is doubtful and, therefore, benefit of doubt is to be given to the accused-appellant. Moreover, she has drawn attention of this Court towards the deposition of the different witnesses as well as documentary evidences. 4. Mr. H.K. Patel, learned Additional Public Prosecutor has mainly submitted that this is a case of rape upon a three year old girl and thereafter she was murdered. He has submitted that it is not in dispute that the victim and her family were residing in the same building where the accused was also residing. He has also submitted that the shop-keeper of the grocery has categorically deposed before the Court that the accused had purchased the parle biscuit from him and wrapper of the said parle biscuit had been found at the place of offence and, therefore, this is a connecting link. He has also submitted that the shop-keeper of the grocery has categorically deposed before the Court that the accused had purchased the parle biscuit from him and wrapper of the said parle biscuit had been found at the place of offence and, therefore, this is a connecting link. Moreover, he has also submitted that generally neighbor stands in the gallery is a common thing but when the mother of the victim was feeding the food to the victim, at that time the convict was standing in the gallery and immediately thereafter the victim was missing and, therefore, it has its own importance. He has also submitted that the blood group of victim and blood group of appellant-accused are same and, therefore, DNA test was held. DNA test is an important piece of evidence. He has submitted that DNA test report describe that DNA of blood of the victim is the same DNA which is found on the under-wear (chaddi) of the accused and, therefore, it is a connecting link that the appellant-accused has committed an offence. Lastly, he has submitted that all the circumstances together may be considered and tie-up the appellant-accused with the offence and that is no one but only the appellant-accused had committed the offence and, therefore, the learned trial Court has considered all the facts and circumstances in right perspective and, therefore, there is no need to interfere with the same. At last, he prays to dismiss the present appeal. 5. In this case four year old girl has lost her life. In the present case the allegation against the present appellant-accused is of an offence under Section 376 and 302 of the Indian Penal Code and the age of the victim girl is about three and half years, therefore the name of the victim is not disclosed in this judgment but she is referred as 'the victim'. 6. In the present case the allegation against the present appellant-accused is of an offence under Section 376 and 302 of the Indian Penal Code and the age of the victim girl is about three and half years, therefore the name of the victim is not disclosed in this judgment but she is referred as 'the victim'. 6. It is the case of the prosecution that during the time period 21:00 hours on 10.9.2010 to 6:30 13.9.2010 the appellant- accused had lured the victim for the biscuit and taken her in the: Room No. A/30, in the Bajrangnagar Society, Plot No. 224/225 on second floor and afterwards he committed the offence of rape upon her and thereafter he strangulated the victim by cable on her throat and thereby murdered the victim and committed the offence under Sections 302 and 376 of the Indian Penal Code which was registered as C.R. No. I-229 of 2010 at Limbayat; Police Station, Surat. 7. First of all, it is required to establish in such type of case of murder case that the death is due to culpable, homicide. In this regard Dr. Jignesh Arvindbhai Brahmbhatt is examined as PW-6 at Ex. 25, who had performed the postmortem. In his deposition he has shown total six external injuries, out of which four injuries were antemortem, whereas two injuries were after death and shown total four internal injuries which are ante mortem. It has been deposed as well as disclosed in the postmortem note that three ligature marks were there on the throat of the deceased victim. Moreover, the cause of death is described as strangulation and injury in the private part of the victim. Considering the evidence of the doctor as well as postmortem note, the prosecution has established that the victim died due to culpable homicide. Moreover, it has been deposed by the doctor that different types of specimens from the body of the victim have been taken for the FSL. Moreover, the time of death of the victim is described as before 36 hours to 48 hours before the postmortem and the postmortem was started at 12:10 p.m. on 13.9.2010 and, therefore, as per the expert evidence of Doctor the time of the death of the victim is from 12 noon on 10.9.2010 to 12 night on 10.9.2010. Moreover, the time of death of the victim is described as before 36 hours to 48 hours before the postmortem and the postmortem was started at 12:10 p.m. on 13.9.2010 and, therefore, as per the expert evidence of Doctor the time of the death of the victim is from 12 noon on 10.9.2010 to 12 night on 10.9.2010. In these twelve hours the victim died as per the prosecution as well as the evidence of this Doctor. 8. The prosecution has to prove that the appellant-accused has committed the offence of rape as well as murder of the victim. In the present case it is clear that there is no eye-witness and, therefore, this is not a case of direct evidence but this is a case of circumstantial evidence. It reveals from the record as well as submissions of both the parties that the case of the prosecution depends upon the following circumstances:- (1) The appellant-accused had purchased parle biscuit from the shop-keeper and the wrapper of the said biscuit had been found at the place of offence. (2) On the day of the incident and at about 9:00 p.m. when the mother of the victim was feeding the food to the victim, the appellant-accused was present in the gallery. (3) The blood stains found on the clothes of the appellant: contained the blood group of the victim. (4) The DNA report describes that DNA of blood of the victim was found upon the underwear of the accused which had been recovered by the Police at the time of his arrest, as per the panchnama. 9. We will examine the above mentioned four circumstances one after another as under:- 9.1 The first circumstance is regarding the purchase of the parle biscuit by the appellant-accused from the shop-keeper and the wrapper of the parle biscuit found at the place of offence as per the Panchnama of the place of offence. In this regard, the prosecution has examined shop-keeper Prakash Kanuram Kalar as PW-10 vide Ex. 41. In the examination-in-chief he has deposed that the accused Ramsubhavan came to his shop on 10.9.2010 at about 5:00 or 5:30 p.m. and his credit account was there. At that time the appellant told that he had no money and, therefore told to write down in the credit account. The said witness is cross-examined by the learned Advocate for the appellant-accused. At that time the appellant told that he had no money and, therefore told to write down in the credit account. The said witness is cross-examined by the learned Advocate for the appellant-accused. He has submitted that the appellant-accused had no credit account at his shop but Rajkaran had credit account and the appellant-accused was residing with Rajkaran. Moreover, he has also deposed in the cross-examination that when the Police came to him at that time he had given the xerox copy of his diary which was full-scape in length but half of the page was written. We have considered the deposition of the said witness. In the examination-in-chief he has deposed that the appellant-accused has credit account at his shop but at the same time in the cross-examination he denied that the appellant has no credit account in his shop and Rajkaran has credit account, so there is discrepancy in the examination-in-chief as well as cross-examination. Moreover, the witness has provided xerox copy of the diary in the nature of full-scape, in which credit account was written. But for the reason best known to the prosecution, the same has not been produced before the learned trial Court and, therefore, the deposition of the said witness is not supported by the documentary evidence even though it was proved to the Investigating Officer. Therefore, the question that arises is that why such type of important document is not produced by the prosecution or not provided by the Investigating Officer. This is a major discrepancy in the evidence of the said shop-keeper, means the witness. Moreover, in such type of grocery shop, there are so many persons coming for purchase of different items and, therefore, the shop-keeper may not be able to tell that who has purchased which item without any written document. Here, in the present case written document was there but it is not produced then the oral deposition remains but as stated above the shopkeeper may not remember all the persons who have come to purchase which item. Therefore, this evidence will not be helpful to the prosecution much. Moreover, the panchnama of place of offence describes that the wrapper of parle biscuit has been recovered from the place of offence. At the same time, such type of biscuit may have been purchased by so many persons. Therefore, this evidence will not be helpful to the prosecution much. Moreover, the panchnama of place of offence describes that the wrapper of parle biscuit has been recovered from the place of offence. At the same time, such type of biscuit may have been purchased by so many persons. Not only that but the parle Company is manufacturing different type of parle biscuits and the same wrapper of the parle biscuit was not shown to the shopkeeper that such type of parle biscuit had been sold by him or not i.e. to the appellant or not. Therefore, it is also not connecting link to implicate the accused with the offence. 9.2 The second circumstance shown by the prosecution is regarding the mother of the victim who saw the present appellant-accused in the gallery when she was feeding the food to the victim. In this regard Pratimadevi Rameshbhai Patel PW-19 has been examined at Ex. 55, in which she has mainly deposed that when she was feeding the food to her daughter, at that time, one person named, Ramsubhavan Prajapati (appellant) was standing before them and the same was identified by her in the Court room. But at the same time, in the cross-examination she has deposed that at that time in the gallery there were one or two persons. So she is not sure whether the appellant-accused was standing alone or one or two persons were standing there. Moreover, her husband, means father of the victim -Rameshbhai Jaleshvar Patel has also deposed before the learned trial Court that when he came from the service at that time, his wife, means Pratimadevi told the above mentioned fact to him. In this regard if mother was trying to feed the food to the baby in the open space and at that time the accused was standing there, that only will not make any incriminating part towards the accused. It is not the case of the prosecution that at that time, the accused has made any sign or talk with the victim or mother of the victim etc. Only standing in the gallery at the time of eating by victim will not be considered as a connecting link that tie-up the appellant-accused with the offence. 9.3 The third circumstance is regarding the blood group of victim found on the clothes of the appellant-accused. In this regard, the serological report is produced vide Ex. Only standing in the gallery at the time of eating by victim will not be considered as a connecting link that tie-up the appellant-accused with the offence. 9.3 The third circumstance is regarding the blood group of victim found on the clothes of the appellant-accused. In this regard, the serological report is produced vide Ex. 76, in which it reveals that the blood group of the victim is of 'A' group as well as the blood group of the appellant-accused is also 'A' group and, therefore, it cannot be said that the blood group found on the clothes of the accused is the blood of victim because the blood group of both, victim as well as the appellant-accused is the same 'A' group of blood. In this regard, the prosecution found that blood group of victim as well as the appellant-accused is one and the same group 'A' and, therefore, DNA test was held. 9.4 The DNA test was held which is produced vide Ex. 68. The DNA test is an important evidence and if the DNA test had been properly conducted then the accused may be considered and probability increases that the accused is involved in the offence. In this regard, witness Mohammed Kasim Gulam Maiyuddin Shaikh is examined as PW-24 at Ex. 67, in which he has mainly deposed that he had received three sealed specimens for DNA from the Biology Department, RFSL, Surat for the offence registered at Limbayat Police Station, C.R. No. I-228 of 2010 on 24.10.2012. The seal was intact. The specimen C-3/1 was the cotton blood thread of the victim, specimen D/4 was the cotton blood thread of accused Ramsubhavan, specimen E/3 a piece of cloth of gray colour of the under-wear (chaddi) of the accused. Afterwards he had narrated in his deposition regarding the DNA test examination and at last he opined that specimen C-3/1 (blood) and specimen C/3 under-wear (chaddi) DNA profile were matching with each other, whereas the specimen D/4 (blood of accused) was not in a condition to find DNA profile and, therefore, DNA profile was not found of that specimen and at last he has opined that the DNA found in the blood which was on the under-wear (chaddi) of the Ramsubhavan (accused) was found that of deceased victim and the report was prepared on 22.10.2010 and sent to the Biology Department. The above mentioned witness was cross-examined by the learned Advocate of the appellant, in which whether date has been mentioned or not, the name of the Authority who has forwarded etc. are mentioned in the sheet or not etc. has been asked and answered by the witness. The report is produced by the prosecution vide Ex. 68, in which details of the parcel and exhibit received are mentioned on the first page which is as under:- Details of parcel and exhibit received:- Parcel No. Description of Parcel Remark C-1 One sealed (FORENSIC BIOL, SURAT) white cover marked as C-1 Exhibit : C3-1(Blood) Brownish stained cotton thread said to be blood sample of deceased victim. D One sealed (FORENSIC BIOL, SURAT) white cover marked as D4. Exhibit : D4 (Liquid Blood) Brownish stained cotton thread said to be blood sample of Ramsubhavan Banwari Prajapati. - E One sealed (FORENSIC BIOL, SURAT) white cover marked as E, Exhibit : E (Chaddi) Piece of gray coloured cloth having brownish stains said to be chaddi of accused. Blood Whereas the finding of the DNA has been mentioned in the above mentioned report on page No. 3 as under:- "From the above observations, 1. It is concluded that Blood stains of victim (source of Ex. C3-1 : blood sample) is found on Chaddi of accused, Ramsubhavan Banvari Prajapati (source of Ex. E, Chaddi). 2. No amplified DNA COULD BE obtained from Ex. D4 (Blood) might be due to severe degradation & purification." Apparently it appears that the DNA found in the blood on the under-wear (chaddi) of the accused is same as per the DNA of blood of victim. But at the same time, the report only cannot be seen at its face value but it is required that the DNA test itself should go through the microscopic test by examining the other facts and circumstances. 10. We have considered the following aspects for the DNA test:- (1) The witness - Mohammed Kasim Gulam Maiyuddin Shaikh, who is examined as PW-24 has not mentioned anywhere in his deposition, his post, whether he was Scientist or whether he was Director or whatever it may be but it is clear that he has not mentioned his post in the deposition. Moreover, the DNA test work-sheet which is part of DNA examination produced at Ex. Moreover, the DNA test work-sheet which is part of DNA examination produced at Ex. 69 contained the column; forwarding Authority, C.R. No., P.S., U/S, date of receipt in RFSL, Surat, received by, exhibits stored at, nature of examination. These are the columns in the above mentioned Ex. 69 DNA test worksheet but all the columns are blank and nothing has been written in the said column. Therefore, it is required to brought forward that why such columns are not filled up but such type of explanation has not been provided. (2) The postmortem note produced at Ex. 27, in which in para-21(0) the specimen taken from the body of the victim has been mentioned. In that column, it appears that when 2 specimens of a single item have been taken then 2' has been written, whereas other describe no such type of digit, meaning thereby it can be considered that one specimen of that item has been taken as for e.g. it describe first item as 2 vaginal swab', another one is 2 white fiber' etc. But in the 'blood' it has been written as 'blood for further investigation' and in case of 'blood' it has not been written that 2 bottles or 2 specimens of blood have been taken'. (3) The Investigating Officer sent the blood of victim to FSL by way of dispatch note (ravangi-nondh) which describe two bottles of blood, but at the same time the digit 2' is modified. The FSL report produced vide Ex. 75 describes that in the parcel C/1 which contained intact seal and out of that parcel three specimens were received which were C-1/A (chaddi) with stain, C-1/B piece of cloth with some stains, C-1/C anklet/necklace (zanzar mala) broken to some extent with stains. In this regard, if we see the dispatch note (ravangi-nondh) then it does not contain sending of anklet/necklace (zanzar mala) and piece of cloth which has come out from the parcel C/1 then how it reached to the FSL is a great question. The FSL gets what had been sent by the Investigating Officer through dispatch note. (4) The serological report and the DNA test report are considered. They describe that that they have examined the under-wear (chaddi) of the accused and piece of cloth of under-wear of accused, but at the same time it has not been mentioned that the said underwear was torn anywhere. (4) The serological report and the DNA test report are considered. They describe that that they have examined the under-wear (chaddi) of the accused and piece of cloth of under-wear of accused, but at the same time it has not been mentioned that the said underwear was torn anywhere. (5) The DNA report describes that the Authority has tested the DNA of the blood of the victim as well as the blood stains on the under-wear and the blood stained cotton thread of the accused. But as stated above, the blood thread of the blood may be (it is not proved) from the body of the victim and blood stains on the piece of clothe were in a open position as well as the so called blood thread of accused was also in a open position and probably it has been taken on the same day or probably during the same period of time. But surprisingly the blood cotton thread of appellant was not in a condition of testing which is also questionable circumstance. (6) The under-wear (chaddi) was recovered from the accused at the time of arrest as per the Panchnama and the Panch of the said Panchnama has supported but the colour of the under-wear is not mentioned in the Panchnama itself. Moreover, the under-wear of the accused was produced by one Police Constable - Yogesh to the PSO and at that time also the colour of the underwear of the accused was not mentioned. The under-wear of the accused was sent to the FSL by dispatch note. It also does not contain the colour of the under-wear. The FSL received the same but the colour of the under-wear is not mentioned in the receipt and report of the FSL. The report of Serological Department also does not contain the colour of the under-wear (chaddi), so from the starting of recovery of the under-wear in the arrest Panchnama till the FSL report has been prepared and serological report has been prepared the colour of the under-wear (chaddi) has not come on the record. But the only evidence regarding the colour of the under-wear (chaddi) of the accused is the deposition and report of FSL Officer who has visited the place of offence. The deposition of the FSL Officer is produced vide Ex. 59 as PW-20 whereas the report of the clothes of the appellant-accused is produced vide Ex. But the only evidence regarding the colour of the under-wear (chaddi) of the accused is the deposition and report of FSL Officer who has visited the place of offence. The deposition of the FSL Officer is produced vide Ex. 59 as PW-20 whereas the report of the clothes of the appellant-accused is produced vide Ex. 62 and the deposition as well as the report describe the under-wear (chaddi) with elastic light blue/cream colour. So in this regard as per the above mentioned discussion the colour of the under-wear has not come on record and only the evidence regarding the colour of the under-wear of the accused is as per the FSL Officer's deposition and report as mentioned above who has mentioned that the colour of the under-wear was light blue or cream. Whereas the DNA Authority has examined the piece of under-wear (chaddi) of accused of the colour gray. There is difference between gray and cream colour. It is not mentioned any where in the evidence itself that the gray coloured underwear (chaddi) of the accused has been recovered. Instead of that, the cream colour underwear of the accused has been recovered as stated by the FSL scientific Officer, who has visited the place of offence and at the time of arrest of the accused. (7) The DNA report Ex. 68 describes that the DNA Authority has examined C3-1, brownish stained cotton thread of victim. But looking to the dispatch note (ravangi-nondh) which has been sent by the Investigating Officer and the FSL report in which what parcel and what items have been received by the FSL describes that C3-1 is the blood intact bottle of the victim and not the blood stained cotton thread as mentioned in the DNA report. Not only that, but the blood of victim C3-1, one bottle had been sent to the Toxic Department, in which no poison has been found and another bottle was used by the Serological Department to decide the blood of the victim as mentioned in the serological report and, therefore, both the bottles of blood of victim were used by the above mentioned two Departments. Whereas no blood cotton thread of the victim had been sent or received by the Biological Department of FSL. Whereas no blood cotton thread of the victim had been sent or received by the Biological Department of FSL. However, the DNA Authority has mentioned that the blood cotton thread of victim had been received by the DNA Authority from Biology Department But looking to the above mentioned facts and circumstances the Biology Department has not received any blood stained cotton thread of the victim or such type of thread had not been sent by the Investigating Officer by way of dispatch note (ravangi-nondh) or no any other evidence describe that the cotton blood thread of the victim has been collected in any way during the investigation. Therefore there is no origin of the blood cotton thread of victim has been found, not sent by the Investigating Officer through dispatch note, not received by the FSL Biology Department. Even though such type of items had been sent by the Biology Department to the DNA Department which create doubt. Moreover, it has not come on record that such type of cotton thread was prepared by the Biology Department and sent for DNA. (8) In the same way, the blood stained cotton thread of the accused had been received by the DNA Department from Biology Department. But at the same time, origin of the said blood stained cotton thread of the appellant-accused has not come on the record from the evidence of the prosecution and, therefore, there is no origin from which the blood stained cotton thread of the accused has been collected or received. The Investigating Officer has not sent the above mentioned blood stained cotton thread to FSL by way of dispatch note (ravangi-nondh) and the report of the FSL does not mention that such type of cotton thread of the accused has been received by the Biology Department of FSL. Therefore, there is no origin not sent, not received by the Biology Department. Even though such type of cotton thread has been sent to DNA Department which create doubt. Moreover, it has not come on record that such type of cotton thread was prepared by Biology Department and sent for DNA. (9) The DNA Department has examined the piece of gray coloured cloth having brownish stained said to be under-wear (chaddi) of accused. Even though such type of cotton thread has been sent to DNA Department which create doubt. Moreover, it has not come on record that such type of cotton thread was prepared by Biology Department and sent for DNA. (9) The DNA Department has examined the piece of gray coloured cloth having brownish stained said to be under-wear (chaddi) of accused. In this regard, as per the earlier discussion the colour of the under-wear (chaddi) has not been mentioned anywhere and only at one place the colour of the under-wear of the accused has been mentioned as cream colour or light blue colour in the deposition and report of the FSL Scientific Officer. In this view of the matter, how the gray colour came in the report of the DNA is a question. Moreover, the under-wear (chaddi) has been sent to the Biology Department of FSL and it has examined the blood group of the stains upon the under-wear which was 'A' group. But at the same time it is not mentioned anywhere that the said underwear (chaddi) was torn or some piece of the said under-wear has been taken and sent to the DNA Department. Moreover, the DNA and Serological Department reports are of the same date. Therefore, whether under-wear (chaddi) was with the Biology Department or DNA Department is also a question. Moreover, another separate piece of cloth has not been sent by the Investigating Officer as per the dispatch note, even though the Biology Department of FSL received the piece of cloth containing some stains. However, the colour of piece of the cloth has not been mentioned. So the piece of cloth was not sent to FSL Department, even though it has received. If two things are considered together with the piece of cloth containing some stains has been received by the Biology Department, even though not sent by the Investigating Officer by way of dispatch note and the DNA Department has not examined the under-wear (chaddi) as a whole. But only one piece of cloth of gray colour was said to be under-wear of accused. So one piece of cloth which is unaccounted and which has no origin as per the evidence of the prosecution and received by the FSL Department and the whole under-wear has not been examined by the FSL Department but the piece of cloth has been examined. So one piece of cloth which is unaccounted and which has no origin as per the evidence of the prosecution and received by the FSL Department and the whole under-wear has not been examined by the FSL Department but the piece of cloth has been examined. On one hand, one piece of cloth unaccounted received by the FSL, Biology Department and on the other hand, the DNA Department has examined the piece of cloth and not the whole under-wear (chaddi). So in such a circumstances, it makes or creates doubt towards the receiving of piece of the underwear (chaddi) of the accused. The explanation has not come forward that why the whole under-wear (chaddi) has not been examined by the DNA Department and only a piece of cloth which was said to be the cloth of under-wear of the accused has been examined which also creates some doubt. Moreover, as stated above the piece of cloth of the underwear (chaddi) of the accused has no origin that has been collected or received, not sent by the Investigating Officer through dispatch note. Such type of piece of under-wear (chaddi) has not been received by the FSL, Biology Department. There is no evidence regarding who has cut the piece of cloth from the under-wear etc., creates doubt towards the above mentioned piece of evidence. 11. In view of the above discussion, however the DNA report describes that the blood stained cotton thread of victim and the blood found on the piece of cloth of the under-wear of the accused is one and the same but in view of the above mentioned infirmities the same creates doubt and as per the settled principles of law the benefit of doubt is to be given to the accused. 12. As per the postmortem report, as discussed above, the death of the victim took place on 10.9.2010 between the time period of 12:00 noon to 12:00 at night. As per the case of the prosecution, the victim was missing from the time around 9:00 p.m. on 10.9.2010 and, therefore, the time minimized to 21:00 p.m. to 24:00 p.m. on 10.9.2010. In this regard PW-11 Dhanraj Govindbhai Patel, watchman of the factory where the accused was working was examined vide Ex. As per the case of the prosecution, the victim was missing from the time around 9:00 p.m. on 10.9.2010 and, therefore, the time minimized to 21:00 p.m. to 24:00 p.m. on 10.9.2010. In this regard PW-11 Dhanraj Govindbhai Patel, watchman of the factory where the accused was working was examined vide Ex. 42 and in his deposition he has stated that the accused came to the factory on the day of the incident mentioned on the day of incident on 10.9.2010 at about 8:45 p.m. to 9:00 p.m. Whereas the witness Kailash Kashiram Barik, PW-12 who is examined vide Ex. 43 has stated in his deposition that the accused has worked with him for whole night. Both the witnesses are not hostile witnesses but prosecution has relied upon their evidence. Therefore, in view of the above mentioned deposition of two witnesses, the accused has reached at his work place at about 8:45 p.m. to 9:00 p.m. on the date of incident and as per the deposition of supervisor, the accused has worked for whole night at his work place. Therefore, as per the deposition of the witnesses of the prosecution itself, it appears that the accused has reached at his work place at about 8:45 p.m. and worked for whole night, whereas the victim was missing on the same day at about 9:00 p.m. and as per the above mentioned evidence at that time the appellant-accused was at his factory where he was working and as per the deposition of the supervisor the accused has worked for whole night with him. Therefore, at the time of missing of the victim and at the time of death of the victim which is 21:00 hours to 24:00 hours, as per the medical report; the accused was at his work place and, therefore, presence of the accused at his house or place of the offence is doubtful. 13. At the time of appreciating the evidence under Section 3 of the Indian Evidence Act, 1872, the Court is not required to appreciate or evaluate the evidence on its face value or the apparent value, but the Court should adopt the procedure of appreciating the evidence by way of microscopic examination of the evidence produced before the Court to meet the end of justice. 14. 14. In view of the above mentioned facts and circumstances the evidence of the prosecution and re-appreciation of the evidence adduced by the prosecution before the trial Court, the present appeal deserves to be allowed. In the result, the judgment and order dated 26.6.2014 passed by the learned Third Additional Sessions Judge, Surat in Sessions Case No. 41 of 2011 convicting the appellant-accused for the offence punishable under Sections 376 and 302 of the Indian Penal Code is hereby quashed and set aside. The appeal is allowed. The appellant-accused is hereby acquitted from the above mentioned offences levelled against him. Fine amount, if any, paid be refunded to the appellant. If the appellant-accused is not required in any other case or matter then he should be released forthwith. R & P to be transmitted to the trial Court.