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2022 DIGILAW 800 (GUJ)

Pintoo Somabhai Bariya v. State of Gujarat

2022-06-22

RAJENDRA M.SAREEN, VIPUL M.PANCHOLI

body2022
JUDGMENT : Vipul M. Pancholi, J. 1. This is an appeal by the appellant-convict, challenging the judgment and order, Dated: 28.02.2013, passed by the learned Additional Sessions Judge, Panchamahal at Godhra, in Sessions Case No. 100 of 2012, convicting the appellant under Section 302 of the IPC and sentencing him to undergo imprisonment for life and to pay fine of Rs.10,000/- and in default to undergo further simple imprisonment for the period of three months so also convicting him for the offence under Section 201 of the IPC and sentencing him to undergo imprisonment for one year and to pay fine of Rs.1,000/- and in default to undergo further simple imprisonment for one month. However, while so ordering, the trial Court acquitted the two other co-accused. 2. The brief facts of the case of the prosecution are as under; The original complainant-Samaratben Chhatrabhai Baria filed a complaint against the present appellant, wherein, it is stated that the complainant is the first wife of the deceased, Chhatrabhai and before about three years from the date of the alleged offence, the deceased, Chhatrabhai, got married with one Lalitaben, as per the customs of their caste, since, the complainant was unable to conceive. 2.1 Out of the second marriage, Lalitaben gave birth to a girl child. However, before about six days from the date of the alleged offence, the second wife of the deceased-Chhatrabhai, i.e. Lalitaben, had left her home and had gone to her parental home at Mudani-Kapdi, on account of quarrel between her and the deceased-Chhatrabhai. 2.2 It is, further, stated in the complaint that on 24.12.2011, at about 06:00 p.m., the cousin brother of the second wife-Lalita of the deceased-Chhatrabhai, i.e. the present appellant, came to the house of the deceased on a motorcycle. At that point of time, the aunt of the complainant, namely Buniben, was present there. After a brief conversation, the appellant and the deceased went into village on the motorcycle of the appellant and again came back home, after some time. 2.3 On returning home, the appellant told the deceased-Chhatrabhai that if, he would come with him, i.e. the appellant, he would resolve the dispute between Chhatrabhai and Lalitaben, i.e. his second wife. Initially, the deceased-Chhatrabhai refused to accompany the appellant. 2.3 On returning home, the appellant told the deceased-Chhatrabhai that if, he would come with him, i.e. the appellant, he would resolve the dispute between Chhatrabhai and Lalitaben, i.e. his second wife. Initially, the deceased-Chhatrabhai refused to accompany the appellant. However, later on, on account of the persistent request on the part of the appellant, the deceased-Chhatrabhai agreed to accompany the appellant and in the late evening, at about 08:00 p.m., the deceased-Chhatrabhai left his home with the appellant on his motorcycle to go to village Muda-ni-Kapdi. 2.4 It is, further stated in the FIR that, since, the deceased-Chhatrabhai did not return home, even by the next day evening, a search was made at various places and thereafter, the original complainant went to Rajgadh Police Station and gave a written application with regard to missing of the deceased-Chhatrabhai. 2.5 Thereafter, it appears that police informed the original complainant that one witness, namely Laxman Baria, who had gone to forest to collect woods, had informed them that the dead-body of Chhatrabhai was lying near Dedka Dungar. Therefore, Rajgadh police registered the FIR under Sections 302, 201, 34 etc. of the Indian Penal Code, 1860 ('IPC', hereinafter). 2.6 Upon registration of the FIR, police carried out the investigation and on completion of the same, filed the charge-sheet against the present appellant and two other persons before the Court of the learned Magistrate. However, since, the case was exclusively triable by the Court of Sessions, it was committed to the Sessions Court and the same was registered as Sessions Case No. 100 of 2012. 2.7 During the course of trial, the prosecution examined following witnesses; ORAL EVIDENCE PROSECUTION WITNESS NUMBER EXHIBIT NUMBER NAME OF THE WITNESS PW No. 1 Exhibit No. 10 Somabhai Chhaganbhai Baria PW No. 2 Exhibit No. 16 Bhalabhai Hathibha Parmar PW No. 3 Exhibit No. 33 Vijaysinh Mohansinh Chauhan PW No. 4 Exhibit No. 34 Arvindsinh Bhairavsinh Baria PW No. 5 Exhibit No. 35 Parasbhai Mangilal Patel PW No. 6 Exhibit No. 38 Laxmanbhai Amrabhai Baria PW No. 7 Exhibit No. 39 Buniben Amrabhai Baria PW No. 8 Exhibit No. 40 Dolabhai Rupsinhbhai Baria PW No. 9 Exhibit No. 43 Samratben Chhatrabhai Baria PW No. 10 Exhibit No.45 Parvatsinh Chandrasinh Solanki PW No. 11 Exhibit No. 46 Shantilal Ramabhai Patel PW No. 12 Exhibit No. 51 Haribhai Limbabhai Sangada 2.8. Over and above the oral evidence, the prosecution also produced the following documentary evidences; DOCUMENTARY EVIDENCE Sr. No. EXHIBIT NUMBER PARTICULARS 1. Exhibit No. 47 Suchipatra (Index) 2. Exhibit No. 44 Complaint given by Samratben Chhatrabhai Baria 3. Exhibit No. 12 Panchnama of place of offence 4. Exhibit No. 48 Preliminary Report 5. Exhibit No. 11 Inquest Panchnama 6. Exhibit No. 49 Inquest Report 7. Exhibit No. 20 Panchnama of seizure of clothes found on the dead-body 8. Exhibit No. 21 Panchnama of recovery of muddamal articles 9. Exhibit No. 50 Preliminary report of the Scientific Officer 10. Exhibit No. 43 Panchnama of recovery of muddamal articles 11. Exhibit No. 36 P.M. Note of Chhatrabhai 12. Exhibit No. 37 Death Certificate 13. Exhibit No. 52 Forwarding letter written by PSI 14. Exhibit No. 53 Dispatch Note along with the Authority Letter 15. Exhibit No. 54 Receipt issued for handing over of the aforesaid muddamal to the Deputy Director, FSL, Vadodara, 16. Exhibit No. 55 Letter written by FSL Officer 17. Exhibit No. 56 FSL Report 18. Exhibit No. 57 Serology Report 2.9 On completion of the trial, the Sessions Court recorded the further statement of the appellant under Section 313 of the Code of Criminal Procedure, 1973 (in brief, 'the Code'), wherein, he answered all the questions, which were put to him, in negation. 2.10 Thereafter, the concerned trial Court passed the judgment and order dated 28.02.2013, convicting and sentencing the appellant, as referred to in Paragraph-1, herein above. 2.11 Being aggrieved and dissatisfied with the aforesaid judgment and order, the appellant has preferred the present appeal. 3. Heard, learned Advocate, Mr. Barot, for the appellant and learned APP, Mr. Patel, for the Respondent-State. 4. Learned Advocate, Mr. Barot, referred to the depositions given by the prosecution witnesses and submitted that PW-1, Somabhai Chhaganbhai Baria, who was examined vide Exhibit-10, who is a panch witness to the panchnama, Exhibit-11, and Panchnama of the place of offence, Exhibit-12, turned hostile and did not support the case of the prosecution. Patel, for the Respondent-State. 4. Learned Advocate, Mr. Barot, referred to the depositions given by the prosecution witnesses and submitted that PW-1, Somabhai Chhaganbhai Baria, who was examined vide Exhibit-10, who is a panch witness to the panchnama, Exhibit-11, and Panchnama of the place of offence, Exhibit-12, turned hostile and did not support the case of the prosecution. 4.1 It was, further, submitted that another witness, PW-2, namely Bhalabhai Hathibhai Parmar, who was a panch witness to the panchnama of recovery of the clothes of the deceased-Chhatrabhai, Exhibit-20, and panchnama of discovery of the weapon, allegedly used in the commission of the offence,Exhibit-21, motorcycle of the present-appellant, was also declared hostile and he did not support the case of the prosecution. 4.2 It was submitted that, similarly, PW-4, Arvindsinh Bhairavsinh Baria, who was the second panch witness to discovery panchnama, Exhibit-21, was also declared hostile and he also did not support the case of the prosecution. 4.3 Learned Advocate, Mr. Barot, thus, submitted that the prosecution completely failed to prove the panchnama, Exhibit-21, of the discovery of the weapon, which was allegedly used in the commission of the offence, and despite that the trial Court placed reliance on panchnama, Exhibit-21, discovery panchnama and convicted the appellant and thereby, committed a grave error. 4.4 Learned Advocate, Mr. Barot, submitted that as per the case of the prosecution, the present appellant was lastly seen with the deceased- Chhatrabhai, when they both left the home of the deceased-Chhatrabhai on 24.12.2011, at about 08:00 p.m., and in support of the said story, the prosecution examined three witnesses, i.e. PW-7-Buniben Amrabhai Baria (Exhibit-39), PW-8-Dolabhai Rupsinhbhai Baria (Exhibit-40) and PW-9-Samratben Chhatrabhai Baria (Exhibit-43), who also happens to be the first wife of the deceased-Chhatrabhai. 4.4.1 It was submitted that, though, these three witnesses supported the case of the prosecution, with regard to the story of 'last seen together', the prosecution failed to prove the motive on the part of the appellant to commit the offence, punishable under Section 302 of the IPC. It was, therefore, submitted that since, the prosecution failed to prove the motive, the trial Court ought to have given the benefit of doubt to the present-appellant. 4.5 Learned Advocate, Mr. Barot, submitted that the prosecution has failed to prove the discovery panchnama, Exhibit-21, even by way of the deposition of the IO-Shantilal Ramabhai Patel, who was examined as PW-11 vide Exhibit-46. 4.5 Learned Advocate, Mr. Barot, submitted that the prosecution has failed to prove the discovery panchnama, Exhibit-21, even by way of the deposition of the IO-Shantilal Ramabhai Patel, who was examined as PW-11 vide Exhibit-46. 4.6 So far as the recovery of the articles, i.e. the weapon allegedly used in the commission of the offence, is concerned, it was submitted that PW-2 and PW-4 did not support the case of the prosecution and therefore, they were declared hostile by the prosecution. 4.6.1 It was, therefore, submitted that since the contents of Panchnama, Exhibit-21, were required to be proved by way of the deposition of the IO-PW-11 and the same is not done in the case on hand, the trial Court committed a grave error in convicting the present-appellant. 4.6.2 It was also submitted that unless and until, the contents of the discovery panchnama, Exhibit-21, are independently proved, by way of the deposition of the IO, said panchnama cannot be held to be proved and therefore, the concerned trial Court committed an error by placing reliance on the discovery panchnama, Exhibit-21. 4.7 It was submitted that the prosecution examined the IO-Shantilal Ramabhai Patel as PW-11 vide Exhibit-46. However, the said witness did not duly prove the discovery panchnama, Exhibit-21 and therefore, the trial Court committed a grave error by relying on the same. 4.8 Learned Advocate, Mr. Barot, submitted that so far as the motive, on the part of the appellant-accused to commit the offence punishable under Section 302 of the IPC, is concerned; the prosecution has failed to prove the same. 4.8.1 It was submitted that, as per the case of the prosecution, the deceased was not having cordial relationship with his second wife, Lalitaben, and therefore, the present-appellant, who happens to be the cousin of Lalitaben, had asked the deceased to accompany him so that the disputes between the deceased-Chhatrabhai and his second wife Lalitaben could be resolved. However, the prosecution did not examine the second wife, Lalitaben, of the deceased - Chhatrabhai. 4.9 At this stage, learned Advocate, Mr. Barot, submitted that the first wife of the deceased-Chhatrabhai, i.e. PW-1-Samratben, herself, during the course of her cross-examination, had stated that matrimonial life of the deceased-Chhatrabhai and his second wife, Lalitaben, was cordial. Thus, there was no reason for the appellant to commit the alleged offence, punishable under Section 302 of the IPC. 4.9 At this stage, learned Advocate, Mr. Barot, submitted that the first wife of the deceased-Chhatrabhai, i.e. PW-1-Samratben, herself, during the course of her cross-examination, had stated that matrimonial life of the deceased-Chhatrabhai and his second wife, Lalitaben, was cordial. Thus, there was no reason for the appellant to commit the alleged offence, punishable under Section 302 of the IPC. 4.10 It was, further, submitted that, as per the case of the prosecution, blood stains were found on the sword, which was allegedly discovered at the instance of the present appellant. However, the prosecution failed to prove that the blood group of the deceased- Chhatrabhai was 'O'. Thus, when the blood group of the deceased was not ascertained, it cannot be inferred, on the basis of the serology report, that the blood alleged found on the muddamal swords was that of the deceased-Chhatrabhai. 4.11 Learned Advocate, Mr. Barot, further, submitted that as per Section 101 of the Indian Evidence Act, 1872 (in brief, 'Evidence Act'), the onus to prove the case beyound reasonable doubt is on the prosecution and only thereafter, the onus shifts on the accused, as provided under Section 106 of the Evidence Act, to dislodge the case of the prosecution and the prosecution has failed to discharge the said burden. Therefore, the trial Court ought not to have placed reliance on Section 106 of the Evidence Act. 4.12 Learned Advocate, Mr. Barot, submitted that the case on hand rests solely on the circumstantial evidence and it is well settled that unless and until, the prosecution succeeds in proving the chain of events or circumstances individually and conclusively, the accused cannot be convicted. 4.12.1 It was submitted that, in the present case, there is no corroboration shown by leading individual and admissible evidence and the prosecution has failed to prove the chain of circumstances and therefore, the conviction of the present appellant, recorded by the trial Court cannot be sustained in the eyes of law. 4.13 Learned Advocate, Mr. Barot, in support of his submissions, placed reliance on the following decisions of the Apex Court as well as of this Court; (1) 'ANJAN KUMAR SARMA VS. STATE OF ASSAM', (2017) 14 SCC 359 ; (2) 'RAVI VS. STATE OF KARNATAKA', (2018) 16 SCC 102 ; (3) 'REENA HAZARIKA VS. STATE OF ASSAM', (2019) 3 SCC 289; (4) 'BALWAN SINGH VS. STATE OF CHHATTISGARH & ANOTHER VS. STATE OF ASSAM', (2017) 14 SCC 359 ; (2) 'RAVI VS. STATE OF KARNATAKA', (2018) 16 SCC 102 ; (3) 'REENA HAZARIKA VS. STATE OF ASSAM', (2019) 3 SCC 289; (4) 'BALWAN SINGH VS. STATE OF CHHATTISGARH & ANOTHER VS. STATE OF CHHATTISGARH', (2019) 7 SCC 781 ; (5) 'MAHESHWAR TIGGA VS. STATE OF JHARKHAND', (2020) 10 SCC 108 ; (6) 'SHAILENDRA RAJDEV PASVAN & OTHERS VS. STATE OF GUJARAT & OTHERS', (2020) 14 SCC 750 ; (7) 'RAMESHBHAI HAJABHAI CHCHIYA VS. STATE OF GUJARAT', 2012 (3) GLR 2250 ; 5. On the other hand, learned APP, Mr. Patel, strongly opposed this appeal and referred to the depositions given by the prosecution witnesses and also referred to the FIR, discovery panchnama, PM report of the deceased and submitted that the prosecution has proved the case against the appellant beyound reasonable doubt. 5.1 It was submitted that it is a case of circumstantial evidence, where, the prosecution has successfully proved the motive on the part of the appellant to commit the alleged offence, punishable under Section 302 of the IPC, and also proved the same by duly proving the discovery panchnama, Exhibit-21, through the evidence of the PW-11, Shantilal Ramabhai Patel, who was the IO and therefore, no error is committed by the trial Court in convicting the appellant. 5.2 It was submitted that the prosecution examined three witnesses, viz. (1) Buniben Amrabhai Baria (Exhibit-39), (2) PW-8-Dolabhai Rupsinhbhai Baria (Exhibit-40) and (3) PW-9-Samratben Chhatrabhai Baria (Exhibit-43), i.e. the first wife of the deceased- Chhatrabhai and the original complainant, and from the evidence of these witnesses, it is clearly proved that the deceased was lastly seen alive in the company of the appellant and thereby, the prosecution has discharged the burden of proving the case beyound reasonable doubt. 5.3 Learned APP, Mr. Patel, also referred to the evidence of PW-5-Parasbhai Mangilal Patel, Medical Officer, who was examined vide Exhibit-35, and submitted that there were seven injuries found on the dead-body of Chhatrabhai and out of that, injury Nos. 1 and 2, as per the medical opinion, could be caused by the sword, which was discovered at the instance of the appellant. It was, therefore, submitted that the concerned trial Court has committed no error in passing the judgment and order of conviction. 5.4 It was, therefore, urged that this Court may not entertain this appeal and the same be dismissed. 6. It was, therefore, submitted that the concerned trial Court has committed no error in passing the judgment and order of conviction. 5.4 It was, therefore, urged that this Court may not entertain this appeal and the same be dismissed. 6. We have heard the learned Advocates for the parties and also perused the material, oral as well as the documentary, which was produced on record before the concerned trial Court. 6.1 From a perusal of the record, it is revealed that the charge was framed against three accused, including the present appellant, for the offence punishable under Sections 302, 201, 34 etc. of the IPC. 6.2 We also notice that, barring the reference of original accused Nos. 2 and 3 in the charge framed vide Exhibit-2, there is no other, independent material or evidence produced on record by the prosecution to show their complicity in the crime in question. There is nothing found against original accused Nos. 2 and 3 in the charge framed vide Exhibit-2 and no overt act or any role is attributed to them. Therefore, the trial Court acquitted original accused Nos. 2 and 3 and convicted the present appellant for the offence punishable under Section 302 of the IPC. 6.3 From a perusal of the depositions given by PW-7, PW-8 and PW-9, it is revealed that the appellant accused had arrived at the house of the deceased on 24.12.2011, at about 06:00 p.m., and thereafter, the appellant and the deceased-Chhatrabhai left on his motorcycle, at about 08:00 p.m. and thereafter, the deceased did not return home and his dead-body was found on 26.12.2011, at about 04:00 p.m., by one Laxmanbhai Baria, who informed the police about the same. 6.3.1 Thus, from the evidence of PW Nos. 7, 8 and 9, the prosecution has tried to prove the theory of 'last seen together'. However, as per the deposition of PW-5, Medical Officer, who had carried out the PM on the dead-body of Chhattrabhai, the death of the deceased had occurred before about 30 hours from the time of post mortem. If, we calculate the time of death, then, it would come to 03:00 a.m. to 04:00 a.m. on 26.12.2011. As per the evidence of PW Nos. If, we calculate the time of death, then, it would come to 03:00 a.m. to 04:00 a.m. on 26.12.2011. As per the evidence of PW Nos. 7, 8 and 9, the deceased was last seen alive on 24.12.2011 at about 08:00 p.m., thus, the onus was on the prosecution to prove that the deceased-Chhatrabhai was in the company of the appellant till 26.12.2011, up to 03:00 a.m. to 04:00 a.m., as provided under Section 101 of the Evidence Act. 6.4 At this stage, it would be profitable to refer to the decision of the Apex Court in 'ANJAN KUMAR SARMA' (Supra), wherein, in the similar type of case, the Hon'ble Apex Court observed and held as under at Paragraphs-13, 16 and 21; "13. Admittedly, this is a case of circumstantial evidence. Factors to be taken into account in adjudication of cases of circumstantial evidence laid down by this Court are: (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established; (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) The circumstances should be of a conclusive nature and tendency; (4) They should exclude every possible hypothesis except the one to be proved; and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. xxx xxx xxx 16. It is settled law that inferences drawn by the court have to be on the basis of established facts and not on conjectures. (See : Sujit Biswas v. State of Assam, (2013) 12 SCC 406 13-18) The inference that was drawn by the High Court that the death was caused on 28.12.1992 within the time of 48 hours as mentioned in the post mortem report is not correct. The post mortem examination was conducted on 30.12.1992 at 12:00 noon and it was opined by PW-11 that the death occurred 24 to 48 hours prior to the time of post mortem examination. The post mortem examination was conducted on 30.12.1992 at 12:00 noon and it was opined by PW-11 that the death occurred 24 to 48 hours prior to the time of post mortem examination. Even if the time is stretched to the maximum of 48 hours, the death was after 12:00 noon on 28.12.1992. The deceased was in the company of the accused till 9:00 pm on 27.12.1992. The inference drawn by the High Court that the accused have killed the deceased on 28.12.1992 in the night time and thrown the body on the railway track is not on the basis of any proved facts. The Trial Court is right in holding that there is no evidence on record to show that the deceased was with the accused after 12:00 noon on 28.12.1992. xxx xxx xxx 21. It is clear from the above that in a case where the other links have been satisfactorily made out and the circumstances point to the guilt of the accused, the circumstance of last seen together and absence of explanation would provide an additional link which completes the chain. In the absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactory explanation cannot be made the basis of conviction. The other judgments on this point that are cited by Mr. Venkataramani do not take a different view and, thus, need not be adverted to. He also relied upon the judgment of this Court in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755 in support of his submission that the circumstance of last seen together would be a relevant circumstance in a case where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of crime in the intervening period. It was held in the above judgment as under:- "34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case." As we have held that the other circumstances relied upon by the prosecution are not proved and that the circumstances of last seen together along with the absence of satisfactory explanation are not sufficient for convicting the accused. Therefore the findings recorded in the above judgment are not applicable to the facts of this case." 6.5 From the aforesaid observations made by the Hon'ble Supreme Court, it can be said that in absence of proof of other circumstances, the only circumstance of last seen together and absence of satisfactorily explanation cannot be made the basis for conviction. 6.6 In 'RAVI VS. STATE OF KARNATAKA' (Supra), the Hon'ble Apex Court held as follows at Paragraphs-3 and 4 thereof; "3. The accused appellants and the deceased along with Suma (PW1) and Rama Nayak (PW2) were together on 26th December, 2004, the precise time being around 1.30 p.m.. The dead body was recovered after a gap of four (04) days i.e. on 30th December, 2004. The post-mortem report indicated that the death had occurred 30 hours prior to the time of post-mortem examination. The medical evidence, therefore, would be suggestive of the fact that the dead-body was recovered after about two (02) days from 1.30 p.m. of 26th December, 2004. The question that confronts the Court is whether on the basis of the aforesaid evidence the conviction of the accused appellants is sustainable in law. 4. "Last seen together" is certainly a strong piece of circumstantial evidence against an accused. However, as it has been held in numerous pronouncements of this Court, the time-lag between the occurrence of the death and when the accused was last seen in the company of the deceased has to be reasonably close to permit an inference of guilt to be drawn. When the time-lag is considerably large, as in the present case, it would be safer for the Court to look for corroboration. In the present case, no corroboration is forthcoming. In the absence of any other circumstances which could connect the accused appellants with the crime alleged except as indicated above and in the absence of any corroboration of the circumstance of 'last seen together' we are of the view that a reasonable doubt can be entertained with regard to the involvement of the accused appellants in the crime alleged against them. The burden under Section 106 of the Indian Evidence Act, 1872 would not shift in the aforesaid fact situation, a position which has been dealt with by this Court in Malleshappa vs. State of Karnataka, wherein the earlier view of this Court Mohibur Rahman vs. State of Assam, has been extracted. The burden under Section 106 of the Indian Evidence Act, 1872 would not shift in the aforesaid fact situation, a position which has been dealt with by this Court in Malleshappa vs. State of Karnataka, wherein the earlier view of this Court Mohibur Rahman vs. State of Assam, has been extracted. The said view in Mohibur Rahman (supra) may be profitably extracted below: "10. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where, on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death, a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. In the present case there is no such proximity of time and place. As already noted the dead body has been recovered about 14 days after the date on which the deceased was last seen in the company of the accused. The distance between the two places is about 30-40 km. The event of the two accused persons having departed with the deceased and thus last seen together (by Lilima Rajbongshi, PW 6) does not bear such close proximity with the death of the victim by reference to time or place. According to Dr. Ratan Ch. Das the death occurred 5 to 10 days before 9-2-1991. The medical evidence does not establish, and there is no other evidence available to hold, that the deceased had died on 24-1-1991 or soon thereafter. So far as the accused Mohibur Rahman is concerned this is the singular piece of circumstantial evidence available against him. We have already discussed the evidence as to recovery and held that he cannot be connected with any recovery. Merely because he was last seen with the deceased a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence under Section 201 IPC is concerned there is no evidence worth the name available against him. Merely because he was last seen with the deceased a few unascertainable number of days before his death, he cannot be held liable for the offence of having caused the death of the deceased. So far as the offence under Section 201 IPC is concerned there is no evidence worth the name available against him. He is entitled to an acquittal." 6.7 From the observations made by the Apex Court in the aforesaid decision that "last seen, together is certainly a strong piece of circumstantial evidence against an accused, however, the time-lag between the occurrence and the death of the victim and that the accused was last seen in the company of the deceased has to be reasonably close to permit an inference of guilt to be drawn. When the time-lag is considerably large, it would be safer for the Court to look for corroboration." 6.7.1 In the present case, as observed, herein above, the time-lag is considerably large and therefore, it was the duty of the prosecution to prove the case against the appellant by producing corroborative evidence. Thus, in the present case, the trial Court ought not to have convicted the appellant by placing reliance on Section 106 of the Evidence Act. 6.8 At this stage, it is pertinent to note that PW Nos. 2 and 4, who were the panch witnesses to the discovery panchnama, i.e. Exhibit-21, did not support the case of the prosecution and they were declared hostile. Thus, this Court is of the view that the prosecution has failed to prove the discovery panchnama, Exhibit-21, by leading cogent and credible evidence before the concerned trial Court. 6.9 At this stage, it is pertinent to note that the prosecution had examined the IO, namely Shantilal Ramabhai Patel, who had carried out the investigation and had filed the charge-sheet in this matter and who was examined as PW-11 vide Exhibit-46. 6.9.1 From the deposition of PW-11, it cannot be said that the prosecution has proved the contents of the discovery panchnama. The concerned witness, i.e. the IO-PW-11, in his deposition only stated about certain articles including the sword, which were discovered at the instance of the appellant, as per Section 27 of the Evidence Act. However, the same is not suffice to prove the discovery panchnama, Exhibit-21. The concerned witness, i.e. the IO-PW-11, in his deposition only stated about certain articles including the sword, which were discovered at the instance of the appellant, as per Section 27 of the Evidence Act. However, the same is not suffice to prove the discovery panchnama, Exhibit-21. The IO-PW-11 was required to state, in his deposition, that the disclosure statement was made by the appellant, as provided under Section 27 of the Evidence Act, voluntarily and out of his own volition. But, no such disclosure is found in the evidence of the IO and the contents of the discovery panchnama, Exhibit-21, remain unproved in the eye of law so as to make the discovery panchnama, Exhibit-21, an admissible piece of evidence. 6.10 In 'RAMESHBHAI HAJABHAI CHCHIYA' (Supra), the Division Bench of this Court, observed and held thus at Paragraph-11 thereof; "11. Bearing in mind the above principles of law, we have scrutinized scrupulously and examined carefully the circumstances appearing in this case against the accused. We propose to deal with circumstance of discovery of weapon and discovery of the valuables as heavily relied upon by the prosecution first. It appears that the accused was arrested on 4th February, 2004 at 15.30 hours and arrest panchnama to that effect was also drawn which is Exh.44. On the very same day and at the very same hour it is the case of the prosecution that the accused stated before the Investigating Officer that on his own free will and volition he was ready to point out the place at which he has put the axe used in the commission of offence. The Investigating Officer for the purpose of discovery called two panchas and is said to have drawn the discovery panchnama thereby showing discovery of weapon at the instance of the accused. Both the panch witnesses i.e. PW 7 Exh.22 and PW 8 Exh.25 did not support the case of the prosecution and failed to prove the contents of the discovery panchnama of the weapon of offence. The question is as to what would be the evidentiary value of such a piece of circumstance sought to be relied upon by the prosecution, more particularly when two independent witnesses to the panchnama did not support the prosecution. The question is as to what would be the evidentiary value of such a piece of circumstance sought to be relied upon by the prosecution, more particularly when two independent witnesses to the panchnama did not support the prosecution. The trial Court believed and placed reliance on this piece of evidence saying that though the panchas have turned hostile, the Investigating Officer in his evidence has said that the weapon was discovered in the presence of two independent panch witnesses on accused making a statement of disclosure. The Supreme Court in Modan Singh Vs. State of Rajasthan reported in AIR 1978 SC 1511 held that if the evidence of the Investigating Officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that the seizure witnesses do not support the prosecution version. While there cannot be any quarrel with this proposition of law, but still the requirement of law needs to be fulfilled before accepting the evidence of discovery and that is by proving the contents of the panchnama. The Investigating Officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the Investigating Officer has successfully proved the contents of the discovery panchnama in accordance with law then in that case the prosecution may be justified in relying on such evidence and the trial Court may also accept the evidence. In the present case, what we have found from the deposition of the Investigating Officer PW 16 Exh.77 is that he has not proved the contents of both the discovery panchnamas and all that he has deposed is that as the accused was willing to point out the weapon of offence the same was recovered under a panchnama. Same is the statement so far as the discovery of valuables is concerned. We have minutely gone through this part of the evidence of the Investigating Officer and we are convinced that by no stretch of imagination it could be said that the Investigating Officer has proved the contents of both the discovery panchnamas. There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses have turned hostile and have not supported the prosecution. There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses have turned hostile and have not supported the prosecution. In order to enable the Court to safely rely on the evidence of the Investigating Officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the Investigating Officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place." 6.11 From the aforesaid observations made by the Division Bench of this Court, it is clear that an investigating officer is obliged in law to prove the contents of a panchnama in his deposition and it is only after the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then only, the prosecution can be said to be justified in relying on such a piece of evidence and the trial Court may also exhibit such an evidence. 6.11.1 In order to enable the concerned Court to fully rely on the evidence of the IO, it is necessary that the exact words uttered by an accused or a statement made by an accused is brought on record. For the said purpose, the IO concerned is obliged to depose in his evidence the exact statement and not by merely saying that the discovery panchnama of the weapon, allegedly used in committing the offence, was drawn, as the accused was willing to do so out of his own desire and wish. 6.11.2 In the present case, as observed herein above, we are convinced that by no stretch of imagination, it can be said that the IO-PW-11 successfully proved the contents of the discovery panchnama, Exhibit-21. 6.11.3 It was contended by the learned APP, Mr. Patel, that blood stains were found on the sword, which was discovered at the instance of the appellant accused vide discovery panchnama, Exhibit-21. Learned APP, Mr. Patel, also placed reliance on the serology report, which was produced on record vide Exhibit-57. 6.11.3 It was contended by the learned APP, Mr. Patel, that blood stains were found on the sword, which was discovered at the instance of the appellant accused vide discovery panchnama, Exhibit-21. Learned APP, Mr. Patel, also placed reliance on the serology report, which was produced on record vide Exhibit-57. However, as observed herein above, when the prosecution has failed to prove the discovery panchnama, Exhibit-21, by leading the cogent and credible evidence, the reliance placed on by the trial Court on the same is misconcieved. 6.11.4 Here, it is pertinent to note that the prosecution has neither produced any evidence, either documentary or oral, to establish that the blood found on the sword, which was allegedly recovered by police vide discovery panchnama, Exhibit-21, was that of the deceased. 6.12 In 'BALWAN SINGH VS. STATE OF CHHATTISGARH & ANOTHER' (Supra), the Apex Court has held thus; "9. We are also conscious of the fact that, at times, it may be very difficult for the serologist to detect the origin of the blood due to the disintegration of the serum, or insufficiency of blood stains, or haematological changes etc. In such situations, the Court, using its judicious mind, may deny the benefit of doubt to the accused, depending on the facts and circumstances of each case, if other evidence of the prosecution is credible and if reasonable doubt does not arise in the mind of the Court about the investigation. Thus, in the case of R. Shaji v. State of Kerala, (2013) 14 SCC 266 , this Court had observed: "31. A failure by the serologist to detect the origin of the blood due to disintegration of the serum does not mean that the blood stuck on the axe could not have been human blood at all. Sometimes it is possible, either because the stain is insufficient in itself, or due to haematological changes and plasmatic coagulation, that a serologist may fail to detect the origin of the blood in question. However, in such a case, unless the doubt is of a reasonable dimension which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this regard. However, in such a case, unless the doubt is of a reasonable dimension which a judicially conscientious mind may entertain with some objectivity, no benefit can be claimed by the accused in this regard. Once the recovery is made in pursuance of a disclosure statement made by the accused, the matching or non-matching of blood group(s) loses significance." Similar observations were made by this Court in the case of Gura Singh v. State of Rajasthan, (2001) 2 SCC 205 , wherein it was observed that it was not possible to accept the submission made on behalf of the accused that in the absence of the report regarding the origin of the blood, the accused could not have been convicted, inasmuch as it was only because of the lapse of time that blood could not be classified successfully. In the case of Jagroop Singh v. State of Punjab, (2012) 11 SCC 768 , this Court had ruled that as the recovery was made pursuant to a disclosure statement made by the accused, and the serological report had found that the blood was of human origin, the non-determination of the blood group had lost its significance. In the case of State of Rajasthan v. Teja Ram and Others, (1999) 3 SCC 507 , the Court had observed that the failure of the serologist to detect the origin of the blood, due to disintegration of the serum, did not mean that the blood stuck on the weapon could not have been human blood at all. In this context, it was noted that it could not be said that in all cases where there was a failure in detecting the origin of blood, the circumstance arising from recovery of the weapon would stand relegated to disutility. It was thus observed that unless the doubt was of a reasonable dimension which a judicially conscientious mind entertained with some objectivity, no benefit could be claimed by the accused. 10. However, we cannot lose sight of the fact that the accused would be in a disadvantageous position in case if the aforementioned dictum laid down by this Court in the cases of R. Shaji (supra), Gura Singh (supra), Jagroop Singh (supra) and Teja Ram (supra) relating to the bloodstains is applied in each and every case. 10. However, we cannot lose sight of the fact that the accused would be in a disadvantageous position in case if the aforementioned dictum laid down by this Court in the cases of R. Shaji (supra), Gura Singh (supra), Jagroop Singh (supra) and Teja Ram (supra) relating to the bloodstains is applied in each and every case. Non-confirmation of blood-group or origin of the blood may assume importance in cases where the accused pleads a defence or alleges mala fides on the part of the prosecution, or accuses the prosecution of fabricating the evidence to wrongly implicate him in the commission of the crime. xxx xxx xxx 13. From the aforementioned discussion, we can summarise that if the recovery of bloodstained articles is proved beyond reasonable doubt by the prosecution, and if the investigation was not found to be tainted, then it may be sufficient if the prosecution shows that the blood found on the articles is of human origin though, even though the blood group is not proved because of disintegration of blood. The Court will have to come to the conclusion based on the facts and circumstances of each case, and there cannot be any fixed formula that the prosecution has to prove, or need not prove, that the blood groups match." 6.12.1 Keeping in mind the observations made by the Apex Court, as stated herein above, we also perused the depositions of the prosecution witnesses and from the said evidence, it is revealed that the prosecution has failed to prove the motive on the part of the appellant commit the offence punishable under Section 302 of the IPC. 6.12.2 It was the specific case of the prosecution that the second wife of the deceased-Chhatrabhai, namely Lalitaben, as not having cordial relation with the deceased and therefore, the appellant had gone to the house of the deceased-Chhatrabhai to see that the dispute between the deceased-Chhatrabhai and his second wife, Lalitaben, is resolved. It was, further, the case of the prosecution that for the said purpose, the appellant insisted that the deceased-Chhatrabhai should accompany him and but for the insistence on the part of the appellant, the deceased-Chhatrabhai had accompanied him. 6.12.3 Here, it is pertinent to note that the prosecution did not examine the second wife of the deceased, namely Lalitaben, so as to prove the aforesaid theory. 6.12.3 Here, it is pertinent to note that the prosecution did not examine the second wife of the deceased, namely Lalitaben, so as to prove the aforesaid theory. On the contrary, if, the cross-examination of the first wife of the deceased, namely Samratben-PW-9, is perused, she clearly stated that the matrimonial relations between the deceased-Chhatrabhai and his second wife, Lalitaben, were cordial. 6.12.4 We are, therefore, of the opinion that the prosecution has even failed to prove motive on the part of the appellant to commit the offence, punishable under Section 302 of the IPC. 6.12.5 It is well settled that in the case of circumstantial evidence, 'motive' plays an important role and if, the motive, which is considered to be the starting point of the offence, is not established, then, the conviction, based on the theory of last seen together only, cannot be sustained. 6.13 Here, it would be profitable to refer to the provisions of Sections 101 and 106 of the Evidence Act, which reads thus; "101. Burden of proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. xxx xxx xxx 106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him." 6.13.1 From the aforesaid provisions contained in the Evidence Act, it can be said that the prosecution has to prove its own case and has to stand on its own legs, on the strength of the foundation of the facts and to prove the case against the accused and thereafter, if, the prosecution successfully proves the case against the accused, then only, burden would shift on the accused, as provided under Section 106 of the Evidence Act, to prove his innocence. 6.14 In 'REENA HAZARIKA'(Supra), the observations made by the Apex Court at Paragraph-8, reads as follows; "8. The essentials of circumstantial evidence stand well established by precedents and we do not consider it necessary to reiterate the same and burden the order unnecessarily. 6.14 In 'REENA HAZARIKA'(Supra), the observations made by the Apex Court at Paragraph-8, reads as follows; "8. The essentials of circumstantial evidence stand well established by precedents and we do not consider it necessary to reiterate the same and burden the order unnecessarily. Suffice it to observe that in a case of circumstantial evidence the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act, 1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the accused, and the benefit of doubt will have to be given." 6.14.1 From the aforementioned observations made by the Apex Court, it can be said that mere invocation of 'last seen, together' theory, sans facts and evidence in a case will not suffice to shift the burden or onus, as provided under Section 106 of the Evidence Act, on the accused, unless, the prosecution establishes a prima facie case, first. When the links in the chain of circumstances, itself, are not complete and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift on the accused and the benefit of doubt will have to be given to the accused. 6.15 A submission was made by the learned Advocate, Mr. 6.15 A submission was made by the learned Advocate, Mr. Barot, that recording of further statement of an accused, as provided under Section 313 of the Code, is not an empty formality and in the present case, while recording the further statement of the appellant under Section 313 of the Code, a question was put to the appellant with regard to serology report, Exhibit-57 and that the said question was not put to the appellant in clear terms, so as to derive his response on the point of blood found on the sword, which was allegedly seized by police vide discovery panchnama, Exhibit-21 and hence, the same was required to be excluded by the trial Court and ought not to have read against the accused, as the one proved circumstances. 6.15.1 In regard to the above submission made by learned Advocate, Mr. Barot, it would be relevant to refer to the observations made by the Apex Court in 'MAHESHWAR TIGGA' (Supra), wherein, at Paragraphs-8 and 9, it is observed and held as under; 8. A bare perusal of the examination of the accused under Section 313 Cr.P.C. reveals it to be extremely casual and perfunctory in nature. Three capsuled questions only were asked to the appellant as follows which he denied: "Question1. There is a witness against you that when the informant V. Anshumala Tigga was going to school you were hiding near Tomra canal and after finding the informant in isolation you forced her to strip naked on knifepoint and raped her. Question 2. After the rape when the informant ran to her home crying to inform her parents about the incident and when the parents of the informant came to you to inquire about the incident, you told them that "if I have committed rape then I will keep her as my wife". Question3. On your instruction, the informant's parents performed the "Lota Paani" ceremony of the informant, in which the informant as well as your parents were present, also in the said ceremony your parents had gifted the informant a Saree and a blouse and the informant's parents had also gifted you some clothes" 9. It stands well settled that circumstances not put to an accused under Section 313 Cr.P.C. cannot be used against him, and must be excluded from consideration. It stands well settled that circumstances not put to an accused under Section 313 Cr.P.C. cannot be used against him, and must be excluded from consideration. In a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not only to furnish his defence, but also to explain the incriminating circumstances against him. A probable defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt. This Court, time and again, has emphasised the importance of putting all relevant questions to an accused under Section 313 Cr.P.C. In Naval Kishore Singh v. State of Bihar, (2004) 7 SCC 502 , it was held to an essential part of a fair trial observing as follows : "5......The questioning of the accused under Section 313 CrPC was done in the most unsatisfactory manner. Under Section 313 CrPC the accused should have been given opportunity to explain any of the circumstances appearing in the evidence against him. At least, the various items of evidence, which had been produced by the prosecution, should have been put to the accused in the form of questions and he should have been given opportunity to give his explanation. No such opportunity was given to the accused in the instant case. We deprecate the practice of putting the entire evidence against the accused put together in a single question and giving an opportunity to explain the same, as the accused may not be in a position to give a rational and intelligent explanation. The trial Judge should have kept in mind the importance of giving an opportunity to the accused to explain the adverse circumstances in the evidence and the Section 313 examination shall not be carried out as an empty formality. It is only after the entire evidence is unfurled the accused would be in a position to articulate his defence and to give explanation to the circumstances appearing in evidence against him. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence..." 6.16 Moreover, a perusal of the deposition given by Dr. Such an opportunity being given to the accused is part of a fair trial and if it is done in a slipshod manner, it may result in imperfect appreciation of evidence..." 6.16 Moreover, a perusal of the deposition given by Dr. PW-5-Parasbhai Mangilal Patel, Exhibit-35, who had carried out post mortem of the dead-body of Chhatrabhai, reveals that this witness had noticed seven injuries on the dead-body of Chhatrabhai. 6.16.1 During the course of his cross-examination, PW-5-Dr. Patel conceded that the injury Nos. 3, 4, 5 and 6, which were found on the dead-body of Chhatrabhai, could have been possibly caused by a hard and blunt object, other than a sword. 6.16.2 Thus, from the deposition of PW-5-Dr. Patel, it becomes clear that injury Nos. 3 to 6 were not caused by the sword, which was allegedly discovered at the instance of the appellant. This would also create doubt about the story put-forward by the prosecution, as to how the incident actually took place and it, rather suggests that the alleged offence could have taken place in totally a different manner. 6.17 We have considered the depositions of the witnesses examined by the prosecution so also the documentary evidences produced by it before the trial Court concerned and re-appreciated the same and also considered the decisions relied on by the learned Advocate, Mr. Barot, appearing for the appellant and we are of the view that the present one, being a case of circumstantial evidence, it was the duty of the prosecution to prove the complete chain of events by leading cogent and credible evidence. 6.17.1 In the case of circumstantial evidence, each link, unless is connected together to form a chain, may suggest suspicion, but, the same in, itself, cannot take place of the proof or evidence and the same cannot be held to be sufficient to convict an accused. 6.18 In 'SHAILENDRA RAJDEV PASVAN' (Supra), the Apex Court observed as under at Paragraph-17 thereof; "17. It is well settled by now that in a case based on circumstantial evidence the Courts ought to have a conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. It is well settled by now that in a case based on circumstantial evidence the Courts ought to have a conscientious approach and conviction ought to be recorded only in case all the links of the chain are complete pointing to the guilt of the accused. Each link unless connected together to form a chain may suggest suspicion but the same in itself cannot take place of proof and will not be sufficient to convict the accused." 6.19 In view of the above discussion, we are of the considered opinion that the prosecution has failed to prove its case against the present appellant. Hence, the present appeal deserves to be allowed. 7. Resultantly, the present appeal succeeds and is ALLOWED. The impugned judgment and order, Dated: 28.02.2013, passed by the learned Additional Sessions Judge, Panchamahal at Godhra, in Sessions Case No. 100 of 2012, convicting the appellant under Section 302 of the IPC and sentencing him to undergo imprisonment for life and to pay fine of Rs.10,000/- and in default to undergo further simple imprisonment for the period of three months so also convicting him for the offence under Section 201 of the IPC and sentencing him to undergo imprisonment for one year and to pay fine of Rs.1,000/- and in default to undergo further simple imprisonment for one month is, hereby, QUASHED and set aside. 7.1 The concerned jail authority is DIRECTED to set the present appellant at liberty, forthwith, if, not required in connection with any other case. 7.2 The amount of fine, if any, paid by the appellant, shall be REFUNDED to him, immediately. 7.3 The Registry is DIRECTED to send the R&P back to the concerned trial Court, forthwith.