K.S. Jhaveri, J.Present appeal is directed against the judgment and order dated 05/01/2004 passed by the learned Additional Sessions Judge, Ahmedabad City, Court No. 2, Ahmedabad in Sessions Case Nos. 162 and 163 of 2003, whereby, the appellant herein - original accused No. 1 came to be convicted for the offence punishable under Section 302 of the Indian Penal Code, 1860 (for brevity, the IPC) and sentenced to undergo life imprisonment and a fine of Rs. 2,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months. The appellant -accused No. 1 was also convicted and sentenced for the offence punishable under Section 307 of the IPC to undergo rigorous imprisonment for seven years and a fine of Rs. 1,000/- in default of payment of fine, to undergo rigorous imprisonment for six months. The sentences were to run concurrently, whereas, other accused persons came to be acquitted of the charges levelled against them. Accordingly, present appeal has been filed by the appellant - accused No. 1 against conviction, as aforesaid.

2. Facts in nutshell of the prosecution case are that on 27/02/2002 aftermath of Godhra carnage had broken out at various places in the State of Gujarat. In pursuance of the conspiracy hatched by 40 to 50 persons belonging to Hindu community, they gathered near Pratapkunj Society situated at Vasana, Ahmedabad on 24/03/2002 by forming an unlawful assembly with a common object to use force against the innocent persons. They were armed with deadly weapons. Thus, the accused have committed the offence punishable under Section 143, 148 and 149 of the IPC. After forming the unlawful assembly and with a view to achieve the common object, the accused assaulted one Munna @ Sabban Salimbhai Shaikh and caused injuries to him on his right hand, left hand, nose, waist portion of his body and on the neck and thereby, they committed the offence punishable under Section 307 of the IPC. The accused, then, attacked the wife of Munna namely Gita @ Mumtaz with knife and gupti and caused injuries on her head, back side and other parts of the body and snuffed out her life and thereby, they committed the offence punishable under Section 302 r/w. Section 149 of the IPC. The accused Nos. 1 to 3 were armed with deadly weapons and thereby, violated the provisions of Section 135 of the Bombay Police Act and committed the offence punishable under Section 148 and 188 of the IPC. Thus, the accused committed the alleged offence for which, a complaint came to be lodged against them for the aforesaid offences.

2.1 Pursuant to the complaint, investigation was carried out. After investigation, charge-sheet was filed and as the case was triable by the Court of Sessions, it was committed to the City Sessions Court at Ahmedabad.

2.2 The trial Court framed charge against the accused. The accused pleaded not guilty to the charge and claimed to be tried. Therefore, the prosecution produced oral as well as documentary evidence.

2.3 In order to bring home the charge against the accused, the prosecution has examined following witnesses and also produced several documentary evidence, as under:

2.4 At the end of the trial, Further Statements of the accused under Section 313 of Criminal Procedure Code, 1973 (for brevity, the Code) were recorded in which they pleaded not guilty and also false implication. Thus, after recording the Further Statements and hearing the arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellant - accused No. 1, as aforesaid, by impugned judgment and order.

2.5 Being aggrieved and dissatisfied with the aforesaid judgment and order passed by the City Sessions Court, the accused No. 1 has preferred the present appeal against conviction.

3. We have heard Mr. Vijay Patel, learned advocate for the appellant - accused No. 1 and Mr. J.M. Panchal, learned Special Public Prosecutor for the State.

3.1 Mr. Patel, learned advocate for the accused, mainly contended that the complaint, exh. 28, was lodged by PW-3 N.D. Solanki, PSI and except recovery of muddamal and finding blood stains on the weapons, no substantive proof/evidence to establish the case put forth by the prosecution, is there. He submitted that the case is based on the circumstantial evidence and the prosecution has miserably failed to prove the chain of circumstances against the present appellant - accused No. 1 inasmuch as, no substantive piece of evidence is brought on record to bring home the charge levelled against the appellant - accused No. 1 and accordingly, the learned Sessions Judge has committed a grave error in holding conviction against him only on the conjectures and surmises. He contended that looking to the injuries, as can be seen from the PM Note, though it might be a case of unnatural death, however, if the oral evidence adduced by the prosecution is taken into consideration, out of in all seventeen witnesses examined by the prosecution, eight witnesses have turned hostile. He vehemently submitted that the crucial witness, the injured surviving husband of the deceased, has not been examined by the prosecution. He further submitted that, in the Dying Declaration of Munna Shaikh, the husband of the deceased, produced at exh. 19, recorded by the Executive Magistrate Shri B.U. Vadher (who is examined at exh. 18), it is stated by him that, on 24/03/2002, he along with his wife, was going on scooter from Rabari Colony at Odhav, at that time, near Gupta Nagar, Vasana, a mob consisting of about 30 - 35 people was there. They stopped them and asked as to whether they are Hindu or Muslim, to which, he replied Muslim and hence, he was attacked by knife, firstly on his left ear, right hand, on right side near neck and on abdomen and hence, he fell unconscious and he did not know as to whether the miscreants had attacked her wife or not. The learned advocate for the appellant - accused No. 1 further submitted that no Test Identification Parade was carried out and under the circumstances, when this case being based on circumstantial evidence and when the prosecution has failed to prove its case against the appellant - accused No. 1 beyond reasonable doubt, the learned Sessions Judge has wrongly convicted him and accordingly, he requested that, in the given circumstances, benefit of doubt requires to be given to the appellant - accused No. 1 and he may be acquitted of the charges levelled against him by requesting this Court to interfere in appeal.

4. Per contra, Mr. Panchal, learned Special Public Prosecutor, for the respondent - State supports the impugned judgment and order and submitted that the same having been passed in accordance with law, does not call for any interference, more particularly, when such a heinous crime is committed which victimized the innocent poor persons. He submitted that the circumstances requires the matter to be viewed seriously and no sympathy may be shown by this Court by interfering in the appeal and eventually, he requested to dismiss the appeal.

5. We have heard the learned advocates for the respective parties and examined the matter carefully and gone through the evidence on record. We have re-appreciated and re-evaluated the evidence on the touchstone of the latest decisions of the Honble Apex Court. Before proceeding further, it is required to be noted that the case is based on the circumstantial evidence and on going through the evidence on record, there appeared nothing on record to show that the appellant - accused No. 1 was there at the scene of offence while the alleged incident had taken place. The only witness, the surviving injured husband of the deceased, who was the crucial witness, has not been examined by the prosecution. It is also a fact that, to establish the nexus of the appellant with the crime, no Test Identification Parade had been conducted by the prosecution and the trial Court has proceeded only on the recovery of the deadly weapon which was found with the blood stains of the deceased and the conviction is held.

5.1 In light of the aforesaid facts, we have carefully gone through the discussion made by the learned Sessions Judge in the impugned judgment and order and for profitable use, we reproduced the same:

"12. The learned APP representing the State submitted that the charge against the accused has been framed vide exh.3 for the offences punishable under sections 143, 148, 149, 188 read with sections 307 and 302 of the IPC as well as under section 135(1) of the Bombay Police Act. The prosecution has examined 17 witnesses in order to prove the involvement of the accused in the commission of offence. The learned APP submitted that the incident took place on 24-3-2002 near Pratapkunj society. The crowd of about 40 to 50 persons had assembled near the Pratapkunj society by forming an unlawful assembly. They were armed with deadly weapons and they were out to take the revenge in the wake of GODHARA CARNAGE which took place on 27-2-2002. After forming an unlawful assembly they had assaulted MUNNA ALIAS SABBAN SALIMBHAI SHAIKH on his right hand, left hand, neck and other parts of the body. The wife of MUNNA, GITA ALIAS MUMTAZ who also accompanied MUNNA was brutally assaulted by the accused and caused fatal injuries to GITA ALIAS MUMTAZ on her head and other parts of the body. The offence was registered in view of the complaint given by PSI Mr. N.D. Solanki against the accused.

13. The prosecution has examined. KALPESH SOMABHAI KOTHARIA PW NO. 1 at exh.16 who had carried out autopsy on the dead body of GITA ALIAS MUMTAZ on 4-4-02. He has in his deposition narrated the internal and external injuries sustained by deceased.

14. The prosecution has examined BHIKHABHAI UKABHAI VADHER PW NO.2 at- exh.18. He has been examined by the prosecution to prove that the dyeing declaration of MUNNA was recorded by him after MUNNA had sustained severe injuries in the incident.

15. NARENDRAKUMAR DAHYABHAI SOLANKI. PW NO.3 has been examined vide exh. 27. He has been examined by the prosecution with a view to prove that the incident took place on 24-3-2002 in the aftermath of the Godhara Carnage and he had found two persons near the JASMINE AUTO GARAGE near Pratapkunj society, The Injuries sustained by both the persons have been narrated by him in his deposition.

16. The prosecution has examined KAUSHAL KISHORECHAND GOHEL PW NO.4 at exh.30, NANAJI UKAJI PADHIYAR PW NO.5 at exh.31, HARKISHAN BABULAL PW NO.7 at exh.33, IMTIYAZBHAI SULEMAN PW NO.8 at exh.34, AFZALBHAI HUSSEINBHAI SHAIKH PW No. 9 at exh.35, PAPPU SHANKARLAL PW NO. 10 at exh.37, BHAGUBHAI BABARBHAI PW NO.11 at exh.38, RAJESHBHAI SHANKARBHAI PW NO.12 at exh.39 but these witnesses have turned hostile and not supported the prosecution. case with regard to the incident or the involvement of the accused in the commission of offence. The learned APP submitted that MEHTABJI LAXMAN PW NO.6 who has been examined at exh.32 has given the name of two accused persons viz-JAGDISH ALIAS JAGO AND DTNESH ALTAS TALLO who were armed with GUPTI and as per his say the attack was launched by both the accused on the victims and serious injuries were caused to both the victims.

17. NAVINKUMAR DOSHI PW NO.13 has been examined vide exh.40. He is the person who had taken over, the investigation in respect of I-CR bearing No. 74 of 2002. The place where the incident took place was visited and the panchnama with regard to the place of incident was prepared by him. The inquest panchnama of the dead body of GITA ALIAS MUMTAZ was prepared in the presence of panch witnesses. The dyeing declaration of MUNNA was recorded and he made the arrangement to record the Dyeing Declaration of MUNNA. The place where the Incident took place was visited and the panchnama with regard to the same was prepared. The panchnama with regard to the clothes put on by MUNNA was prepared in the presence of panch witnesses. The panchnama of the clothes put on by deceased GITA ALIAS MUMTAZ was prepared in the presence of panch witnesses. The muddamal which was recovered was sent to FSL for the purpose of detailed analysis.

18. GULABCH AND KESHARBHAI CHAUDHARY PW NO. 14 who has been examined vide exh.42 has deposed in his testimony that when he was entrusted the investigation of I-CR bearing No. 74-02 he-had prepared the panchnama of the body of DINESH ALIAS TALLO. After detaining PINESH ALIAS TALI 0 the report with regard to the same was prepared and forwarded to the charge-officer for necessary action. The family members of the accused were intimated about their arrest. Thereafter they were produced before the court of Metropolitan Magistrate court No. 20 and the remand was sought against the accused. After obtaining remand, the interrogation was made and the place where the incident took place was visited along with the panch witnesses and panchnama with regard to the same was prepared in their presence. The panchnama with regard to the recovery of the weapon was also prepared in the presence of the accused and the panch witnesses. The muddamal article which was recovered was sent to FSL for the purpose of detailed analysis., which was recovered was sent to FSL detailed analysis.

19. SURJITRAO AMRUTRAO UPADHYAY PW NO. 15 has been examined vide exh. 53 by the prosecution to prove that, the muddamal article which was recovered from the place of the incident was sent to FSL for the purpose of detailed analysis.

20. NARANSING BAHVANSING PARMAR PW NO.16 has been examined vide exh.56 and he has been examined with a view to prove that during the course of the investigation the accused JAGDISH ALIAS JAGO was detained and the panchnama with regard to the recovery of weapon from the place shown by the accused was prepared on 15-8-2003.

21. ARCHANA DARSHIT DALAL PW NO.17 has been examined vide exh.58 and she has been examined to prove the injury sustained by MUNNA and the treatment taken by him after sustaining injuries in the v. Hospital.

22. The learned APP submitted that prosecution has over and above the oral deposition placed reliance on documentary evidence such as the complaint given by Mr. N. D. SOLANKI, PSI, the Report prepared under section 157 of the Cr.P.C. and forwarded to the Charge Officer vide exh.28 and 29 respectively to the present case to prove that the complaint was given by Mr. N.D. SOLANKI and after receiving the same immediately the charge-officer was informed about the incident. The place of incident is proved by the prosecution by relying on document at exh.41. The clothes put on by MUNNA AND GITA ALIAS MUMTAZ and the panchnama prepared in respect thereof is produced vide exhs.12 and 13 respectively. The weapons used in the commission of offence and shown by JAGDISH ALIAS JAGO, DINESH ALIAS TALLO AND KALU MULAJI AND DINESH ALIAS DINIYO are produced vide exhs.57, 44, 46 and 47 to the present case. The place of incident which was shown by the accused and the panchnamas prepared in respect thereof are produced vide exhs. 43, 45 and 48 to the present case. The inquest panchnama of deceased MUMTAZ is produced at exh.14 while the map of the place of the incident is produced at exh.49; the injury sustained by MUNNA and the certificate issued by the Hospital authority is produced at exh.59; the post-mortem note is produced vide exh.17 wherein on perusal of column No. 23 it becomes clear that the death was caused due to the injuries sustained due to the shock as a result of stabbed injuries sustained. The postmortem note; the receipt given by the FSL and the opinion given, by FSL in respect of the muddamal further corroborates the prosecution story about the involvement of accused in the commission of offence. The document at exhs.19 is the Yadi sent by police for the purpose of recording the Dyeing Declaration and the document at exh.20 is the Dyeing Declaration of MUNNA. Thus, the learned APP representing the State submitted that the documentary evidence which has been produced by the prosecution corroborates the prosecution story with regard to the involvement of the accused No. 1 in the commission of offence. If the deposition given by the prosecution witnesses is perused in the proper perspective then the prosecution has proved the involvement of the accused No. 1 in the commission of offence a]though some of the witnesses have turned hostile and not supported the prosecution case. The police witnesses and the doctors who are examined in the present case supports the prosecution story about the injuries sustained by the injured and the deceased and thus the entire link connecting the accused No. 1 with the commission of offence has been established by the prosecution by adducing cogent and convincing evidence and, therefore, the learned APP submitted that necessary order be passed against the accused No. 1 for punishment for the offences with which he has been charged.

23. The learned advocate representing the accused submitted that prosecution has examined 17 witnesses in order to prove the involvement of the accused in the commission of offence. The panch witnesses on whom reliance is placed by the prosecution have turned hostile and not supported the prosecution case. Thus, the panchnama of the place of incident; the panchnama with regard to the seizure of the clothes put on by the victims and the deceased, the inquest panchnama has not been proved by the prosecution in a conclusive manner, The eye witnesses who are examined by the prosecution have also not supported the prosecution case indicating the involvement of the accused in the commission of offence. The prosecution has not carried out the identification parade so as to identify the accused. The panchnamas which are produced vide exhs. 43 and 44 whereby DINESH ALIAS TALLO had shown the place of incident and the weapon which was used in the commission of offence are got-up panchnamas and no reliance can be placed on the panchnama as the panch witnesses have turned hostile. If we read the deposition given by the doctors who had carried out the post mortem of the deceased GITA ALIAS MUMTAZ and given the injury certificate to MUNNA, that they have deposed in their testimony about how the post-mortem was carried out on the dead body and the injury sustained by MUNNA in the scuffle which took place on the date of incident but nothing turns out either from the post-mortem report or from the history given in the injury certificate so as to rope in the present accused in the commission of offence. Thus, the learned advocate submitted that prosecution has miserably failed to prove the entire link connecting the accused with the commission of offence which took place in the aftermath of Godhara Carnage on 24-3-2002 and the entire deposition and the documentary evidence bristles with contradictions. When the deposition and the documentary evidence are not in consonance with each other and no corroboration of the entire link is established by the prosecution then in such circumstances the accused are liable to be acquitted forthwith in the matter.

24. I have taken into consideration the rival submissions and perused the oral depositions which has been relied upon by the prosecution in order to prove the involvement of the accused in the commission of offence. The documentary evidence which is produced by the prosecution vide separate list at exh.II as well as vide exh.18A to the present case is carefully considered by me. The further statements of all the accused which came to be recorded under-section 313 of the Cr.P.C is carefully taken into consideration by me.

25. The main charge against the accused is framed vide exh.3 to the present case. As per prosecution case the accused in the aftermath of the Godhara Carnage which took place on 27-2-2002 formed an unlawful assembly on 24-3-2002 near Pratapkunj society on the main road and thus they have committed the offence punishable under section 143 of the IPC. After forming the unlawful assembly they launched an attack on MUNNA ALIAS SABBAN SALIMBHAI SHAIKH and gave serious blows on has right hand, left hand, neck and other parts of the body with sharp cutting weapons and thus they have committed offence punishable under section 307 of the IPC. The accused after forming an unlawful assembly also assaulted the wife of MUNNA ALIAS SABBAN SHAIKH, GITA ALIAS MUMTAZ with knife and Gupti on the waist, on her head and other parts of the body and caused her instant death. Thus, the accused have committed offences punishable under sections 118, 149 and 302 of the IPC. As the accused were armed with deadly weapons in violation of the Government Notification prohibiting the use of such weapons, they have committed an offence punishable under section 135(1) of the Bombay Police Act and under section 188 of the IPC.

26. On the strength of the complaint given by PSI Mr. N.D. Solanki on 24-3-2002 the offence was registered against the accused in the Vejalpur Police Station rearing I-CR No. 74 of 2002, the PSI of Vejalpur Police Station thereafter forwarded the Report prepared under section 157 of the Cr.P.C. to the Charge Office, Vejalpur Police Station for necessary action. On the receipt of the said Report, the place where the incident took place was visited by requisitioning panch witnesses and other members of the investigating squad and the panchnama in respect of the place of incident was prepared in their presence. Thereafter the panchnama with regard to the recovery of the weapons used by the accused and the panchnama with regard to the clothes put on by the victims was prepared in their presence. The statements of witnesses were also recorded. The accused were arrested and subsequently except accused No. 1, rest of the accused were released on regular bail.

27. The prosecution has in all examined 17 witnesses so as to prove the involvement of the accused in the commission of offence. KALPESH SOMABHAI KOTHARIA PW NO.1 has been examined vide exh.16. He has been examined by the prosecution with a view to prove the autopsy which was carried out on the dead body of GITA ALIAS MUMTAZ. The external and internal injuries sustained by the deceased have been specifically mentioned in column No. 17 of the postmortem note and the cause of the death has been mentioned in column No. 23 as due to shock as a result of stabbed injuries sustained by the deceased.

28. BHIKHABHAI UKABHAI VADHER PW NO.2 has been examined vide exh.18. The prosecution has examined the above mentioned witness to prove that Dyeing Declaration of injured MUNNA ALIAS SABBAN SALIMBHAI SHAIKH was recorded by him in the v. Hospital on receiving the VERDHI for recording the same. In his cross examination he has deposed that in the YADI he had obtained the endorsement of the Doctor that the patient was conscious and he has denied the fact that no endorsement of the Doctor was taken by him before recording the Dyeing Declaration of MUNNA.

29. NARENDRA DAHYALAL SOLANKI PW NO.3 has been examined vide exh.27. He has deposed in his testimony that in view of the Godhara Carnage which took place on 7-2-2002 he was doing patrolling in the sensitive area of the City. When he reached near Pratapkunj society one lady and one male person were lying in the pool of blood after sustaining severe injuries. Thereafter both were taken to the v. Hospital for the purpose of giving treatment. He came to know later on that the male person and the lady who were taken to the Hospital, were husband and wife. The complaint with regard to the incident was lodged in the Vejalpur police station. During the cross examination he has deposed that it is not true that when the complaint was given, GITA ALIAS MUMTAZ had succumbed to her injuries. He had lodged the complaint with regard to the incident in the police station. Thereafter he went to Vasana Police Chawki in view of the BANDOBAST. It is not true that he came to know about the incident only after reading the same in the news paper on the next day.

30. KAUSHAL KISHORBHAI GOHEL PW NO.4 has been examined vide exh.30. He has turned hostile and not supported the prosecution case. He has admitted his signature in the first part of the panchnama but he has denied that the weapon was seized on being shown to him. Even the second part of the panchnama wherein he has put his signature is admitted by him.

31. MANAJI UKAJI PADHIYAR PW NO.5 has been examined vide exh.31 and he has also turned hostile and not supported the prosecution case indicating the involvement of the accused in the commission of offence. Nothing turns out from the cross examination of this witness so at to indicate the involvement of the accused in the commission of offence.

32. MEHTABJI LAXMANJI THAKORE PW NO.6 has been examined vide exh.32. He has deposed in his testimony that when he was on duty on 24-3-2002 the incident of arson and looting were reported near Guptanagar on the Vasana road. The curfew was imposed in Vejalpur area. One person who was proceeding on the scooter near the JASHMINE AUTO GARAGE near Guptanagar was assaulted at about 11-00 a.m. in the afternoon. The name of the driver of the scooter was MUNNA and the pillion rider was his wife named GITA ALIAS MUMTAZ. They were assaulted in merciless manner. GITA ALIAS MUMTAZ died on the spot and the driver of the scooter was taken to the hospital for the purpose of providing him immediate treatment. When the inquiry was made with regard to the incident by head constable Ranchhodbhai, he came to know from the private information that JAGDISH ALIAS JAGO AND DINESH ALIAS DINIYO were having Gupti in their possession. In his cross examination he has deposed that he was doing the patrolling in the Vejalpur area. He came to know about the incident which took place near Vasana Circle but he had not seen the incident. The reply of the informant was not taken by him and he has no knowledge about the information gathered by his Higher Officer from the informant.

33. HARKISHAN BABULAL GUPTA PW NO.7 has been examined vide exh.33. He has been examined as one of the punch witnesses who has turned hostile and not supported the prosecution case. Nothing turns out from the cross examination of this witness to indicate the involvement of the accused in the commission of offence.

34. IMTIYAZ SULEMAN PW NO.8 has been examined at exh.34. He is examined as one of the panch witnesses and he has also turned hostile and not supported the prosecution case.

35. AFZALBHAI HUSSEINBHAI SHAIKH. AT EXH.36, PAPPU SHANKARJI RANA. PW NO. 10 AT EXH.37, BHAGUBHAI BABABHAI DESAI PW NO.11 AT EXH.38, RAJESHBHAI SHANTILAL CHAUDHARY PW NO.12 AT EXH.39 have been examined by the prosecution but these witnesses have turned hostile and not supported the prosecution case showing the involvement of the accused in the commission of offence.

36. The prosecution has examined NALINKUMAR SOMABHAT DOSHI PW NO.13 at exh.40 and he has deposed in his testimony that on 24-3-2002 he was working as Senior PI in the Ve Jaipur Police Station. The curfew was imposed in the Vasana area in connection with the incident which took place in that area. He was entrusted with the investigation of the I-CR bearing No. 74 of 2002. The place of the incident was visited by him and the panchnama in that regard was prepared in his presence. The muddamal articles were recovered for the purpose of sending the same for detailed analysis. When relevant papers were produced by Mr. M.D. Vaghela, FSI, the inquest panchnama was prepared. The photographs of the place of the incident were taken and the statements of the witnesses were recorded by him. On the next day, arrangement was made to record the Dyeing Declaration of MUNNA who had sustained serious injuries in the incident. The clothes put on by MUNNA was seized in the presence of panch witnesses and the panchnama in that regard was prepared. The clothes of deceased was also seized in the presence of panch witnesses and the panchnama in respect thereof was prepared by the panch witnesses. The statements of the witnesses were again recorded on 31-3-02 as his transfer took place in the Control Room the further investigation was entrusted to PI Mr. Upadhyay. He had identified the panchnama produced at exh.41 and the panchnama with regard to the clothes put on by the victim as well as the deceased. The muddamal articles which were shown to him during the course of the deposition were identified by him. In his cross examination he has deposed that before the entrustment of investigation he had visited the place of incident. He had a talk with PI Mr. Rathod and PSI Mr. N.D. Solanki. When the injured was taken to the v. Hospital no attempt was made by him to meet the injured. He has denied that the panch witnesses had put the signatures in the panchnama prepared by investigating officer and it is not true that the panchnama with regard to. the place of incident was prepared in the absence of panch witnesses and subsequently their signatures were obtained. It is also not true as per his say that muddamal was nit seized in the presence of panch witnesses.

37. GULABCHAND KESHARBHAI CHAUDHARY PW NO.14 has been examined vide exh.42. He has deposed in his testimony that on 2-11-2002 he was In-charge of the Vejalpur police station and he was entrusted with the investigation of I-CR bearing No. 74/2002 on the transfer of Police Inspector Mr. Parmar. On 19-11-2002 one absconding accused DINESH ALIAS TALLO was arrested and the panchnama of his person was prepared in the presence of panch witnesses. The Report with regard to the detention of the accused was forwarded to the Higher Officer and the noting in that regard was made in the station. diary. The family members of the accused were informed about his detention. The statement of the accused was recorded. He was produced before the Metropolitan Magistrate Court No. 20 after his arrest and the order of remand was obtained from the honourable court. The place where the actual offence was committed was visited on being shown by the accused and the panchnama in respect thereof was prepared. The Gupti which was shown by the accused No. 1 was recovered in his presence and the panchnama with regard to the seizure of Gupti was prepared in the presence of panch witnesses. The two other accused viz- DINESH ALIAS DINIYO BABUBHAI MARWADI AND KALUBHAI MULAJI MARWADI were arrested on 2-12-2002 and the panchnama with regard to their person was prepared in the presence of panch witnesses. The place which was shown by both the accused was visited and the panchnama in respect thereof was prepared in the presence of panch witnesses. The accused KALU MULAJI wanted to show the weapon which was used in the commission of offence and therefore the place where the weapon was kept was visited and after the recovery of the same, the panchnama in respect thereof was prepared in the presence of panch witnesses. Accused DINESH also admitted before the panch witnesses and he was willing to show the weapon which was used in the commission of offence. Thereafter he took them to his house and pointed out one knife below the wooden bag. The weapon which was shown by the accused was recovered in the presence of panch witnesses and the panchnama with regard to the same was also prepared. On 9-12-02 both the accused were sent to judicial custody on 10-12-2002. The accused PRAVIN AND HARISH CHAUHAN were detained and the panchnama with regard to their person was prepared in the presence of panch witnesses. The remand of the accused was sought from the honourable court on 11-12-2002. The place where the incident took place was visited along with the accused and panch witnesses and the panchnama with regard to the place of incident was prepared in the presence of panch witnesses. The muddamal which was recovered was sent to FSL for the purpose of detailed analysis. After receiving the Report and other material, the charge sheet was filed against the accused. This witness has also identified the panchnama and other documents produced in the present case. In his cross examination, he has deposed that the incident took place on the main road. The statements of PRAVIN AND HARISH CHAUHAN as well as MANABHAI PADHIYAR AND RAJESH CHAUDHARY were recorded. He has further deposed that he could not say as to whether panchas of the documents at exh 44 went called by the police. The panchnama was completed at the P&T Colony and thereafter panchas were permitted to go home. The investigating agency had used one panch witness while preparing the panchnama vide exhs. 46 and 47. The statements of the witnesses were not recorded after preparing the panchnama at exh.44. It is not true that DINESH ALIAS DINIYO AND DINESH ALIAS TALLO had not produced the weapons and it is not true that the accused have been falsely implicated in the case.

38. SURJITRAO AMRUTRAO UPADHYAY PW NO. 15 has been examined vide exh.53. He has deposed in his testimony that on 31-3-2002 he was working as Senior PI in the Ve Jaipur Police Station and he was handed over the investigation of the present case from Mr. Joshi who was working as PI. He had prepared the note which was sent to FSL. The injury certificate of MUNNA which was received by him was included along with the other case papers.

39. NARAYANSING BHAVANSING PARMAR PW NO. 16 has been examined vide exh.56 and he has deposed in his testimony that on 24-7-2002 he was working as Senior Police Inspector in the Vejalpur police station. During the course of his duty the accused JAGDISH THAKORE was detained and on 15-8-2003 the Gupti was recovered from the accused. On his transfer being made by the Police Department, the papers were entrusted to Mr. C.R. Chaudhary of the Vejalpur police-station. He had identified the panchnama which was shown to him vide exh.57. The Gupti which was shown voluntarily by accused JAGDISH ALIAS JAGO was identified by him during the course of the deposition and it was the same which was shown by accused JAGDISH as per his, say. In his cross examination he has deposed that no identification parade was carried out to identify the accused. The document pertaining to the ownership of the house from where the Gupti was recovered has not been produced. He has deposed that it is not true that accused has been falsely implicated in the commission of offence.

40. ARCHANA DARSHIT DALAL PW NO.17 has been examined vide exh.58 and she has deposed in her testimony that on 24-3-2002 one MUNNA was brought to the v. Hospital for the purpose of giving treatment. He had sustained stabbed injuries. The patient left the hospital on 27-5-2002 on his own and he was not discharged by the hospital authority. The injury certificate which was given to the injured has been identified by the witness during the course of the deposition. In her cross examination she has deposed that the patient came to the hospital on his own and in his history he had not mentioned the name of the persons who had given stabbed injuries to him.

41. The oral depositions thus adduced by the prosecution make it clear that the incident took place in the aftermath of the Godhara Carnage and during the incident one person named MUNNA ALIAS SABBAN SALIMBHAI SHAIKH and his wife GITA ALIAS MUMTAZ sustained injuries. MUNNA was admitted in the v. hospital for the purpose of taking treatment while his wife GITA died on the spot after sustaining fatal injuries. The prosecution has examined in all 17 witnesses including the doctor who had issued the injury certificate to MUNNA ALIAS SABBAN SALIMBHAI and the Doctor who had carried out the post-mortem on the dead body of GITA ALIAS MUMTAZ. The panch witnesses who are examined in the present case by the prosecution have turned hostile and not supported the prosecution case but however Dr. Kalpesh Kotharia PW No. 1 at exh.16, Bhikhabhai Vadher PW No. 2 at exh.18, Narendrakumar Dahyalal Solanki PW No. 3 at exh.27, Mehtabji Thakore PW No. 6 at exh.32, Nalinkumar Doshi PW No. 13 at exh.40, Gulabchand Chaudhary PW No. 14 at exh 42, Surjitrao Amrutrao PW No. 1.5 at exh. 53, Narayansing Shavansing Parmar PW No, 16 at exh. 56 and Archana Dalai PW No. 17 at exh.58 have not turned hostile and supported the prosecution story with regard to the incident and the injuries caused to MUNNA ALIAS SABBAN SALIMBHAI SHAIKH as well as his wife GITA ALIAS MUMTAZ on the date of incident i.e. on 24-3-2002. In view of the large number of witnesses turning hostile the depositions given by the above mentioned witnesses assume great significance.

42. The prosecution has placed reliance on following documentary evidence in support of the oral deposition adduced by the prosecution to prove the inextricable involvement of the accused in the commission of offence. The complaint was given by Mr. N.D. Solanki, PSI vide exh.28 wherein he has narrated as to how the incident took place on 24-3-2002 in the aftermath of Godhara Carnage near Pratapkunj society and how. the injured MUNNA and his wife GITA sustained serious injuries. The document at exh.29 is the Report prepared under sect-ion 157 of the Cr.P.C. by the PSI Vasana Police Chawki and forwarded to the Charge Officer Vejalpur Police Station. The document at exh.41 is the panchnama of the place of the incident wherein the exact place where the incident took place has been elaborately mentioned. The document at exh 12 is the panchnama with regard to the seizure of the clothes put on by MUNNA. The document at exh.13 is the panchnama o f the recovery of the clothes put on by GITA in v. Hospital. The document at exh. 57 is the recovery of the Gupti on being shown by accused JAGDISH alias JAGO son of Chinubhai. It has been stated in an elaborate manner in the panchnama as to how the accused was inclined to show the weapon and on his willingness he investigating agency went to the place from where the accused took out Gupti and surrendered the same to the investigating agency. The document at exh.14 is the Inquest panchnama of deceased GITA ALIAS MUMTAZ. It was prepared in the presence of two panch witnesses. The document at exh.43 is the panchnama with regard to the place of incident shown by accused DINESH ALIAS TALLO. It was prepared in the presence of panch witnesses. The document at exh.44 is the panchnama whereby accused DINESH ALIAS TALLO had pointed out the weapon which was used in the commission of offence. The panchnama was prepared in the presence of panch witnesses. The document at exh.45 is the recovery of the weapon from the possession of accused KALUBHAI MULAJI AND DINESH ALIAS DINIYO BABUBHAI SARAGDA. The document at exh.46 is the panchnama with regard to the recovery of weapon from the possession of KALU MULAJI SARAGADA. The document at exh. 47 is the panchnama. with regard to fie recovery of weapon from the possession of accused DINESH ALIAS DINIYO which was prepared in the presence of panch witnesses on the place being shown by the accused. The document at exh.48 is the panchnama with regard to the place of incident shown by accused PRAVIN AND HARISH. The document at exh.49 is the map of the place of the incident. The document at exh.59 is the injury certificate issued by v. Hospital to MUNNA on his admission in the v. Hospital after sustaining stabbed injuries. In the alleged history it has been mentioned that he had sustained stab wounds given by the opposite party. The document, at exh.17 is the post-mortem report of GITA ALIAS MUMTAZ wife of MUNNA wherein the internal and external injuries suffered by deceased has been elaborately mentioned and in column No. 23 the cause of the death is mentioned as due to shock as a result of stabbed injuries sustained by the deceased. The document at exh.21 is the RAVANGI note sent to FSL. The document at exh.22 is the receipt given by the FSL while document at exh.23 is the note which was sent to FSL and the Report given by FSL. The document at exh. 24 is the letter written to the FSL, The document at exh.25 is the receipt given by the FSL. The document at exh.2 6 is the detailed report of the analysis given by the FSL. The document at exhs. 50 and 51 are the photographs of deceased GITA ALIAS MUMTAZ and documents at exh.19 and 20 are the Dyeing Declaration of MUNNA and the Yadi given in respect thereof.

43. Thus, the prosecution has examined 17 witnesses and produced the documentary evidence in order to prove the involvement of the accused in the commission of offence. It is true that panch witnesses and aye witnesses have turned hostile and not supported the prosecution case indicating the involvement of the accused in the commission of offence. But if we peruse the deposition given by BHIKHABHAI UKAWALA VADHER PW NO.1 at exh.18 then he supports the prosecution case with regard to Dyeing Declaration recorded of MUNNA in the v. Hospital after he sustained the serious injuries. The Dyeing Declaration which is produced vide exh. 19 is proved by this witness. NARENDRA DAHYALAL SOLANKI PW NO.3 at exh.27 in his deposition has stated that when he was on his duty on 24-3-2002 he had seen one person and a woman near JASHMTNE AUTO GARAGE in a pool of blood. Thereafter as per his say the members of the staff had gathered near the JASHMINE AUTO GARAGE and the injured were taken to the v. Hospital for the purpose of treatment. MEHTABJI THAKORE PW NO.6 at exh.32 in his deposition has disclosed the name of ACCUSED JAGDISH ALIAS JAGO AND DINESH ALIAS TALLO and they were armed with Gupti as per the information given by the informant. In this cross examination he has denied that it is not true that private informant had not given the name of accused DINESH ALIAS TALLO AND JAGDISH ALIAS JAGO. The aforesaid version with regard to the in information given by the informant gets the necessary support from the deposition given by GULABCHAND PW NO.14 at exh.42. On perusal of the deposition given by GULABCHAND it becomes clear that DINESH ALIAS TALLO had pointed out the place where he had kept the weapon which was used in the commission of offence. The deposition also gets necessary support if we peruse the documents at exhs. 57 and 44 to the present case. The document at exh.57 is the panchnama in respect of the weapon shown by accused JAGDISH ALIAS JAGO and document at exh.44 is the panchnama with regard to the Gupti shown by accused DINESH ALIAS TALLO to the investigating-officer. Even the place of incident and the map prepared in respect thereof has been prod iced vile exh.43 to the present case. This shows that the place of incident was PRATAPKUNJ SOCIETY situated on Vasana Road. The attack was launched by the accused on the victims in a merciless and cruel manner. NALINKUMAR DOSHT PW NO.13 has been examined vide exh.40. On the date of the incident, as per his say, he was working in the Vejalpur police station as Police Inspector. He took the investigation of the I-CR bearing No. 74 of 2002. The panchnama with regard to the place of incident was prepared in the presence of panch witnesses. The muddamal articles were recovered for the purpose of analysis from the place of incident. Thereafter inquest panchnama, post-mortem note etc., was also prepared on receiving the Verdhi from the v. Hospital. The panchnama with regard to the clothes put on by the injured as well as the deceased was prepared in the presence of panch witnesses. On 31-3-2002 as he was transferred to the Control Room the entire investigation was handed over to PI Mr. Upadhyay. He had identified the panchnama of the place of incident, the panchnama with regard to the clothes put on by MUNNA as well as GITA ALIAS MUMTAZ and the muddamal articles which were recovered from the scene of offence during the course of the deposition. Thus, this witness supports the prosecution case with regard to the incident, the panchnama which was prepared in respect of the place of incident, the panchnama in respect of the clothes put on by injured as well as deceased and the muddamal articles which were recovered from the scene of offence. GULABCHAND PW NO.14 has been examined vide exh.42. He has deposed in his testimony as to how he was handed over the investigation of the I-CR bearing No. 74 of 2002. The accused DINESH ALIAS TALLO was detained and how the Report was prepared and sent to the Higher Officer has been narrated by this witness in his deposition. He interrogated the accused in respect of tie offence. When the accused was arrested and detained the information with regard to the same was provided to the family members of the accused. He has further deposed in his testimony that the remand of the accused was taken by him for the purpose of interrogation and on the completion of remand period the accused was produced before the honourable court. The most material aspect of the case that is the recovery of the weapon which was shown by the accused has been narrated by this witness in his deposition. He has state that accused wanted to show the weapon which was use in the commission of offence and therefore he accompanied the accused in the police van and on reaching the place, the accused had pointed out the weapon which was used in the commission of offence. The weapon was subsequently seized for the purpose of analysis and investigation. The witness has further deposed that two other accused viz DINESH ALIAS DINIYO AND KALUBHAI MULAJI PARMAR were arrested and the interrogation being made, they agreed to show the place where they had hide the weapon and on the place being shown to Investigating officer, the weapons were recovered for the purpose of sending the same for detailed analysis to the FSL and the panchnama in respect thereof was prepared. The interrogation of two other accused viz-PRAVTN AND HARESH was carried out and their remand was sought from the honourable court and on the completion of the remand period they were produced before the honourable court and sent to the judicial custody. The place where the incident took place and the panchnama prepared in respect thereof was identified by the witness during the course of the deposition. The panchnama with regard to the recovery of weapon was also dealt with by the witness during the course of the deposition and the weapon which was used by the accused in the commission of offence was identified. The signatures of the panch witnesses were also identified in the panchnama by this witness during the course of the deposition. The photographs of deceased which was taken from the place of incident was identified by the witness. SURJITRAO AMRUTRAO PW NO.15 at exh.53 is the person who was entrusted the investigation of the present case by PI Mr. Joshi. The muddamal as per his say was sent to the FSL and on receiving the injury certificate of MUNNA the same was placed in the record of the case. NARAYANSING PARMAR PW NO.16 has been examined vide exh.56. In his deposition he has stated that on 24-7-2002 accused JAGDISH ALIAS JAGO was detained and the Gupti was recovered on the same being shown by him on 15-8-2003, Thereafter he had handed over the case papers to Mr. C. K, Chaudhary of Ve Jaipur Police Station. The Gupti which was shown to him during the course of the deposition, was identified by this witness. The above mentioned witnesses support the prosecution case with regard to the date of incident which took place on 24-3-2002 near Pratapkunj society wherein the injured MUNNA and his wife GITA ALIAS MUMTAZ sustained serious injuries.

44. Thus, on over all perusal of the depositions which has been relied upon by the prosecution, the involvement of accused No. 1 DINESH ALIAS TALLO in the commission of offence becomes clear. The name of accused no 1 has been given by PW No. 6 MEHTABJI LAXMANJI THAKORE who has been examined at exh. 32. Further involvement of the accused No. 1 is also established on perusal of the panchnama with regard to the recovery of the weapon which has been produced vide exh.44 and the panchnama of the place of incident shown by accused No. 1 DINESH ALIAS TALLO vide exh.43 to the present case. The place of incident was also shown by KALUBHAAI MULAJI and DINESH ALIAS DINIYO BABUBHAI and the panchnama in respect thereof was produced vide exh.45 to the present case. The report of the FSL which has been produced and relied upon by the prosecution makes it abundantly clear that the GUPTI which was taken out at the instance of accused No. 1 and shown to the investigating agency was recovered and sent for detailed analysis to the FSL and on the perusal of the detail analysis given by FSL the shirt and pant which was put on by MUNNA, the injured, was having the blood group B on it and the GUPTI which was produced was also having the blood group B on it. Thus, on perusal of the aforesaid report along with the deposition given by investigating officer, the inextricable involvement of the accused No. 1 in the commission of offence under sections 307 and 302 of the IPC is in my view established beyond reasonable doubt. The accused No. 1 assaulted the victim MUNNA with GUPTI and also assaulted his wife GITA ALIAS MUMTAZ in a merciless and cruel manner and thus serious injuries were caused to victim MUNNA and his wife who had sustained fatal injuries and died on the spot as a result thereof. In view of the aforesaid facts and circumstances, the inextricable involvement of the accused No. 1 in the commission of offence under sections 307 and 302 of the IPC is proved by the prosecution. The eye witnesses have turned hostile and not supported the prosecution case but taking into account the aforesaid documentary evidence and the oral deposition which has been relied upon by the prosecution, the prosecution has established the link connecting the accused No. 1 with the commission of offence in a conclusive manner. The recovery of the weapon which was used by the accused No. 1 in the commission of offence, if read along with the deposition given by investigating officer then the same can be relied upon to pin point the involvement of the accused No. 1 in the commission of offence as it inspires the necessary confidence for this court to come to a conclusion that the involvement of the accused No. 1 was without any doubt in the commission of offence. The incriminating material i.e. the GUPTI was recovered at the instance of accused No. 1. The panchnama in that regard was prepared in the presence of panch witnesses and no duress or force was used against the accused No. 1 to show the weapon which was used in the commission of offence. Thereafter the weapon was sent to FSL for the purpose of detailed analysis and as per the Report of the FSL, the blood stain was found on the GUPTI used by accused No. 1 and that is reflected in the Report submitted by the FSL to this court, However, with regard to accused No. 5 JAGDISH ALIAS JAGO CHIMANBHAI though the recovery was made at his instance and the name of accused No. 5 was given by PW NO. 6 MEHTABJI LAXMANJI THAKORE LAXMANJI THAKORE at exh.32, the weapon which was sent for the purpose of detailed analysis to the FSL was not having the blood stains on it and, therefore, the entire link connecting the accused No. 5 with the commission of offence, in my view, is not established in a conclusive manner. Likewise, the other accused Nos. 2 and 4 who had also pointed out the weapons which were used in the commission of offence also do not get he necessary corroborative support either from the report of the FSL or the deposition adduced by the prosecution so as to indicate their involvement in the commission of offence. The involvement of accused Nos. 3 and 6 is also not proved by the prosecution and, therefore, the prosecution, in my view, has proved only the involvement of accused No. 1 DINESH ALIAS TALLO in the commission of offence punishable under section 302 as well as under section 307 of the IPC. Hence, the accused No. 1 is liable to be convicted for the offences punishable under sections 307 and 302 of the IPC and since the involvement of rest of the accused Nos. 2 to 6 has not been proved by the prosecution in a conclusive manner, they are required to be given benefit of doubt.

45. It is pertinent to note that the investigation in the present case is carried out in a casual and slipshod manner and that can easily be reflected in the depositions as well as the documentary evidence adduced by the prosecution which I have discussed detailed hereinabove.

46. xxx"

5.2 In aforesaid view of the matter, it appears that the learned Sessions Judge has convicted the present appellant - accused No. 1 relying upon the evidence of PW-6 Mehtabji Laxmanji Thakore, exh. 32, who was, at the relevant time, serving in the Vejalpur Police Station and who was inquiring as regards the involvement of the persons in the crime in question. He had come to know the name of the present appellant - Dinesh @ Tallo but how his name was revealed and who had given the name of the present appellant, nothing has been stated by him in his deposition and even the prosecution has not tried to bring on record such information as to how he got the name of the present appellant - accused No. 1.

5.3 Moreover, the learned Sessions Judge has also believed one another circumstance regarding involvement of the present appellant - original accused No. 1 in the crime and connecting him with the offence that is discovery of weapon viz. Gupti alleged to have been used in the crime. The said weapon was sent to the FSL for chemical analysis whereupon, blood was found which was of B group on the Gupti, however, the blood group found on the clothes and the ornaments worn by deceased - Gita @ Mumtaz, was of group A. In aforesaid view of the matter, the learned Sessions Judge appears to have been fallen into error connecting the weapon with the crime as the blood which was found from the Gupti (Group B) is not matching with the blood group of the deceased (Group A).

5.4 In above backdrop, in our considered opinion, the learned Sessions Judge has, considering the heinous crime, recorded conviction of the present appellant - accused No. 1 believing the two circumstances viz. involvement of the appellant - accused No. 1 as has been shown by PW-6 Mehtabji Laxmanji Thakore, exh. 32 as well as aforesaid weapon - Gupti, alleged to have been used in the crime and the accused has been linked with the crime. But, as discussed above, even these two circumstances, are not established by the prosecution to connect the appellant - accused No. 1 with the crime and therefore, the conviction recorded by the learned Sessions Judge is not sustainable.

5.5 We believe that it is a heinous crime committed and innocents were victimized and taking into consideration the situation prevailing at the relevant time, the same should be viewed seriously, however, at the same time, the basic principles laid down in the criminal law, cannot be overlooked and an accused cannot be held to be guilty of an offence unless the guilt alleged against him is proved by the prosecution beyond reasonable doubt. The instant case, as it has been observed earlier, rests on circumstantial evidence and in such a case, the Courts of law should be slow while adjudicating against an accused and requires the Courts to ascertain that the chain of circumstances is established to lead to such a conclusion without leaving any stone unturned. In the instant case, there appears no direct evidence on the record so as to implicate the accused in the crime and also found no incriminating corroborating evidence on the record, which proves the guilt against the accused so as to say that he was guilty of the offence alleged against him and/or the accused has direct nexus with the crime. Even, the presence of the accused at the time, day and date of the incident, is also not proved by the prosecution beyond reasonable doubt. Moreover, FSL report reveals that the blood groups, as stated above, also do not match so as to draw any adverse inference against the appellant - accused No. 1. Under the circumstances, in our considered opinion the appellant - accused No. 1, when the prosecution has failed to prove its case against the accused, conviction imposed upon him cannot sustain and present appeal requires to be allowed, setting aside the impugned judgment and order, so also the conviction and sentence imposed upon the appellant - accused No. 1.

6. In view of the aforesaid discussion, present appeal succeeds and the impugned judgment and order dated 05/01/2004 passed by the learned Additional Sessions Judge, Ahmedabad City, Court No. 2, Ahmedabad in Sessions Case Nos. 162 and 163 of 2003, convicting the appellant herein - original accused No. 1, is set aside and the appellant herein - original accused No. 1 is acquitted of all the charges levelled against him. The accused is at large on bail and hence, he need not surrender to custody and his bail bond shall stand cancelled accordingly. Registry to return the R&P, if any, to the trial Court forthwith.