Gujarat High Court
Ramkishore Bharatsinh Yadav vs State Of Gujarat on 28 April, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 50 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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Approved for Reporting Yes No
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RAMKISHORE BHARATSINH YADAV
Versus
STATE OF GUJARAT & ANR.
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Appearance:
BHAVIN B THAKAR(9371) for the Appellant(s) No. 1
MR. DIVYANG A RAMANI(7180) for the Opponent(s)/Respondent(s) No. 2
MR JAY MEHTA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 28/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This criminal appeal preferred by the sole appellant
Ramkishor Bharatsinh Yadav herein, under Section 374(2)
of the Cr.P.C. is directed against the judgment of
conviction and order of sentence dated 13.07.2016 passed
by the 6th Additional Sessions Judge, Gandhidham at Kutch
in Sessions Case (Special Atrocity) No.6 of 2012, by which
he has been convicted under Sections 376, 363 and 324 of
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the IPC and Section 3(i)(11), 3(1)(12) and 3(2)(v) of the
Atrocities Act and sentenced to undergo following
imprisonments and amount of fine:
Conviction Punishment Fine In default of
under Section fine
Section 363 of Rigorous Rs.5000/- Rigorous
IPC imprisonment imprisonment
for seven for one year
years
Section 376 of Imprisonment Rs.25,000/- Rigorous
IPC for life imprisonment
for three years
Section 324 of Rigorous Rs.2000/- Imprisonment
IPC imprisonment for six months
for three
years
Section 3(1) Rigorous Rs.5000/- Imprisonment
(11), 3(1)(12) imprisonment for one year
of Atrocity Act for five years
Section 3(2)(5) Imprisonment Rs.25,000/- Imprisonment
of Atrocity Act for life for three years
2. Case of the prosecution, in short is that, the minor
daughter aged about 2.5 years of the complainant (PW.6)
was kidnapped on 22.11.2011 between 10:30 to 11:30
p.m. when the minor was slipping with her grandmother
and thereafter, she was taken to the bushes nearby
railway track by the accused and then, he committed rape
upon her and also caused severe injuries on her private
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part. The case of the prosecution in detail is as follows:
2.1 PW.6 - Ishwarbhai Barot along with his family was
resided in the slum area known as "Ekta Nagar" at
Gandhidham, Kutch. The family was consisted of one
daughter aged about 2.5 years, wife Manjulaben (PW.12),
mother- PW.9 and two brothers and their wives. On
22.11.2011, after watching T.V., the PW.6 and his wife
went to sleep in his bedroom and the daughter aged about
2.5 years along with PW.9 - Daniben Barot and others
were sleeping in the other room of the house. The victim
was with her grandmother (PW.9) Daniben. At around
11:30 p.m., PW.9 - Daniben woke up and did not find the
victim with her and then she informed the PW.6 and
others about missing of the victim. PW.6 along with his
brother went to the nearby area and tried to search, but
they could not find any input. The PW.6 thereafter,
approached the police station, Gandhidham and
meanwhile, before he could lodge the missing complaint,
his brother informed him that the victim was found into
the bushes nearby railway track. The victim was profusely
bleeding and had severe injuries in her private part. She
was immediately taken to the Government Hospital,
Adipur where she was examined and treated by Dr. Nilesh
Makwana (PW.17). After examining the victim, the doctor
(PW.17), found that the surgery is necessary and
therefore, she was referred to Higher Centre at Bhuj, G.K.
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General Hospital where she was treated by Dr. Anilaben
Goswami (PW.19).
2.2 Pursuant to the information sent by the Adipur
Hospital to the concerned police station, Gandhidham, the
police officer (PW.20) Mr. Basiya reached at the hospital
and upon preliminary inquiry, the father of the victim PW.6
- Ishwar Barot disclosed his complaint, inter alia, stating
that, in the night hours, her daughter aged about 2.5
years was kidnapped by unknown person and thereafter,
she was raped and the person who committed rape, had
caused injuries in her private part.
2.3 The offence being I-C.R. No. 227 of 2011 for the
offence punishable under Sections 363, 324 and 376 of
the IPC came to be registered against unknown person
with "B" Division Police Station, Gandhidham.
2.4 PW.20, P.I. Mr. Basiya had been entrusted the
investigation of the case and during the course of
investigation, he inspected the place of occurrence and in
presence of two independent panchas, he drew the
panchnama of scene of occurrence and seized and
recovered one grey coloured underwear and one baby sky
blue underwear and one bottle of whitener. The I.O. also
collected the blood samples from the soil for the purpose
of forensic science analysis. The said panchnama
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prepared on the spot on 22.11.2011 between 10:00 to
11:05 a.m.
2.5 PW.20 - Investigating Officer during the course of
investigation, recorded statements of two persons namely
PW.15 - Anwar Koreja and PW.16 - Vishrambhai Duli.
PW.15 in his statement, stated that, on the day of incident
at about 9:00 p.m. when he was on the way to his house,
he saw a person named as Yadav sniffing the handkerchief
and at relevant time, he was having a bottle of whitener
which he had sprinkled on the handkerchief and then,
sniffing the whitener for intoxication purpose. Based on
this input, the appellant-accused was called upon at "B"
Division Police Station and was identified by PW.16 that he
was sniffing the handkerchief after sprinkling the whitener
on it. The appellant detained as suspect.
2.6 PW.20 - Mr. Basiya on the next day of the incident
i.e. on 22.11.2011, sent requisition to the Head Quarter,
Bhuj Police Station calling upon the sniffer dog with his
handler. PW.21 - Shaktidan Gadhvi (AHC) being handler of
dog "Harry" reached at the place of incident at about 9:30
a.m. The dog was given a smell of the grey underwear
found at the place of incident. The dog thereafter, went to
the house of the complainant and then came at railway
track and thereafter, the dog did not move in any further
direction. The dog handler (PW.21) with the dog Harry
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along with other police staff came at "B" Division Police
Station, Gandhidham. The suspect - appellant was called
upon and he was directed to stand in the line with 7 to 8
police officials. The handler gave a smell of the underwear
to the dog. After smelling it, the dog came to the
appellant-accused and jumped on him, whereby the I.O.
got confirmation about the involvement of the present
appellant. The appellant was arrested. The I.O. seized the
clothes of the accused which he wore at the time of
incident. The I.O. found stains of whitener on the pocket of
the shirt and there were blood marks at the bottom area
of the pent and some of the injury marks were also found
on the body of the accused. The accused thereafter, sent
to the Government Hospital for medical examination. The
doctor (PW.17) after examination of the accused, collected
necessary samples like saliva, seamen, blood for the
purpose of forensic science analysis. The I.O. after two
days of incident, i.e. on 24.11.2011 seized and recovered
a frock of the victim which she had worn and the doctor
who had examined her, took the said frock by cutting it
from the side and handed over to the PW.6 - father. The
victim belongs to SC ST caste and therefore, the I.O. with
the approval of the court, added the relevant provisions of
the Atrocities Act. The investigating officer then sent all
the seized muddamal articles to the FSL and obtained the
report thereof. After completion of investigation, the I.Ol.
found sufficient material for the charge of kidnapping,
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rape and under the penal provisions of the Atrocities Act.
He filed the chargesheet against the accused before the
Jurisdictional Magistrate for the offences as referred
above. The case was committed to the court of Sessions at
Gandhidham.
3. After due framing of the charge and upon accused
pleaded not guilty, the trial commenced before the
Additional Sessions Judge, Gandhidham. In the course of
trial, the prosecution examined in all 23 witnesses and
exhibited 24 documents:
Oral evidence
PW 1 - Exh.8 Karmanbhai Shengabhai Vaghela, panch
witness
PW 2 - Exh.10 Ganpatbhai Shivabhai Barot, panch witness
PW 3 - Exh.14 Rameshbhai Dalabhai Barot, panch witness
PW 4 - Exh.16 Bachubhai Chaturbhai Barot, panch witness
PW 5 - Exh.19 Motiram Balakdas Bavaji, panch witness
PW 6 - Exh.21 Ishwerbhai Chaganbhai Turi Barot,
complainant
PW 7 - Exh.24 Bababhai Khanabhai Vankar, panch witness
PW 8 - Exh.28 Kisanbhai Heerabhai Parmar, panch witness
PW 9 - Exh.29 Bhanabhai Khodabhai Gankar, panch witness
PW 10 - Daniben Chaganbhai Barot
Exh.32
PW 11 - Dashrathbhai Chaganbhai Barot
Exh.33
PW 12 - Narotambhai Chaganbhai Turi
Exh.35
PW 13 - Manjulaben Ishwerbhai Chaganbhai Turi
Exh.37
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PW 14 - Pravinbhai Fakirbhai Barot
Exh.38
PW 15 - Anwer Vira Koli
Exh.40
PW 16 - Vishrambhai Nathubhai Duli
Exh.42
PW 17 - Nileshbhai Samatbhai Makwana
Exh.44
PW 18 - Dineshbhai Khushalbhai Kotiya
Exh.60
PW 19 - Dr. Anilaben Girishbhai Goswami, medical
Exh.65 officer
PW 20 - Dadubhai Valkubhai Bashiya, investigation
Exh.71 officer
PW 21 - Shaktidan Gambhirdan Gadhvi
Exh.80
PW 22 - Hirabhai Gadabhai Chauhan, panch witness
Exh.82
PW 23 - Dhirendrasinh Lakhabhai Dodiya,
Exh.85 investigation officer
Documentary evidence
Exh.9 Panchnama of scene of offence
Exh.15 Panchnama of collection of clothes of accused
Exh.17 Arrest/Recovery Panchnama
Exh.20 Panchnama of collection of samples from body of
accused and victim
Exh.21 Complaint
Exh.25 Panchnama of collection of clothes of victim
Exh.45 Yadi for medical examination
Exh.46 Injury certificate of victim
Exh.47 Yadi for medical examination of accused
Exh.48 Medical report of examination of victim
Exh.49 Medical report of examination of accused
Exh.61 Caste certificate of victim
Exh.66 Medico-Legal Case no.3240/11 of victim
Exh.72 Yadi for investigation
Exh.81 Call form for investigation
Exh.83 Demonstration panchnama
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Exh.86 Janva Jog entry no.247/2011
Exh.87 Order for investigation
Exh.88 Forwarding letter for sending articles
Exh.89 Receipt by FSL for receiving articles
Exh.90 FSL report
Exh.91 Serological report
Exh.92 Report by Chemical examiner
Exh.93 Letter for addition of charges of Atrocity Act
4. After closure of the prosecution evidence, the
appellant was questioned under Section 313 of the Cr.P.C.,
to which he stated that, he is innocent and he was falsely
implicated in the undetected offence and has not
committed any offence.
5. Though opportunity was extended, no evidence was
tendered from the side of the appellant-accused.
6. The prosecution case based on circumstantial
evidence, it relied on the following circumstances to
establish its case as against the appellant-accused:
(i) The appellant-accused was in habit of inhaling
whitener for intoxication and under the
influence of intoxication, he kidnapped the
victim from the house of PW.6 between 10:30
to 11:30 p.m. on 21.11.2011 and took her to
the bushes nearby the railway track and then
committed rape upon her and caused serious
injury on her private part. After rape, he ran
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away leaving the victim at the place of
occurrence as well as his underwear and one
handkerchief with stain of whitener and one
bottle of whitener.
(ii) The appellant-accused was identified by the
sniffer dog through handler (PW.21) Shaktidan
Gahdvi as the dog was given a smell of the
underwear allegedly recovered from the place
of offence and in the presence of independent
witnesses, the dog "Harry" made a jump upon
the appellant.
(iii) The victim aged about 2.5 years was examined
by Doctor of Government Hospital (PW.17) and
there was a vaginal tear up to anus and blood
stains found on the chin and both side of
chicks and according to opinion of doctor, the
possibility of rape cannot be ruled out.
(iv) The appellant-accused had multiple scratches
at the both the upper limbs, chest, abdomen
and blood found on the glance of penis and
according to opinion of the doctor, there might
be a possibility of intercourse by him within 24
hours.
(v) The accused after his arrest, discovered the
place of incident.
(vi) As per the forensic science laboratory report,
there was a blood stain found on the frock
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worn by the victim which is matched with the
blood stain of the accused. The baby
undergarment was found with the semen
Group-A which allegedly matched with the
accused semen.
7. The trial court accepted the aforesaid circumstances
relied upon by the prosecution and convicted the
appellant as stated above.
8. Challenging the said conviction and sentence, the
appellant has preferred the present appeal.
9. We have heard Mr.Pratik Barot, learned counsel
appearing for the appellant, Mr.Divyang Ramani, learned
counsel appearing for the complainant-respondent and Mr.
Jay Mehta, learned APP for the respondent-State.
10. Mr. Pratik Barot, learned counsel appearing for the
appellant-accused vehemently submitted that the trial
court committed a serious error in holding the appellant-
accused guilty of rape and causing injury to the minor
victim. He would submit that in the course of trial, the
prosecution failed to lead any credible evidence to
connect the appellant-accused with the alleged crime.
(i) The accused-appellant on the basis of
suspicion was arrested;
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(ii) The entire prosecution case rests on
circumstantial evidence and none of the
circumstances relied upon by the court below
have been proved beyond reasonable doubt
and all these circumstances either cumulative
or individually are insufficient to establish the
guilt of the accused.
(iii) The court below seriously erred in relying on
inadmissible evidence of sniffer dog. That the
dog's evidence is not ordinarily of much
weight and the evidence of tracker dog is of
little importance, more particularly in the
absence of incriminating material connecting
the accused. Heavy reliance has been placed
on this aspect in the case of Dinesh
Borthakur vs. State of Assam (2008) 5
SCC 697 to submit that, the service of sniffer
dog may be taken for the purpose of
investigation, its faculties cannot be taken as
evidence for the purpose of establishing guilt
of an accused.
(iv) The prosecution relied on the incriminating
circumstance of discovery of place of
occurrence at the behest of the accused and
confession of the guilt; that the place of
occurrence had already been disclosed by the
complainant and the police in the presence of
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panchas found the articles like grey colour
underwear and baby underwear and the same
had been seized by the police. In such
circumstances, disclosure statement in terms
of Section 27 made by the accused which led
to discovery of place where the incident
occurred cannot be said to be discovery of
facts and admissible in evidence against the
accused; the accused was at the relevant time
under the custody of the police and any
confession of the guilt would directly hit by
Section 25 of the Evidence Act.
(v) That the recovery of grey colour underwear of
the appellant is suspicious and doubtful as, as
per the FSL report, no any bloodstained or
semen found on it; that the recovery of the
underwear has not been proved in accordance
with law as the panchas of panchnama of
recovery Exh.9 have turned hostile and the
investigating officer in his testimony has not
proved the contents of the panchnama and
therefore, the article which is available in the
market has been planted by the police.
(vi) Recovery of red colour frock belonging to the
victim is create a doubt as the incident
happened on 21.11.2010 and at the time of
treatment of the victim, the frock was given by
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the doctor to PW:6 father of the victim on
22.11.2010 and the same was seized by the
police on 24.11.2010. The accused was taken
into custody on 22.11.2010 and the blood
samples of victim and accused were taken by
the doctor on 22.11.2010 and therefore,
without any explanation of delay in presenting
the frock by PW:6 and having blood group of
the victim create a doubt about the fairness
and honesty of the I.O. and thus, this
corroborative piece of evidence cannot be
used against the accused.
(vii) The prosecution failed to prove the complicity
of the accused in the alleged offence as the
family members of the victim nor any one had
clue about the involvement of the accused. In
that view of the matter, the evidence of PW:15
a witness and a passerby on the date of
occurrence in close proximity of time seeing
the appellant taking a smell of handkerchief by
sprinkling some liquid out of whitener bottle, in
order to connect the appellant to have
remained present at the scene of occurrence.
The witness had no previous acquaintance
with the appellant and has only seen him once
around one month prior to the date of
occurrence. Therefore, the identification of the
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accused by PW:15 in the Court, without
holding T.I. Parade, cannot be accepted and
relied upon to prove the presence of the
accused at the night with whitener.
(viii) That the evidence of FSL and serological report
are weak type of evidence and in the facts of
the present case, in order to connect the
accused on the basis of his semen found on
the underwear of the victim cannot be
accepted as no semen found on the veginal
swab and most importantly, if the person
alleged to have been committed a rape on the
child without removing the underwear, then
the bloodstained would have found on the
underwear. In the facts of the present case,
the underwear found at the place of
occurrence having semen of accused A-Group.
Thus, the incriminating material in the form of
serological report found against the accused
cannot be conclusive proof of his involvement.
(ix) That the injuries on the appellant found during
his medical examination. According to the
medical evidence, the appellant had multiple
scratches at both upper limbs, chest and
abdomen; that the age of the victim was 2
years and 6 months. In such circumstances, it
can be inferred that it could not be possible for
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the victim to cause such nature of injuries
while committing the rape by the accused and
therefore, the injuries found on the body of the
appellant cannot be said that it were sustained
in the same occurrence.
(x) That the accused was arrested with the
identical case by Gandhidham Police wherein
he got acquitted by this Court. Thus, the
theory of false application cannot be ruled out.
(xi) That the defence raised by the appellant that
he had been planted and falsely implicated by
the police, however, the explanation offered
by the accused under Section 313 of the
Cr.P.C. has gone an unanswered by the Court.
(xii) That the incriminating circumstances like
bloodstained found on the pent of the accused
and frock of the accused were not put to the
appellant in clear terms and on this count, the
appellant is entitled for acquittal.
11. In such circumstances referred to the above,
Mr.Pratik Barot, learned advocate appearing for the
accused appellant, submitted that the prosecution has
failed to prove the guilt of the accused by leading cogent
and convincing evidence beyond all manner of reasonable
doubt and the chain of circumstances, beyond all manner
of doubt and therefore, the circumstances, from which
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inference of guilt had been drawn by the Court below, are
not established and therefore, he prayed that there being
merits in this appeal and the same may be allowed and
conviction and order of sentence may be set aside.
12. On the other hand, learned APP Mr.Jay Mehta and
learned counsel Mr.Divyang Ramani vehemently opposed
the appeal and contended that the Court below has not
committed any error of law in holding the accused
appellant guilt of the offence; that the victim was found in
the secluded place in a pool of blood and as per the
medical evidence, she sustained severe injuries in a
private part and was admitted as indoor patient for about
4 to 5 days and minor surgery was undertaken by the
higher center; that the evidence of PW:15 would clearly
prove that on the day of incident, the appellant was seen
by witness, sniffing the smell of whitener from his
handkerchief and bottle of whitener allegedly found from
the place of scene of offence and based on these
circumstances, the I.O. called the accused appellant as a
suspect person and thereafter, when the police dog, after
smelling the underwear of the accused, gave a signal
towards the accused as the dog jumped upon the accused;
that the injuries found on the body of the accused have
not been explained by him that the bloodstained found on
the pent of the accused and the semen found on the
victim's underwear would raise the inference that it was
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the accused who had abducted the victim and took her
nearby bushes and then committed a rape upon her; that
the victim belongs to SCST Caste. In such circumstances,
the incriminating circumstances as referred above have
been established and a chain of circumstances is complete
pointing towards the guilt of the accused and none else.
13. In such circumstances, referred to above, learned
APP Mr.Jay Metha and Mr.Divyang Ramani, learned
advocate prayed that the prosecution is able to prove its
case beyond reasonable doubt and there being no merits
in the appeal filed by the accused and the same may be
dismissed.
14. Before dealing with the rival contentions of the
parties, it would be useful to analysis the evidence of
some of the relevant witnesses:
(A) It is the case of the prosecution that on
21.11.2011 between 10:30 to 11:30 p.m., the
victim aged about 2 years and 6 months was
kidnapped from the house of PW:6, known as
Cargo Slum Area and thereafter, nearby bushes,
she was raped and severely injured on her
private part. After extensive search by the family
members, the victim was found near the bushes,
behind the railway track in a pool of blood. She
was immediately taken to the Government
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Hospital, Aadipur, Kutch where she was treated
by PW:17 Dr.Nilesh Makwana and thereafter, by
Dr.Anilaben Goswami (PW:19). It is evident that
the FIR Exh.22 was being registered against the
unknown person. The aforesaid facts being
stated by all the family members viz. Ishwar
Barot (PW:6), Daniben Barot (PW:9), Dashrath
Barot (PW:10), Narottam Turi (PW:11),
Manjulebn Turi (PW:12), Pravin Barot (PW:13). In
such circumstances, when the witnesses have
not seen the offence and it is not the case of the
prosecution that the witnesses have seen the
accused before the incident nearby his house.
Thus, in our opinion, there is no need to refer the
evidence of aforesaid witnesses in details.
(B) Dr.Nilesh Makwana (PW:17) being a medical
officer of Government Hospital, Aadiput, has
stated that on 22.11.2011 at about 01:15 a.m.
(midnight), the victim was brought before him
and he noticed that there was a serious injuries
on her private part as blood was profusely
bleeding, he advised for treatment by higher
centre, Bhuj. The witness in his testimony stated
that he has taken the sample of saliva, blood,
vaginal, and swab from chin and chicks of the
victim for FSL purpose.
The witness Dr.Makwana in his testimony stated
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that on 22.11.2011 at about 05:10 p.m.
(evening), when he was on duty, the police
brought the accused appellant before him for
medical examination. He noticed the injuries in
the form of scratches at his both upper limbs,
chest and abdomen. The doctor has stated that
as per the requisition of the police, he had taken
the saliva, blood, pubic hairs, semen and blood
clothe from glance of penis for chemical analysis.
(C) Dr.Anila Goswami (PW:19) examined by the
prosecution to prove the treatment given by her
to the victim at the Government Hospital, Bhuj.
She noticed the injuries at the inner part of the
victim and minor surgery was being undertaken
by the surgeon.
(D) PW:1 Karman Vaghela and PW:2 Ganpat Barot
were cited as panch-witnesses of panchnama at
Exh.9. The witnesses have declared turned
hostile as they denied that in their presence, at
the scene of offence, the articles relied by the
prosecution like underwear, baby underwear
were being seized by the police.
(E) PW:4 Bachchubhai Barot being an arrest
panchnama of the accused and seizure of clothes
has supported the case of the prosecution.
(F) PW:7 Bababhai Vankar and PW:9 Bhanabhai
Vankar being a witness of seizure of frock
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allegedly presented by PW:6 father of the victim
have supported the case of the prosecution and
according to their versions, PW:6 Ishwarbhai
presented the frock to the police and the same
was seized in their presence.
(G) PW:15 Anvar Vira has stated on oath that on the
day of the incident in night hours, he had seen
one Bihari person, sniffing the liquid sprinkled on
the handkerchief of the bottle of whitener and he
has seen him once around 1 months prior to the
occurrence. He identified the accused in the
Court and seized articles like yellow
handkerchief. In the cross examination, he
admitted that by name, he was not knowing the
accused and thereafter, he had seen him in the
police station.
(H) PW:21 Shaktidan Gadhvi - Armed Head
Constable was examined to prove the
identification of the accused by police dog. In his
testimony, he has stated that on 22.11.2011, he
was called at the scene of offence for tracking
the accused by sniffer dog herry. He has further
stated that he along with his police dog went to
the place where smell of underwear of the
accused found at the place was given to the
accused and after smelling it, the dog went upto
the railway track, then did not move further. The
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witness has stated that thereafter, he along with
the dog came to B-Division Police Station, where
the accused herein called upon by the I.O. as a
suspect. The accused was directed to stand into
line with other police official. The dog was again
given a smell of the underwear and thereafter,
the dog went to the accused and jumped upon
him. The witness has produced the call form of
the proceedings at Exh.81-C. In the cross
examination, he admitted that the underwear
was lying at the place of incident. The witness
also denied that at the instance of I.O., the
accused was falsely tracked by him.
(I) PW:20 Dadubhai Valkubhai Vasiya, had been
entrusted the investigation of the case. The
witness being I.O. of the case has stated that
during the course of investigation, at about 10:00
o'clock in the morning on 22.11.2011, he went to
the place of occurrence where he had called the
FSL officer and two independent witnesses and in
their presence, after inspection of the place, he
found one grey colour underwear, one baby
underwear, the bloodstained on the earth, and
one bottle of whitener. The said articles
according to the testimony of the witness had
been seized in the presence of witnesses. The
I.O. thereafter in order to detect the author of the
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crime recorded the statement of witnesses viz.
witness Anvar Virabhai Koreja therefrom he got
some input that the appellant accused was in
habit of sniffing the whitener and based on this
input, he called the appellant as suspect in the
police station. The witness has further stated that
on the same day, at about 09:45 a.m., the
services of police dog through handler PW:21 put
into press and the police dog after smelling the
grey underwear, went upto the railway track and
thereafter, in the police station, again smell was
given and based on indication of dog, the
complicity of the accused in the crime was found.
The witness has further stated taht the accused
confessed before him about the alleged crime
and after arresting him, at his instance, he
discovered the place of the offence.
(J) PW:23 D.L. Dodiya, the investigation officer of
the case has stated on oath that on 23.11.2011,
he was posted at Bhachao as Deputy
Superintendent of Police, and was entrusted the
investigation. The witness has stated during the
course of investigation, he obtained the
necessary samples of victim and accused
allegedly taken by the treating doctor and then,
sent it to the FSL for chemical analysis. The
victim belongs to SCST Caste and in order to
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prove her caste, the caste certificate was
obtained by him from the concerned office. The
witness has further stated that he recorded the
statements of the witnesses and obtained the
medical case papers and then, filed the
chargesheet against the accused.
(K) So far as serological report is concerned, it
revealed that the blood group of the victim was
'C', whereas the accused was having a blood
group of 'B'. There is no any bloodstain or semen
found on the grey colour underwear. The baby
underwear was having semen of group A,
whereas the accused semen found as A. The
result of blood found on the glance of penis was
inclusive. So far as clothes of the accused are
concerned, the bloodstains B Group found at the
bottom of the pent of the accused.
15. The prosecution case in absence of eyewitness is
based upon the circumstantial evidence. Law with regard
to the conviction on the basis of the circumstantial
evidence has been discussed in detailed by the Supreme
Court in the case of Harishchandra Ladaku Thange Vs.
State of Maharashtra reported at AIR 2007 Supreme
Court 2957. It would be useful to reproduce the relevant
paras:
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"8. It has been consistently laid down by this Court that
where a case rests squarely on circumstantial evidence,
the inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the
guilt of any other person. (See Hukam Singh v. State of
Rajasthan (AIR 1977 SC 1063), Eradu v. State of
Hyderabad (AIR 1956 SC 316), Earabhadrappa v. State
of Karnataka (AIR 1983 SC 446), State of U.P. v.
Sukhbasi & Ors. (AIR 1985 SC 1224), Balwinder Singh
alias Dalbir Singh v. State of Punjab (AIR 1987 SC 350)
and Ashok Kumar Chatterjee v. State of M.P. (AIR 1989
SC 1890). The circumstances from which an inference as
to the guilt of the accused is drawn have to be proved
beyond reasonable doubt and have to be shown to be
closely connected with the principal fact sought to be
inferred from those circumstances. In Bhagat Ram v.
State of Punjab (AIR 1954 SC 621) it was laid down that
where the case depends upon the conclusion drawn from
circumstances the cumulative effect of the
circumstances must be such as to negative the
innocence of the accused and bring home the offences
beyond any reasonable doubt.
9. We may also make a reference to a decision of this
Court in C. Chenga Reddy & Ors. v. State of A.P. (1996
(10) SCC 193), wherein it has been observed thus : "21.
In a case based on circumstantial evidence, the settled
law is that the circumstances from which the conclusion
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of guilt is drawn should be fully proved and such
circumstances must be conclusive in nature. Moreover,
all the circumstances should be complete and there
should be no gap left in the chain of evidence. Further,
the proved circumstances must be consistent only with
the hypothesis of the guilt of the accused and totally
inconsistent with his innocence."
10. In Padala Veera Reddy v. State of A.P. (AIR 1990 SC
79) it was laid down that when a case rests upon
circumstantial evidence, such evidence must satisfy the
following tests: (1) the circumstances from which an
inference of guilt is sought to be drawn, must be
cogently and firmly established; (2) those circumstances
should be of a definite tendency unerringly pointing
towards guilt of the accused; (3) the circumstances,
taken cumulatively, should form a chain so complete
that there is no escape from the conclusion that within
all human probability the crime was committed by the
accused and none else; and (4) the circumstantial
evidence in order to sustain conviction must be
complete and incapable of explanation of any other
hypothesis than that of guilt of the accused and such
evidence should not only be consistent with the guilt of
the accused but should be inconsistent with his
innocence."
11. In State of U.P. v. Ashok Kumar Srivastava (1992
Crl. LJ 1104) it was pointed out that great care must be
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taken in evaluating circumstantial evidence and if the
evidence relied on is reasonably capable of two
inferences, the one in favour of the accused must be
accepted. It was also pointed out that the circumstances
relied upon must be found to have been fully established
and the cumulative effect of all the facts so established
must be consistent only with the hypothesis of guilt.
12. Sir Alfred Wills in his admirable book `Wills'
Circumstantial Evidence' (Chapter VI) lays down the
following rules specially to be observed in the case of
circumstantial evidence: (1) the facts alleged as the
basis of any legal inference must be clearly proved and
beyond reasonable doubt connected with the factum
probandum; (2) the burden of proof is always on the
party who asserts the existence of any fact, which infers
legal accountability; (3) in all cases, whether of direct or
circumstantial evidence the best evidence must be
adduced which the nature of the case admits; (4) in
order to justify the inference of guilt, the inculpatory
facts must be incompatible with the innocence of the
accused and incapable of explanation, upon any other
reasonable hypothesis than that of his guilt; and (5) if
there be any reasonable doubt of the guilt of the
accused, he is entitled as of right to be acquitted.
13. There is no doubt that conviction can be based
solely on circumstantial evidence but it should be tested
by the touchstone of law relating to circumstantial
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evidence laid down by this Court as far back as in 1952.
14. In Hanumant Govind Nargundkar and another v.
State of M.P. (AIR 1952 SC 343) it was observed thus: "It
is well to remember that in cases where the evidence is
of a circumstantial nature, the circumstances from which
the conclusion of guilt is to be drawn should in the first
instance be fully established, and all the facts so
established should be consistent only with the
hypothesis of the guilt of the accused. Again, the
circumstances should be of a conclusive nature and
tendency and they should be such as to exclude every
hypothesis but the one proposed to be proved. In other
words, there must be a chain of evidence so far
complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused
and it must be such as to show that within all human
probability the act must have been done by the
accused."
15. A reference may be made to a later decision in
Sharad Birdhichand Sarda v. State of Maharashtra (AIR
1984 SC 1622). Therein, while dealing with
circumstantial evidence, it has been held that the onus
was on the prosecution to prove that the chain is
complete and the infirmity of lacuna in the prosecution
cannot be cured by a false defence or plea. The
conditions precedent in the words of this Court, before
conviction could be based on circumstantial evidence,
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must be fully established. They 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."
16. Facts of this case are to be considered on the
touchstone of law which has been laid down by the Apex
Court. In the present case, the prosecution mainly relied
on the evidence of sniffer dog, testimony of PW:15 Anwar
Vira and serological report. The Trial Court after referring
the oral as well as documentary evidence, without
assigning any reason, held guilty the accused by
observing in para-18.4 of the judgment that the
prosecution has proved its case beyond reasonable doubt
against the accused.
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17. We will now consider the evidence of police dog. It is
settled legal position of law that a sniffer dog's alert alone
is not sufficient to convict someone. The dog's alert may
give ground for suspicious but not proof. It is settled legal
position of law that while services of sniffer dog may be
taken for the purpose of investigation, its faculties cannot
be taken as evidence for the purpose of establishing the
guilt of the accused -Dinesh Borthakur Vs. State of
Assam (2008 (5) SCC 697). The Supreme Court in the
case of Abdul Razaq Murtaja Dafedar Vs. State of
Maharashtra (1969 (2) SCC 234) held that "there are
three objections which are usually advanced against reception
of the evidence of dog tracking. First since it is manifest that
dog cannot go into box and give his evidence on oath and
consequently, submit himself to cross examination, the dogs
human companion must go into the box and report the dog's
evidence and this is a clearly hearsay. Secondly, there is
feeling that in criminal cases the life and liberty of human
being should not be dependent on canine interference. " The
Supreme Court, in another case, "Gade Lakshmi
Mangaraju @ Ramesh Vs. State of A.P. (2001(6) SCC 205),
held that "there are inherent fatalities in the evidence based
on sniffer or tracker dog. The possibility of error on the part of
the dog or its master is the first among them.... The possibility
of a misrepresentation or a wrong inference from the
behaviour of the dog could not be ruled out. Last but not the
least, is the fact that from scientific point of view, there is little
knowledge and much uncertainty as to the precise faculties
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which enable police dogs to track and identify criminals.....
Investigation exercise can afford to make attempts or forays
with the help of canine faculties but judicial exercise can ill-
afford them."
Bearing in mind the law and applying to the facts of the
present case, we are of the view that the evidence of
sniffer dogs does not inspire confidence so as to prove the
complicity of the accused in the crime. The dog handler
PW:21 in his testimony stated that the smell was
administered to the dog by grey colour underwear which
was lying at the place of offence. It is admitted fact that
on 22.11.2011 at about 10:00 o'clock in the morning, the
grey colour underwear and other things seized by the
police by drawing the panchnama Exh.9. The dog handler
was not clear about who brought the underwear for giving
the smell. In such circumstances, the grey colour
underwear seized by the police then, for giving smell to
the dog, the de-sealing process must be required to be
done. It is not the case of the prosecution case after de-
sealing the samples, the smell was given to the dog. The
second aspect is that at the first stage, the dog did not
find out any clue and thereafter, he was taken to the
police station. In the police station, the de-sealing was
done and then, the smell of grey underwear was given. In
such circumstances, in our opinion, the recovery and
seizure of grey underwear by the police does not inspire
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confidence and create a doubt that in order to detect the
crime, the accused was apprehended as suspect.
Therefore, merely alertness of the dog towards the
accused would not be an incriminating circumstances in
the facts of the present case to prove the complicity of the
accused in the crime.
18. The next circumstance pointing the complicity of the
accused the crime relied upon by the prosecution in the
evidence of PW:15 Anwar Koreja. After careful
examination of testimony of PW:15, it reveals that the
witness was not known to the accused either by name or
by relation. According to the say of the witness, the
accused was sniffing the intoxication substance whitener.
The bottle of the whitener found at the place of the
incident. In our opinion, where the accused bought the
whitener, is unanswered as both the I.O. failed to
investigate on this aspect. The prosecution did not ask the
FSL to throw on light the substance found in the bottle
whether it is whitener or other things. Thus, in the facts of
the present case, in absence of T.I. parade, the
identification of the accused by PW:15 is to much risky
and cannot be relied upon his evidence. It is relevant to
note that PW:15 was called upon by the I.O. at the police
station and given an opportunity to see the accused. In
such circumstances, the theory projected by PW:15 that
on the day of incident, he had seen the accused sniffing
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the whitener for intoxication is not worthy of credence so
as to prove the involvement of the accused in the crime.
19. The third circumstance is with respect to discovery of
place in terms of Section 27 of the Evidence Act. The
accused was under the custody of the police on
22.11.2011. The accused made a confession of his guilt
when he was under police custody. It is not in dispute that
on 22.11.2011, the place of offence had been identified as
the father of the victim had already been shown the place
to the police pointing out that her daughter was found
there with pool of blood. The I.O. Mr.Basiya PW:20 in the
presence of two independent witnesses drew the
panchnama of place of offence and collected necessary
samples and seized the incriminating material from the
place. In other words, the place of offence has already
been discovered before arresting the accused. Section 27
of the Evidence Act says that when any fact is deposed to
as discovered in consequence information received from a
person accused of any offence in the custody of police
officer, so much of such information, whether it amounts
to confession or not, as relates distinctly to the fact
thereby discovered may be proved. The aforesaid
provision shows that discovery should be a distinct fact,
the fact which has been discovered by disclosure of the
accused in the police custody. Thus, therefore, the facts as
pointed out by the accused by his disclosure statement
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were already in the knowledge of the police when the
panchnama of place of occurrence being drawn in the
presence of the panchas and therefore, the disclosure
statement pointing to the discovery of place at the behest
of the accused cannot be read against the accused. It is
relevant to note that the independent witnesses have not
stated the exact words spoken by the accused and
contents of the panchnama and police official also failed to
depose the same facts in his testimony. The another
aspect is also required to be taken a note of that the
confession of the accused of guilt when he was under the
police custody is hit by Sections 25 and 26 of the Evidence
Act. Section 25 provides that a confession made to a
police official is prohibited and cannot be admitted in the
evidence. Section 26 provides that no confession made by
any person - whilst he is in police custody of a police
officer shall be proved against such person unless it is
made in the immediate presence of the Magistrate.
Therefore, in our opinion, the evidence of discovery of
place of offence and demonstration-cum-reconstruction
panchnama in the facts of the present case, cannot be
read as evidence against the accused.
20. The next circumstance with regard to incriminating
material with regard to recovery of bloodstained clothes of
the accused and semen found on the underwear of the
victim. The serological report in the facts of the present
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case, would show that the underwear of the victim having
semen of Group -A which matches with the semen of the
accused. The pent of the accused also having Blood Group
B matches with the blood of the victim. It is settled
position of law that the serological report used for
corroborating the other evidence and it cannot be
accepted as conclusive proof to prove the guilt of the
accused. In the facts of the present case and evidence on
record, it revealed that the grey colour underwear found
from the place of the incident was not having any semen
stained or bloodstained either of victim or accused. The
frock seized after two days of the incident having
bloodstained mark of victim. The baby underwear found at
the place of occurrence was having semen stained
allegedly matches with the semen of the accused. We
have carefully examined the entire facts and evidence on
record so as to properly evaluate very important
corroborative piece of evidence. It is relevant to note that
the blood clothes of glance of penis found inconclusive. In
other words, no any bloodstains or other marks found on
the penis of the accused so as to implicate him in the
alleged crime. The another aspect is that on 22.11.2011,
the sample of semen being taken by the doctor and the
same was received by the FSL, Rajkot on 20.12.2011 and
there is no any explanation of delay in dispatching the
samples. The appellant accused on the basis of suspicion
was also implicated in another identical case wherein after
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his conviction rendered by the Sessions Court, has been
acquitted by the High Court. In such circumstances, the
recovery of baby underwear having semen stains,
matches with the semen of the accused creates a doubt
and makes it suspect and therefore, the serological report,
in absence of any cogent and acceptable evidence,
proving the involvement of the accused itself cannot be a
ground to convict the accused appellant.
21. For the discussions made hereinabove, we are of the
view that the chain of incriminating circumstances
required to bring home the guilt of the accused is not
complete in all aspects. We are conscious of the fact that
the rape was committed upon the tendered age of the
child, however, it is to be kept in mind that the burden of
proof rest on the prosecution and there can be no
conviction on the basis of surmises and conjecture or
suspicion, howsoever grave it may be. The Supreme Court
in the case of Digamber Vishnav Vs. State of
Chhattisgarh (2019 (4) SCC 522), while dealing with
the case of circumstantial evidence, observed that strong
suspicion, strong coincidences and grave doubt cannot
take the place of legal proof. The onus of prosecution
cannot be discharged by referring to very strong suspicion
and existence of highly suspicious factors to inculpate the
accused nor falsity of defence could take the place of
proof which the prosecution has to establish in order to
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succeed, though a false plea by defence at best, be
considered as an additional circumstances, if other
circumstances unfailingly point to the guilt. In another
case, Jaharalal Das Vs. State of Orissa (1991 (3) SCC
27), the Supreme Court on the aspect of suspicion held
that even if the offence is shocking one, the gravity of the
offence cannot by itself overweigh as far as legal proof is
concerned. In cases depending highly upon the
circumstantial evidence, there is always a danger that the
conjunctures or suspicions may take place of legal proof.
The court has to be watchful and ensured that the
conjectures and suspicion do not take place of legal proof.
The court must satisfy itself that various circumstances in
the chain of evidence should be established clearly and
that the completed chain must be such as to rule out a
reasonable likelihood of the innocence of the accused.
22. Reverting back to the facts of the present case, the
appellant was apprehended on the basis of suspicion and
the prosecution failed to prove the various circumstances
as referred above to form a chain pointing only to the guilt
of the accused. The Court below failed to analysis the
evidence in its true perspective while holding the accused
guilty of the offence. Recently, the Supreme Court in the
case of Abdul Nassar Vs. State of Kerala and
another, AIR 2025 SC 691, expressed its deep concern
about the appreciation of evidence and its evaluation
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undertaken by the court below in a case based on
circumstantial evidence. The Supreme Court observed
that the manner in which the evidence has been
scrutinized lacks the depth and rigor expected while
arriving at just decision of the case. The Supreme Court
further enunciated the principles that the trial Court as
well as High Court must adhere while appreciating and
evaluating the evidence in cases based on the
circumstantial evidence, which reads that :
"(i) The testimony of each prosecution and defence
witness must be meticulously discussed and analysed.
Each witness's evidence should be assessed in its
entirety to ensure no material aspect is overlooked.
(ii) Circumstantial evidence is evidence that relies on
an inference to connect it to a conclusion of fact. Thus,
the reasonable inferences that can be drawn from the
testimony of each witness must be explicitly delineated.
(iii) Each of the links of incriminating circumstantial
evidence should be meticulously examined so as to find
out if each one of the circumstances is proved
individually and whether collectively taken, they forge an
unbroken chain consistent only with the hypothesis of
the guilt of the accused and totally inconsistent with his
innocence.
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(iv) The judgment must comprehensively elucidate the
rationale for accepting or rejecting specific pieces of
evidence, demonstrating how the conclusion was
logically derived from the evidence. It should explicitly
articulate how each piece of evidence contributes to the
overall narrative of guilt.
(v) The judgment must reflect that the finding of guilt, if
any, has been reached after a proper and careful
evaluation of circumstances in order to determine
whether they are compatible with any other reasonable
hypothesis."
23. For the reasons recorded, we have no hesitation to
hold that the prosecution failed to adduce sufficient,
cogent and acceptable evidence to prove the charges
beyond reasonable doubt against the appellant accused.
The judgment of conviction and order of sentence passed
against the appellant accused is not sustainable in law
and is hereby set aside.
24. In the result, the appeal stands allowed. The
judgment of conviction and order of sentence 13.07.2016
passed by the 6th Additional Sessions Judge, Gandhidham
at Kutch in Sessions Case (Special Atrocity) No.6 of 2012 is
hereby set aside. The appellant accused stands acquitted
of the offence under Sections 376, 363 and 324 of the IPC
and Section 3(i)(11), 3(1)(12) and 3(2)(5) of the Atrocities
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Act. The accused be set liberty, if not required in any other
case. Fine amount deposited, if any, be refunded to him.
R&P be sent back forthwith to the trial Court.
(ILESH J. VORA,J)
(SANDEEP N. BHATT,J)
Rakesh
