S.L. Talati, J.
1. The appellant was original accused in Sessions Case No. 77 of 1979 before the Court of the Additional Sessions Judge, Banaskantha Palanpur. He has challenged his order of conviction and sentence passed by the learned Additional Sessions Judge, Banaskantha at Palanpur, on 8-2-1980 for an offence Under Section 302 I.P.C. He has been sentenced to imprisonment for life.
2. It is not necessary in this case to go into all the details as most of the facts are stated in the judgment. However, prosecution case in short was that the deceased Krushnasing Gagsing Rathod was serving as an Inspector in Banaskantha District Central Co-operative Bank Limited at Deodar, while the appellant was a peon in that Bank. The incident had happened on 17-6-1979 at about 9-00 p.m. and the dead body of the deceased was ultimately found in the field of Ghanchi Baba Chuna. Post-mortem report revealed that there were as many as 33 incised wounds inflicted on different parts of the body and the death was due to shock and haemorrhage due to fractures of skull bones and wound of left lung. Thus, it was clear that the wounds were inflicted by some sort of knife. There was no direct evidence in the case and the prosecution solely depended upon several circumstances appearing against the accused in the present case.
3. The first circumstance on which the prosecution relied upon was that the deceased had left his house on that day at about 7-00 p.m. and he had informed the members of his family that he was going to a 'Mataji' temple at village Sandar, in the company of the accused. To prove this aspect of the case the prosecution examined the son of the deceased aged about 18 years by name Chandrakant at Ex. 5. According to him, the deceased his father had left for Sandar for Darsan at the temple of 'Mataji' and he had told while leaving that he was going with the accused. Sandar is at a distance of about 2 kms. from the house of the deceased. The witness further stated that he had come to know in the Bazar on that very night at about 8-30. p.m. that his father was done to death. Thereafter, according to the witness, several persons had gathered. Now, therefore, from the evidence of this witness the prosecution could establish that while the deceased left the place he had told that he was going to village Sandar in the company of the accused and at about 7-30 p.m. he had learnt that his father was done to death. However, no information was lodged. Thereafter there was no further evidence that in fact the deceased had left in company with the accused or not. Now, therefore, it could be stated that this particular circumstances on which the prosecution relied upon was established.
4. The other circumstance which was there on the record was that the accused was serving as a peon and he was discharged from the service and he was thereafter reinstated in service also. The deceased may not have made any report against the accused but the motive suggested is that the accused had a feeling that he was removed from service at the instance of the deceased and inspite of the report the Manager of the Bank re-instated him and therefore, there was some motive so far as the accused is concerned. Thereafter the prosecution tried to rely upon the circumstance that the accused presented himself at the Police Station at Deodar at 10-00 p.m. and at that time he was in possession of a knife and he was wearing a bush-shirt which had blood stains. If this fact was established, this would go a long way to establish the prosecution case. The prosecution, therefore, relied upon the evidence of head constable Bharthaji P.W. 17 Exhibit 45. According to him accused came at the Police Station, Deodar on 17-6-79 at 10-00 p.m. He had put on a pant and a bush-shirt and on the bush-shirt there were stains of blood. He gave a complaint. That complaint was rightly not admitted in the evidence because it was more or less a confessional statement made in the presence of the Police. Further evidence of this witness was that he produced a knife. According to him a panchnama was made of the knife and another of the bush-shirt. These two panchnamas are Exhibit 33 & 34. According to this witness, the accused stated that the dead body of the deceased was lying in the field of Baba Chuna. Now, so far as die cross-examination is concerned, nothing worth has been asked from this witness. Only denials are taken. However, the prosecution also examined panch witnesses and the first panch witness is Hiralal Amrutlal P.W. 16, Exhibit 38. Hiralal in his evidence stated that when he was called at night on 17-6-79 at the Police Station, as a panch, the accused was present. He did not say about any statement having been made by the accused at the time. However, he stated that in the company of the Police and the accused they went to the place where the dead body was lying and as it was dark nothing was done. However, panchnama exhibit 39 was prepared. His further say was that in the morning of the next day, he was again taken to the place of offence and panchnama exhibit 40 was prepared. Now, therefore, this panch witness did not state anything about the dead body. Another panch witness Somaji Dungarji Mochi, P.W. 13 Exhibit 29, in his evidence stated that he was called as a panch on 18-6-78 in the morning at about 8-00 a.m. and at that time at the Police Station the accused was not present. One knife was lying on the table and it was attached under panchnama Exhibit 39. He further stated that one bush-shirt and trousers were lying on the ground and they were attached under a panchnama and there were no stains of anything on these two articles. Now, therefore, this panch witness did not support the prosecution at all. He did not say that he was called at night on 17-6-78. On the contrary, he says, he was called, on the morning of 18-6-78. According to him, accused was not present. The knife was on the table and the clothes were lying on the ground. Now, therefore, the prosecution did not rest contended with the evidence of the Police Constable but they chose to examine the panch witnesses whom they had to treat as hostile witnesses and ultimately contradicted them thus bringing on record the statement made by them before the Police. It may here be stated that whatever is stated in the Court would be the substantive evidence and whatever is stated to the Police would be inadmissible. Under these circumstances, when the panch witness is examined and does not support the prosecution case at all it is doubtful whether the accused himself produced the knife or the accused had put on bush-shirt. Now, therefore, this circumstance, in any case, was of a doubtful nature. The evidence of the Head Constable Bharthaji Maganji P.W. 17. Exhibit 45 also did not take the prosecution case any further in absence of any entry in the Police diary or any report to the Police Officer immediately after the arrest of the accused. In a serious crime like the murder if the Head Constable had arrested the accused at 10-00 p.m. who had ultimately gone to him with a knife with which the murder was committed the Head Constable would not rest contented with the calling of the panchas and making a panchnama, but would immediately report to his higher officer and would also make necessary entries in the diary.
5. The circumstance that a pant was recovered from the house of the accused on which there were blood stains was also not fully established and in fact, this would not be a circumstance against the accused. The reason would be obvious. This would mean that after committing the murder the accused had gone to his house to change his pant. The prosecution might suggest that the accused may not have noticed the blood stains on the bush-shirt and therefore, though he changed the pant he did not change the bush-shirt and if he had gone to his house and had an opportunity to go to his house and take care to change the pant, he would not keep the knife with him. So, either the accused would go to the Police Station directly and if he did so, the pant would not be recovered from his house which would have blood stains. This circumstance, therefore, is to say the least not worth taking note of.
6. Bhava Ganesh. P.W. 2 Ex. 6 was examined to establish thai he had seen that the accused going with a pant on his body which had stains of blood, but he did not say so. On the contrary, in his evidence he stated that he did not know the accused. He stated that he did not know in which direction the village Sandar was and he either could not say as to when he was called at the police station and after how much time after the incident had taken place. This witness was treated as hostile. He was contradicted with his police statement and his police statement was brought on record, which is not admissible in evidence.
7. Devsi Vish P.W. 8 Ex. 17 also did not support the prosecution and clearly stated that he did not know the accused. He was also required to be contradicted with his police statement which was brought on record and which is again not admissible in evidence. The report of the Serologist that the blood on the knife and the clothes was found of 'B' group but that would help the prosecution provided that it is established or proved that the knife was recovered from the accused and the bush-shirt was recovered from the accused or pant was recovered from the house of the accused. This is a missing link. Therefore, the prosecution could not establish anything beyond this that the accused entertained a belief in his mind that he was dismissed at the instance of the deceased and that he was reinstated in service at the instance of the Bank Manager inspite of the wishes of the deceased. The second circumstance which was established was that the deceased had left his house telling his family members that he was leaving for village Sandar in the company of the accused. Whether, in fact he left in the company of the accused or not would depend on the fact that as to what had happened thereafter. This prosecution tried to establish by stating that immediately thereafter at about 10-00 p.m. the accused presented himself at Deodar Police Station. This fact is of doubtful character because the panchnama did not show that the accused was present and bush-shirt and pant were taken possession of. Chandrakant, P.W. 1, Ex. 5 says that he knew about the death of his father at about 8-30 p.m. If this were so, he would have immediately reported at the Deodar Police Station at 8-30 p.m. because he alone did not know but many persons had gathered. The deceased was an Inspector in the District Co-operative Bank. Therefore, the Bank Officers, relatives, etc. had gathered and therefore, Deodar Police Station must have been informed by 9-00 p.m. that the deceased was done to death. Now, therefore, the witness must have known that the deceased was done to death by the accused and must have entertained the belief that he was the culprit. Therefore, it is not useful to suggest that till 10-00 p.m. Deodar Police Station did not act and waited at the Police Station. It cannot be suggested that they waited till the accused came at 10-00 p.m. at the Police Station. This is highly improper. On this count alone the Head Constable cannot be relied upon. More so it cannot be established that the accused presented himself with the knife and the bush-shirt which had blood stains. Now, therefore, the first two circumstances are not sufficient to come to a conclusion that these two circumstances lead to a conclusion inference of guilt of the accused. It is settled law which is decided in the case of Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh : 1953CriLJ129 In regard to the appreciation of circumstantial evidence, it is observed as under:
In dealing with circumstantial evidence the rules specifically applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof. 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 establish 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.
8. Now, in this particular case, the circumstances which the prosecution wanted establish are not fully established. Unless the circumstances were fully established, the question of conviction did not arise. There is no chain of evidence from which it can be suggested that the accused was guilty for committing the murder of the deceased. It is sufficient to say that the learned Additional Sessions Judge has committed an error and the whole judgment is based on conjectures and suspicion and conjectures and suspicion has taken the place of proof and therefore, the accused was convicted by the learned Additional Sessions Judge. This error is required to be corrected by this Court. Under these circumstances, this appeal is allowed. The conviction and sentence are set aside. Accused is ordered to be set at liberty forthwith.