Failure of Prosecution

8/13/2019 Failure of Prosecution

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1485 OF 2008

State ! "#$a%at & A''e((a)t

*e%+#+

,-+a)/a- Et. & Re+')e)t+

J U D " M E N T

Ja-+ S-) ,ea%3 J.

1. A complaint was lodged at Navrangpura Police Station,

Ahmedabad, alleging the kidnapping/abduction of a six ear old girl

child !omi daughter of "eshabhai #athabhai Solanki and $aliben on

%&.%.%''( at around )*'' p.m. b the accused "ishanbhai son of

+elabhai +anabhai #arwadi. t was alleged, that the accused had

enticed !omi with a -gola crushed ice, with sweet flavoured srup0,

and thereupon had taken her to ivi2s field, where he raped her. 3e had

murdered her b inflicting in4uries on her head and other parts of the

bod with bricks. n order to steal the -4han4ris anklets0 worn b her, he

had chopped off her feet 4ust above her ankles. 5he aforesaid

complaint was lodged, after the bod of the deceased !omi was found

from ivi2s field, at the instance of the accused "ishanbhai. 6n the

receipt of the above complaint, the first information report came to be

registered at Navrangpur Police Station, Ahmedabad.


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%. 5he prosecution version which emerged conse7uent upon the

completion of the investigation reveals, that the famil of the deceased

!omi was distantl related to the famil of the accused "ishanbhai. n

this behalf it would be pertinent to mention that 8aghabhai Naranbhai

Solanki was a resident of !ulbai 5ekra, in the Navrangpura area of

Ahmedabad. 3e resided there, along with his famil. 9or his livelihood,

8aghabhai Naranbhai Solanki was running a shop in the name of

#ahakali Pan :entre. 5he said shop was located near his residence.

8aghabhai Naranbhai Solanki was running the business of selling -pan

and bidi in his shop. Naranbhai #anabhai Solanki, father of 8aghabhai

Naranbhai Solanki used to live in the peon2s 7uarters at Ambavadi in

Ahmedabad. #odabhai #anabhai Solanki, uncle of 8aghabhai

Naranbhai Solanki, had expired. 3is son ;evabhai2s daughter $aliben,

was married to "eshabhai #athabhai Solanki. "eshabhai #athabhai

Solanki and $aliben were residing at Shabamukhiwas, !ulbai 5ekra in

Ahmedabad. "eshabhai #athabhai Solanki and $aliben had two

children, a daughter !omi aged six ears, and a son 3imat aged three

ears. $aliben2s sister


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!omi, then aged ) ears, had wandered out of her house. 5he accused

"ishanbhai then aged 1= ears, entice her b giving her a -gola.

3aving enticed her he had carried !omi to ivi2s field. 6n the wa to

ivi2s field, he stole a knife with an > inch blade from ;ineshbhai

"arsanbhai 5hakore P?), a -dabeli bread/bun, with spiced potato

filling0 seller. 3aving taken !omi to ivi2s field he had raped her. 3e

had then killed her b causing in4uries on her head and other parts of the

bod with bricks. n order to remove the -4han4ris worn b her, he had

amputated her legs with the knife stolen b him, from 4ust above her

ankles. 3e had then covered her bod with his shirt, and had left ivi2s

field. "ishanbhai the accused, then took the anklets stolen b him to

#ahavir ewellers, a shop owned b Premchand Shankerlal. 3e

pledged the anklets at the above shop, for a sum of @s.1,'''/


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matter to the :ourt of Session. 6n >.(.%'', the Sessions :ourt to

which the matter came to be assigned, for trial, framed charges. Since

the accused "ishanbhai denied his involvement in the matter, the court

permitted the prosecution to lead evidence.

B. 5he prosecution examined 1 witnesses. 5he statement of the

accused "ishanbhai was thereafter recorded under Section (1( of the

:ode of :riminal Procedure. n his above statement, the accused

"ishanbhai denied his involvement. Cven though an opportunit was

afforded to "ishanbhai, he did not lead an evidence in his defence.

After examining the evidence produced b the prosecution, the 5rial

:ourt vide its 4udgment dated 1>.>.%'', arrived at the conclusion that

prosecution had successfull proved its case beond reasonable doubt.

8 a separate order dated 1>.>.%'' the 5rial :ourt sentenced

"ishanbhai to death b hanging, sub4ect to confirmation of the said

sentence b the 3igh :ourt of !u4arat at Ahmedabad hereinafter

referred to as the D3igh :ourt20 under Section ()) of the :ode of

:riminal Procedure.

). n the above view of the matter, the proceedings conducted b the

:ourt of Session, were placed before the 3igh :ourt at the behest of the

State of !u4arat, as :onfirmation :ase No. & of %''. ndependentl of

the confirmation proceedings, the accused "ishanbhai, aggrieved b the

4udgment and order of sentence dated 1>.>.%'', in Sessions :ase No.

() of %''(, filed :riminal Appeal No. 1B= of %'' before the 3igh

:ourt.

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&. 5he criminal appeal filed b the accused "ishanbhai was

accepted b the 3igh :ourt. "ishanbhai was ac7uitted b giving him

the benefit of doubt. 5he :onfirmation :ase No. & of %'' was turned

down in view of the 4udgment of ac7uittal rendered b the 3igh :ourt

while allowing :riminal Appeal no. 1B= of %''.

>. ;issatisfied with the order passed b the 3igh :ourt, the State of

!u4arat approached this :ourt b filing Petition for Special $eave to

Appeal :rl.0 No. B== of %''). 6n 11.=.%''> leave to appeal was

granted. 5hereupon, the matter came to be registered as :riminal

Appeal No. 1>B of %''>.

=. 8efore this :ourt, learned counsel for the appellant, in order to

substantiate the guilt of the accused


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establish the guilt of the accused


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testimon of Naranbhai #anabhai Solanki P?B, reference was also

made to the testimon of ;inesh "arshanbhai 5hakore P?). P?),

during his deposition, had asserted, that the accused


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P?), was carring a small girl aged about & ears. 3e also deposed,

that the accused


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made to serial No.1 of the post, clearl indicating, that the

in4uries caused to the victim which have been referred to at serial No.&,

could have been caused with the knife muddamal Article No.1=0, i.e.,

the same knife, which had been recovered at the instance of the

accused. Cven in the in7uest panchnama Cxhibit 10, it was recorded

that both legs of the victim !omi were mutated from 4ust above the ankle

with a sharp weapon, with the ob4ect of removing the anklets in the feet

of the victim !omi. 5his document, according to the learned counsel,

also indicates the use of a knife in the occurrence under reference.

d0 t was also the submission of the learned counsel for the

appellant, that at the time of recover of the bod of the victim from ivi2s

field, the same was found to be covered with a shirt with stripes. t was

submitted, that the aforesaid shirt was identified as the shirt worn b the

accused


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4uncture, the accused and 1 respectivel. ;inesh

"arshanbhai 5hakore P?) had identified the shirt, as also, the trouser

during the course of his deposition before the 5rial :ourt. 5he green

trouser worn b the accused


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respondent, were all found with blood stains. 5he forensic report

reveals that the blood stains on all the above articles were of blood

group -8Fve. t was, therefore, the submission of the learned counsel

for the appellant, that the accused, as belonging to his daughter !omi, which she was wearing when

she had gone missing. @eference was also made to the statement of

agdishbhai 8hagabhai #arwadi P?11, as also, the panchnama of

recover of the silver anklets which also, according to learned counsel,

connects the accused to the crime.

g0 $ast but not the least, learned counsel for the appellant invited

this :ourt2s attention to the statement tendered b the accused under

Section (1( of the :ode of :riminal Procedure. ;uring the course of his

above testimon, he was confronted with the evidence of the relevant

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witnesses depicting, that the victim !omi was last seen in his compan

at )*'' p.m. on %&.%.%''(. 3e was also confronted with the fact, that he

himself had informed the search part, that !omi ma be found at ivi2s

field. t is submitted, that the accused


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different heads. ?e have decided to adopt the above procedure to

understand the implications of various aspects of the evidence produced

b the prosecution before the 5rial :ourt. 5his procedure has been

adopted b us even though the same was neither adopted b the 5rial

:ourt, or b the 3igh :ourt0 so as to effectivel understand, and

thereupon, to ade7uatel deal with the contentions advanced at the

hands of the appellant, before this :ourt.

11. ?e would first of all, like to deal with the lapses committed b the

investigating and prosecuting agencies in the process of establishing

the guilt of the accused before the 5rial :ourt. t will be relevant to

mention that all these lacunae/deficiencies, during the course of

investigation and prosecution, were pointed out b the 3igh :ourt, in the

impugned 4udgment. 5hese constitute relevant aspects, which are liable

to be taken into consideration while examining the evidence relied upon

b the prosecution. ?e have summarised the aforesaid lapses,

pointedl to enable us to correctl deal with the submissions advanced

at the behest of the State. Since the guilt of the accused in the instant

case is to be based on circumstantial evidence, it is essential for us to

determine whether or not a complete chain of events stand established

from the evidence produced b the prosecution. 5he above deficiencies

and shortcomings are being summarised below*

a0 According to the prosecution stor after having removed the

anklets from !omi2s feet, the accused "ishanbai had taken the anklets

to #ahavir ewellers, a shop owned b Premchand Shankerlal. 3e

pledged aforesaid anklets with Premchand Shankerlal, for a sum of @s.

1,'''/


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Shankerlal to the investing officer on 1.(.%''(, in the presence of two

panch witnesses. According to the prosecution case, the 4eweller had

gone to the police station with the anklets on his own, after having read

newspaper reports to the effect, that a girl had been raped and

murdered and her anklets had been taken awa. 3e had approached

the police station under the suspicion, that the anklets pledged with him,

might have belonged to the girl mentioned in the newspaper reports.

6ne of the panch witnesses, namel, agdishbhai #arwari P?1Bhad

deposed, that above Premchand Shankerlal had identified the accused

"ishanbhai, as the ver person who had pledged the anklets with him.

n this behalf it is relevant to mention, that Premchand Shankerlal was

not produced as a prosecution witness. t is important to notice, that the

anklets handed over to the Police, were successfull established b the

prosecution as the ones worn b the deceased !omi. 5he lapse of the

prosecution on account of not producing Premchand Shankerlal as

prosecution witness, according to the 3igh :ourt, resulted in a missing

link in the chain of events which would have established the link of the

accused "ishanbhai, with the anklets, and thereb convulsivel

connecting him with the crime.

b0 5he prosecution stor further discloses, that Premchand Shankerlal

the owner of #ahavir ewellers, had executed a receipt with the

accused "ishanbhai, depicting the pledging of the anklets for a sum of

@s.1,'''/


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the anklets as @a4ubhai, the same could clearl be a false name given

b the person who pledged the anklets. :ertainl, there could be no

mistake in the identit of the thumb mark affixed on the said receipt.

5he prosecution could have easil established the identit of the

pledger, b comparing the thumb impression on the receipt exhibit B%0,

with the thumb impression of the accused


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i.e., the amount given to him b Premchand Shankerlal when he

pledged the anklets at his shop, even if it is assumed that he had no

mone with him when he had pawned the anklets. 5his important link

having not been established b the prosecution, breaks the chain of

events necessar to establish the guilt of the accused "ishanbhai, and

constitutes a serious lapse in the prosecution evidence.

d0 t is apparent from the prosecution stor, that the victim !omi was

raped. n establishing the factum of the rape the prosecution had relied

upon the note prepared at the time of conducting the post


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as a prosecution witness, ma have been overcome if the report

prepared b him after examining the accused "ishanbhai0 was placed

on the record of the 5rial :ourt, after being proved in accordance with

law. 5he action of prosecution in not producing the aforesaid report

before the 5rial :ourt, was another serious lapse in proving the case

before the 5rial :ourt. 5his had also resulted a missing vital link, in the

chain of events which could have established, whether or not accused

"ishanbhai had committed rape on victim !omi.

f0 5he 3igh :ourt having noticed the in4uries suffered b !omi, a six

ear old girl child on her genitals, had expressed the view, that the

same would have resulted in reciprocal in4uries to the male organ of the

person who had committed rape on her. t was pointed out, that if the

accused "ishanbhai had been sent for medical examination the

testimon or the report of the medical officer would have revealed the

presence of smegma around the corona*'' p.m. on %&.%.%''(. At the time of

recover of the bod of deceased !omi from ivi2s field, at about =*''

pm, it came to be believed that she had been sub4ected to rape. 5he

accused "ishanbhai was shown to have been formerl arrested at )*'

a.m.on %>.%.%''( even if the inference drawn b the 3igh :ourt, that

the accused "ishanbhai was in police custod since =*'' p.m. on

%&.%.%''( itself, is ignored0. 5he accused could have been medicall

examined within a period of % hours of the occurrence. 5he

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prosecution case does not show whether or not such action was taken.

5his lapse in the investigation of the case, had also resulted the

omission of a vital link in the chain of events which would have

un7uestionabl established the guilt of the accused "ishanbhai of

having committed rape or possibl his innocence0.

g0 t needs to be noticed, that when the accused "ishanbhai was

arrested, there were several in4uries on his person. 5he said in4uries

were also depicted in his arrest panchnama. At &*1B am on %>.%.%''(,

the accused "ishanbhai filed a first information report alleging, that he

was beaten b some of the relatives of the victim !omi, as also, b

some unknown persons accompaning the search part, under the

suspicion/belief, that he was responsible for the occurrence. n the

above first information report, the accused "ishanbhai had also

depicted the nature of in4uries suffered b him. 5he statement of the

investigating officer @anchod4i 8ho4ra44i :hauhan P?1 reveals, that the

accused "ishanbhai had been sent to :ivil 3ospital, Ahmedabad, for his

medical examination. Neither the doctor who had examined the

accused was produced as a prosecution witness, nor the

report/certificate given b the medical officer disclosing the details of his

observations/findings was placed on record. 5his evidence was vital for

the success of the prosecution case. According to the 3igh :ourt, blood

of group -8 Fve was found on the clothes of the accused "ishanbhai.

5he important 7uestion to be determined thereupon was, whether it was

his own blood or blood of the victim !omi. 5he statement of the

medical officer who had examined the accused "ishabhai, when he was

sent for medical examination to :ivil 3ospital, Ahmedabad, would have

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disclose whether or not accused "ishanbhai had an bleeding in4uries.

5he importance of nature of the in4uries suffered b the accused

"ishanbhai emerges from the fact, that both the accused "ishanbhai

and the victim !omi had the same blood group -8 Fve. An

inference could have onl been drawn that the blood on his clothes was

that of the victim, in case it was established that the accused.'%.%''(. t is

strange, that the in7uest panchnama should be drawn before the

registration of the first information report. t is also strange as to how,

while drawing the in7uest panchnama, the panchas of the same could

have recorded, that after amputation of the victim2s legs, her silver

anklets had been taken awa b the offender. 5here was no occasion

for the panchas to have known, that !omi used to wear silver anklets.

Accordingl, there was no occasion for them to have recorded that the

silver anklets usuall worn b !omi had been taken awa b the

offender.

g0 9rom the prosecution version emerging from the evidence

recorded before the 5rial :ourt0, it is apparent, that the search part, as

also, the relatives of the victim were aware at about >*'' p.m. on

%&.%.%''( that !omi had been murdered, with a possibilit of her having

been raped also, and her silver anklets had been stolen. ;espite the

above, no complaint whatsoever came to be filed in connection with the

above occurrence at the police station on %&.%.%''(, despite the close

coordination between the search part and the police from >*'' pm

onwards no %&.%.%''( itself. 5he complaint leading to the filing of the

first information was made at about (*'B a.m. on %>.%.%''(. Not onl is

the dela of seven hours in the registration of the complaint

ununderstandable, but the same is also rendered extremel suspicious,

on the account of the fact that the accused


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victim !omi went missing, as also, the time and date on which the bod

of the victim was discovered resulting in the discover of the occurrence

itself. 5he 7uestion which arises for consideration is, whether the

investigation agenc adopted the usual practice of padding so as to

depict the occurrence in a manner different from the actual occurrence.

A 7uestion also arises as to wh it was necessar for the investigating

agenc to adopt the above practice, despite the fact that it was depicted

as an open and shut case.

h0 As noticed above, that from the statements of 8ababhai

Naranbhai Solanki P?% and Naranbhai #anabhai Solanki P?B, it is

apparent that the accused was detained b the police informall around

=*'' p.m. on %&.%.%''(. t is also essential to notice, that an

acknowledgement was made to the above effect even b Sub nspector

Naranbhai $albhai ;esai P?1(, who had commenced investigation of

the crime under reference. t is apparent that when 8ababhai Naranbhai

Solanki P?%, had contacted him with details about the offence under

reference, he had not recorded an entr in the station diar before

leaving the police station. 5his constitutes a serious lapse in itself. n

his cross


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respondent "ishanbhai had come to the police station. n his statement

as a witness, he had expressed, that for the first time he had seen the

accused


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respondent had asked for a knife but he had refused to give it to him

because, at the time when the accused


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tutored witness. 5his aspect of the matter also renders the testimon of

;inesh "arshanbhai 5hakore P?), suspicious.

40 5here is et another aspect of the controvers relating to ;inesh

"arshanbhai 5hakore P?). 5he investigating agenc became aware

from the disclosure statement of the accused


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5he above discrepancies in the prosecution version, were dul noticed

b the 3igh :ourt. 5hese constitute some of the glaring instances

recorded in the impugned order. 6ther instances of contradiction were

also noticed in the impugned order. t is not necessar for us to record

all of them, since the above instances themselves are sufficient to draw

some vitall important inferences. Some of the inferences drawn from

the above, are being noticed below. 5he prosecution2s case which

mainl rests on the testimon of 8ababhai Naranbhai Solanki P?%,

Naranbhai #anabhai Solanki P?B and ;inesh "arshanbhai 5hakore

P?), is unreliable because of the glairing inconsistencies in their

statements. 5he testimon of the investigating officer Naranbhai $albhai

;esai P?1( shows fudging and padding, making his deposition

untrustworth. n the absence of direct oral evidence, the prosecution

case almost wholl rested on the above mentioned witnesses. t is for

the above reasons, that the 3igh :ourt through the impugned order,

considered it 4ust and appropriate to grant the accused


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the learned counsel for the appellant, that non


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presume that the accused knew about the incriminating material or dead

bod due to his involvement in the alleged offence. ?hen he discloses

the location of such incriminating material without disclosing the manner

in which he came to know of the same, the :ourt would presume that

the accused knew about the incriminating material.

e0 @eling on the 4udgment in Amar Singh v. 8alwinder Singh, %''(

%0 S:: B1>, it was contended, that where the prosecution case is full

established b the testimon of witnesses which stood corroborated b

medical evidence, an failure or omission of the investigating officer

could not be treated as sufficient to render the prosecution case doubtful

or unworth of belief. 5his determination leads to the same inference,

namel, when reliable evidence to prove the guilt of an accused is

available, lapses in investigation would not result in grant of the benefit

of doubt to an accused.

f0 @eferring to State !overnment of N:5 ;elhi v. Sunil, %''10 1

S:: )B%, it was asserted, that in a case where a child of four ears was

brutall raped and murdered and incriminating articles were recovered

on the basis of the statement of the accused, the same could not be

discarded on the technical ground that no independent witness was

examined.

g0 @eferring to the 4udgment in oseph v. State of "erala, %''B0 B

S:: 1=&, wherein, according to the learned counsel, it was held that

where the circumstances proved form themselves into a complete chain

unerringl pointing to the guilt of the appellant, then the same can be the

basis of the conviction of the accused. 5his, according to learned

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counsel, represents the manner of proving the guilt of an accused based

on circumstantial evidence.

h0 8ased on the 4udgment in State of KP v. Satish %''B0 ( S::

11, it was contended that it could not be laid down as a rule of

universal application that if there is an dela in examination of a

particular witness, the prosecution version becomes suspect.

5herefore, the facts surrounding the dela ought to be considered in

ever case to determine whether or not the testimon is rendered

suspicious.

i0 @eling on the 4udgment in 8ishnu Prasad Sinha v State of

Assam, %''&0 11 S:: )&, it was submitted, that in the above case

where a child of & ears was a victim of rape and murder, the grounds

that the investigation was done in an improper manner did not render

the entire prosecution case to be false. Namel, where reliable

evidence is available, the same would determine the guilt of an

accused.

40 @eferring to the 4udgment in Aftab Ahmad Anasari v. State of

Kttaranchal, %'1'0 % S:: B>(, it was asserted, that where a child of

five ears was a victim of rape and murder and the accused disclosed

the location of the crime as also of the incriminating articles, the said

disclosure was admissible and would constitute a complete chain in the

circumstances. 9urther, according to the learned counsel, it was held

that the in7uest panchnama ma not contain ever detail and the

absence of some details would not affect the veracit of the deposition

made b witnesses. Needless to mention, that absence of vital links in

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the claim of circumstantial evidence would result in the exoneration of

the accused.

k0 @eliance was placed on Sambhu ;as v. State of Assam, %'1'0

1' S:: (&, so as to contend, that an discrepanc occurring in the

in7uest report or the post mortem report could neither be fatal nor be

termed as a suspicious circumstance as would warrant a benefit to the

accused and the resultant dismissal of the prosecution case. Needless

to add, that there should be sufficient independent evidence to establish

the guilt of the accused.

l0 8ased on the 4udgment in 3aresh #ohandas @a4put v. State of

#aharashtra, %'110 1% S:: B), it was contended, that in a case of

murder and rape of a ten ear old child, it was found that where the

circumstances taken cumulativel led to the conclusion of guilt and no

alternative explanation is given b the accused, the conviction ought to

be upheld. 5his case reiterates that in a case based on circumstantial

evidence the evidence should be such as would point to the inference of

guilt of the accused alone and none others.

m0 @eling on @a4endra Prahladrao?asnik v. State of #aharashtra,

%'1%0 S:: (&, it was submitted that where a three ears old child

was a victim of rape and murder b the accused who lured her under the

pretext of buing biscuits, circumstances showed the manner in which

the trust/belief/relationship was violated resulting in affirming the death

penalt imposed on the accused.

1. ?e have given our thoughtful consideration to the submissions

advanced at the hands of the learned counsel for the appellant, which

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have been dul noticed in paragraph = hereinabove. t is also relevant

for us to record, that the learned counsel for the appellant did not

advance a single submission in addition to the contentions we have

noticed in paragraph = above. 5he submissions advanced at the hands

of the learned counsel for the appellant, were sought to be supported b

4udgments rendered b this :ourt, all of which have been referred to in

paragraph 1( above. 5he submissions advanced at the hands of the

learned counsel for the appellant, based on each of the 4udgments cited,

have also been recorded b us in the said paragraph. 3aving

considered the totalit of the facts and circumstances of this case,

speciall the glaring lapses committed in the investigation and

prosecution of the case recorded in paragraph 11 of the instant

4udgment0, as also the inconsistencies in the evidence produced b the

prosecution summariEed in paragraph 1% hereinabove0, we are of the

considered view, that each one of the submissions advanced at the

hands of the learned counsel for the appellant is meritless. 9or the

circumstantial evidence produced b the prosecution, primar reliance

has been placed on the statements of 8ababhai Naranbhai Solanki

P?%, Naranbhai #anabhai Solanki P?B, and ;inesh "arshanbhai

5hakore P?). 8 demonstrating inconsistencies and infirmities in the

statements of the above witnesses, their statements have also been

rendered suspicious and accordingl unreliable. 5here is also a serious

impression of fudging and padding at the hands of the agencies

involved. As a matter of fact, the lack of truthfulness of the statements

of witnesses has been demonstrated b means of simple logic emerging

from the factual position expressed through different prosecution

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witnesses summariEed in paragraphs 11 and 1% above0. 5he evidence

produced to prove the charges, has been sstematicall shattered,

thereb demolishing the prosecution version. #ore than all that, is the

non production of evidence which the prosecution has un4ustifiabl

withheld, resulting in dashing all the States efforts to the ground. t is

not necessar for us to record our detailed determination on the

submissions advanced at the hands of the learned counsel for the

appellant, for such reasons clearl emerge from the factual position

noticed in paragraphs 11 and 1% hereinabove. @ecording of reasons all

over again, would 4ust be a matter of repetition. n view of the above,

we find no merit in this appeal and the same is accordingl dismissed.

1B. 5he investigating officials and the prosecutors involved in

presenting this case, have miserabl failed in discharging their duties.

5he have been instrumental in dening to serve the cause of 4ustice.

5he miser of the famil of the victim !omi has remained unredressed.

5he perpetrators of a horrendous crime, involving extremel ruthless

and savage treatment to the victim, have remained unpunished. A

heartless and merciless criminal, who has committed an extremel

heinous crime, has gone scot


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1). As we discharge our responsibilit in deciding the instant criminal

appeal, we proceed to appl principles of law, and draw inferences.

9or, that is our 4ob. ?e are trained, not to be swaed b merc or

compassion. ?e are trained to ad4udicate without taking sides, and

without being mindful of the conse7uences. ?e are re7uired to

ad4udicate on the basis of well drawn parameters. ?e have done all

that. ;espite thereof, we feel crestfallen, heartbroken and sorrowful.

?e could not serve the cause of 4ustice, to an innocent child. ?e could

not even serve the cause of 4ustice, to her immediate famil. 5he

members of the famil of !omi must never have stopped cursing

themselves, for not ade7uatel protecting their child from a prowler, who

had snatched an opportunit to brutalise her, during their lapse in

attentiveness. And if the prosecution version about motive is correct,

the crime was committed for a mere consideration of @s.1,'''/


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accused, first during the trial of the case, and then at the appellate

stages. An innocent person does not deserve to suffer the turmoil of a

long drawn litigation, spanning over a decade, or more. 5he expenses

incurred b an accused in his defence can dr up all his financial

resources H ancestral or personal. :riminal litigation could also

ordinaril involve financial borrowings. An accused can be expected to

be under a financial debt, b the time his ordeal is over.

1>. Numerous petitions are filed before this :ourt, praing for

anticipator bail under Section (> of the :ode of :riminal Procedure0

at the behest of persons apprehending arrest, or for bail under Section

(= of the :ode of :riminal Procedure0 at the behest of persons alread

under detention. n a large number of such petitions, the main

contention is of false implication. $ikewise, man petitions seeking

7uashing of criminal proceeding filed under Section >% of the :ode of

:riminal Procedure0 come up for hearing da after da, wherein also,

the main contention is of fraudulent entanglement/involvement. n

matters where praers for anticipator bail or for bail made under

Sections (> and (= are denied, or where a 7uashing petition filed

under Section >% of the :ode of :riminal Procedure is declined, the

person concerned ma have to suffer periods of incarceration for

different lengths of time. 5he suffer captivit and confinement most of

the times at least where the are accused of serious offences0, till the

culmination of their trial. n case of their conviction, the would continue

in confinement during the appellate stages also, and in matters which

reach the Supreme :ourt, till the disposal of their appeals b this :ourt.

8 the time the are ac7uitted at the appellate stage, the ma have

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undergone long ears of custod. ?hen ac7uitted b this :ourt, the

ma have suffered imprisonment of 1' ears, or more. ?hen the are

ac7uitted b the trial or the appellate court0, no one returns to themG

what was wrongfull taken awa from them. 5he sstem responsible for

the administration of 4ustice, is responsible for having deprived them of

their lives, e7uivalent to the period of their detention. t is not untrue,

that for all the wrong reasons, innocent persons are sub4ected to suffer

the ignomin of criminal prosecution and to suffer shame and

humiliation. ust like it is the bounden dut of a court to serve the cause

of 4ustice to the victim, so also, it is the bounden dut of a court to

ensure that an innocent person is not sub4ected to the rigours of criminal

prosecution.

1=. 5he situation referred to above needs to be remedied. 9or the

said purpose, adherence to a simple procedure could serve the

ob4ective. ?e accordingl direct, that on the completion of the

investigation in a criminal case, the prosecuting agenc should appl its

independent mind, and re7uire all shortcomings to be rectified, if

necessar b re7uiring further investigation. t should also be ensured,

that the evidence gathered during investigation is trul and faithfull

utiliEed, b confirming that all relevant witnesses and materials for

proving the charges are conscientiousl presented during the trial of a

case. 5his would achieve two purposes. 6nl persons against whom

there is sufficient evidence, will have to suffer the rigors of criminal

prosecution. 8 following the above procedure, in most criminal

prosecutions, the concerned agencies will be able to successfull

establish the guilt of the accused.

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%'. Cver ac7uittal should be understood as a failure of the 4ustice

deliver sstem, in serving the cause of 4ustice. $ikewise, ever

ac7uittal should ordinaril lead to the inference, that an innocent person

was wrongfull prosecuted. t is therefore, essential that ever State

should put in place a procedural mechanism, which would ensure that

the cause of 4ustice is served, which would simultaneousl ensure the

safeguard of interest of those who are innocent. n furtherance of the

above purpose, it is considered essential to direct the 3ome ;epartment

of ever State, to examine all orders of ac7uittal and to record reasons

for the failure of each prosecution case. A standing committee of senior

officers of the police and prosecution departments, should be vested

with aforesaid responsibilit. 5he consideration at the hands of the

above committee, should be utiliEed for crstaliEing mistakes committed

during investigation, and/or prosecution, or both. 5he 3ome ;epartment

of ever State !overnment will incorporate in its existing training

programmes for 4unior investigation/prosecution officials course< content

drawn from the above consideration. 5he same should also constitute

course


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and on the basis of experiences gained b the standing committee while

examining failures, in unsuccessful prosecution of cases. ?e further

direct, that the above training programme be put in place within )

months. 5his would ensure that those persons who handle sensitive

matters concerning investigation/prosecution are full trained to handle

the same. 5hereupon, if an lapses are committed b them, the would

not be able to feign innocence, when the are made liable to suffer

departmental action, for their lapses.

%1. 6n the culmination of a criminal case in ac7uittal, the concerned

investigating/prosecuting officials0 responsible for such ac7uittal must

necessaril be identified. A finding needs to be recorded in each case,

whether the lapse was innocent or blameworth. Cach erring officer

must suffer the conse7uences of his lapse, b appropriate departmental

action, whenever called for. 5aking into consideration the seriousness

of the matter, the concerned official ma be withdrawn from investigative

responsibilities, permanentl or temporaril, depending purel on his

culpabilit. ?e also feel compelled to re7uire the adoption of some

indispensable measures, which ma reduce the malad suffered b

parties on both sides of criminal litigation. Accordingl we direct, the

3ome ;epartment of ever State !overnment, to formulate a procedure

for taking action against all erring investigating/prosecuting

officials/officers. All such erring officials/officers identified, as

responsible for failure of a prosecution case, on account of sheer

negligence or because of culpable lapses, must suffer departmental

action. 5he above mechanism formulated would infuse seriousness in

the performance of investigating and prosecuting duties, and would

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ensure that investigation and prosecution are purposeful and decisive.

5he instant direction shall also be given effect to within ) months.

%%. A cop of the instant 4udgment shall be transmitted b the

@egistr of this :ourt, to the 3ome Secretaries of all State !overnments

and Knion 5erritories, within one week. All the concerned 3ome

Secretaries, shall ensure compliance of the directions recorded above.

5he records of consideration, in compliance with the above direction,

shall be maintained.

%(. ?e hope and trust the 3ome ;epartment of the State of !u4arat,

will identif the erring officers in the instant case, and will take

appropriate departmental action against them, as ma be considered

appropriate, in accordance with law.

%. 5he instant criminal appeal is accordingl disposed of.

MMMMMMMMMMM..:.". Prasad0

MMMMMMMMMMM..

agdish Singh "hehar0

New ;elhiG

anuar &, %'1

46

Documents

Failure of Prosecution