STATE OF GUJARAT vs RAJPUT ANIL MAGANLAL & ORS

The appellant State of Gujarat has preferred Criminal Appeal No.894 of 1995 under Section 378 of the Code of Criminal Procedure, 1973

(""the Code"") against the judgment and order dated 10.05.1995, passed by the learned Sessions Judge, Bhavnagar, in Sessions Case

No.256/1994, whereby all five respondents, original accused, have been acquitted of the charge for the offences punishable under Section 302,

147, 148, 149, read with Section 34 of the Indian Penal Code, 1860 (""IPC"") and Section 135 of the Gujarat Police Act, 1951.

Criminal Revision Application No.250 of 1995 has been preferred by the original complainant against the abovereferred judgment of the

Sessions Court.

Respondent original accused No.5 Budha Rajabhai Rabari died on 15.08.2006. This fact has been recorded in the order dated 19.10.2015,

passed by this Court and the appeal qua the said respondent stands abated. A copy of the Death Certificate of respondent No.5 is on record.

It further appears that the learned advocate for the revision petitioner - original complainant, has also passed away. Therefore, Notice was

issued to the revision petitioner, which has been served. However, none appears for the revision petitioner pursuant to the service of Notice. It has

also been brought on record that Hanifkhan Hasankhan Pathan, the revision petitioner and original complainant, died on 30.06.2016. A copy of

the Death Certificate in this regard has been placed on record. The legal heirs of the revision petitioner have not approached this Court in order to

prosecute the revision petition. However, in order to ensure that the interest of the complainant side is not prejudiced, detailed arguments by the

learned Additional Public Prosecutor have been addressed and all grounds available to the prosecution side have been covered. The revision

petition and the appeal pertain to the year 1995 and no fruitful purpose would be served if they are not heard and decided only for want of

representation on the part of the revision petitioner, especially when the learned Additional Public Prosecutor is present to plead the case of the

prosecution in the criminal appeal, the scope of which is much wider than that of a revision application under Section 397 of the Code.

The case of the prosecution is that on 31.07.1994, at about 10:30 PM, the murder of Firozkhan Yusufkhan (deceased) took place. On that day

and at the relevant point of time, PW2 Hanifkhan Hasankhan Pathan, uncle of the deceased and the complainant, was returning to Bhavnagar from

Nadiad in his taxi. The complainant drove his taxi from Rupam Talkies, via Haluria Chowk. When he reached Crescent Chowk at 10:30 PM, he

saw that respondent No.1 Anil Maganlal Rajput, had caught hold of his nephew, Firoz. Respondent No.2 Bharat Ranabhai Bharwad and a person

called Vipul, both having knives, were giving knifeblows to the deceased. Respondent No.2 was giving blows with the knife on the neck of the

deceased. At that time, two unknown persons who were present there, started saying that ""he should be killed and not left alive"". Firoz sustained

knife blows and started bleeding from his neck and fell to the ground. Several persons gathered there and the five accused persons ran away. At

that point of time, Aiyubkhan Hamidkhan (PW4) was also standing there and witnessed the incident. The complainant did not know the names of

the two unknown persons but knew that they were residents of Bhavnagar and could recognize them on sight. Thereafter, one Babul Ibrahimbhai

was passing by in his autorickshaw, which was stopped by the complainant. He made the deceased lie down in the rickshaw and told Abdulbhai

Samadbhai (PW3) to take him to the Hospital for treatment. The complainant went to inform his brother (father of the deceased) regarding the

incident. After doing so, he went to the Hospital, where he was informed that his nephew, Firoz, had died.

As per the case of the prosecution, the motive for the crime was that about four days prior to the incident, respondents Nos.1 and 2 had come

to the office of Yusufbhai, father of the deceased, located in Bulbul Apartments and started pelting stones at the office. They broke the glass of the

office signboard, following which there was an altercation. Harbouring enmity regarding this incident, the respondents are accused of committing

the above offences.

On the basis of the compliant, an FIR, being C.R.No.I170/ 1994, was registered at BDivision Police Station, Bhavnagar, which is at Ex.58. The

Police commenced the investigation into the crime and completed the formalities such as conducting the Inquest, drawing up of necessary

Panchnamas and taking the statements of witnesses.

Before the Sessions Court, the Charge was framed at Ex.3 under Sections 302, 147, 148, and 149 read with Section 34 of the IPC, which was

read out to the accused, who denied their guilt. In support of its case, the prosecution examined fourteen witnesses and produced documentary

evidence. No defence evidence was led. After appreciating the oral and documentary evidence on record, the Sessions Court arrived at the

conclusion that the prosecution has failed to adduce sufficient evidence to prove the charge against the respondents, who stood acquitted by the

impugned judgment.

Before this Court, elaborate arguments have been addressed by learned counsel for the respective parties, which are briefly encapsulated

below.

Mr.Hardik Soni, learned Additional Public Prosecutor, has made the following submissions:

(1) That there are three eyewitnesses to the incident, namely PWs2, 3 and 4, who have described the incident in detail. In spite of the visual

description given by them, the Trial Court has not believed them, mainly on the ground that they are related witnesses. All three witnesses were

residing in nearby areas, therefore, their presence at the scene of incident was natural. Their testimonies ought to have been believed even though

they may be related to the deceased. The Trial Court has not believed the testimony of PW2 on the ground that he did not go to his house by a

shorter route but took a longer one, which took him through the place where the incident took place. However, this finding of the Trial Court is not

proper as the route taken by PW2 is not that long and there is nothing unnatural about him taking this route.

(2) That, PW2 has stated the motive for the crime in the complaint and also in his deposition, which was that a quarrel had taken place between

accused Nos.1 and 2 and the deceased four days prior to the incident. The accused persons were harbouring enmity towards the deceased which

was the cause for the murder.

(3) That, all three eyewitnesses saw the incident from the point when the accused persons started inflicting injuries on the deceased. The Trial

Court has found there are contradictions between the testimonies of the eyewitnesses. However, it ought to have been kept in mind that they

witnessed the incident from different angles, therefore, even if there are minor discrepancies and contradictions in their testimonies, their evidence

ought to have been given due weightage and could not have been thrown out. The evidence of all the three eyewitnesses reveals that they saw all

the accused persons inflicting multiple blows upon the deceased. There are no major contradictions in the versions given by the eyewitnesses in this

regard. PW2 says that respondent No.1 had caught hold of deceased and Bharat Rana (respondent No.2) and Vipul were inflicting injuries

whereas respondents Nos.3 and 5 were instigating them. PWs3 and 4 say that they were together at the time of the incident and their testimonies

corroborate each other. They saw that respondents Nos.1 and 4 had caught hold of the deceased and respondents Nos.2 and 5 were inflicting

knife blows upon the deceased. The apparent discrepancies in the testimonies of PWPage 2 and PWs3 and 4 can be explained from the angle

from which they may have witnessed the incident at different times and from different spots. Therefore, such discrepancies cannot be considered to

be so major to be disbelieved as a whole.

(4) That the Charge has been framed for the offence under Section 149 IPC. There was an unlawful assembly in which the accused persons

played a major role. The medical evidence reveals that there are more than twentythree injuries on all parts of the body of the deceased, which

corroborates the testimony of the eyewitnesses. The presence of the accused persons at the time of the incident is sufficient for their conviction.

(5) That the report of the Forensic Science Laboratory (""FSL"") shows that there was human blood of BGroup on the articles such as the clothes of

the deceased and the knives which ar e the weapons of offence. Though the blood group of the deceased has not been specifically determined,

however, he alone was injured in th e incident and none of the accused persons sustained injuries. Therefore, the presence o f human blood of

BGroup on the clothes of the accused persons and on the knives leads to a probable conclusion that they are involved in th e crime.

(6) That, though the complainant has referred to respondent No.4 as Vipul, however, he has explained in his testimony that he had gone to the

employer of respondent No.4Santosh Sondhabhai Bharwadand asked the name of his cleaner. The employer stated that the name of his cleaner is

Santosh Sondhabhai Bharwad. The confusion regarding respondent No.4 being Vipul has been cleared and PW2 has identified respondent No.4.

Moreover, PW2 has identified respondent No.4 in the Test Identification Parade (""T.I.Parade""). Respondent No.4 is also identified by PWs3 and

There is no ambiguity regarding the identity of this accused.

(7) That the aspects that the rickshaw driver who took the deceased to the Hospital was not examined and the rickshaw was not seized or a

Panchnama thereof drawn, or that other independent witnesses were not examined, pale into insignificance in light of the clear evidence of the three

eyewitnesses, whose testimonies alone are sufficient to convict the accused persons.

(8) That the delay in conducting the T.I.Parade is no material and the said Parade cannot be vitiated on the ground of delay alone. In support of

this submission, learned Additional Public Prosecutor has placed reliance upon a judgment of the Supreme Court in the case of Pramod Mandal v.

State of Bihar - (2004)13 SCC 150.

(9) That the Trial Court has erred in holding that the prosecution witnesses are chance witnesses and discarding their testimony on flimsy grounds.

(10) That the impugned judgment and order of the Trial Court, being unsustainable in law, deserves to be quashed and set aside and the

respondents convicted of the offences of which they were charged.

Mr.P.B.Khambholja, learned advocate, has appeared for respondents Nos.1, 2 and 3 and Mr.J.M.Panchal, learned advocate, has appeared

for respondent No.4. Mr.Panchal has advanced arguments on behalf of all the respondents. Strongly opposing the submissions advanced by the

learned Additional Public Prosecutor, Mr.Panchal has submitted as follows:

(1) The case of the prosecution is full of inconsistencies and improbabilities. There are vital and material omissions and contradictions in the

testimonies of the eyewitnesses.

(2) The investigation has not been carried out in a fair and legal manner. The case rests on the evidence of the three eyewitnesses, all of whom are

related and interested witnesses.

(3) All eyewitnesses are actually chance witnesses and their conduct is not natural. PW2 who is the uncle of the deceased, saw the incident taking

place when he came to the spot in his taxi. However, instead of taking the deceased to the Hospital in the taxi, he went to inform the father of the

deceased and sent the deceased to the Hospital with PW3 Abdulbhai Samadbhai who is a handicapped person, his right hand having been cut off,

aged fifty years, was not in a position to lift the deceased.

(4) The eyewitnesses were watching the incident but did not think it fit to intervene, which is also unnatural conduct and behaviour.

(5) The interse contradictions in the testimonies of the socalled eyewitnesses casts doubt about whether they were actually present at the time of

the incident. They have improved upon their versions and moulded the case in order to bring it within the framework of the prosecution case. They

are, therefore, neither trustworthy nor reliable witnesses.

(6) That, it has come in evidence that several persons were present at the spot when the incident took place, but no independent witnesses have

been examined.

(7) The driver of the rickshaw in which the deceased was taken to the Hospital has not been examined and neither has the richskaw been seized. If

the deceased was bleeding so profusely as described, there would have been blood stains in the rickshaw but no Panchnama of the rickshaw was

drawn. One Rafikbhai, who is stated to be present at the spot, has also not examined.

(8) The T.I.Parade has been carried out after one month and eighteen days of the incident. The said parade has not been carried out in accordance

with the provisions of law, as sufficient dummy persons were not produced and neither were the accused asked to muffle their faces. There is

evidence on record to show that the accused persons visited the Court several times and were also taken to the Hospital in broad daylight to have

their bloodgroups determined. No value can, therefore, be attached to such a T.I.Parade.

(9) No reliable or trustworthy evidence has been produced by the prosecution regarding the weapons alleged to have been used for the

commission of the offence. One knife and two sheaths were found at the spot. The knife was sent for examination by FSL. The bloodgroup of the

deceased was not determined. Blood of BGroup being found on the knife and the clothes of the accused persons has no relevance. The blood of

three of the accused persons was also of BGroup.

(10) The Panch witnesses regarding the discovery of the knife from respondents Nos.4 and 5 have turned hostile. Respondent No.1 was arrested

on 03.08.1994 whereas respondents Nos.2 and 3 were arrested on 02.08.1994. The incident occurred on 31.07.1994. It is highly unlikely that

these accused persons would be roaming around with bloodstained clothes, with bloodstained knife on their persons, as was recovered from the

pocket of respondent No.2, two days after the incident.

(11) The versions of the eyewitnesses do not match each other. PW2 states that respondent No.1 caught hold of the deceased while respondents

Nos.2 and 4 were giving knifeblows to him. Respondents Nos.3 and 5 are stated to have been instigating the other accused persons. In total

contradiction to this, PWs3 and 4 state that respondent No.1 and one Vipul had caught hold of the deceased and respondents Nos.2, 3 and 4

were giving him knifeblows on the head, neck, and back. The names of respondents Nos.4 and 5 have not been mentioned in the complaint at all

and there is nothing on record to show that Vipul is, in fact, respondent No.4. How the complainant has arrived at this conclusion is a mystery.

Even the Investigating Officer has stated that he has not done any investigation into this aspect.

(12) That the scooter of the deceased that was found lying on the spot has not been seized. In the Panchnama of the scene of offence, it is stated

that chilli powder was found lying under the scooter, which was not touched. Later on, in the same Panchnama, it is stated that the chilli powder

was taken into possession by the Police. The significance, or otherwise, of the chilli powder being found on the spot has not been brought on

record and neither has it been sent for forensic examination.

(13) That, if five knives were discovered by the prosecution, four supposedly covered with BGroup blood, it is not possible to believe the version

of the eyewitnesses that some of the accused persons had caught hold of the deceased. Nobody could have given knife blows at the same time as

holding the deceased.

(14) That the above are some of the telling circumstances emerging from the record which totally falsify the evidence of the socalled eyewitnesses,

who are only chance witnesses. The testimonies of such witnesses cannot be believed and conviction cannot be based on such contradictory

evidence, especially when the eyewitnesses are related and interested ones. No independent corroboration of the incident has emerged on record

and independent witnesses have not been deliberately produced.

(15) That the medical evidence falsifies the case of the prosecution as the knives recovered were sharp on one side and blunt on the other, which

does not correspond with the injuries on the body of the deceased. PW1, the Doctor, has stated in crossexamination that if a weapon is sharp on

one side and blunt on the other, there would be a clear cut injury on one side and a blunt injury on the other side which is not the case as the

injuries received by the deceased were not such that could be caused with a weapon of which one side was blunt.

(16) That the learned Sessions Judge has taken each and every relevant aspect of the oral and documentary evidence into consideration and

arrived at a correct conclusion after appreciating the same. There is no illegality or perversity in the judgment of the Sessions Court so as to invite

the interference of this Court.

(17) That, in an appeal against acquittal where two views are possible, the view favourable to the accused ought to be taken. In the present case,

on the basis of the evidence on record, only one view is possible and that is the acquittal of the accused.

In support of the above submissions, learned counsel for the respondents has placed reliance upon the following judgments:

(i) Md. Sajjad alias Raju alias Salim v. State of West Bengal - (2017)11 SCC 150, (ii) State of Gujarat v. Mahmad @ Munno Usmanbhai

Chauhan - 1996(2) GLR 821 and (iii) State of Gujarat v. Chhanabhai Mangalbhai - 1991(1) GLR 15 on the point of T.I.Parade, (iv) B.N.Singh v.

State of Gujarat - AIR 1990 SC 1628 on the point of improbability of version of witnesses that accused had caught hold of deceased and the

remaining were inflicting knife blows, (v) S.Anil Kumar alias Anil Kumar Ganna v. State of Karnataka - (2013)7 SCC 219, (vi) S. Sejappa v.

State by Police Inspector Lokayukta, Chitradurga - (2016)12 SCC 150 and (vii) Hakeem Khan And Others v. State of Madhya Pradesh -

(2017)5 SCC 719, on the scope of appeal against acquittal.

On the basis of the above submissions, it is urged that the appeal and the revision application may be dismissed.

In the background of the above submissions, we may now briefly evaluate the salient features of the oral and documentary evidence on record.

Dr.Ashokkumar Dinkarray Pandya, has been examined as PW1. He has conducted the postmortem on the body of the deceased and has

noticed about twentythree external injuries and nine internal injuries, as described in the postmortem report. Though he has stated in his

examinationinchief that the injuries could have been caused by the Muddamal knives, however, in crossexamination, he has stated that all the

Muddamal knives are sharp on one side and blunt on the other side and if an injury with such a knife is inflicted, then one side of it would be

serrated, which is not the case. However, the injuries received by the deceased are not of such a nature.

PW2 Hanifkhan Hasankhan Pathan is the complainant and the uncle of deceased Firoz. He has deposed that on the day of the incident, he was

returning to Bhavnagar in his taxi. He reached Crescent Chowk at about 10:30 PM and saw his nephew being caught hold by respondent No.1

while respondent No.2, who had a knife in his hand, was giving knifeblows on his neck. One Vipul was also present there with a knife and was

inflicting blows with it on the neck of the deceased. Both the accused persons were also inflicting knifeblows on other parts of the body of the

deceased. Two unknown persons were standing there and instigating the accused persons by saying, ""kill him, he should not be left alive"". Upon

the incident taking place, several persons gathered at the spot and all five accused persons ran away. The motive for the incident has also been

stated by this witness, as being a grievance harboured by the accused persons regarding an incident that took place four days ago, when

respondents Nos.1 and 2 came to the office of the father of the deceased and pelted stones, breaking the glass signboard. This witness also states

that when the incident regarding breaking the signboard took place, the deceased and respondents Nos.1 and 2 had an altercation leading to a

quarrel. However, if the complaint is seen, there is no mention in it regarding the altercation and the quarrel between the deceased and respondents

Nos.1 and 2. This witness further states that he asked PW3 Abdulbhai Samadbhai to take the deceased to the Hospital in a rickshaw that was

passing by. Though he was driving a taxi, he did not think it fit to take the deceased to the Hospital in the taxi. He, himself, went to inform the

father of the deceased regarding the incident. He states that one Babul Ibrahimbhai, the rickshaw driver and himself helped put the deceased in the

rickshaw. The deceased was covered with blood and his clothes were also soaked with blood. He, however, states that his own hands and clothes

did not get covered with blood at all, though the clothes of Babul Ibrahimbhai, the rickshaw driver, became bloodstained.

In crossexamination, this witness states that he stopped his taxi because he saw the scooter belonging to Firoz lying there. Before that, he had

not seen Firoz. He states that he stopped his car at a distance of five feet from the scooter. However, it does not transpire from the evidence of this

witness that he made any attempt to save Firoz from the assault. In fact, he says that when he contemplated intervening, the assailants had ran

away. PW2 further states that there are two roads to his house, one a shorter one and the other a long one. The route which he took on that day

was the longer one, which took him through Crescent Chowk, where the incident took place. This witness further states that the person whom he

knew as Vipul used to work at a place known to him. Upon making inquiries from his employer, he found that he was respondent No.4. He,

however, admits that he has not stated so in his statement before the Police that he recognises Vipul as accused No.4.

PW3 Abdulbhai Samadbhai, aged fifty years, is an handicapped eyewitness who had lost his right arm several years prior to the incident. He is

the person who was deputed by PW2 to take the deceased to Hospital in a rickshaw. He and PW4 Aiyubkhan Hamidkhan are stated to have

come there at the time of the incident. Both PW3 and PW4 state that they had gone to the Lorry near Sardar Smruti at about 10:30 PM on the

day of the incident, to have ''PavBhaji''. They heard the sound of a scooter falling to the ground. They got up and were about to go there when they

saw that two persons, namely, respondents Nos.1 and 4, had caught hold of Firoz and respondents Nos.2, 3 and 5, all of whom had knives in

their hands, were inflicting blows with the knives on his head, neck and back and other parts of the body. As it was Sunday, there were several

people at the Lorries serving snacks at that place. One Rafikbhai was also present at the spot. The deceased had fallen to the ground and was

bleeding from the injuries on all parts of his body. Hanifkhan Hasankhan (PW2), uncle of the deceased, came there and stopped a rickshaw that

was passing by. Aiyubkhan Hamidkhan, Rafikbhai and Hanifkhan Hasankhan lifted the deceased and put him in the rickshaw. Hanifkhan told him

to accompany the deceased to the Hospital. Rafikbhai and Aiyubkhan followed in another rickshaw. He states that though he is handicapped, he

was made to go in the rickshaw alone. He was in no position to lift the deceased out of the rickshaw alone.

The testimony of PW4 Aiyubkhan Hamidkhan regarding the role played by the respondents in the incident is similar to that described by PW3.

PW5, the Panch witness of the Discovery Panchnama at the behest of respondent No.4, PWs6 and 7, the Panch witnesses of the clothes and

knife recovered from respondent No.3, PW10, the Panch witness of the Panchnama regarding discovery of knife at the behest of respondent

No.2, and PW11, the Panch witness of the Panchnama of discovery of knife at the behest of respondent No.5, have turned hostile. PW8

Nautamlal Shantilal is the Police Constable who had handed over the dead body of the deceased to his family after the postmortem and had

handed over the clothes worn by the deceased to the Police Station under a Panchnama.

PW9 Murtuja Babubhai Kazi, the Panch witness of the Scene of Offence, has deposed that the scooter of the deceased was lying at the scene

of offence and red coloured chilli powder was found under the scooter, which was left as it was at the spot. He states that in the Panchnama of the

Scene of Offence, it is initially stated that the chilli powder was left at the spot but after a few lines, it was stated that it was taken into custody,

which is not correct. According to this witness, the chilli powder was left at the spot and it was not taken into custody or sealed in their presence.

Mulshankar Labhshankar Jani, the Executive Magistrate who conducted the T.I.Parade has been examined as PW12. He has stated that he

did not issue any summons to the witnesses to appear for the parade. He has further stated that three accused persons (respondents Nos.3, 4 and

5) and seven dummy persons were kept standing in a line. He admits that the accused persons were not brought before him in secrecy and nor

were their faces covered. Neither was he informed regarding the ages and description of the accused persons before the parade was commenced.

The Executive Magistrate has clearly stated that he told the Police Inspector, Shri Bharda, that there was no point in holding the T.I.Parade after

such a long delay.

Jetsinh Bhurabhai Parmar, the first Investigating Officer, has been examined as PW13. He has stated that the names of the accused persons

were not disclosed until 11:45 AM on the day after the incident. In contradiction to what is stated by the Panch witness of the Panchnama of the

Scene of Offence, this witness states that the chilli powder found under the scooter lying at the spot was seized. However, the chilli powder does

not appear to have been sent to the FSL as there is no report regarding it. Though the names of the accused persons were disclosed only at 11:45

AM the next day as per the testimony of this witness, he states that the houses of the accused persons were raided between 8:00 to 10:30 PM.

This aspect is taken note of by the learned Trial judge as being one of the concocted pieces of evidence to implicate the accused persons.

This witness admits in crossexamination that the clothes of the eyewitnesses were not taken into custody and no investigation was done by him

regarding the identity of Vipul, who is stated to have inflicted knifeblows on the deceased as per the testimony of PW2. He further states that he is

aware of the importance of the evidence of bloodstains in the rickshaw of Babul Ibrahimbhai, in which the deceased was taken to the Hospital, but

the Panchnama of the rickshaw was not done. This is another example of shoddy investigation.

The second investigating officer Ramjibhai Nathalal Bharda has been examined as PW14. The alleged recovery and discovery of the knives

from the respondents have taken place in his presence. This witness has admitted that he has carried out no investigation into the aspect that Vipul

is, in fact, respondent No.4.

After independently reevaluating and appreciating the entire oral and documentary evidence on record minutely, we find the following aspects

emerging for consideration:

(a) There are serious and major contradictions in the versions of the three eyewitnesses regarding the same incident alleged to have been witnessed

by them. PW2, the complainant, states that respondent No.1 had caught hold of the deceased and respondent No.2 and one Vipul, who had

knives in their hands, were giving him knifeblows on the neck of the deceased. Two unknown persons were instigating respondent No.2 and Vipul

that the deceased should not remain alive. The name of respondent No.4 does not figure in the complaint and neither have the two unknown

instigators been named in the complaint.

(b) In contradiction to the above version, PWs3 and 4, who state that they were together when they witnessed the incident, have deposed that two

persons, namely respondents Nos.1 and 4 had caught hold of the deceased while respondents Nos.2, 3 and 5 were inflicting knife blows on the

neck, head, back and other parts of the body of the deceased. It is not possible for two sets of eyewitnesses to see the same incident, where the

roles alleged to have been played by the accused persons differ so vitally.

(c) One knife and two sheaths were found from the spot and two knives have been recovered from the accused persons and two were allegedly

discovered at the behest of the accused persons. When, according to PW2, two persons were giving knife blows and according to PWs3 and 4,

three persons were giving knife blows to the deceased, how can it be possible that five knives have been discovered by the prosecution. The

person(s) holding the deceased could not have possibly inflicted knife blows on the deceased at the same time. Neither is it the case of the

prosecution that while catching hold of the deceased, they were also in possession of knives and were simultaneously inflicting blows. It is a most

improbable scenario which does not match with the recovery /discovery of the weapons.

(d) Out of five, four knives were sent to the FSL. All were found to be stained with human blood of BGroup. It is an admitted fact that the

bloodgroup of the deceased was not got determined. It cannot, therefore, be presumed that the blood on the knives was that of the deceased. On

the other hand, the bloodgroup of the respondents was determined. The bloodgroup of respondent No.1 was AB+ve, that of respondent No.2

was A+ve, and respondents Nos.3, 4 and 5 had B+ve bloodgroup. The clothes of the respondents that were sent to the FSL were found to be

stained with blood of BGroup. In a scenario where three of the accused persons had the same bloodgroup as found on the knives and clothes and

the bloodgroup of the deceased was not determined, the report of the FSL does not carry much weight.

(e) The identity of respondent No.4 has also not conclusively proved, insofar as the evidence of PW2 is concerned. He has referred to him as

Vipul. There is no evidence on record to indicate that Vipul is, in fact, respondent No.4. This aspect has been admitted by the Investigating Officer

who has stated that he has conducted no investigation into the aspect whether the person referred to as Vipul by PW2 is, in fact, respondent No.4.

How respondent No.4 has been roped in is not at all clear.

(f) The names of respondents Nos.3 to 5 have not been mentioned in the complaint. Two persons are stated to have been unknown to the

complainant. Who these two unknown persons are and how they have been identified as some of the accused persons, is not clear from the

record.

(g) The conduct of PW2 is unnatural. Being the real uncle of the deceased, the natural reaction of seeing his nephew being stabbed would have

been to rush to his aid, which he did not do. Though he had a taxi at hand, he chose to send the deceased to the Hospital in a rickshaw with PW3,

who was handicapped and was not in a position to lift him out of the rickshaw. He, himself, went in his taxi to inform the father of deceased and

came to the hospital later.

(h) PW2 is the uncle of the deceased. PW3 is wellknown to the deceased and PW4 is related to him. All three eyewitnesses are related and

interested eyewitnesses. The testimony of related witnesses would not normally be discarded only on the ground of their relationship, however, it is

required to be corroborated by independent evidence. In the present case, it has come in the evidence of all three eyewitnesses that there were

several people at the spot when the incident took place. In fact, it is stated that people were running helterskelter. Even then, the prosecution did

not choose to examine any independent witness. Several lorries selling snacks were at the spot but the lorry owners were not examined. The

rickshaw driver who took the deceased to the Hospital in his rickshaw was not examined, which is a serious lapse on the part of the investigation.

The rickshaw would have been covered with blood but it was not taken into custody or a Panchnama of it drawn. The investigation into the case

appears to be casual and lackadaisical, aimed only to effect manipulations of the evidence rather than to unearth the truth.

The T.I.Parade has been conducted one month and eighteen days after the incident. In State of Gujarat v. Chhanabhai Mangalbhai (supra),

relied upon by learned counsel for the respondents, the requirements of the Gujarat Police Manual, 1975, regarding the procedure to be followed

for holding of a T.I.Parade, have been discussed. In the present case, the investigating agency seems to have thrown the procedure, rules and

regulations to the winds while conducting the T.I.Parade. Apart from three accused persons, only seven persons took part, whereas the proportion

of 9:1 for every additional accused has to be maintained. In order to identify three accused persons, at least twentyseven persons should have been

brought, which was not done. No attempt was made to segregate the accused persons from the Police.

Regarding the delay in holding the T.I.Parade, the Supreme Court has stated in Md. Sajjad alias Raju alias Salim v. State of West Bengal

(supra) as below:

In the instant case none of the witnesses had disclosed any features for identification which would lend some corroboration. The identification

parade itself was held 25 days after the arrest. Their chance meeting was also in the night without there being any special occasion for them to

notice the features of any of the accused which would then register in their minds so as to enable them to identify them on a future date. The chance

meeting was also for few minutes. In the circumstances, in our considered view such identification simplicitor cannot form the basis or be taken as

the fulcrum for the entire case of prosecution. The suspicion expressed by PW 8 Saraswati Singh was also not enough to record the finding of guilt

against the appellant. We therefore grant benefit of doubt to the appellant and hold that the prosecution has failed to establish its case against the

appellant.

Learned Additional Public Prosecutor has relied upon Pramod Mandal v. State of Bihar (supra), in order to submit that the delay of one month

in holding T.I.Parade is not fatal, as held by the Supreme Court. However, in the same judgment, the Supreme Court has stated that there is no

fixed rule as regards the period within which the T.I.Parade has to be held or number of identifying witnesses. It is for the Court to decide on the

facts and circumstances of the case and evidence on record whether to accept or reject the evidence on record and whether or not to accept or

reject the evidence of identification. In the present case, the manner in which the T.I.Parade has been held and the evidence regarding it is such that

it inspires no confidence. Therefore, in our view, no value can be attached to such a T.I.Parade.

In B.N.Singh v. State of Gujarat (supra), relied upon by learned counsel for the respondents, the Supreme Court has held that the version of

witnesses that three accused caught hold of the deceased and the remaining were inflicting knife blows is improbable in view of the injuries found all

over the body of the deceased. In the present case as well, the improbability of the infliction of knifeblows all over the body of the deceased while

allegedly catching hold of him by respondent No.1 as per the version of PW2 and respondents Nos.2 and 4 according to PWs3 and 4, is quite

apparent. If two persons had caught hold of the deceased, he would not have received knife injuries all over his body, especially on his head and

the back.

The scope of interference in an appeal against acquittal has been delineated by the Supreme Court in the judgments cited by the learned

counsel for the respondents. In S.Anil Kumar alias Anil Kumar Ganna v. State of Karnataka (supra), the Supreme Court has held that if a view has

been taken by the Trial Court which is not perverse, it is not upon the appellate Court to substitute such view to reappreciate the evidence for

coming to a difference conclusion. The relevant extract of the judgment is reproduced hereinbelow:

This Court in the case of Rohtash vs. State of Haryana, (2012) 6 SCC 589, held that only in exceptional cases where there are compelling

circumstances and where the judgment in appeal is found to be perverse, the High Court can interfere with the order of acquittal. In the said case

the following observation was made by this Court:

The High Court interfered with the order of acquittal recorded by the trial court. The law of interfering with the judgment of acquittal is well

settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be

perverse, the appellate court can interfere with the order of the acquittal. The appellate court should bear in mind the presumption of innocence of

the accused and further that the trial court''s acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view

is possible should be avoided, unless there are good reasons for interference.

We have gone through the evidence of the prosecution witnesses PWs.1, 10 to 16 and 21 relied on by the prosecution. We find that there are

contradictory statements which cannot be stated to be a minor contradiction as was suggested by the learned Addl.SSP before the Appellate

Court. The improvement in the statements of PW.1 and 12 is clear. The allegation about the demand of dowry of Rs.1,50,000 and 800 gms. of

gold ornaments and harassment and torture made by accused No.1 on deceased was not disclosed and mentioned in the First Information Report

or before the Tahsildar(PW.21) who recorded the initial evidence. In Ex.P.2 and complaint Ex.P.3 absolutely there is no evidence to show that

Rs.25,000 was demanded and Rs.10,000 was given to accused No.1 either at Benali or at Mysore. Further, payment of Rs.50,000 and 500 gms.

of gold to accused No.1 as dowry was also not established beyond reasonable doubt.

Once the prosecution failed to prove the basic ingredients of harassment or demand of dowry and the evidence brought on record were

doubted by the trial court, it was not open to the High Court to convict accused No.1 on presumption referring to Section 113A or 113B of the

Evidence Act. The presumption of innocence of the accused being primary factor, in absence of exceptional compelling circumstances and

perversity of the judgment, it was not open to the High Court to interfere with the judgment of the trial court in a routine manner.

Applying the above principles of law to the present case, we find that there is no perversity or illegality in the impugned judgment of the Trial

Court. On the contrary, the view taken by the Trial Court is very much possible and probable, on the basis of the evidence adduced before it. The

present is not an exceptional case and there are no compelling circumstances in order to persuade this Court to reverse the judgment of acquittal.

The evidence adduced by the prosecution is insufficient to lead to the irresistible conclusion, beyond reasonable doubt, regarding the involvement

of the respondents in the commission of the offence.

Under the circumstances, the appeal fails and stands dismissed. Consequently, the revision application also stands dismissed.

Bail Bonds, if any, stand cancelled. The R.& P. be sent back to the Trial Court.