State of Gujarat Vs Kishanbhai Etc, on 7th January, 2014, Supreme Court Of India: Case Comment

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Bench: Chandramauli Kr. Prasad, Jagdish Singh Khehar

Criminal Appeal No. 1485 of 2008

Statement of Facts

The Six years old girl (deceased girl) was, allegedly, kidnapped by accused by enticing the girl with a “gola” (crushed ice, with sweet flavoured syrup), and thereby taking her to one field for committing raped on her. Further, it is alleged that, accused after committing rape had murdered the deceased girl by inflicting certain injuries on head and other parts of her body with bricks. Moreover, the accused had allegedly chopped off her feet for stealing the anklets worn by her. The accused then had pledged the anklets at the jewellery shop. Some of the persons searching deceased girl caught the accused and on he was asked he stated that he had not taken her away, but he informed them that she could be at field concerned. The body of deceased girl was found from the same field stated by accused. As such the Investigating Officers had filed charge-sheet against accused person under Sections 363, 369, 376, 394, 302 and 201 of the Indian Penal Code, 1860 and Section 135(1) of the Bombay Police Act. Inorder to complete the chain of circumstances resulting in occurrence the prosecution led certain evidences including testimony of witnesses and documentary evidences and also emphasised the recovery of blood stained weapon used in commission of offence and medical evidence.

Procedural History

In the process of trial of the matter, the prosecution led the evidences and statement of accused recorded under section 131 of the Code of Criminal Procedure, 1973, where he had denied his involvement in the occurrence. The accused not led any evidence to support his defence. On examination of evidences led by prosecution and statement of accused, the Session Court by a separate order sentenced the accused to death by hanging, subject to confirmation of High Court of Gujarat. Pending confirmation proceedings, the accused had preferred criminal appeal before High Court of Gujarat. However, the High Court acquitted the accused by giving him benefit of doubt. Finally, the matter is appealed before Hon’ble Supreme Court by State after succeeding in the special leave petition for filling appeal.


The issue before Hon’ble Supreme Court was to determine that whether or not a complete chain of events stand established from the evidence produced by the prosecution so as to establish the guilt of accused based on circumstantial evidence.


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The Court dealt with discrepancies found in the evidence produced by the prosecution before the Court of Session. Firstly, the post mortem which was showing that the injuries caused to deceased girl were post mortem in nature. Considering the question as to whether the injuries had been inflicted first and thereupon, rape was committed on the deceased girl, the Court observed that, it is natural to assume that, the first act of aggression by the person committing assault on deceased girl, was by inflicting injuries on her head and other parts of the body, only thereafter the legs would have been cut. Similarly, Court had negativities the query by holding that it impossible for even the most perverted person, to have committed rape on already killed girl. Secondly, the report submitted by Forensic Science Laboratory did not reveal that, any semen stain or any blood stain found on the pubic hair of the accused even though there it was found in the Post Mortem Report that there was blood on vagina of the deceased girl. As such, accused was prima facie could be saved from the offence of rape. Further, the factual position noticed by the Court was different from what had been expressed by the Complainant. All the facts led to show that there was suspicion in the manner investigation of the matter was conducted. Even the testimonies of Prosecution Witnesses were appeared to be suspicious in respect of occurrence and entire background of the case. The investigating agency though was aware from the disclosure of information by accused about weapon that the said weapon was taken from the shop of PW6, the agency had not recorded the statement of this PW6 immediately even after the fact that his statement was of importance. Thus, this also brought the story of prosecution under doubt as to its correctness. All these circumstances were in the opinion of the Court were sufficient to bring the attention of the Court about the reality of the case. Story narrated by prosecution was mainly based on testimonies of certain prosecution witnesses including Complainant and others, however, such testimonies were highly unreliable due to inconsistencies existed therein. Thus, there was no oral evidence. As such, the Court found no merits in the submissions raised by learned counsel for State. Hence the Court found no merits in the appeal and consequently the said appeal was dismissed. Moreover, it was observed that, the investigating agency and prosecutors presenting this case were miserably failed in discharging their duties and the misery of the family of deceased girl had remained unsolved.


The judgment is very landmark so far as it is dealing with the ever coming controversy while a criminal matter is dealt with. In every kind of criminal prosecution the actual meaning of justice is always seen, more or less, hidden. It can be said that in criminal cases the first or most important factor i.e. the witnesses as to occurrence are under fear that if they will give their statement to the police then they will definitely be called to attain the judicial proceedings relating thereto. As such many time it could be seen that in the country like India where large number of population comes below the required level of education, the actual witnesses to the occurrence in criminal cases are not taking initiative to come forward and speck truth. Hence, the second important factor i.e. the Investigation agency assumes importance as to gather evidences as to occurrences. However, if such agency will also not take effective step in gathering such evidences the actual meaning of justice will never be attained by the Courts and victims as well as innocent persons will suffer the heavy loss. The Court has its responsibility in respect of the cases put before it and this Court had discharge its responsibility by going through the case and providing a detailed conclusion thereof. And this was specifically mentioned in judgement by this Court as “we discharge our responsibility in deciding the instant criminal appeal, we proceed to apply principles of law, and draw inferences. For, that is our job. We are trained, not to be swayed by mercy or compassion. We are trained to adjudicate without taking sides, and without being mindful of the consequences. We are required to adjudicate on the basis of well drawn parameters. We have done all that.”[1] Besides, the Court had correctly given its opinion on the real fact that, in such criminal cases there can often be seen an acquittal, the consequences are just the same, which had been observed in this present case and thus, the purpose of justice cannot be achieved[2]. Similarly, the default committed by investigating agency became most effective reason for which the accused was given benefit of doubt by High Court and also by this Court. Besides this the Court considered the miserable fact that if the accused would have been falsely involved by prosecution or investigating agency, then the consequences on his conviction would had been very harsh as the criminal litigation could also involve the financial borrowings. The Court has rightly observed that in numerous petitions before this Court (Supreme Court) wherein the petitioners praying acquittal against the judgements of lower Courts wherein such petitioners were convicted, but till they would continue in confinement during the appellate stages also, and in matters which reached the Supreme Court, till the disposal of their appeals by this Court and when the time of their acquittal comes, they may have undergone long years of custody[3]. Therefore the direction provided by the Hon’ble Supreme Court in this judgment is of greater importance, i.e. “on the completion of the investigation in a criminal case, the prosecuting agency should apply its independent mind, and require all shortcomings to be rectified, if necessary by requiring further investigation. It should also be ensured, that the evidence gathered during investigation is truly and faithfully utilized, by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented during the trial of a case. This would achieve two purposes. Only persons against whom there is sufficient evidence, will have to suffer the rigors of criminal prosecution. By following the above procedure, in most criminal prosecutions, the concerned agencies will be able to successfully establish the guilt of the accused.”[4] There are ever coming fault on the part of investigation agencies when any innocent person is wrongly taken as accused for committing any crime. The Court had observed that there is a failure of the judiciary if any there is an acquittal in any case. And therefore, the Court had directed Home Department of the State to examine all such orders of acquittal to view on the reasons as to why the prosecution failed. Not only this, but the Court had also provided that, there should be existing training programmes for junior and senior investigation and for even junior and senior prosecution officials. Moreover, the Court while direction such training programme also direct that such programme should be put in place within six months. Further the Home Departments of every State Government were also directed to formulate a procedure for initiating action against all erring investigating or prosecuting officials and should subject such officials to suffer departmental action.

The Court has not only solved out the case before it, but also dealt with the most significant question relating to prosecution of criminal cases. Hence the judgment is very much effective and if properly implemented will definitely serve as best measure to fill the lacunas on the way of attaining justice.

by Faim Khalilkhan Pathan


  1. See Paragraph 16 of the Judgment
  2. See Paragraph 17 of the Judgment
  3. See Paragraph 18 of Judgment
  4. See Paragraph 19 of the Judgement.
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See Original Judgement: State of Gujarat Vs Kishanbhai