Mere existence of motive to commit an offence by itself cannot give rise to an inference of guilt nor can it form the basis for conviction

Needless to say motive is that which impels a person to do a particular act. There can be no action without a motive. Motive may create a very strong suspicion but it cannot take the place of proof. Mere possibility of existence of motive cannot make the accused guilty, as held by the Hon'ble Apex Court in the case of Sarwan Singh Rattan Singh vs. State of Punjab. Where the prosecution case depends on circumstantial evidence, motive assumes significance and goes a long way to prove the case of the prosecution as held by the Hon'ble Apex Court in the case of Shivaji vs. State[Para No.36]

   Mere existence of motive by itself is not an incriminating circumstance and it cannot give rise to an inference of guilt nor can it form the basis for conviction. Motive for the crime, even if adequate, cannot by itself sustain a criminal charge. In the case in hand, we have discussed elaborately how the prosecution is found wanting in establishing the "last seen" theory. Therefore, practically, there is no evidence to establish any of the circumstances, which in such type of cases, need to be established by the prosecution and even if we assume for the sake of argument that the accused was harboring a motive to commit the murder of the deceased, that in itself, for want of other positive evidence, will not sail the prosecution through.[Para No.37]

Investigating Officer cannot withheld relevant evidence that would favour the accused and in such cases adverse inference can be drawn against prosecution

If it appears impossible to convict accused inspite of witnesses are presumed to be true without any cross examination, the accused deserves to be discharge

    The Hon'ble Supreme Court in the case of Manjeet Singh Khera Vs. State of Maharashtra: 2013 (9) SCC 276 held as under:

"........8. The Court also noticed that seizure of large number of documents in the course of investigation of a criminal case is a common feature. After completion of the process of investigation and before submission of the report to the Court under Section 173 Cr.P.C, a fair amount of application of mind on the part of the investigating agency is inbuilt in the process. These documents would fall in two categories: one, which supports the prosecution case and other which supports the accused. At this stage, duty is cast on the investigating officer to evaluate the two sets of documents and materials collected and, if required, to exonerate the accused at that stage itself. However, many times it so happens that the investigating officer ignores the part of seized documents which favour the accused and forwards to the Court only those documents which supports the prosecution. If such a situation is pointed out by the accused and those documents which were supporting the accused and have not been forwarded and are not on the record of the Court, whether the prosecution would have to supply those documents when the accused person demands them? The Court did not answer this question specifically stating that the said question did not arise in the said case. In that case, the documents were forwarded to the Court under Section 173(5) Cr.P.C. but were not relied upon by the prosecution and the accused wanted copies/inspection of those documents. This Court held that it was incumbent upon the trial court to supply the copies of these documents to the accused as that entitlement was a facet of just, fair and transparent investigation/trial and constituted an inalienable attribute of the process of a fair trial which Article 21 of the Constitution guarantees to every accused. We would like to reproduce the following portion of the said judgment discussing this aspect:

"21.The issue that has emerged before us is, therefore, somewhat larger than what has been projected by the State and what has been dealt with by the High Court. The question arising would no longer be one of compliance or non- compliance with the provisions of Section 207 Cr.P.C. and would travel beyond the confines of the strict language of the provisions of Cr.P.C. and touch upon the larger doctrine of a free and fair trial that has been painstakingly built up by the courts on a purposive interpretation of Article 21 of the Constitution. It is not the stage of making of the request; the efflux of time that has occurred or the prior conduct of the accused that is material. What is of significance is if in a given situation the accused comes to the court contending that some papers forwarded to the court by the investigating agency have not been exhibited by the prosecution as the same favours the accused the court must concede a right to the accused to have an access to the said documents, if so claimed. This, according to us, is the core issue in the case which must be answered affirmatively. In this regard, we would like to be specific in saying that we find it difficult to agree with the view taken by the High Court that the accused must be made to await the conclusion of the trial to test the plea of prejudice that he may have raised. Such a plea must be answered at the earliest and certainly before the conclusion of the trial, even though it may be raised by the accused belatedly. This is how the scales of justice in our criminal jurisprudence have to be balanced."[Para No.63]

Where a party to the suit does not appear in the witness-box and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct

The fact remains that there is no evidence on record to hold that defendant No.1 Dashmat Bai admittedly, firstly married Kunjilal, but there is no evidence on record to hold that whether he or she divorced each other and marriage between Kunjilal and Dashmat Bai had ever been validly dissolved. Similarly, it is the further admitted position on record that Dashmat Bai entered into marriage with Latel, but there is no evidence that divorce ever took place between them and thirdly, the alleged third marriage of Dashmat Bai with Sukhdev i.e. she has lastly married Sukhdev in Chudi form. Father of defendant No.1 Dashmat Bai namely, Jaitram (DW-1) has categorically stated that he was not present at the time when Dashmat Bai allegedly entered into marriage in Chudi form with Sukhdev. It is quite unnatural that father will not remain present at the time of such an important ceremony i.e. marriage of his daughter with a person namely Sukhdev. Similarly, Dashmat Bai herself could have entered into the witness-box and offered herself for cross-examination in absence of which adverse inference could be drawn against her.[Para No.20]

   The Supreme Court in Vidhyadhar (supra) has clearly held that where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. This decision has further been followed by their Lordships of the Supreme Court in Man Kaur (supra).[Para No.21]

Defence story has to be suggested in cross examination

Importance of putting defence story in cross examination of witness - No suggestion is given to witness in the cross examination about the story put forwarded by accused  in his statement u/s.313 of Cr.P.C.

Held:

   
   When the defence did not put any question to the witness in the cross-examination on a material point, it cannot subsequently raise any grievance on such point. When it is intended to suggest that a witness is not speaking the truth on a point, it is absolutely essential to direct his attention to the disputed facts and grant him opportunity to offer his explanation on that point. It is a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised. [Para No.19]

Can adverse inference be drawn against prosecution for non examination of Investigating Officer?

The investigating officer was not brought before the Court for the reasons best known to it.

Thus, the defence was deprived of the opportunity of proving this material omission for want of presence of investigating officer. In such a situation an adverse inference must be drawn against the prosecution.