Gujarat High Court
Ramsingbhai Samjibhai Bhabhor vs State Of Gujarat on 26 June, 2025
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
NEUTRAL CITATION
R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1246 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
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Approved for Reporting Yes No
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RAMSINGBHAI SAMJIBHAI BHABHOR
Versus
STATE OF GUJARAT
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Appearance:
MR VIJAY PATEL FOR HL PATEL ADVOCATES(2034) for the Appellant
MR LB DABHI APP for the Respondent
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 26/06/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. This criminal appeal preferred by the sole accused Ramsingh Samjibhai Bhabhor, under Section 374(2) of the Code of Criminal Procedure, 1973 ('Cr.P.C.', in short) is directed against the judgment of conviction and order of sentence dated 30.06.2012 passed by the learned Principal Sessions Judge, Dahod in Sessions Case No.16 of 2009 by which the appellant Page 1 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined accused has been convicted under Sections 302, 316 and 201 of the Indian Penal Code and sentenced as tabulated hereinunder:
Conviction Punishment Fine In
under Section default
of fine
Section 302 of IPC RI for Life Rs.5,000/- RI for 2
years
Section 201 of IPC RI for 2 years Rs.500/- RI for 3
months
Section 316 of IPC RI for 5 years Rs.1,000/- RI for 6
months
2. The case of the prosecution leading to conviction of the appellant accused is as follows:
2.1 Accused Ramsingh despite of his marital status as married, he had illicit relationship with deceased Urmila, as a result, she got pregnant. She insisted on staying with the accused after she became pregnant.
The accused was being married person and having a child, refused to keep the deceased as his wife. On account of continuous pressure of the deceased, the accused made a plan to kill her. The deceased at the time of incident, was residing with her maternal uncle at Dahod and then she had joined knitting classes. In relation, the appellant-accused was cousin brother-in- law of the deceased. On 22.09.2008, the deceased was taken to forest area by the accused on his bike. While reaching at the Amba Road, Village Dagariya, Page 2 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined the accused took out cotton string and strangulated the deceased. The dead body of the deceased was thrown nearby ditch. The family members had made extensive search of the deceased. The dead body of the deceased found on 25.09.2008, which was identified by the witnesses, complainant and family members. The Limbdi Police, Dahod, registered an FIR allegedly lodged by the sister of the deceased against the unknown person inter alia alleging that unidentified person killed her sister. The body of the deceased sent for post-mortem. At the time of incident, she carried five months pregnancy. The present appellant was detained on suspicion by the police. During the interrogation, it revealed that since last 10 months from the date of the incident, the deceased was in relationship with the accused, as a result, she got pregnant. The said relationship was not known to anyone. On 21.09.2008, the deceased stayed at house of her classmate Sakuntala and from the house of Sakuntala on 22.09.2008, she was in touch with the appellant accused on mobile. The DNA report confirmed that the accused was the biological father of foetus. In such circumstances, on 17.10.2008, police arrested the accused. The family members went to the police station where the accused made an extrajudicial confession before them, admitting the facts that after the pregnancy, Page 3 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined the deceased was pressuring him to keep her as wife which could not be possible for him, as a result, he has no option, but to kill the deceased. During the course of investigation, the accused voluntarily saw the place of the incident, and upon his disclosure statement, the police had seized and recovered the mobile, two sim cards, and one motorbike allegedly used in commission of the offence. The I.O. during the investigation, recorded the statement of the witnesses, drew the various panchnama in the presence of witnesses, sent the seized articles to FSL for chemical analysis, obtained the necessary papers from the hospital and finally, found sufficient material for the charge of murder and causing death unborn child. The chargesheet in this regard under Sections 302, 316 and 201 of the IPC came to be filed before the Magisterial Court who had committed the case to the Sessions Court, Dahod.
3. After due framing of charge, and upon accused not pleading guilty, the trial commenced before the Sessions Court, Dahod. The prosecution examined following witnesses and exhibited the documents:
Oral evidence PW 1 - Exh.6 Dr. Arvind B. Vashney, Medical Officer PW 2 - Exh.13 Ninama Ambaben Harsingbhai, Complainant Page 4 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined PW 3 - Exh.16 Ninama Labuben Harsingbhai PW 4 - Exh.19 Hrsingbhai Valjibhai Ninama PW 5 - Exh.20 Kachrabhai Manabhai, Panch Witness PW 6 - Exh.22 Babubhai Kalubhai Kishori, Panch Witness PW 7 - Exh.24 Kantilal Ramsubhai Sangada, Panch Witness PW 8 - Exh.26 Subhashbhai Ramsubhai Hathila, Panch Witness PW 9 - Exh.28 Rameshbhai Nathabhai, Panch Witness PW 10 - Ninama Nareshbhai Harsingbhai Exh.30 PW 11 - Ninama Sureshbhai Harsingbhai Exh.31 PW 12 - Jivaji Adkhaji Bhagora, PSI Exh.34 PW 13 - Jayprakash D. Sutariya, Investigating Exh.35 Officer PW 14 - Rameshbhai Surpalbhai Damor, ASI Exh.36 PW 15 - Kailash Ramchandra Dimri, Exh.38 Investigating Officer Documentary evidence Exh.07 PM Note of deceased Exh.8 Death Certificate Exh.14 FIR Exh.21 Panchnama of place shown by accused Exh.23 Recovery panchnama of mobile phone and motor cycle Exh.25 Inquest Panchnama Exh. 27 Panchnama of place of offence Exh.32 Panchnama of list of articles recovered from deceased Exh.33 Panchnama of physical condition of accused Exh.39 Dispatch note of IO to FSL Page 5 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined Exh.40 Letter to FSL with blood sample Exh.41 Receipt of FSL, Gandhinagar Exh.42 Receipt of FSL, Gandhinagar Exh.43 DNA Report of Directorate of Forensic Science Exh.44 Authority letter sent to Asst. Director, FSL, Vadodara Exh.45 Receipt of Authority letter Exh.46 Analysis report and Serological report of FSL Exh.47 RC Book of motor cycle Exh.48 Application form of accused for admission in class Exh.49 DNA Test certificate of accused and deceased Exh.50 Primary report of Mobile van
4. After closure of the prosecution evidence, the accused was questioned under Section 313 of Cr.P.C. to which he stated that he has been falsely implicated in a serious case of murder and he is innocent and has not killed the deceased.
5. The accused appellant has not adduced any evidence in his defence.
6. The learned Sessions Judge after hearing the parties and upon appreciation of the evidence, came to a conclusion that the prosecution succeeds in proving the charge against the accused beyond reasonable doubt and chain of incriminating circumstances required to bring home the guilt of the accused is complete in all aspects. The Trial Court mainly relied on the evidence of extrajudicial confession, result of Page 6 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined DNA report Exh.43, the conduct of the accused as he did not disclose his act of murder, the discovery and recovery of motorbike, disclosure statement of the accused made under Section 27 of the Evidence Act.
7. Being aggrieved and dissatisfied with the impugned judgment and order passed by the trial Court, the appellant is before this Court by way of the present appeal.
8. We have heard Mr. Vijay Patel, learned advocate for H.L. Patel Advocates Associates and Mr. L.B. Dabhi, learned APP for the respective parties.
9. Mr. Patel while assailing the impugned judgment vehemently contended that the complete chain of events leading to the involvement of the appellant in the crime in question, have not been established by the prosecution. According to him, the prosecution has failed to prove its case beyond reasonable doubt. The case is one of circumstantial evidence and the onus to prove the case by leading, cogent, appropriate and linking evidence is on the prosecution. The appellant had been implicated on the basis of DNA report which is not a substantive evidence to prove the guilt of the accused. There is no evidence of last seen together. The deceased was lastly in the company of her friend Sakuntala and Sakuntala being an important witness Page 7 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined has not been examined by the prosecution. That the so-called extrajudicial confession cannot be said to be voluntarily, true and made in a free state of mind, as the accused at that time, was under police custody and therefore, it does not inspire confidence and suffer from material discrepancies and inherent improbabilities and does not appear to be cogent and it cannot be basis of conviction. That the disclosure statement pointing out the place of incident by the accused has not been proved in accordance with law as the panchas of the panchnama Exhs.21 and 23 have declared hostile and did not support to the case of the prosecution. The investigating officer PW:13 and PW:14 in their oral evidence have not said about the exact words uttered by the accused which shows that the prosecution failed to prove the contents of the panchnama and the evidence in this regard cannot be accepted as legal evidence against the accused.
10. In such circumstances, referred to above, Mr.Vijay Patel, learned counsel submitted that the Court below has committed a serious error in appreciating the evidence against the appellant and wrongly convicted under Sections 302, 316 and 201 of the IPC and therefore, he submitted that the judgment of conviction and order of sentence are not sustainable in law and the same may be set aside and the Page 8 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined appellant be acquitted from all the charges.
11 On the other hand, Mr. L.B. Dabhi, learned State Counsel vehemently opposed the appeal. He would submit that, the court below has not committed any error while holding the appellant guilty of the offence of murder and death of unborn child. The appellant was close relative of the deceased and after the incident, he was throughout in the company of the witnesses and did not disclose the act of murder, which shows his conduct. The DNA report, Exh. 43, proves that, he was biological father of foetus. The appellant voluntarily by his disclosure statement, had shown the place where the dead body was thrown by him. The bike alleged to have been used for execution of the murder was having been seized from the house of the accused. The accused voluntarily confessed his guilt before the witnesses and merely presence of the police cannot be said to be a police custody and the statement hit by section 26 of the Evidence Act. In such circumstances, Mr. Dabhi, would urge that, the prosecution has proved beyond reasonable doubt the charge against the appellant and the circumstances as referred above, have been proved beyond reasonable doubt and all the circumstances, cumulatively as well as individually are sufficient to establish the guilt of the accused, as the various circumstances forms a Page 9 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined chain pointing only the guilt of the accused and none else. Thus, therefore, he prays that there being no merits in the appeal and same may be dismissed.
12 Before adverting to the submissions, we deem it necessary to examine the relevant evidence adduced by the prosecution :
(a) Ninama Ambaben (PW-2) is the elder sister of deceased Urmila and according to her statement, the deceased - her sister was missing since 21.09.2008. The witness in her testimony stated that, her sister was lastly in the company of her friend Sakuntla and upon inquiry, Sakuntla was not having knowledge about the whereabouts of the deceased. She has further stated that, on 24.09.2008, the family received a message that the dead body of Urmila was lying at the place mentioned in the panchnama (Exh.21). The witness and other family members went there and identified the body of the deceased. The witness had lodged an FIR against unidentified person inter-alia alleging that someone has killed her sister. In the FIR, the suspicion was raised against one Ankit Ninama, with whom the deceased had soft corner. The witness has further stated that after arrest of the appellant, she went to police station and in the presence of police, the appellant Page 10 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined confessed his guilt and explained that since last 10 months, he was in relationship with the deceased and deceased was having 5 months' pregnancy and she was insisted on staying with him, which is not possible because of his marital status and therefore, he had killed the deceased by strangulation. In the cross-examination, the witness has admitted that, the family was unaware about the relationship of the deceased with accused. The witness has also admitted that, in the police station, the accused was in the custody of the police and his hands were tide with the handcuffs. The witness has also admitted that one Ankit Ninama was interested to marry the deceased, but due to caste equation, it could not be materialized. The witness has stated that, the deceased was lastly stayed at the house of her friend Sakuntla and then after, nobody knows that where she had gone and with whom.
(b) PW- 3 Ninama Kabuben Harsingbhai. The witness is the sister of the deceased Urmila and she has stated on the line of her sister complainant PW-2 Ambaben Harsingbhai and therefore, there is no need to refer her entire evidence.
(c) PW-4 Harsing Ninama. The witness is the father of deceased and he was no having any knowledge Page 11 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined about the circumstances referred by the prosecution.
(d) PW-5 Kachrabhai Manabhai and PW-6 Babubhai Kishori were witness of panchnama Exh. 21 and
23. Both the witnesses did not have supported to the case of prosecution.
(e) Ninama Haresh Narsing (PW-10) and Ninama Suresh Harsinhg (PW-11) being brothers of the deceased have stated on the line of their sister PW-2 Ambaben Harsing and therefore, no need to refer their entire evidence.
(f) Dr. Arvind Varshney (PW-1) was examined to prove the factum of postmortum Exh. 7. The doctor in his report, has opined about the cause of death and in his opinion, the cause of death was asphyxia due to strangulation.
(g) J.D. Sutaria, Circle Police Inspector, Dahod (PW-13) had investigated the case. He took visit the place of incident and drew the panchnama of scene of offence and recorded the statements of relatives of the deceased. During the investigation, the IO revealed that the accused appellant being cousin brother of the deceased was in relationship with the deceased and was having 5 months' Page 12 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined pregnancy and due to said pregnancy deceased was insisted on the accused to keep her with him as wife. In order to rid out from the situation, the accused killed the deceased by strangulation using cotton string. The accused later on i.e on 17.10.2008, was arrested and during the custody, he admitted his guilt before the witnesses. The IO thereafter, handed over the investigation to K.R. Dimri PW-15.
(h) Kailash Ramchandra Dimri (PW-15) being a Investigation Officer was examined by the prosecution. The IO in his testimony stated that on the basis of disclosure statement of the accused, the mobile phone, 2 sim cards and motor-bike have been seized and recovered in the presence of panchas. He further stated that, the seized articles have been sent to FSL for forensic investigation. The DNA report Exh. 43 received from FSL, was kept with the record and had submitted the chargesheet against the accused. In the cross-examination, the IO admitted that, the friend of the deceased Sakuntla was cited as witness in the chargesheet. The IO further admitted that brothers of the deceased in their police statements, had pointed out finger towards one Ankit Ninama and raised the suspicion that he Page 13 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined might have killed their sister.
13. We have heard learned counsel for both the parties and perused the case records. In our opinion, the following facts are not in dispute.
(i) The accused appellant is the close relative of the deceased.
(ii) The deceased was doing knitting work in the private class at Dahod and residing with his maternal uncle.
(iii) Before the incident, deceased was having affair with one Ankit Ninama, but due to caste equation, the family was not agreed to marry with Ankit.
(iv) On 21.09.2008, the deceased had stayed with the house of her friend Sakuntla at village: Chhapi, Dahod and thereafter, on the next day, she left the house and since then, she was missing and lastly, on 24.09.2008, a dead body was found at the place mentioned in the panchnama of scene of offence.
(v) The deceased was carrying 5 months' pregnancy and as per the DNA report, the accused was the biological father of the foetus.
(vi) The appellant accused arrested on 17.10.2008.
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(vii) The appellant accused in his further statement has admitted the facts that he was in relation with the deceased and the father of the unborn child.
(viii) The death of the deceased was homicidal.
14. The prosecution case admittedly based upon the circumstantial evidence. The prosecution has mainly relied on the circumstances i.e.- (i) the conduct of the appellant accused, (ii) the DNA report Exh. 43, which suggest that the accused is the biological father of the foetus, (iii) extra judicial confession made before the witnesses, (iv) recovery and discovery of bike alleged to have been used in commission of the crime.
15. Having regard to the evidence on record, the only question that arises for our consideration is as to whether the circumstances as referred above forms a chain of events pointing only to the guilt of the accused and none else?
16. Before we proceed with the analysis of the evidence and other things, we may aptly refer the settled position of law on the aspect of case based on circumstantial evidence. When the case is based on circumstantial evidence, the prosecution must established the chain of unbroken events, unerringly Page 15 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined pointing to the guilt of the accused and none other. The circumstances from which the conclusion of guilt is to be drawn, should in the first instance be fully established and thereafter the circumstances taken cumulatively should formed a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must further show that in all probability the offence must have been committed by the accused. (Sharad Birdhi Chand Sarda Vs. State of Maharashtra AIR 1984 SC 1622).
17. In the instant case, the prosecution has mainly relied on the evidence of extra-judicial confession. The accused while in police custody made a statement that he had killed the deceased. It is settled position of law that the evidence of extra judicial confession is considered as a weak type of evidence and is generally used as a corroborative link to lend credibility to other evidence on record and the factum of confession must be accepted with great care and caution and same required to be voluntary in nature. In other words, an extra judicial confession, if voluntary and true and made in a free state of mind, can be relied upon by the Court. Whether or not the confession was voluntary would depend upon the facts of each case, judged in the light of Section 24 of the Page 16 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined Evidence Act. In the instant case, the accused alleged to have made confession before PW-2, PW-3, PW-10 and PW-11, who are family members of the deceased Urmila. The said confession made before the witnesses while the appellant was in police custody and as per the evidence, he was in police station on remand and his both the hands tide with handcuffs. In that view of the matter, it is submitted that, the extra judicial confession does not inspire confidence and is hit by Section 26 of the Evidence Act and it is inadmissible in evidence. The trial Court relying on the judgment of the Bombay High Court (Rohidas Manik Kasrale Vs. State of Maharashtra, 2012 (114 BLR 203), held and observed that, confession of the accused made to the witnesses in presence of police officers cannot be said to be confession made by the accused while in police custody. In facts of present case, the appellant was on remand and while in the police custody, the witnesses had an occasion to meet him at police station because he was closely related to them and upon inquiry, the accused confessed that, he was the author of the crime. In such circumstances, in our opinion, there was a restriction on the movement of the appellant as he was in police custody and he cannot be said to be a free man and his liberty was not absolute and therefore, we have no hesitation to held that the appellant made a Page 17 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined confession while he was in the custody of police and said evidence is hit by Section 26 of the Evidence Act and cannot be admitted in the evidence. Section 26 provides that, no confession made by a person in custody, to any person, other than the police officer, shall be admissible, unless made in the immediate presence of a Magistrate. Section 25 excludes confessions to police officer under any circumstances, whereas, Section 26 excludes confession to anyone else, while the person making it is in a position to be influence by the police officer. In other words, Section 26 applies to confession made to persons other than police officer, but made while in police custody. Therefore, as soon as the accused comes into the hands of the police officer, he is in the absence of clear and unmistakable evidence to the contrary, no longer at liberty and is, therefore, in custody within the meaning of Section 26. In Kishore Chand Vs. State of H.P. (1991 (1) SCC 286), the question that arose before the Supreme Court was whether extra judicial confession made by an accused to a village Pradhan in the company of whom the accused was left by the police officer after apprehending him could be said to have been made while in police custody. While answering the question in 'affirmative' the Supreme Court, held that, it would be legitimate to conclude that the appellant was taken into the police custody Page 18 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined and while the accused was in custody, the extra judicial confession was obtained through PW-10....... In the instant case, as discussed above, the incident alleged to have took place on 21.09.2008 and subsequently, on 17.10.2008 the appellant was arrested and while he was in police custody, the witnesses as referred above, met him in the police station and in the presence of police, he made extra judicial confession. In such circumstances, having regard to the statutory provisions as referred above and in light of the observations made by the Supreme Court, the evidence of extra judicial confession made by the appellant to the witnesses having been made in the police custody is inadmissible as it is hit by Section 26 of the Evidence Act and it cannot be read in evidence against the accused.
18. The next circumstantial evidence is the DNA report Exh.43 which shows that the appellant was the biological father of the foetus. The said circumstance has not been challenged by the accused.
19. The another circumstantial evidence relied by the prosecution is the recovery of motorbike alleged to have been used in the commission of the crime. The panchas of panchnama Exh.23 have declared turned hostile and upon perusal of the cross examinations, it appears that they have not supported the prosecution Page 19 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined case. The said panchnama was drawn by PW:15 PSI Kailash Dimri. The I.O. in his deposition made a casual reference of the panchnama. So far as disclosure statement of the accused is concerned, the I.O. has not deposed the exact words of the statement made by the accused. Therefore, after the arrest of the appellant and while he being in custody of the police, whatever statement about hiding the bike allegedly used in the commission of the crime as mentioned in the panchnama required to be deposed in exact words of the accused by the I.O. In such circumstances, the contents of the panchnama Exh.23 in terms of Section 27 of the Evidence Act has not been proved in accordance with law. In this context, we may refer the case of Ramanand V/s. State of U.P. (2022 Live- law Supreme Court 843), while laying down the law and procedure on the aspect of discovery of weapon of offence in terms of Section 27 of the Evidence Act, the Supreme Court emphasized on the mandatory procedure to be followed by the Investigating Officer and if he fails in following the procedure, the evidence of discovery does not constitute a substantive evidence and cannot be read against the accused. In Paras-53, 54 and 56 of the said judgment, the Supreme Court laid down the procedure to be followed by the investigating agency during investigation:
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(i) when the accused while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of the offence along with blood stained clothes, then the first thing that the Investigating Officer should have done was to call for two independent witnesses at the police station;
(ii) Once the two independent witnesses arrived at the police station, thereafter in their presence, the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he said to have hidden the weapon of offence;
(iii) When the accused while in custody makes such statement before the panch witnesses, the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law;
(iv) The first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his Page 21 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined willingness on his own free will and volition point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden;
(v) Once the first part of the panchnama is completed, thereafter, police party along with the accused and two independent witnesses would proceed with the particular place as may be led by the accused. If from that particular place anything like weapon of the offence, blood stained clothes or any other articles discovered then that part of the entire process would form the second part of the panchnama. This is how the law expect the Investigating Officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act.
(vi) The requirement of that needs to be fulfilled before accepting the evidence of discovery is that the contents of the panchnama must be proved by the prosecution. The Investigating Officer in his deposition is obliged in law to prove the contents of panchnama and it is only if the I.O. has successfully proved the contents of the discovery panchnama in accordance with law, then in that case, the prosecution may be justified in relying upon such evidence and Trial Court may also accept the evidence. In other words, when the panch witnesses though examined, yet have not Page 22 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined said a word about discovery or turned hostile and have not supported the prosecution. In order to enable the Court to safely rely upon the evidence of Investigating Officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and for this purpose, the I.O. is obliged to depose in his evidence the exact statement and not by merely saying that discovery panchnama of weapons of offence was drawn as the accused was willing to take it out from the particular place.
(vii) In absence of exact words attributed to an accused person, as statement made by him being deposed by the I.O. in his evidence, and also without proving the contents of panchnama, Trial Court cannot justify in placing reliance upon the circumstances of discovery of weapon.
20. Now coming to the facts of the present case, the I.O.
PW:15 did not have followed the procedure as referred hereinabove and failed to prove the exact statement of the accused referred at Exh.23, wherein disclosure statement being made about the commission of the crime and use of motorbike by the accused in the commission of the offence. In such circumstances, the discovery of bike at the instance of the accused and his involvement of the offence cannot be read into the Page 23 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined evidence as substantive evidence against the accused.
21. We have also examined the factual aspect about pointing out the place of offence by the accused when he was in a police custody. The said panchnama was being drawn by the Investigating Officer J.D. Suthariya, PW:13. In the panchnama Exh.21 it has been mentioned that the accused on his own volition agreed to show the place of offence where he had thrown the dead body of the deceased. On perusal of the contents of the panchnama and evidence led by the prosecution, it emerges that the panchas have not supported to the case of prosecution as they have not stated the exact words spoken by the accused, nor the investigating officer has stated that, the accused had voluntarily agreed to show the place where the deceased was killed and her dead body thrown out. It is relevant to note that, before arrest of the accused, the I.O. drew the panchnama of the place of incident where the dead body was found. Section 27 of the Evidence Act is applicable when the discovery should be of distinct fact and same require to be discovered by disclosure of accused in the police custody. In the present case, the place where the murder was committed and the dead body found, were already in the knowledge of police when the place of panchnama Page 24 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined being drawn on 17.10.2008 (Exh.21). In such circumstances, the pointing out the place by the accused while in the police custody in terms of Section 27 of the Evidence Act, cannot be read against the appellant-accused because the place where the offence committed and body was thrown which were already in the knowledge of the police while drawing the panchnama of place of incident as there cannot be a discovery of an already discovered fact.
22. For the aforementioned reasons and discussion made hereinabove, except the D.N.A. Report (Exh.43), the piece of incriminating circumstance like pointing out the place of offence by the accused in terms of Section 27 of the Evidence Act, the evidence of extra judicial confession, recovery of Honda Bike allegedly used by the accused in the alleged crime, cannot be read in evidence against the accused as the circumstances as referred have not been proved by leading cogent and acceptable evidence by the prosecution. Thus, therefore, we are of the considered opinion that prosecution failed to prove all necessary circumstances by reliable and clinching evidence which would constitute a complete chain without a snap as would permit no conclusion other than the one of guilt of the accused. In our considered view, in the present case, prosecution has not been able to Page 25 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025 NEUTRAL CITATION R/CR.A/1246/2012 JUDGMENT DATED: 26/06/2025 undefined prove its case beyond reasonable doubt as complete chain of incriminating circumstances, pointing towards guilt of the accused, has not been established and proved and the court below while convicting the accused under Sections 302 and 201 of the IPC, fell in error in coming to the conclusion that the prosecution has established its case based on circumstantial evidence beyond all reasonable doubts. So far as Section 201 of the IPC is concerned, the accused had never gave any false information to police. There is no evidence to the effect that, the offence of murder was committed at the maize farm and thereafter dead body was thrown in the forest area. The inference of causing disappearance of the evidence seems to be based on suspicion, conjunctures and surmises.
23. In the result, the appellant-accused in this appeal is entitled to succeed. Consequently, appeal is allowed. The impugned judgment and conviction dated 30.06.2012 passed in Sessions Case No.16 of 2009 rendered by Dahod Sessions Court is set aside. The appellant is on bail. The bail bond stands cancelled and surety is discharged. The Registry shall send the R & P to the concerned court.
(ILESH J. VORA,J) (P. M. RAVAL, J) P.S. JOSHI Page 26 of 26 Uploaded by P.S. JOSHI(HC00177) on Thu Jun 26 2025 Downloaded on : Fri Jun 27 00:17:08 IST 2025