R/CC/6/2022 JUDGMENT DATED: 13/01/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL CONFIRMATION CASE NO. 6 of 2022

With

R/CRIMINAL APPEAL NO. 1139 of 2022

With

CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2022

In R/CRIMINAL APPEAL NO. 1139 of 2022

With

R/CRIMINAL APPEAL NO. 1813 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-

and

HONOURABLE MR. JUSTICE R. T. VACHHANI Sd/-

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Approved for Reporting Yes No

✔

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STATE OF GUJARAT

Versus

GOPI @ BHALABHAI GIRISHBHAI DEVIPUJAK & ORS.

==========================================================

Appearance:

MR J K SHAH, APP for the Appellant(s) No. 1

MR RAMNANDAN SINGH(1126) for the Respondent(s) No. 2,3

MR BHAVIK R SAMANI for the Appellant in CRA No.1813 of 2022

RULE SERVED for the Respondent(s) No. 1

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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MR. JUSTICE R. T. VACHHANI

Date : 13/01/2026

COMMON ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1.Since the facts of the case and issue involved in the captioned

appeals, are identical and arise out of the same judgment, the

appeals are taken up together and are being disposed of by this

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common judgment.

2.The accused namely A-1 Gopi @ Bhalabhai Devipujak, A2 –

Jayantibhai Vadi, A-3 Lalabhai Vadi were tried and prosecuted

for the offence of gang rape and murder of married woman ‘X’.

The trial court vide its judgment and order dated 29.04.2022,

passed in Sessions Case No.12 of 2021 (Old Case No.43 of

2019) convicted and awarded capital punishment for the offences

punishable under Sections 302, 201, 366, 376(d) of the Indian

Penal Code. The break-up of the sentence and fine amount is as

follows:

Conviction

under Section

Punishment Fine In default of fine

302 r/w 114 of

IPC

Death

Sentence

Rs.10,000/-SI for 6 months

201 r/w 114 of

IPC

RI for 3 yearsRs.5,000/-SI for 3 months

366 r/w 114 of

IPC

RI for 5 yearsRs.5,000/-SI for 3 months

376(D) of IPCLife

Imprisonment

Rs.10,000/-SI for 6 months

3.The death reference has come up before this Court for

confirmation of a death sentence.

4.The appellants-accused herein also questioned the legality and

correctness of the judgment of conviction and order of death

sentence by preferring captioned appeals.

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The Criminal Appeal No.1139 of 2022 is being filed by

original accused no.A2 and A3 (Jayantibhai Vadi and Lalabhai

Vadi).

The Criminal Appeal No.1813 of 2022 is being filed by

original accused no.A1 – Gopi @ Bhalabhai Devipujak.

5.Factual background:

5.1 The accused were charged and convicted for the offence of

gang rape and murder of married woman and after the

murder, a dead body was dragged and thrown into another

farm of village: Nirmali. The deceased lady sustained

internal and external bodily injuries and she was

strangulated to death by accused A2 – Jayanti Vadi.

5.2 That, on 28.10.2018, at about 6:00 p.m., the accused

Jayantibhai Vadi (A2) and Lalabhai Vadi (A3) kidnapped

the deceased lady, resident of Village: Moti Jer,

Kapadvanj, Kheda and taken to farm of Ambalal Patel

situated at Nirmali Village. The accused A1 – Gopi,

resident of Village: Moti Jer was happened to be nephew

of deceased ‘X’. In other words, the deceased was aunt of

the A1.

5.3 The accused A1 at the time of incident of kidnapping, was

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standing at the crossroad of Village: Moti Jer and after

seeing the accused and deceased who were on the bike,

tried to stop them, but, they did not stop there.

5.4 The accused A2 and A3 taken the deceased ‘X’ at the farm

of Ambalal Patel, situated on Nirmali Road, where she

was raped and while resisting the act, she was beaten up,

which had caused serious injuries on her body. After the

rape, she became unconscious, lying in a naked position in

the farm.

5.5 The accused A3 Lalabhai came on the road from the field

and was standing near the bike allegedly used in the crime.

The accused A1 Gopi was in search of his aunt and after

seeing the deceased in the company of the accused, he

came at the shop of witness Ganpatsinh Zala (PW.14) who

was running an egg shop on the roadside. The witness

refused to give his bike. The accused A1, took the lift in

the tractor of witness Narendra Rathod – PW-16 and he

came down on the Nirmali Road near the office of

Umiyanagar Milk Cooperative Society, where he saw the

bike of accused no.2 Jayantibhai Vadi and the accused

Lalabhai, who was standing near the bike.

5.6 The accused A1 Gopi, asked the accused Lalabhai A3 for

the whereabouts of his aunt deceased ‘X’. The accused

Lalabhai in the response said that, please keep quiet, your

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aunty is coming. In the meantime, the accused no.2

Jayantibhai had come on the road, where the accused A1

was standing in the company of A3. The accused A2 took

the accused no.1 Gopi into the field, where the deceased

‘X’ was lying on the field. After seeing the deceased by

the accused Gopi, the accused Jayantibhai told him that

they already committed rape upon the deceased, and now

it is your turn to commit a rape upon the deceased and

further threatened that if he will not commit rape, they will

kill him. In such circumstances, the accused Gopi had also

committed rape upon the deceased ‘X’.

5.7 It is further case of prosecution that, the accused A2

Jayantibhai asked the A1 and A3 caught hold the hands

and legs of the deceased and thereafter, the deceased was

strangulated to death by (Jayantibhai -A2). After the

death, her dead body was dragged by using the “sari”

which the deceased had worn and dead body was thrown

into nearby farm of Hasmukh Joitaram and thereafter, the

accused ran away on the bike which allegedly used in the

crime.

6.The Kapadvanj Rural Police on the next day i.e. 29.10.2018, was

informed about the dead body of the deceased ‘X’ found in the

farm of Hasmukhbhai Joitaram. The Kapadvanj Police called the

Officials of FSL and in their presence, drew the panchnama of

scene of occurrence and collected necessary samples like Miraj

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tobacco pouch, the currency notes of rupees ten and twenty, one

empty bottled of liquor “Bagpiper” and also seized and collected

the clothes of the deceased like blouse, petticoat and other

things. The dead body was sent form post-mortem to the

concerned Government Hospital. The cause of death was due to

asphyxia on account of manual strangulation (throttling). The

P.M. Doctor (PW.2) found injuries on the body of the deceased

and in the opinion of the doctor, the possibility of rape cannot be

ruled out. The P.M. Doctor collected the vaginal swab, cervical,

anal and oral swabs along with the blood samples for the purpose

of DNA profiling and chemical analysis.

The brother of the deceased lodged a complaint against

unknown persons for committing the offence of rape and murder

of his sister. The I.O. during the course of investigation, recorded

the statements of the witnesses. He recorded the statement of

Ganpatsinh Zala (PW.14), owner of Egg Shop and his helper

Vijay Zala (PW.13) and during their interrogation, the I.O. learnt

that the accused A1 – Gopi on the next day of the incident, went

to the house of Vijay Zala (PW.13) and before him, the accused

confessed that, he has killed his aunt. The I.O. arrested the

accused Gopi on 01.11.2018 and based on the input, the accused

no.2 and 3 were also being arrested on 01.11.2018. The I.O. sent

the accused to the concerned hospital for medical examination

and during their examination, the blood samples, the samples of

their semen, nails, hair were being collected by the concerned

doctor for DNA Profiling. The I.O. during the course of

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investigation, the accused Gopi voluntarily show the place of

occurrence and during reconstruction panchnama of the crime

scene, he narrated the entire sequence of the offence.

In the aforesaid facts and circumstances, after obtaining

the report from the FSL, the IO filed the chargesheet against the

accused before the jurisdictional Magistrate.

As the case was exclusively triable by the Court of

Sessions, it was committed to the Court of Sessions as

Kapadwanj, Kheda. The Sessions Court framed the charges

against the appellants – accused, they did not admit the charge

and claimed to be tried.

7.The prosecution, in order to prove the charge, adduce the

following oral and documentary evidence in support of its case:

Oral evidence

PW 1–Exh.9 Arjunbhai Nanjibhai Rathva, Scientific officer

PW 2-Exh.15 Dr. Manubhai Halubhai Gadhvi, Medical officer

PW 3–Exh.25 Kiran Naginbhai Vaghri, Complainant

PW 4– Exh.27Chinubhai Pratapbhai Rathod, Panch witness

PW 5– Exh.31Hasmukhbhai Hargovindbhai Patel, Panch witness

PW 6– Exh.39Jagdishbhai Halsukhbhai Vaghri, Panch witness

PW 7– Exh.42Firozali Kamarali Saiyyed, Panch witness

PW 8– Exh.43Sirajkhan Habibkhan Pathan, Panch witness

PW 9– Exh.52Ilayas Allarkha Shiekh, Panch witness

PW 10– Exh.53Mehboobbeg Sultanbeg Mirza, Panch witness

PW 11 –Exh.55Mominali Akbarali Saiyyed, Panch witness

PW 12 –Exh.56Bhawansinh Prabhatsinh Parmar, Panch witness

PW 13 –Exh.58Vijaybhai Praveenbhai Zala

PW 14 –Exh.60Ganpatsinh Chattrasinh Zala

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PW 15 –Exh.61Mohanbhai Somabhai Rathod

PW 16 –Exh.64Narendrakumar Somabhai Rathod

PW 17 –Exh.65Kulabhai Zala

PW 18 –Exh.67Manubhai Heerabhai Parmar

PW 19 –Exh.76Mafatbhai Mohanbhai Parmar

PW 20 –Exh.78Ushaben Laleshbhai Choudhari

PW 21 –Exh.79Bhuriben Naginbhai Devipujak

PW 22 –Exh.80Ashwinbhai Ambalal Barot, Panch witness

PW 23 –Exh.85Sureshkumar Arjanbhai Vaghela, Scientific officer

PW 24 –Exh.88Mrudul Upendrabhai Bhatt

PW 25 –Exh.94Savjibhai Merubhai Makwana

PW 26 –Exh.96Rakeshkumar Ambalal Patel

Documentary evidence

Exh.17PM Note

Exh.18Cause of Death Certificate

Exh.26Complaint

Exh.28Inquest Panchnama

Exh.35Panchnama of place of offence

Exh.41Panchnama of clothes recovered from body of deceased

Exh.50Arrest Panchnama

Exh.54Panchnama of Motorcycle used in the offence

Exh.57Panchnama of showing of place of offence to accused

Exh.69Yadi of map

Exh.70Yadi of map

Exh.71Yadi of map

Exh.72Map of place of offence

Exh.81Panchnama of video cassette made showing the place of

offence to accused

Exh.86Directorate Forensic Science report

Exh.89Letter to Vodafone

Exh.90Mobile phone detail

Exh.91Idea Certificate

Exh.95Call form

Exh.97Death form

Exh.98FSL Mobile report

Exh.99FSL receipt

Exh.100FSL Letter

Exh.101Forwarding notes

Exh.102FSL report

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Exh.103Letter regarding articles to FSL

Exh.104Forwarding notes

Exh.105FSL Receipt

Exh.106FSL Letter

Exh.107FSL report

Exh.108FSl receipt

Exh.109Forwarding notes

Exh.110FSL Letter

Exh.111Biological report

Exh.112Serological report

Exh.113FSL Letter

Exh.114Forwarding notes

Exh.115Letter to FSL regarding articles

Exh.116Forwarding notes

Exh.117DNA division form of accused Jayantibhai

Exh.118DNA division form of accused Lalabhai

Exh.119DNA division form of accused Gopi

Exh.120DNA division form of Mukeshbhai

8.After closure of the prosecution evidence, statement of the

accused under Section 313 of the Cr.P.C., were recorded, to

which, they stated that they have been falsely implicated in the

offence and they are innocent and have not committed any

offence.

9.Though opportunity was extended, no oral evidence being

adduced by the appellants – accused.

Trial Court findings :

10.After hearing the parties and upon appreciation of material

evidence, the accused held guilty for the offence of rape and

murder and awarded death sentence and while recording the

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sentence, the trial Court observed that, the crime committed by

the accused is heinous crime and the manner in which the

deceased was sexually abused and killed, the case would fall in

the category of rarest of rate case. The trial Court relied upon

the following circumstances as proved:

(i)On 28.10.2018, the deceased was kidnapped by the

accused A2 and A3 and was taken to private farm situated

at Nirmali Road at Kheda and she was subjected to sexual

assault by the accused in the farm;

(ii)On 28.10.2018, the accused A1 Gopi Devipujak, contacted

the accused Nos. 2 and 3 and after the meeting, he

committed rape upon the deceased and on the next date i.e.

on 29.10.2018, he confessed his guilt before the witness

Vijay Pravin Zala – PW-13 and said extra judicial

confession was being found voluntarily and true as

testimony of the witness in this regard does inspire

confidence and corroborated by his statement recorded by

the Executive Magistrate under Section 164 of the Cr.P.C.

(iii)On 28.10.2018, after committing rape upon the deceased,

the accused A1 and A3, caught hold the deceased and A2

Jayantibhai strangulated the deceased and killed her;

(iv)On 28.10.2018, the dead body of the deceased for the

purpose of disappearance of the evidence, dragged and

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thrown into nearby the farm.

11.Evidence adduced by the prosecution:

(1)Dr. Manubhai Gadhvi (PW-2) : This doctor being a Medical

Officer, Kapadwanj Referral Hospital, had conducted

postmortem on 29.10.2018 on the body of the deceased. The

doctor in his chief examination has stated that the face of the

deceased was congested and he noticed the mud over her face

and there was an injury on her right eye and he also noticed the

crush injury on both the hip and there was contuse wound on the

left side of the lip of the deceased and so far as injuries over the

internal part of the body is concerned, the abrasions were found

on the left labia majora and there was a blood found in the anal.

According to opinion of the doctor, he noticed the following :

“The body was that of a woman of about 35 years. The body was

wearing a blue, green and yellow printed saree which was tied around

the neck and face. The saree was soiled with mud. The body was

identified. Rigor mortis was found on every part of the body. P.M. Levitt

was fixed on the dependent parts of the body and except for the pressure

points.

The face of the body was congested and smeared with mud. The eyes of

the body were present with a petuncle hemorrhage on the right eye lid

and were half open. The left eye was swollen and blackened and closed.

The tongue was inside and there was a horizontal puncture wound on

the lower part of the hip. Looking at the condition of the mouth, there

was a puncture wound of 1 cm in size on the left side of the lower lip

with a blood clot.

There was a 0.5 x 0.3 cm. skin-peeling wound on the left labia majora

on the external genitalia. It was dark red. There were dirt and blood

stains on the inside of her vagina and perineum and both thighs. Her

anus was dilated and there was bleeding around it. Both upper and

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lower limbs were straight.

The following injuries were found on external examination of the body.

(i)There was a 2.5 x 0.3 cm * horizontal puncture wound * on the

outer side of his left supra orbital. The margin of this wound was

abraded and the blood was congealed. The injury was of dark red

color. There was a subconjunctival hemorrhage above the left eye.

(ii)There was a 1-inch bruise in the middle of his lower lip, 2 cm

below it. * 0.5 cm of blood clot

(iii)There were 11 skin abrasions on the right side of his neck,

front and outside. The size ranged from 0.1 to 0.5 cm. to 0.5 * 1 cm.

and were crescent-shaped. The space between each abrasion was 1

to 1.5 cm. The soft tissue under the incision was filled with blood.

The skin abrasions and their surrounding areas were more visible.

The color of these abrasions was dark red.

(iv) There was a linear skin-peeling wound measuring 9 * 0.3

cm in size in the middle 1/3 part of the neck, 7 cm below the master

process of his neck. The direction of which was posterior and

incised. The color of which was dark red.

(v) There was a 1.5 cm. skin lesion on the left side of his thyroid

chrominance, extending outwards. The color was dark red. * 1 cm.

Size of skin lesion

(vi) There was a 1 * 0.1 cm skin-peeling wound 1 cm above

injury no. 5. It was dark red in color.

(vii)There was a 0.5 cm deep, dark red, skin-peeling wound on

the left side of his chest from the left sternal border and above the

second.

(viii)Skin peeling measuring 0.2 to 0.2 * 0.1 cm on the 1 cm

medial side of injury no. 7

(ix) There was a 0.1 to 0.1 cm skin-peeling wound on the lower

aspect of his right chest, which was dark red in color.

(x)On the left side of his neck, there were multiple linear, 6 x 3 cm.

sized, skin-peeling wounds on the outside. They were dark red in

color.

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(xi) There were 8 horizontal skin-peeling wounds on the front

and outer side of his left hip. Which were of dark red color.

(xii)On the front and inner side of his left thigh, 4 cm below

the groin fold, there was a 1 x 0.2 cm skin-peeling wound, which was

dark red in color.

(xiii)Injury No. 12 had a 2.5 cm. outer skin wound measuring

0.5*0.2 cm. which was dark red in color.

(xiv)There was a 3 x 2 cm skin-peeling wound on the upper

part of the lateral mesentery of the right leg.

(xv) There were many skin abrasions on the back of the chest,

more than 25 in number and the direction of which was vertical.

Some of which were antemortem in nature and some of which were

postmortem in nature. The size of which was 1 * 0.1 cm. to 7 * 0.2

cm.

The above injuries were antemortem and fresh injuries before

death.

Looking at the head during internal examination

(i) The right temporal parietal lobe was filled with blood in

an area of 6 * 5 cm. It was of dark red color.

(ii) There was a 7 * 4 cm area of blood on his left frontal part.

Which was of dark red color. This injury was adjacent to injury

no. 1 of column no. 17.

(iii) There was a 8-filled lesion on the left parietal and occipital

part of the head. It was of dark red color. Blood in an area of 6

cm.

No palpable or visible fracture was observed in the skull.

The brain and meninges were congested in the interior of the

skull and hemorrhage spots were observed in the brain substance

and meninges.

On examination of the chest, the lungs were congested, the

larynx, esophagus, and trachea were congested. The soft tissues

were filled with blood and hemorrhagic spots were visible on the

inner layer of the trachea. Both lungs were congested and

hemorrhagic spots were visible. The pericardium was congested.

Fetal hemorrhage was visible inside the heart.

On internal examination of the abdomen, the inner wall

and peritoneum were congested. The soft tissue around the

esophagus was filled with blood and the esophagus was full. On

looking inside the stomach, a brown paste-like material of 150 ml

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was present and no specific odor was emanating from it. There

was gas and mucus in the small intestine. There was fecal matter

and gas in the large intestine. The organs like liver, spleen,

kidneys etc. were congested. The urinary bladder was empty. The

internal genital organs were congested.

The following samples were collected from the body of the

deceased, sealed and sent to FSL for chemical analysis.

(a)Bottle No. 1 contains the stomach and part of the intestine

with its contents.

(b)Bottle No. 2 contains pieces of lungs, liver, spleen, and

both kidneys.

(c)A sample of the preservative that was put in bottles no. 1

and 2 in bottle no. 3.

(d)Plaque blood in bottle no. 4.

The injuries on the neck of the deceased were sufficient

to cause death in the ordinary course of nature. The

injuries on and around the private parts of the deceased

indicate that the deceased was raped by more than one

person before death.”

In the opinion of the doctor, the cause of death was due the

asphyxia on account of manual strangulation (throttling). The

witness has further opined that, the injuries found on the body of

the deceased were sufficient in the ordinary course of nature to

cause death and considering the nature of injuries, the possibility

of commission of gang rape cannot be ruled out.

During the PM, the doctor took the blood samples of the

deceased and vaginal, deep vaginal, cervical, anal, and oral

swabs for DNA profiling and samples on the same day, handover

to the concerned police officials.

The witness Dr. PW-2, when he was on duty, he had

examined medically the appellants accused namely Gopi @

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Bhalabhai, Jayantibhai Vadi and Lalabhai Vadi, after their arrest

when they were brought before him on 02.11.2018 with police

yadi. The Doctor in his chief-examination, while examining the

A1-Gopi, has stated that, before examination, the accused gave a

history of the incident which he had noted down in the case

papers and as per the history, it was stated that,

“On 28.10.2018, when he was passing through cross-road

of Motijer bus stand, he saw two persons on bike, carrying his

sister-in-law and by taking lift in the tractor, when he reached

near Nirmali Road, both the persons were standing beside the

road and taken him to the field to show her sister in law and in

the field, he was forced to commit intercourse upon her sister-in-

law. “

The Doctor (PW.2) on the same day i.e. 02.11.2018, had

examined accused Jayantibhai Vadi and before he could

examine, the accused gave a history of the incident which he has

noted in the case papers and in the history, it was stated that, “on

28.10.2018 at about 6:00 p.m., he and accused Lalabhai were

riding on the bike and while reaching near bus stand of Village:

Motijer, they gave lift to the deceased and dropped her near

Nirmali Village.”

The Doctor (PW.2) had also examined the accused

Lalabhai and as per the history given by Lalabhai, the deceased

was given a lift by him when he along with accused Jayantibhai,

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riding the bike passing near the bus stand of Motijer and dropped

her near Nirmali.

The Doctor in the chief-examination has further stated

that, he had taken the blood samples and other samples like

saliva, hair, nails and sperm for the purpose of forensic analysis

and DNA Profiling. The doctor has produced the necessary case

papers at Exh.17 to 23.

In the cross-examination, the Doctor (PW.2) has denied

that, as per the police yadi and command by the police, the

history being noted by him in the case papers and as such, no

such history being given by the accused. The doctor has denied

to the suggestion asked by the defense that, the injuries whatever

sustained by the deceased, could be possible by accident or

someone jumped from the moving tractor.

(2)Kiranbhai Naginbhai Vaghri (PW.3):This witness is the brother

of the deceased and after receiving the message, he went to the

place of incident where he saw the dead body of his sister. The

witness had lodged an FIR against the unknown person on the

next date i.e. 29.10.2018 which has been produced at Exh.26.

(3)Vijay Pravinbhai Zala (PW.13): This witness was the friend of

the accused A1 – Gopi Devipujak. The witness and the accused

Gopi, at relevant time, were residents of Village: Motijer and

since long, they were friends and knowing each other. The

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witness was working as a helper with the Egg Shop of one

Ganpatsinh Zala (PW.14) and his working hours was 5:00 p.m.

to 11:00 p.m. The witness in his chief-examination has stated

that, the accused Gopi had asked Ganpatsinh to give his

motorbike, but, it was not given by him and therefore, he

travelled in the tractor. The witness has further stated that, on

that day, after the closure of the shop, he went to the house of

Ganpatsinh and sleep over there. The witness has further stated

that on the next day at about 8:00 a.m. in the morning, and at

that time, the accused Gopi had come to the house for fishing

purpose in the Vatrak River of the village. The witness has stated

that, he along with the accused Gopi, had gone to the Vatrak

River for fishing and while process of fishing, Gopi told him

that, “I have killed my aunt.” The witness has further stated that,

after fishing, he went to his house and whatever confession being

made by the accused, he conveyed the said confession to his

father, Pravinbhai. The witness has further stated that, he does

not know that why the accused Gopi intends to proceed towards

Nirmali. The statement of witness recorded under Section 164 is

produced at Exh.74.

In the cross-examination, the witness has admitted that, so

as to record his statement, his name and age was being given to

the police by his father. The witness has also denied to the

suggestion that, the accused had never confessed his guilt before

him and was never in his company for fishing. The witness has

admitted his thumb impression allegedly made under his

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statement recorded under Section 164 of the Cr.P.C.

(4)Ganpatsinh Zala (PW.14):This witness was running his Egg

Shop at Motijer – Nirmali Road and the business hours for

running the shop was evening 5 to 10:00 p.m. and at relevant

time, the witness Vijay Zala was working with him as a helper in

the business. The witness in his chief-examination, has stated

that, the accused Gopi at about 7:00 p.m. came to his shop and

asked for the bike which he had denied to it. The witness has

further stated that, at that time, one tractor driver along with his

tractor, came to his shop and after completion of his snacks,

when he is about to proceed towards Nirmali, the accused Gopi

took a lift in the tractor. The witness has further stated that, on

the next day in the evening, he learnt that the dead body of the

deceased being found at the private farm near Nirmali. The

witness has further stated that, after two-three days, the accused

Gopi came to his shop and told him that, “he did a wrong thing

and he has murdered his aunt and requested not to share the said

things to anyone.” The witness has further stated that, after

informing the said aspects by the accused to him, the accused

Gopi left his shop.

In the cross-examination, the witness (PW.14) has stated

that, he does not know of the intention of the accused Gopi that

why has asked for the bike. The witness has admitted that, the

police came to his shop and asked his name and address. The

witness has denied that, the accused Gopi after denying him for

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bike, thereafter he never came to his shop.

(5)Mohanbhai Somabhai Rathod (PW.15):This witness is the

owner of Grocery shop doing his business in the name and style

of “Nageshwari Kirana Store” and running his shop near bus

stand of Village: Lalpur. The prosecution has examined this

witness to prove the fact that the deceased was lastly seen in the

company of the accused no.2 and 3. According to prosecution

case, on 28.10.2018 at about 7:00 p.m., the accused no.2 and 3

along with the deceased lady, came to the shop of the witness.

The accused Jayantibhai went into the shop to purchase tobacco

and beetal, whereas, the accused Lalabhai and the deceased were

standing outside the shop. The witness in his chief-examination

on this aspect, has stated that, in the evening hours, the accused

Jayantibhai Vadi and Lalabhai along with one woman, came on

the motorcycle from the side of Village: Motijer. The accused

Jayantibhai came into the shop for purchase to Miraj tobacco and

beetel, whereas, the accused Lalabhai and woman were standing

outside his shop. The witness has further stated that, after

purchasing, they proceeded towards Nirmali Village. The

witness has identified the accused Jayantibhai in the court, but,

could not identify the accused Lalabhai. In the cross-

examination, the witness has admitted that, in his police

statement dated 03.11.2018, he has stated that, in the evening

hours, there was a rush in his shop and therefore, it is not in his

knowledge that who came to his shop. In the cross-examination,

the witness has specifically stated that, the accused were brought

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to his shop by the police and at relevant time, he was told by the

police that, these two accused had come to his shop and

purchased a tobacco and beetel from him. In the cross-

examination, the witness has admitted that, he was not knowing

the accused Jayantibhai and Lalabhai and before the incident, he

had no occasion to meet the accused and he also does not know

about the residence and village of the accused.

(6)Narendra Somabhai Rathod (PW.16):The witness is the

resident of Village: Talpoda and at relevant time, he had bought

a new tractor for farming purpose. On the day of incident i.e.

28.10.2018, by driving the tractor, he went to the house of his

maternal uncle for unloading of the grass for animals. The

witness has stated in his chief-examination that, while coming

return back from his maternal uncle’s house, one person at the

cross-road of the village, asked to give lift to him, but, he did not

heed the request and thereafter, he came to shop of Ganpatsinh

Zala for snacks and at that time, he saw the person who had

asked for the lift. The witness has further stated that, the person

who was there at the shop, intends to go towards Nirmali Village

and therefore, he take a seat in the tractor. The witness has

further stated that, after proceeding from the shop of Ganpatsinh,

he drew his tractor towards Nirmali Road and when the tractor

reached near Nirmali, the person who was sitting in the tractor,

asked to drop him there. The witness has further stated that, the

person was dropped on the roadside and while dropping him, he

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saw three persons along with one bike and out of three persons,

one was woman and thereafter, he proceeded towards his village.

In the cross-examination, the witness has admitted that, the name

of the person who was sitting in the tractor was given to him by

the police and at that time, there was dark and due to darkness,

he could not be in a position to identify the person.

(7)Pravinbhai Zala (PW.17):This witness is the father of

witness PW.13 – Vijay Zala. The witness has stated in chief-

examination that, before 2 years, in the morning, his son Vijay

and the accused Gopi went for fishing and returned back at about

10 o’clock. The witness has further stated that, he was informed

by his son that, the accused Gopi has killed his aunt.

(8)Sureshbhai Arjanbhai Vaghela (PW.23):This witness had

conducted the DNA Profiling and submitted its report dated

01.05.2019 and same is produced at Exh.86. The witness being a

Scientific Officer serving with Directorate of Forensic Science

University, has stated on the line of the report Exh.86. Instead of

referring his oral evidence, we deemed it fit to refer the entire

report which reads as under:

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(9)Rakeshkumar Ambalal Patel (PW:26): This witness being a PSI

of Kapadvanj Police Station, was entrusted the investigation of the

crime and after receiving the requisition, he took visit at the place

where the dead body of the lady found in a naked position. The witness

called the scientific officer of the FSL and in the presence of the

panchas drew the panchnama of the place of the incident and seized

and collected the clothes of the deceased as well as the things lying on

the sport i.e. currency notes, pouch of the tobacco and empty wine

bottle. The witness before whom brother of the deceased viz.

Kiranbhai Devipujak lodged an FIR and after registration of the

offence, he came into charge of the case. The witness during the

investigation, prepared the enquest and sent the dead body for post-

morterm, recorded the statements of the witnesses, arrested the accused

on 02.11.2018, sent the accused for medical examination, obtained the

necessary samples of the accused for DNA profiling, the accused Lala

voluntarily pointed out the place of the incident and during the

reconstruction panchnama, he had confessed the guilt and described

the manner of incident and how the deceased was killed. The I.O.

during the investigation, received the report of the DNA analysis and

other reports of the FSL, and obtained the statements of the witnesses

allegedly recorded under Section 164 of Cr.P.C. and after due

investigation, the chargesheet against the accused for the offences of

kidnapping, rape and murder being submitted before the Court.

In the cross examination, the I.O. had denied to the suggestion

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that the accused have been falsely implicated in the offence and as

such, there is no sufficient evidence linking him to the crime in

question.

Submissions:

12.Mr. Ramnandan Singh, learned counsel appearing for and on

behalf of accused nos. 2 and 3, has made the following submissions :

(i)While assailing the impugned judgment, it was vehemently

contended that, the judgment of conviction being based on

circumstantial evidence and there being no eye-witness, the

complete chain of events leading to involvement of the

appellants have not been established by the prosecution.

(ii)The prosecution has failed to prove its case beyond

reasonable doubt and the findings of conviction being

recorded on the basis of conjucture and surmises as it is

settled position of law that, the suspicion however strong,

cannot basis for punishment.

(iii)So far as, role attributed to accused nos. 2 and 3 namely

Jayantibhai Vadi and Lalabhai Vadi is concerned, it is the

case of the prosecution that, on 28.10.2018, the deceased lady

was taken on motor-bike and after abducting her she was

taken to the private farm of village: Nirmali. The prosecution

failed to prove the necessary ingredients of offence

kidnapping and abduction. The victim was major at relevant

time. Before she could taken to the farm, the bike was

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stopped near the grocery shop of PW-15 Mohan Rathod and

from his shop, the accused Jayantibhai Vadi purchased a

pouch of Miraj Tobacco and bittle and the accused Lalabhai

and victim were standing outside his shop. The trial Court

while convicting the accused, taken into account the last

scene evidence of grocery shop owner PW-15. The grocery

shop owner was not known to the accused nor he met prior to

the incident and admittedly, the accused were not resident of

village: Moti Jer. The shop was situated in the bus stand area

of the village and other shops also situated in this area. The

victim had an opportunity either to run away or to make hue

and cry about her kidnapping. The shop owner in the cross-

examination, has admitted that, the police after the incident,

brought the accused before him and told that, this accused had

purchased Miraj Tobacco from your shop. The shop owner

has also admitted that, due to rush in his shop, at relevant

time, it is not possible him to remember the face of the

accused and who had purchased the Miraj Tobacco and

therefore, in absence of any evidence of TI parade of the

witness, the evidence of shop keeper PW-15 with regard to

the accused and deceased were last scene together and the

accused forcefully compelled the deceased or induced her to

remain in their company and therefore, the findings of

conviction for the offence of kidnapping are not sustaining in

law.

(iv)It is the prosecution case that, the accused nos. 2 and 3 have

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committed offence of rape and murder. In order to prove the

charge, the prosecution has mainly relied upon the

circumstances of last scene together, DNA Analysis report

and history allegedly made by the accused before the Doctor

PW-2. The accused were arrested on 02.11.2018. The theory

of last scene together so far, evidence of grocery shop keeper

PW-15 is concerned, his evidence is not at all worthy to

accept as the accused were shown to him and on the basis of

input given by the police, he identified the accused in the

Court, however, it is admitted facts that the shop keeper and

accused are not belonged to same village, nor they known to

each other or met prior to the incident at any place. Thus, the

shop keeper’s evidence (PW-15), cannot be relied to prove

that on 28.10.2018 at about 6-00 pm, the deceased was in

company of the accused. The another evidence of last scheme

together relied by the trial Court is of PW-16 – Narendra

Rathod. This witness had dropped the accused Gopi on

Nirmali Road and while dropping the accused Gopi – A1, the

witness had noticed the presence of accused nos. 2 and 3 and

the deceased and according to version of the witness, they

were standing beside the road and the bike was parked there.

It is argued that, the tractor driver PW-16, is got up witness

because, as per the prosecution case, after the kidnapping the

deceased was taken to private farm where rape was

committed by accused Lalabhai and Jayantibhai and after

that, the accused Gopi met Lalabhai on the road and after

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asking the whereabouts of the deceased, the accused nos. 2

and 3 taken the accused no. 1 in the field, where the deceased

was lying. Thus, there is a material contradiction and

improvement in the evidence of tractor driver with respect to

presence of the accused at the place and therefore, the

testimony of Narendra Rathod – tractor driver, to prove the

circumstance of last scene theory without further

corroboration to his testimony, cannot be accepted and relied

upon. Thus, the presence of the accused at the field, where the

offence committed, is not established and prove and as such

there is no admissible evidence that the accused after

kidnapping the deceased, committed rape and killed her by

manual strangulation (throttling).

(v)It is the case of the prosecution that after the arrest, the

accused were referred to medical examination before PW-2

and before the doctor, the case history being given by the

accused. The statement of accused no. 1 before the doctor in

the form of case history, cannot be acted upon as substantial

and admissible evidence, because in the history, the accused

Gopi did not have referred the names of the accused. So far,

accused nos. 2 and 3 are concerned, they denied to the facts

that no such history being given by them to the doctor.

(vi)In the facts of the present case, after the arrest of the accused,

their blood samples and samples of sperms etc. being taken

by the PW-2 and samples were handed over to the concerned

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police official and same were deposited before the office of

FSL at Ahmedabad. The samples of the deceased like vaginal

swabs etc and cloths were seized and collected on 29.10.2018

and the sample of the accused for DNA profiling taken and

collected on 02.11.2018 and all the samples deposited on

15.11.2018 and after receiving the same, the Scientific officer

Mr. Suresh Vaghela PW-23, prepared a report of DNA

Analysis – Exh. 86 and other reports. It is in these

background facts, it was argued that the prosecution failed to

prove the chain of custody requirement for DNA samples and

in order to prove the integrity of the seal, the carrier of the

samples has not been examined. The samples were lying in

the police station for about 13 days and what kind of safety

measure being followed by the police has not been proved

with respect to the preservation, packaging and therefore, it

creates a serious doubt regarding the integrity of the samples

and accuracy and reliability of the DNA examination and

therefore, the conviction stand alone on the basis of DNA

analysis is not sustainable in law. In support this, reliance has

been placed on the case of Rahul Vs. State of Delhi(2023) 1

SCC 883), to contend that if DNA evidence is not properly

documented, collected, packaged, and preserved, it will not

meet the legal and scientific requirement for admissibility in a

court of law.

13.Mr. Bhavik Samani, learned counsel appearing for and on behalf

of accused – Gopi @ Bhalabhai Devipujak, made the following

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submissions:

(i)Circumstantial evidence brought on record by the prosecution

were not sufficient to bring home the charge of rape and

murder against the accused Gopi, as the prosecution failed to

prove and established a chain of unbroken events, unerringly

pointing to the guilt of the accused and none else.

(ii)In order to link the accused in the alleged crime, the

prosecution has mainly relied upon the testimony of PW-13

Vijay Zala and Ganpatsinh Zala– PW-14. The witness

Ganpatsinh Zala was having egg shop at the outskirts of

village Moti Jer and the witness Vijay Zala was employed by

him as his helper. As per the prosecution case, on 28.10.2018,

at about 6-30, the accused Gopi came to the shop of

Ganpatsinh Zala, and asked the witness to give his bike but he

did not do it and after sometime, witness PW-16 Narendra

Rathod, came with his tractor at his shop and took break-fast

there and after that, when he was about to proceed towards

Nirmali road, the accused Gopi got lift in the tractor and get

down on the Nirmali Road. It is in this context, it was

submitted that, the witness PW-16 was got up witness, as

according to his evidence, the deceased was found in the

company of the accused Nos. 2 and 3, when the accused no. 1

got down from the tractor. However, as per the prosecution

case, before accused no.1 could reach at the Nirmali Road,

the deceased was raped in the farm by accused nos. 2 and 3

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and she was lying in the farm. So the version of PW-16

creates a doubt about his presence at the spot and giving lift

to A1. Referring to the statement of PW-13 Vijay Zala,

recorded under Section 164 Cr.P.C, (Exh. 74), it was

submitted that, the witness Zala before the Magistrate had

stated that the accused Gopi was came at the shop at about

11-00 pm and after taking snacks, he proceeded towards

Nirmali. Thus, the version of tractor driver taking snacks at

the shop of Ganpat Zala and giving lift to accused Gopi and

dropped him at Nirmali Road, is falsified by the statement of

the witness Vijay Zala and therefore, the presence of the

accused at the shop of Ganpat Zala – PW-14 is not proved

and established and further case of the prosecution about

meeting with the co-accused on Nirmali Road, is also not

established and proved.

(iii)In order to prove the charge, the prosecution has mainly relied

upon the extra judicial confession of accused Gopi before

witness Vijay Zala – PW-13. The alleged confession is

neither voluntary nor is true and in absence of any details

with regard to how and at what time, the accused killed his

aunt i.e. deceased, the evidence of the witness with regard to

extra judicial confession admitting the guilt of the accused

cannot be relied upon and cannot be formed the basis of

conviction because, the evidence of extra judicial confession

is weak piece of evidence and when it does not inspire

confidence, and is not corroborated by any other evidence, the

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same cannot be relied upon and conviction cannot be based

thereon.

(iv)The accused Gopi while he was referred for medical

examination, the Doctor noted the history of the case and in

the history, the accused admitted that, he along with 2

accused committed rape upon the deceased. It was argued

that, the accused was brought before the doctor with police

yadi and the police officials of Kapadwanj Police Station

were present, when the history was noted by the doctor in the

Government Hospital and therefore, the said history in the

form of confession, is hit by Sections 25 and 26 of the

Evidence Act, because, confession made to a police officer is

prohibited and cannot be admitted in the evidence and no

confession made by the accused while he is in police custody

shall be proved against him, unless it is made in the

immediate presence of Magistrate. Thus, the evidence of PW-

2, who had noted the history of the case, cannot be read

against the accused.

(v)It is the case of the prosecution that after the arrest of accused

Gopi, he voluntarily made a disclosure statement which led to

discovery of place of offence and other places where the

accused had an opportunity to meet the accused. It is argued

that, the IO before the arrest of the accused, drew the

panchnama of scene of occurrence and after the arrest, at the

disclosure statement of the accused, drew the panchnama of

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places as pointed out by the accused. The panchas of the

panchnama has not deposed exactly the wordings of

panchnama and therefore the contents of panchnama having

not been proved by the panch witnesses and the IO in his

deposition has also not proved the exact words uttered by the

accused and the contents of panchnama. Heavy reliance has

been placed on the case of Ramanand @ Nandlal Bharti Vs

State of Uttar Pradesh, 2022 SCC on-line 1396, wherein,

the Supreme Court, did not have accepted the evidence of

discovery on the ground that the investigating officer in his

oral evidence, has not said about the exact words uttered by

the police at the police station and failed to prove the contents

of the discovery panchnama. The Supreme Court in para-56

of the judgment said that, the requirement of law needs to be

fulfilled before accepting the discovery by proving the

contents of the panchname and the IO in his deposition

obliged in law to prove the contents of the panchnama and it

is only if the investigation officer has successfully proved the

contents of 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.

(vi)So far as DNA analysis report is concerned, Mr. Samani,

learned advocate adopted the arguments of Mr. R.N. Singh

and also relied upon the judgment of Supreme Court, as

referred above.

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14.In such circumstances as referred above, the counsel Mr. R.N.

Singh and Mr. Bhavik Samani, appearing for the accused have

submitted that the prosecution has failed to prove its case beyond

reasonable doubt by adducing cogent, acceptable and trustworthy

evidence and as such, the judgment of conviction and sentence is liable

to be set aside. The prosecution failed to prove its case by leading

clinching and convincing circumstantial evidence and in absence of

any legal and admissible evidence, the trial Court convicted the

accused on the basis of surmises, conjectures and suspicion. So far as

sentence of death penalty is concerned, the present case does not fall in

the category of rarest of rare cases and the trial court failed to assign

special reasons for awarding death sentence. Thus, it was prayed that

there being merits in the appeal and the same may be allowed by

setting aside the judgment of conviction and order of sentence.

15.On the other hand, Mr. J. K. Shah, learned Additional Public

Prosecutor for the respondent-State vehemently opposed the appeals

and contended that, the Trial Court has not committed any error while

holding the appellants accused guilty for the offence of rape and

murder. He further submitted that there is no reason for the police

authority to implicate the accused in a serious charge of rape and

murder and therefore, the allegation of false implication has no any

basis. The accused Gopi was resident of Motijer Village and on

28.10.2018, he saw accused nos.2 and 3 taking away the deceased on

their motorbike and said facts being proved and established by the

evidence of PW:15 Mohan Rathod, who being an owner of grocery

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shop, had identified in the Court as the accused and the deceased on

the day of the incident, came to his shop for purchase of tobacco. The

presence of the accused at the field is also established by the evidence

of PW:16 Narendra Rathod as while dropping the accused Gopi at

Nirmali Road he saw the accused and deceased standing beside the

road. The accused had given a history before the doctor PW:2 who has

deposed the factum of history in his case papers Exhs.20, 21 and 22

which proves that on 28.10.2018, the deceased lady was kidnapped by

accused nos.2 and 3 and later on, accused no.1 joined with the co-

accused for committing the offence of rape and murder. The medical

evidence also proves that the possibility of gang rape cannot be ruled

out as the deceased sustained injuries over her private parts and the

manner in which the dead body was found in the private farm, the

deceased died due to manual strangulation. The accused Gopi

confessed his guilt before PW:13 and PW:14. In such circumstances,

after the offence of kidnapping, the deceased was subjected to sexual

assault and then, she was brutally killed by strangulation. The DNA

analysis report Exh.86 further confirms the complicity of the accused

Gopi. The accused Gopi voluntarily made disclosure statement before

the police and in the presence of the panchas, he saw the place of

incident where the deceased allegedly raped and killed. In such

circumstances, Mr.J.K. Shah, would urge that the prosecution has

proved beyond reasonable doubt the charge against the accused

appellants and circumstances as referred above, have been proved

beyond reasonable doubt and all the circumstances are sufficient to

establish guilt of the accused as various circumstances forms a chain

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pointing towards the accused appellants and none else. Thus, therefore,

the State Counsel has prayed that there being no merits in the appeal

and the same may be dismissed.

16.We have heard learned counsels for both the parties and perused

the case records. In our opinion, the following facts are not in dispute:

(1)The accused Gopi (A1) is resident of Village Motijer,

Kapadvanj, Dist.: Kheda and deceased being his aunt also living in the

same village with her husband.

(2)Accused nos.2 and 3 are resident of Village Shihora and they

along with the accused Gopi arrested on 01.10.2018, whereas alleged

incident occurred on 28.10.2018.

(3)The dead body of the deceased found in a naked position and her

cloths, two Indian currency notes of Rs.50 and Rs.100 found from the

place of occurrence. The I.O. while drawing the panchnama of the

place of the incident also found the tobacco pouch and empty bottle of

bagpiper whisk.

(4)The deceased had sustained bodily injuries and injuries over her

private part and as per the medical evidence, the cause of death was

asphyxia on account throttling and the neck injuries as noted in the

P.M. Report were sufficient in ordinary course of nature to cause

death.

(5)Death of the deceased was homicidal.

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17.The prosecution case admittedly based on the circumstantial

evidence. The prosecution relied upon the following circumstances:

(1) the deceased was lastly seen in the company of the accused nos.2

and 3 (PW:15 – Mohan Rathod),

(2) the accused were lastly seen by witness PW:16 Narendra Rathod,

(3) extrajudicial confession of the accused A1 before the witness

PW:13 Vijay Zala,

(4) the statement of the accused in the form of medical history before

the doctor PW:2 – Manubhai Gadhvi,

(5) the DNA analysis report at Exh.86 proving the complicity of the

accused in the crime.

18. 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

appellants accused and none-else.

19.Before we proceed with the analysis of evidence and the

contentions of the parties, it is necessary to briefly examine the law

relating to circumstantial evidence. It is settled position of law that the

circumstantial evidence is not direct to the point in issue but consists of

evidence of other facts which are so closely associated with the facts in

issue that taken together, they formed a chain of circumstances from

which the existence of the principle facts can be legally inferred or

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presumed. The chain must be complete and each fact forming part of

the chain must be proved. The circumstances from which the

conclusion of guilt is to be drawn should be 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 probabilities the offence

must have been committed by the accused (Sharad Birdhi Chand

Sarda Vs. State of Mahahrashtra – AIR 1984 SC 1622).

20.In the present case, on 28.10.2018, the alleged incident of rape

and murder was being occurred and the dead body of the deceased in a

naked position found in the private farm situated at Village: Nirmali,

Kapadvanj, Kheda. We have gone through the medical evidence. There

is no dispute that, the death of the deceased was homicidal in nature

and having regard to the injuries suffered, the possibility of gangrape

as opined by the doctor, cannot be ruled out. In that context, the issue

is whether the prosecution able to prove the charge of rape and murder

against the accused – appellants.

21.Analysis and findings:

We have heard at length learned counsel for the parties and perused the

case records and findings of conviction and sentence recorded by the

trial court.

22.According to the case of the prosecution, the accused were seen

with the deceased on 28.10.2018 in the evening hours at the shop of

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Mohan Rathod (PW.15) and thereafter, on Nirmali Road, seen by

PW.16 – Narendra Rathod. It is in this context, before dealing with the

issue of last seen theory, let us examine and refer the settled law in this

regard.

Theory of last seen together:

(1)In the case of Kanhaiya Lal Vs. State of Rajasthan (2004 (4)

SCC 715), the Apex Court has held that evidence on “last seen

together” is a weak piece of evidence and conviction only on the basis

of last seen together without there being any corroborative evidence

against the accused, is not sufficient to convict the accused for an

offence under Section 302 Indian Penal Code. Paras-12 and 15 of the

judgment read as under:

“12. The circumstance of last seen together does not by itself and

necessarily lead to the inference that it was the accused who

committed the crime. There must be something more establishing

connectivity between the accused and the crime. Mere non-

explanation on the part of the appellant, in our considered opinion,

by itself cannot lead to proof of guilt against the appellant.

15. The theory of last seen – the appellant having gone with the

deceased in the manner noticed hereinbefore, is the singular piece of

circumstantial evidence available against him. The conviction of the

appellant cannot be maintained merely on suspicion, however strong

it may be, or on his conduct. These facts assume further importance

on account of absence of proof of motive particularly when it is

proved that there was cordial relationship between the accused and

the deceased for a long time. The fact situation bears great similarity

to that in Madho Singh vs. State of Rajasthan, (2010) 15 SCC 588.”

(2)Similarly the Apex Court in Rambrakash @ Jalim Vs.

State of Chhattisgarh (2016 (12) SCC 251), has reiterated the legal

position in the case of last seen together. Paras-12 and 13 which are

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required to be referred and the same are reproduced herein:

“12.It is trite law that a conviction cannot be recorded against the

accused merely on the ground that the accused was last seen with the

deceased. In other words, a conviction cannot be based on the only

circumstance of last seen together. Normally, last seen theory comes

into play where the time gap, between the point of time when the

accused and the deceased were seen last alive and when the deceased

is found dead, is so small that possibility of any person other than the

accused being the perpetrator of the crime becomes impossible. To

record a conviction, the last seen together itself would not be sufficient

and the prosecution has to complete the chain of circumstances to

bring home the guilt of the accused.

13.In a similar fact situation this Court in Krishnan v.State of T.N.

(2014) 12 SCC 279, held as follows: (SCC pp.284-85, paras 21-24)

“21. The conviction cannot be based only on circumstance of last

seen together with the deceased. In Arjun Marik v. State of Bihar

(1994) Supp (2) SCC 372), this Court held as follows: (SCC

p.385, para 31)

“31. Thus the evidence that the appellant had gone to Sitaram in

the evening of 19-7-1985 and had stayed in the night at the house

of deceased Sitaram is very shaky and inconclusive. Even if it is

accepted that they were there it would at best amount to be the

evidence of the appellants having been seen last together with the

deceased. But it is settled law that the only circumstance of last

seen will not complete the chain of circumstances to record the

finding that it is consistent only with the hypothesis of the guilt of

the accused and, therefore, no conviction on that basis alone can

be founded.”

22. This Court in Bodhraj v. State of J&K (2002) 8 SCC 45) held

that: (SCC p.63, para 31)

“31. The last seen theory comes into play where the time gap

between the point of time when the accused and the deceased

were last seen alive and when the deceased is found dead is so

small that possibility of any person other than the accused being

the author of the crime becomes impossible.”

It will be hazardous to come to a conclusion of guilt in cases

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where there is no other positive evidence to conclude that the

accused and the deceased were last seen together.

23. There is unexplained delay of six days in lodging the FIR. As

per prosecution story the deceased Manikandan was last seen on

4-4-2004 at Vadakkumelur Village during Panguni Uthiram

Festival at Mariyamman Temple. The body of the deceased was

taken from the borewell by the fire service personnel after more

than seven days. There is no other positive material on record to

show that the deceased was last seen together with the accused

and in the intervening period of seven days there was nobody in

contact with the deceased.

24. In Jaswant Gir v. State of Punjab (2005) 12 SCC 438),

this Court held that in the absence of any other links in the chain

of circumstantial evidence, the appellant cannot be convicted

solely on the basis of “last seen together” even if version of the

prosecution witness in this regard is believed.”

23.The circumstance of last seen together in the facts of the present

case and upon careful examination of the evidence, the witnesses either

deposed at the behest of the police, or they were really not knowing the

entire factual aspect of the crime. If we examine the evidence of

PW.15 – Mohan Rathod, who had seen the deceased in the company of

the accused no.2 and 3, does not inspire confidence because in the

evening hours, according to his version, there were many customers

standing at his shop. The accused no.2 was not personally knowing

him, nor before the incident, he came into contact with the accused in

any manner. Admittedly, police brought both the accused to the shop

of the witness and informed that, these accused had come to his shop

for purchasing tobacco and at that time, deceased and other accused

were standing outside the shop. The I.O. failed to conduct TIP of the

witness as this circumstance of last seen together was most important

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link to connect the accused in the crime. There are glaring

discrepancies in the evidence of PW.15 who allegedly seen the

deceased last alive in the company of the accused no.2 and 3. In such

circumstances, it was prudently not possible for the grocery shop

owner to remember each customer and what kind of things he had

purchased. Thus, in absence of any corroboration to the evidence of

PW.15, his evidence on the aspect of last seen together theory, cannot

be a ground to infer that the accused A2 and A3 were lastly in seen

with the deceased on 28.10.2018 at about 6:45 p.m. by the witness. The

another piece of evidence i.e. circumstance of last seen together is the

evidence of PW.16 – Narendra Rathod who had seen the deceased

lastly in the company of all accused. We have carefully examined his

evidence. It is relevant to note that, the witness being a tractor driver,

had come to roadside eatery shop of PW.14, where the PW.13 – Vijay

Zala was employed as an Assistant. The witness Vijay Zala (PW.13) in

his 164 statement (Exh.74) has categorically stated that on 28.10.2018,

the accused Gopi (A1) came to the eatery shop at about 11:00 p.m. for

snacks and after taking snacks, he left towards Nirmali Road. It is the

case of prosecution that, on the same day, at about 6:30, the accused

Gopi got a lift in the tractor of PW.16 and he was dropped at Nirmali

Road and at that time, the tractor driver saw the accused no.2 and 3

along with deceased, standing on the roadside. The evidence of tractor

driver is in contradiction with the statement of PW.13 recorded by the

Magistrate under Section 164 of the Cr.P.C. and as per the statement,

the A1 came at about 11 o’ clock at the eatery shop. The second

contradiction in the evidence of PW.16 is that, when the witness had

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dropped the accused Gopi at Nirmali Road, the deceased was already

taken in the private farm where the accused no.2 allegedly committed

rape upon her. In such circumstances, the presence of the deceased and

accused no.2 – Jayantibhai as per the prosecution case, was not at the

roadside when the accused Gopi had been dropped by the witness

(PW.16). Thus, after examination of the evidence of the aforesaid two

witnesses, the circumstance of deceased found in the company of the

accused on 28.10.2018 at the grocery shop of PW.15 and thereafter, at

the Nirmali Road are not at all proved and established and on such

evidence, the circumstances of last seen together does not by itself lead

the inference that the deceased was lastly seen in the company of the

accused.

24.The net result of the aforesaid discussion would be that the

presence of the accused no.2 and 3 at the place where the incident

occurred, has not been proved and established, nor it is established

that, the deceased was lastly in their company and was kidnapped

forcefully for sexual intercourse. It is relevant to note that the accused

no.1 Gopi did not have disclosed the names of accused no.2 and 3

before the Doctor (PW.2) that, they had kidnapped the deceased from

the bus stand of the Village: Motijer and after chasing him, he had saw

the accused on Nirmali Road. Thus, the history before the doctor does

not point out the names of accused no.2 and 3 and therefore, the

presence of the accused on 28.10.2018 either at the crossroad of

Village: Motijer, or at Nirmali Road where the incident occurred. We

may profitably refer the evidentiary value of medical history always

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recorded by the treating doctor. The Supreme Court in the case of

Pattipati Venkaih vs. State of A.P. (1985 (4) SCC 80), while observing

the duty of the doctor, held that, the doctor is a prosecution witness for

the limited purpose of the injury report and not a prosecution witness

with regard to the occurrence. The observations made in para-17 are

relevant to reproduce:

Para-17:

“Another argument advanced before us was that, although PWs

1 and 2 were supposed to be eye witnesses, they never cared to disclose

of the names of the assailants to the doctor when body of the deceased

was taken to the hospital. This argument is only stated to be rejected.

The doctor is not at all concerned as to who committed the offence or

whether the person brought to him is a criminal or an ordinary person,

his primary effort is to save life of a person brought to him and inform

the police in medico legal cases. In this state of confusion, PWs 1 and 2

may not have chosen to give details of the murder to doctor. It is well

settled that, the doctors before whom dead bodies are produced or

injured persons are brought either themselves, take the dying

declaration or hold the P.M. immediately and if they started examining

the informants, they are likely to become the witness of the occurrence

which is not permissible.”

In light of the settled principle of law and applying the same to

the facts of the present case, it is not in dispute that, the accused after

their arrest, were brought before the PW.2 with Police Yadi for

medical examination on 02.11.2018 and police personnel had

throughout accompanied the accused at the hospital and in his

presence, the doctor did examination of the accused and noted the

history. Thus, the history before the doctor as relied by the prosecution

are not substantial and admissible evidence on two counts i.e. (i) it is

none of the business of the doctor to record the history which has no

relevance with the treatment or for the purpose for which the accused

sent for obtaining necessary samples etc. and (ii) the so-called history

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when noted by the doctor, the presence of the police constable as

referred in the case papers, was throughout with the accused persons

and therefore, any statement in the form of confession though before

the doctor, but, in the presence of the police officials, cannot be

admitted in evidence as the said confession is prohibited in law and hit

by Sections 25 and 26 of The Evidence Act. Thus, the circumstance of

medical history connecting the accused in the alleged crime, cannot be

admitted in evidence and on that basis, no inference can be drawn that,

the accused on 28.10.2018, in the evening hours, took the deceased on

their bike and taken her in the private field.

25.The next circumstance, involving the accused no.1 Gopi

Devipujak relied by the prosecution is the extra judicial confession

made before the two witnesses namely PW.13 – Vijay Zala and PW.14

– Ganpatsinh Zala. It is the case of prosecution that, the accused Gopi

on 28.10.2018, came to the roadside eatery shop of PW.14 and asked

to lent his bike so that he could catch the deceased and accused no.2

and 3. The witness refused to give his bike and accused chosen to sit in

the eatery shop and at that time, PW.16 by driving his tractor, came at

the shop for snacks and after completion of snacks, he gave a lift to the

accused Gopi and dropped him at Nirmali Road. The said circumstance

as discussed in the presiding paragraph of this judgment, the

prosecution failed to prove the said aspect of presence of the accused

in the eatery shop because the Assistant Vijay Zala being a friend of

Gopi, in his 164 statement (Exh.74), categorically stated that the

accused Gopi came to the eatery shop at about 11 o’ clock and after

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taking snacks, he proceeded towards Nirmali Road. The theory of

taking lift in the tractor by the accused and the factum of snacks being

taken by the tractor driver (PW.16) is falsified by the 164 statement of

the witness (PW.13). Thus, the presence of accused Gopi in the eatery

shop at about 7 o’ clock on 28.10.2018 and taking lift in the tractor and

went to Nirmali Road, are not proved and established. It is further case

of prosecution that, PW.13 and accused Gopi resident of Village:

Motijer, were friends and they used to go for fishing together. It is in

this context the piece of circumstance relied by the prosecution is that,

on the next day of the incident i.e. 29.10.2018 at about 8:00 a.m. the

accused Gopi went to the house of PW.13 and when they were in the

Vatrak river for fishing purpose, the accused Gopi made a confession

in one line that, “he had killed his aunt.”

In other words, according to prosecution case, the accused Gopi

confessed his guilt before the witness (PW.13) and the said confession

was made voluntarily by him and it reflects true facts of the incident

and the evidence of PW.13 on this aspect is credible. Before dealing

with the issue of extra judicial confession it is necessary to refer the

settled position of law.

Extrajudicial confession:

The Supreme Court in the case of Ramu Appa Mahapatar Vs.

State of Maharashtra (2025 (2) SCR 388), while acquitting the

accused emphasizing that the extrajudicial confession are inherently

weak evidence and requires strong, credible corroboration, not just

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suspicion, to sustain a conviction, especially with contradictory

testimonies and missing evidence. Paras-16 to 19, referring the earlier

judgment of the Supreme Court on the subject of extrajudicial

confession, reads as under:

“16. Extra-judicial confession of an offence made by the Accused before a

witness is one of the several instances of circumstantial evidence; there

are other circumstances, such as, the theory of last seen together;

conduct of the Accused before or immediately after the incident; human

blood being found on the clothes or person of the Accused which matches

with that of the Accused; leading to discovery, recovery of weapon etc. As

we know, circumstantial evidence is not direct to the point in issue but

consists of evidence of various other facts which are so closely associated

with the fact in issue that taken together, they form a chain of

circumstances from which the existence of the principal fact can be

legally inferred or presumed. The chain must be complete and each fact

forming part of the chain must be proved. It has been consistently laid

down by this Court that where a case rests squarely on circumstantial

evidence, inference of guilt can be justified only when all the

incriminating facts and circumstances are found to be incompatible with

the innocence of the Accused or the guilt of any other person. The

circumstances would not only have to be proved beyond reasonable

doubt, those would also have to be shown to be closely connected with

the principal fact sought to be inferred from those circumstances. All

these circumstances should be complete and there should be no gap left

in the chain of evidence. The proved circumstances must be consistent

only with the hypothesis of the guilt of the Accused and totally

inconsistent with his innocence. The circumstances taken cumulatively

must be so complete that there is no escape from the conclusion that

within all human probability the crime was committed by the Accused and

none else. While there is no doubt that conviction can be based solely on

circumstantial evidence but great care must be taken in evaluating

circumstantial evidence. If the evidence relied upon is reasonably capable

of two inferences, the one in favour of the Accused must be accepted.

17. In State of Rajasthan v. Raja Ram MANU/SC/0595/2003 :

2003:INSC:388 : (2003) 8 SCC 180, this Court explained the concept of

extra-judicial confession. Confession may be divided into two classes i.e.

judicial and extra-judicial. Judicial confessions are those which are made

before a magistrate or a court in the course of judicial proceedings. Extra-

judicial confessions are those which are made by the party elsewhere than

before a magistrate or a court. Extra-judicial confessions are generally

those that are made by a party before a private individual who may be a

judicial officer also in his private capacity. As to extra-judicial confessions,

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two questions arise: firstly, whether they are made voluntarily and

secondly, are they true? If the court is of the opinion that the confession

was not made voluntarily but was a result of an inducement, threat or

promise, it would not be acted upon. It follows that a confession would be

voluntary if it is made by the Accused in a fit state of mind and if it is not

caused by any inducement, threat or promise having reference to the

charge against him proceeding from a person in authority. Whether or not

the confession was voluntary would depend upon the facts and

circumstances of each case judged in the light of Section 24 of the Indian

Evidence Act, 1872 (briefly 'the Evidence Act' hereinafter). The law is

clear that a confession cannot be used against an Accused person unless

the court is satisfied that it was voluntary. At that stage, the question

whether it is true or false does not arise. If the facts and circumstances

surrounding the making of a confession appear to cast a doubt on the

veracity and voluntariness of the confession, the court may refuse to act

upon the confession even if it is admissible in evidence. The question

whether a confession is voluntary or not is always a question of fact. A

free and voluntary confession is deserving of the highest credit because it

is presumed to flow from the highest sense of guilt.

17.1. An extra-judicial confession, if voluntary and true and made in a fit

state of mind, can be relied upon by the court. The confession will have to

be proved like any other fact. The value of the evidence as to confession

like any other evidence depends upon the reliability of the witness to

whom it is made and who gives the evidence. Extra- judicial confession

can be relied upon and conviction can be based thereon if the evidence

about the confession comes from a witness who appear to be unbiased,

not even remotely inimical to the Accused, and in respect of whom

nothing is brought out which may tend to indicate that he may have a

motive of attributing an untruthful statement to the Accused. The words

spoken by the witness should be clear, unambiguous and unmistakenly

convey that the Accused is the perpetrator of the crime and that nothing

is omitted by the witness which may militate against it. After subjecting

the evidence of the witness to a rigorous test on the touchstone of

credibility, the extra-judicial confession can be accepted and can be the

basis of a conviction if it passes the test of credibility.

17.2. If the evidence relating to extra-judicial confession is found credible

after being tested on the touchstone of credibility and acceptability, it

can solely form the basis of conviction. The requirement of corroboration

is a matter of prudence and not an invariable Rule of law.

18. In Sansar Chand v. State of Rajasthan MANU/SC/0869/2010 :

2010:INSC:712 : (2010) 10 SCC 604, this Court accepted the admissibility

of extra-judicial confession and held that there is no absolute Rule that an

extra-judicial confession can never be the basis of a conviction although

ordinarily an extra- judicial confession should be corroborated by some

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other material.

19. Evidentiary value of an extra-judicial confession was again examined

in detail by this Court in Sahadevan v. State of Tamil Nadu

MANU/SC/0499/2012 : (2012) 6 SCC 403. That was also a case where

conviction was based on extra-judicial confession. This Court held that in

a case based on circumstantial evidence, the onus lies upon the

prosecution to prove the complete chain of events which shall

undoubtedly point towards the guilt of the Accused. That apart, in a case

of circumstantial evidence where the prosecution relies upon an extra-

judicial confession, the court has to examine the same with a greater

degree of care and caution. An extra-judicial confession, if voluntary and

true and made in a fit state of mind can be relied upon by the court.

However, the confession will have to be proved like any other fact. The

value of the evidence as to confession like any other evidence depends

upon the veracity of the witness to whom it has been made.

19.1. This Court acknowledged that extra-judicial confession is a weak

piece of evidence. Wherever the court intends to base a conviction on an

extra-judicial confession, it must ensure that the same inspires confidence

and is corroborated by other prosecution evidence. If the extra-judicial

confession suffers from material discrepancies or inherent improbabilities

and does not appear to be cogent, such evidence should not be

considered. This Court held as follows:

14 . It is a settled principle of criminal jurisprudence that extra-

judicial confession is a weak piece of evidence. Wherever the court,

upon due appreciation of the entire prosecution evidence, intends

to base a conviction on an extra-judicial confession, it must ensure

that the same inspires confidence and is corroborated by other

prosecution evidence. If, however, the extra-judicial confession

suffers from material discrepancies or inherent improbabilities and

does not appear to be cogent as per the prosecution version, it may

be difficult for the court to base a conviction on such a confession.

In such circumstances, the court would be fully justified in ruling

such evidence out of consideration.

19.2. Upon an indepth analysis of judicial precedents, this Court in

Sahadevan (supra) summed up the principles which would make an extra-

judicial confession an admissible piece of evidence capable of forming the

basis of conviction of an Accused:

(i) The extra-judicial confession is a weak evidence by itself. It has to be

examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

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(iii) It should inspire confidence.

(iv) An extra-judicial confession attains greater credibility and evidentiary

value if it is supported by a chain of cogent circumstances and is further

corroborated by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of conviction, it should

not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in

accordance with law.”

In light of the settled position of law, the issue arise for out

consideration as to whether the extra judicial confession of the accused

confessing his guilt of killing his aunt is voluntary, true and credible to

infer the involvement of the accused in commission of crime. The

answer is no because the PW.13 – Vijay Zala according to prosecution

case, was working as a helper at the roadside eatery owned by PW.14

and the working hours was 5 p.m. to 11:30 p.m. The witness was used

to sleep in the house of PW.14 after completion of his daily work. The

prosecution case is that, on the next date i.e. 29.10.2018, the witness

(PW.13) was at his father’s home and in the morning, the accused Gopi

came to the house and both together went for fishing nearby the river

and while fishing, the accused Gopi made a confession about killing of

his aunt. The one line confession does not inspire confidence because

how and where, the deceased was killed, has not been stated by the

accused, nor asked by the witness. The father of PW.13 who later on

came to know about the confession made by the accused Gopi, in his

deposition, stated that, when Gopi came to his house, he was not there

at the home and his son later on, informed him about the confession. In

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such circumstances, in absence of any corroboration to the evidence of

extra judicial confession, the reliance on the sole evidence of PW.13 to

prove the guilt of the accused on the basis of extra judicial confession

is prudently not acceptable and permissible as the one line confession

does not inspire confidence about the truthfulness of the confession

because in absence of any further particulars on this aspect like time,

date and motive of killing, it cannot be acted upon.

26.The another circumstances pointing towards the guilt of the

accused relied by the prosecution is DNA Analysis. The Scientific

Officer (PW.23) Suresh Vaghela had conducted DNA Profiling and

issued a report at Exh.86 dated 01.05.2019. Admittedly, the alleged

incident occurred on 28.10.2018. The P.M. of the deceased conducted

on 29.10.2018 and the doctor (PW.2) has taken necessary samples

from the body of the deceased for DNA Profiling and after sealing the

samples, they were handed over to the concerned police officials for

depositing in the FSL. All three accused were arrested on 01.11.2018

and on 02.11.2018, they were brought before PW.2 for medical

examination and for taking necessary samples of DNA Profiling and

after taking the samples of blood etc., the sealed samples handed over

to the concerned police for FSL. The samples of deceased and accused

received by Ahmedabad FSL on 15.11.2018 i.e. after delay of 14 days.

No reason is forthcoming as to why the samples were lying in the

police station for a period of 14 days and during the said period, what

kind of measures for preserving the samples being taken. It is in these

background facts, the contention raised is that, there are several

discrepancies like delay in forwarding the samples, breached in

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protocols for preserving the samples, gapes in the chain of custody

which create doubts regarding the accuracy, integrity of the samples

and test reports and therefore, the DNA Profiling Report (Exh.86)

cannot be relied upon to prove the complicity of the accused.

DNA profiling:

(1)DNA evidence may be more useful for purposes of investigation

and so far its evidentiary value is concerned, the Apex Court in its

various judgments held that the DNA evidence is in the nature of

opinion evidence as envisaged under Section 45 of the Evidence Act

and like any other opinion evidence, and its probative value varies

from case to case and it depends on the quality control and quality

assurance procedure in the laboratory (Rahul Vs. State of Delhi -

2023 (1) SCC 83).

In the facts of the present case, admittedly, after delay of 14

days, the samples were forwarded to the FSL, Ahmedabad and the

delay is unexplained and during the said period, under what condition,

samples were preserved, that is also not come on record. Recently, in

the case of Karandeep Sharma @ Razia @ Raju vs. State of Gujarat

(2025 INSC 444), the Supreme Court on the issue of reliability and

admissibility of the evidence of DNA Profiling, held and observed that,

the prosecution would first be required to prove the sanctity and chain

of custody of samples/articles right from the time of their preparation,

collection till the time they reached the FSL and for this purpose, the

link evidence would have to be establish by examining the concerned

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witnesses. In another case, the Supreme Court (Putai vs. State of Uttar

Pradesh (2025) INSC 1042), while allowing the criminal appeals of

two villagers, Putai and Dilip, who had been sentenced – one of them

to death – for the rape and murder of 12 years old girl. The conviction

has been set aside on the ground that, the prosecution’s circumstantial

case was fatally tainted by an unproven and incomplete chain of

custody for crucial DNA samples and other forensic exhibits. In the

case of Prakash Nishad vs. State of Maharashtra (2023 16 SCC 357),

on the aspect of delay in forwarding the samples to the laboratory, the

Apex Court has observed that, when there is unexplained delay in

sending the samples to the FSL, the concomitant prospect of

contamination could not be ruled out and the need for expediency in

sending the samples to the laboratories was underscored. Recently,

the Supreme Court in the case of Kattavellai @ Devakar Vs. State of

Tamil Nadu (2025 INSC 845), while discarding the DNA evidence,

observed that, despite the presence of DNA evidence, it has to be

discarded to the reason that, proper methods and procedures were not

followed in the collection, sealing, storage and employment of the

evidence in the course of appellant – convict’s conviction. DNA, as we

have observed has to be largely dependable, even though these

evidence is only of probative value, subject to the condition that it is

properly dealt with. Over the past decades, many cases have come to

their logical conclusion with the aid of DNA evidence in many regions

across the world. It is also equally true that, many persons wrongly

convicted, have finally have justice served, with them being declared

innocence because of advancement in this technology. It is unfortunate

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that, alongside such advancement, we still have cases where despite the

evidence being present, it has to be rejected for the reason that, the

concerned persons, either doctors or investigators have been careless in

handling of such sensitive evidence. The Supreme Court in para-44 of

the judgment, issued the following directions, which shall be followed

henceforth in all cases, where DNA evidence is involved.

“1. The collection of DNA samples once made after due care and

compliance of all necessary procedure including swift and

appropriate packaging including a) FIR number and date; b) Section

and the statute involved therein; c) details of I.O., Police station;

and d) requisite serial number shall be duly documented. The

document recording the collection shall have the signatures and

designations of the medical professional present, the investigating

officer and independent witnesses. Here only we may clarify that

the absence of independent witnesses shall not be taken to be

compromising to the collection of such evidence, but the efforts

made to join such witnesses and the eventual inability to do so

shall be duly put down in record.

2. The Investigating Officer shall be responsible for the

transportation of the DNA evidence to the concerned police station

or the hospital concerned, as the case may be. He shall also be

responsible for ensuring that the samples so taken reach the

concerned forensic science laboratory with dispatch and in any

case not later than 48-hours from the time of collection. Should

any extraneous circumstance present itself and the 48-hours

timeline cannot be complied with, the reason for the delay shall be

duly recorded in the case diary. Throughout, the requisite efforts

be made to preserve the samples as per the requirement

corresponding to the nature of the sample taken.

3. In the time that the DNA samples are stored pending trial appeal

etc., no package shall be opened, altered or resealed without

express authorisation of the Trial Court acting upon a statement of

a duly qualified and experienced medical professional to the effect

that the same shall not have a negative impact on the sanctity of

the evidence and with the Court being assured that such a step is

necessary for proper and just outcome of the Investigation/Trial.

4. Right from the point of collection to the logical end, i.e.,

conviction or acquittal of the accused, a Chain of Custody Register

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shall be maintained wherein each and every movement of the

evidence shall be recorded with counter sign at each end thereof

stating also the reason therefor. This Chain of Custody Register

shall necessarily be appended as part of the Trial Court record.

Failure to maintain the same shall render the I.O. responsible for

explaining such lapse.”

In light of the above and evidence on record, the DNA Profiling

Report (Exh.86) says that, the bloodstains marks on the sari and

petticoat of the deceased showed concomitance with autosomal DNA

Profile of Gopi @ Bhalabhai Devipujak. So far as accused no.3 –

Lalabhai is concerned, the bloodstains found on his T-shirt and blood

of the deceased shows concordance with each other. There is no

incriminating findings against the accused no.2 – Jayantibhai Vadi. In

these background facts, in order to prove the probative value of the

DNA Report, the prosecution failed to forward it within a reasonable

time (48 hours) and in absence of any explanation about the sanctity

and chain of custody of the samples, no reliance can be placed on the

report to connect the accused in the crime. It is the prosecution to

prove that, after samples were drawn, then, for about 14 days, how

they stored, transported and received by the FSL. The prosecution

should have examine the police official who was in custody of samples

and the person who had deposited the samples with the FSL. In such

circumstances, the DNA Profiling Report cannot be read against the

accused A1 and A3 so as to infer their involvement in the alleged

offence.

27.The another circumstances relied by the prosecution is the

admission of the accused A1 – Gopi Devipujak as during the

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investigation, he made a disclosure statement while pointing out the place

of offence. It is relevant to note that, neither the panchas, nor the I.O. has

stated the exact words spoken by the accused about his willingness to

show the place. Recently, the Supreme Court in the case of Ramanand @

Nandlal Bharti vs. State of Uttar Pradesh (2022 SCC OnLine 1396), has

emphasized the necessity of proving the exact words uttered by the

accused and proving the contents of discovery panchnama. In para-54 to

56, the Supreme Court held that, the investigating officer in his

deposition is obliged in law to prove the contents of panchnama and it is

only if the investigating officer 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.

In the present case, the panchnama as relied by the prosecution is

reconstruction of the offence and accused jointly being referred in the

panchnama and it cannot be said to be a discovery panchnama under

Section 27 of The Evidence Act because on 29.10.2018, the police in the

presence of panchas, had drawn the panchnama of place of offence and

subsequently after the arrest of the accused, the another panchnama of

pointing out the place, being drawn. Thus, the information whatever

disclosed cannot relates distinctly to the fact discovered because the fact

already been discovered before the alleged panchnama of reconstruction.

In such circumstances, the so called confession of the accused Gopi – A1

which was before the police officials and is hit by Sections 25 and 26 of

the Evidence Act and considering the nature of panchnama, which do not

fall under Section 27 of the Evidence Act and on this circumstance,

inference cannot be drawn against the accused for their involvement in

the crime.

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28.We are conscious about the seriousness of the offence as the

deceased was raped and killed in a brutal manner. However, it is one of

the fundamental principle of criminal jurisprudence that the accused is

presumed to be innocent till he is proved to be guilty. It is equally well

settled that, suspicion however be strong, can never take place of the

proof. There is indeed a long distance between accused may have

committed the offence and must have committed the offence, which must

be traversed by the prosecution by adducing reliance and cogent

evidence. The Supreme Court in the case of Jaharlaldas vs. State of

Orissa (1991 3 SCC 27) has held that, even if the offence is shocking one,

the gravity of offence cannot by itself overweight as far as legal proof is

concerned. Recently, the Supreme Court in the case of Surendra Koli vs.

State of U.P. (2025 LawSuit SC 1479), while acquitting the accused in the

case known as “Nitharikand”, held that, the offences in Nithari were

heinous and the suffering of the family is beyond measure. It is a matter

of deep regret that despite of prolonged investigation, the identity of the

accused perpetrator has not been established in the manner that meets the

legal standards. Criminal law does not permit conviction on conjectures

or on a hunch. Suspicion however grave, cannot proof beyond reasonable

doubt. Courts cannot prefer expediency over legality. The presumption of

innocence endures until guilt is proved through admissible and reliable

evidence and when the proof fails, the only lawful outcome is to set aside

the conviction even in a case involving horrific crimes.

29.For the reasons aforementioned, we are of the considered opinion

that, the prosecution failed to prove all necessary circumstances by

reliable and clinching evidence which would constitute a complete chain

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without a snap as would permit no confusion other than the one of the

guilt of the accused. Resultantly, the prosecution has not been able to

prove its case beyond reasonable doubt against the accused as complete

chain of incriminating circumstances pointing towards guilt of the

accused has not been established and proved. The accused no.1 to 3 are

acquitted of all charges.

30.Accordingly, the Criminal Appeal No.1139 of 2022 and Criminal

Appeal No.1813 of 2022 are allowed. The judgment of conviction dated

29.04.2022 and order of death sentence passed by the Additional Sessions

Judge, Kapadvanj at Kheda in Sessions Case No.12 of 2021 (Old Case

No.43 of 2019) is set aside. In view of disposal of Criminal Appeal

No.1139 of 2022, Criminal Misc. Application (For Direction) No.1 of

2022 in Criminal Appeal No.1139 of 2022 stands disposed of

accordingly. The appellants-accused are in jail. They shall be released

forthwith unless their custody is necessary in any other case. In view of

setting aside of the judgment of conviction, the Criminal Confirmation

Case No.6 of 2022 is disposed of accordingly. Registry shall send the R

& P to the concerned court, henceforth.

Sd/-

(ILESH J. VORA,J)

Sd/-

(R. T. VACHHANI, J)

TAUSIF SAIYED

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