R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 695 of 2020

With

R/CRIMINAL CONFIRMATION CASE NO. 2 of 2020

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MR. JUSTICE R. T. VACHHANI

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

Approved for Reporting Yes No

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

RAMESHBHAI BACHUBHAI VAIDHUKIYA

Versus

STATE OF GUJARAT & ANR.

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

Appearance:

MS URVASHI MEHTA FOR ASHWINI K MEHTA(9400) for the Appellant(s)

No. 1

NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2

MR BHARGAV PANDYA, APP for the Opponent(s)/Respondent(s) No. 1

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

CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MR. JUSTICE R. T. VACHHANI

Date : 06/02/2026

ORAL JUDGMENT

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

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

confirmation of a Death Sentence awarded to the appellant – sole

accused – Ramesh Bachubhai Vadhukiya, by judgment dated

17.03.2020, passed in Special POCSO (Atro) Case No.28 of 2018,

whereby, the Additional Sessions Court at Rajkot, has convicted the

appellant accused for the following offences and sentenced as tabulated

hereinunder:

Page 1 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

Conviction under

Section

Punishment Fine In default of

fine

302 of IPC Death

Sentence

Rs.5,000/-RI for 2 years

376(f)(n) of IPCDeath

Sentence

Rs.5,000/-RI for 2 years

363 of IPC RI for 7 yearsRs.1,000/-RI for 1 year

2.The appellant herein has also questioned the legality and

correctness of the judgment of conviction and order of death sentence

by preferring conviction appeal (Criminal Appeal No.695 of 2020).

3.The prosecution case, in nutshell, is that,

The appellant accused Ramesh Bachubhai was tried and

prosecuted for the offence of rape and murder allegedly

committed on 3 years old child. The child was kidnapped and

then, taken to a secluded place of City Rajkot and to satisfy the

lust of the accused, she was sexually abused and due to her

screaming, the accused smashed her head with the floor and

then, thrashed her face and head with the stone. The incident

occurred on 09.02.2018 in the noon hours. The parents of the

victim were labourers and when they were busy with their labour

work, the accused secretly kidnapped the deceased child who

was playing nearby the workplace and then, she was taken by the

accused at the old I.I.T Hostel, PTC Ground at Rajkot and the

building was in a dilapidated condition and taking advantage of

the situation, the child was sexually abused and then, killed by

the accused. The parents were in search of the child and in the

Page 2 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

evening, they lodged a complaint with Thorada Police Station,

Rajkot against the unknown person for kidnapping their child. At

relevant time, the child had wear yellow frock and leggings and

plastic bangles on her hands. On 11.02.2018, the dead body of

the child was found and accordingly, the post-mortem on her

body being conducted by PW.7 – Dr. Pratik Varu and according

to his opinion, the cause of death was multiple injuries on the

head and face and there was a sign of recent genital penetration.

The necessary blood samples and samples for DNA Profile being

taken from the body of the deceased child. The I.O. took visit the

place of occurrence and prepared a spot panchnama (Exh.33) and

seized and recovered: (i) a quilt in red cover with blood stains

marks; (ii) yellow frock; (iii) leggings; (iv) pieces of shirt; (v)

pieces of plastic broken bangles; (vi) juite bag and (vii) stones

with blood stain marks.

According to prosecution case, the accused after committing the

offence, had left the place and purchased a cigarette from the pan

shop, owned by PW.13 – Ashraf Harun and the pan shop owner

noticed bloodstains on the pant of the accused and when the

explanation sought by the pan shop owner about how the blood

stains came on the pant, the accused-appellant replied to the

query that, there was an accident. After leaving the pan shop, the

accused, came to be arrested by the Kuwadava Police, Rajkot, in

another offence of murder and the said offence, his clothes

marked with blood stains had been seized by the Kuwadava

Police. (Kuwadava Police Station CR No.I-19 of 2018 for the

Page 3 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

offence punishable under Sections 302 and 394 of the Indian

Penal Code).

In the present case, the I.O. (PW.14) sought custody of the

accused on the basis of transfer warrant and he came to be

arrested on 15.02.2018. The I.O. took the accused on the offence

site and the accused reconstructed the manner of offence and

panchnama to this effect being drawn. The parents of the child

belongs to SC Community, as a result, the investigation was

handed over to PW.12 – Bharat Chaudhari. The I.O. during the

investigation, recorded the statements of the witnesses, referred

the accused for medical examination and DNA Profiling, the I.O.

referred the witnesses to the Judicial Magistrate for recording

their statements under Section 164 of the Cr.P.C. and the

videography of recording of the statement of the pan shop owner

being done. The I.O. seized and recovered the clothes of the

accused and sent the seized articles including the blood samples

etc. for DNA Profiling to the FSL, Gandhinagar and after

receiving the positive report involving the accused in the

offence, the I.O. filed the chargesheet for the offences as referred

above.

4.As the case was exclusively triable by the Court of Sessions, the

case was committed to the Court of Sessions at Rajkot Sessions Court.

5.The Sessions Court, Rajkot framed the charges against the

Page 4 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

appellant. The accused – appellant, in his statement, did not have

admitted the charge and claimed to be tried.

6.The prosecution, in order to prove the charge, adduced the

following oral and documentary evidence in support of its case.

Oral evidence

PW 1 – Exh.15Mukeshbhai Harjibhai Jijariya, panch witness

PW 2 – Exh.17Vijuben Vijaybhai Rathod, panch witness

PW 3 – Exh.18Bhagatsingh Girdharibhai Vaghela, panch witness

PW 4 – Exh.20Tusharbhai Rameshbhai Makwana, panch witness

PW 5 – Exh.21Pareshbhai Babulal Chavda

PW 6 – Exh.25Dhavalbhai Haribhai Kotadiya, panch witness

PW 7 – Exh.27Denishbhai Shaileshbhai Pipadiya, panch witness

PW 8 – Exh.28Jagdishbhai Maganbhai Makwana, panch witness

PW 9 – Exh.30Devrajbhai Lakhubhai Chavda, panch witness

PW 10 – Exh.31Mukeshbhai Khimjibhai Chavda, panch witness

PW 11 – Exh.33Rameshbhai Karsanbhai Rathod, panch witness

PW 12 – Exh.34Dharmeshbhai Bhojabhai Singhav, panch witness

PW 13 – Exh.36Sagar Rameshbhai Makwana, panch witness

PW 14 – Exh.38Dharmeshbhai Kishorbhai Trivedi, panch witness

PW 15 – Exh.40Narshibhai Raghubhai Dharjiya, panch witness

PW 16 – Exh.41Ajaybhai Dilipbhai Tairaiya, panch witness

PW 17 – Exh.43Abdulkadir Moijbhai Sadikot

PW 18 – Exh.44Amarbhai Yunusbhai@ Yusufbhai Vanak

PW 19 – Exh.49Praladhsingh Maheshbhai Dodiya, panch witness

PW 20 – Exh.50Moijbhai Hatimbhai Sadikot, Complainant

Page 5 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

PW 21 – Exh.59Batulben Yusufbhai Vanak

PW 22 – Exh.60Yusufbhai Taherbhai Vanak

PW 23 – Exh.62Yunusbhai Alakha Bukera

PW 24 – Exh.66Dr. Raghurajsingh Dhirubha Vaghela

PW 25 – Exh.73Ashwinkumar Rupajibhai Modiya, IO

Documentary evidence

Exh.16 Inquest Panchnama

Exh.19 Panchnama of place of offence

Exh.22 Report of place of offence

Exh.23 Report of place of offence

Exh.26 Panchnama of clothes recovered of deceased

Exh.29 Panchnama of clothes recovered of accused

Exh.32 Panchnama

Exh.35 Panchnama

Exh.39 Panchnama

Exh.42 Demonstration panchnama

Exh.51 Complaint

Exh.64 Auto Rickshaw RC book copy

Exh.65 Order for release of mudammal

Exh.67 PM Yadi

Exh.68 PM report

Exh.69 Short report

Exh.70 Mudammal report yadi

Exh.71 Histopathology Rajkot Lab report

Page 6 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

Exh.74 Order for investigation

Exh.75 Forwarding of articles Yadi

Exh.76 Receipt of articles by FSL

Exh.77 Forwarding of articles Yadi

Exh.78 Receipt of articles by FSL

Exh.79 Receipt of articles

Exh.81 Closing pursis

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

appellant – accused under Section 313 of the Cr.P.C., was recorded, to

which, he stated that, he was falsely implicated in the offence. He is

innocent. He has not committed any offence. He does not know the

caste of the complainant.

Trial Court Finding:

8.After hearing the parties and upon appreciation of the material

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

murder and for both the offences, the trial court awarded a death

sentence and while recording the sentence, it was observed in para-26

of the impugned judgment that, the offence is heinous in nature and the

victim aged about 3 years was defenseless and prior to the offence, the

accused has committed another offence of murder and having regard to

the mitigating circumstances, the case would fall in the category of

rarest of rare case. The trial Court mainly relied upon the

circumstances namely (i) evidence of pan shop owner (PW.13) Ashraf

Dal and (ii) evidence of Forensic Science including the DNA Analysis

Page 7 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

Report.

9.Evidence adduced by the prosecution :

We would like to have a cursorily look at the evidence adduced

by the prosecution through its witnesses :

(1)Dr. Pratik Varu (PW.7): This witness being a Tutor at Medical

College, Rajkot, conducted the Postmortem on the body of the

deceased child on 11.02.2018. The witness noticed the following

external injuries and internal injuries on the body of the

deceased:

External injuries:

(i)Body is in state of decomposition, emitting foul smell.

Postmortem Lividity cannot be opined due to changes of decomposition.

Greenish discoloration and marbling of skin and blisters of

decomposition are present over the body, at places. Abdomen is

distended due to accumulation of gases of decomposition. Bunch of

yellowish eggs of flies are present over the body, at places.

(ii)Features are identifiable. Both eyes are closed, both cornea are

hazy, pupils can't be seen. Mouth is semi open. Tongue lies inside the

oral cavity. Rest as mentioned in injury no. 1 to 4, serial no.17.

(iii)Clotted blood is present over both palms and face, at places.

(iv)Reddish coloured contusion, deep up to muscles of size 4 X 2 cm

is present over the lower part of labia majora and labia minora. Multiple

redish small contusions, deep up to muscles are present over both labia

minora, at places. Posterior commissure and posterior part of perineum

are ruptured. Hymen is torn at 6 o'clock position.

Margins of ruptured parts are reddish in colour, irregular, contused and

inflamed and shows clotted blood. Greyish-white sticky paste like

material, appears to be semen is present in vagina.

(v)All four limbs are extended in usual manner.

(vi)(1) Lacerated wound of size 3 X 0.5 cm is obliquely present over

Page 8 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

right side of forehead, upper end of which is inner, 2 cm right to

midline and 1.5 cm above right eyebrow.

2) Lacerated wound of size 1 X 1cm is present over left cheek, 2

cm below left eye and 2.5 cm left to the nose.

Margins of both lacerated irregular, contused and shows clotted

blood.

Lacerated wounds are deep up to underlying bones.

(3) Contusion of size 8 X 7 cm is vertically present over left

cheek, lower nose, outer surface of both lips of mouth and upper

part of chin.

(4) Contusion of size 5 X 3 cm is vertically present over left

cheek, 2 cm below left eye and 1 cm lefto injury no. 3.

(5) Abraded contusion of size 5 x 0.5 cm is vertically present over

front of right arm, 3 cm below shoulder tip.

(6) Abraded contusion of size 5 X 5 cm is present over front of

right forearm, just below elbow joint.

(7) Abraded contusion of size 4 X 0.5 cm is vertically present

over front of right forearm, 1.5 cm below injury no. 6.

(8) Abraded contusion of size 3 X 3 cm is present over front of

right wrist, 3 cm below injury no. 7.

(9) Abraded contusion of size 3 X 0.5 cm is transversely present

over back of right wrist.

(10) Abraded contusions, 2 in numbers of size 4 X 0.5 cm and 2

X 0.5 cm, parallel and 1cm apart from each other are present

transversely over back of left elbow.

(11) Contusion of size 7 X 3 cm is vertically present over lateral

aspect of left lower arm, elbow and upper forearm, 8 cm below

left shoulder tip.

(12) Multiple abraded contusions of size varying from 0.5 X 0.5

cm to 3 X 0.5 cm are present in area of 20 X 20 cm over back of

chest and abdomen, 15 cm below occipital protuberance.

(13) Contusion of size 10X5 cm is vertically present over front of

lower part of left knee and upper leg.

(14) Contusion of size 7X cm is vertically present over front of

lower part of right knee and upper leg.

All contusions and abraded contusions are reddish in colour.

All contusions are deep up to underlying bones. No any scab

present over abraded contusions. All abraded contusions are

deep up to underlying muscles.

Page 9 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

Internal Injuries :

(i)Underlayer of scalp of scalp shows extravasation of blood in

parieto-occipital region.

(ii)Linear fracture of size 11 cm is transversely present over right

parietal bone, starting from sagittal suture, 16 cm behind glabella.

(iii)Dura mater is intact. Diffuse subdural subarachnoid and

intracerebral haemorrhage are present in right parieto-occipito-temporal

region of brain. Brain is soft and decomposing.

According to opinion of the doctor PW.7, the cause of death was

shock and hemorrhage on account of injuries found on head and

face caused by the blunt object and there was an evidence of

recent genital penetration and time of death could be 36 to 72

hours prior to the post-mortem examination. At the time of post-

mortem, the vaginal and anal swabs for detection of semen were

being taken by the doctor and handed over to the police. The

doctor had also obtained a sample for DNA Profile as sought by

the police.

In the cross-examination, the witness PW.7 has stated that, he

did not have found any abrasion injuries on the private part of

the child. The doctor has denied to the suggestion made by the

defense that the injuries mentioned in the P.M. Report could

have possible if the child fell from 10 to 15 feet height.

(2)Jagdishbhai Makwana (PW.11): This witness had been cited

as a panch witness to prove the arrest panchnama of the accused

in another offence registered with Kuwadava Road Police

Page 10 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

Station and according to panchnama (Exh.62), the Kuwadava

Road Police Station arrested the appellant-accused for the

offence of murder and robbery. However, the witness did not

have supported to the case of prosecution and he has been

declared hostile.

(3)Ashrafbhai Harunbhai Dal (PW.13): This witness is the owner

of pan shop and in the Rajkot City, Bhavnagar Road, Ganjiwada,

he is running his pan shop in the name of “Santosh Pan”.

According to version of the witness, the accused had come to his

shop for purchasing cigarette and by leaving the opposite gate of

the building, he came to his shop. The witness has stated that,

when the accused came to his shop for purchasing cigarette, he

asked the accused about the blood stain marks found on his pant

for which he relied that, he accidentally fell down and sustained

injuries. The witness has further stated that, his statement before

the Magistrate came to be recorded. The witness has identified

the accused in the court and further stated that, after purchasing

the cigarette from his shop, the accused was brought by the

police to his shop where in the presence of police, he identified

the accused that, he is who had purchased the cigarette from his

shop. In the cross-examination, the witness has stated that,

since last 20 years he is running his pan shop and during the day,

average 100 people might be come for purchasing pan etc. The

witness has further stated that, the proceedings of recording of

statement under Section 164 was being recorded by video shoot.

The witness has denied to the suggestion that the accused had

Page 11 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

never come to his shop and at the instance of police, he

identified the accused and deposed against him.

(4)Naranbhai Nathabhai Chudasama (PW-14) : This witness had

investigated the case, as after the registration of the FIR being a

Police Inspector of Thorala Police Station, was entrusted the

investigation. He has stated in his examination that, he had sent

dead body for postmortem and obtained necessary reports and as

a part of investigation, he recorded the statement of the witnesses

and sent the seized and recovered articles to the FSL. The

witness has further stated that, the investigation being entrusted

to the Assistant Police Commissioner, as the complainant

belongs to SCST caste. The witness has stated that, he had

obtained 3 CDs of CC TV footage from the vicinity of the area,

where the incident occurred. In the cross-examination, it is

denied by the witness that, the deceased was found with her

uncle Nansang and he was not available for 24 hours.

(5)Bharatbhai Bijalbhai Rathod (PW-12) : The witness at

relevant time was serving as Assistant Police Commissioner with

Rajkot Police Division and after due investigation, he had filed

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

that, he had arrested the accused as per the arrest panchnama

Exh.:42. The witness has further stated that, the accused had

shown the place of incident and disclosed the facts that how he

had executed the offence of rape and murder, which facts being

incorporated in reconstruction panchnama Exh.:45. The IO of the

Page 12 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

case has further stated that, he had obtained the CCTV footage

from the vicinity of the area, where the incident occurred and by

way of panchnama Exh. 70, 3 CDs of CC TV footage were being

seized and recovered. He has further stated that the clothes of

the accused were being seized by way of panchnama Exh. 63.

On the aspect of FSL evidence, the witness has stated that after

referring the accused to the Medical Officer, he had obtained

examination certificate at Exh. 71, and sent the seized articles to

the FSL.

In the cross-examination, the IO has stated that at the time of

arrest of the accused, he was under the judicial custody of

another offence registered with Kuvavada Police Station, Rajkot

and the Kuvavada police station, by way of panchnama had

seized and recovered the clothes of the accused. The witness has

admitted that, so far this offence is concerned, he has not seized

clothes of the accused. It was asked to the witness that whether

the present offence and offence registered with Kuvavada Police

Station would be registered on the same day? The IO has replied

that, he cannot answer it without verifying the records. The IO

has admitted that, on the question of identity of the accused, he

did not have conducted the TI parade of the witnesses for

identification. It is denied by the witness that, the accused has

been falsely implicated in the crime and despite of insufficient

evidence, he has been falsely chargesheeted.

Submissions:

Page 13 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

10.We have heard learned counsel Ms. Urvashi Metha appearing for

and on behalf of the accused appellant and Mr.Bhargva Pandya,

learned Additional Public Prosecutor for the respondent – State.

11.Ms.Urvashi Mehta, learned counsel, while assailing the

impugned judgment of conviction and order of death sentence, has

urged the following submissions:

(A)In the present case, the prosecution has failed to prove the charge

beyond reasonable doubt as it is fundamental principles of criminal

jurisprudence that the accused is presumed to be innocent till he is

proved to be guilty.

(B)The entire prosecution case hinges upon the circumstantial

evidence and there is no direct evidence against the appellant accused.

The circumstance of the presence of accused nearby the place of

incident, is not proved and established. The evidence of the witness

PW-13 Ashraf Dal is got up witness, as on which time and date, the

accused had come to his shop for purchasing cigarette has not been

deposed by the witness. The witness has not with all certainty stated

that the accused came to his shop from which side of offence i.e. from

the gate of IIT hostel, Bhavnagar Road, Rajkot. The IO has not

conducted any TI parade of the witness, so as to prove the involvement

of the accused. Admittedly, at relevant time, the victim was not with

the accused. Thus, therefore the evidence of PW-13 is not sufficient to

prove that after killing of the deceased, he took exist from the main

gate of the IIT building and visit the pan-shop of the witness for

Page 14 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

purchasing cigarette. The video recorded statement of the witness

under Section 164 is not audible when it was run during the trial

proceedings. The CC TV footages of the vicinity of the area does not

give any clue the presence of the accused at the pan shop or nearby the

place of incident. Therefore, the evidence of PW-13 is not sufficient to

infer that the accused after committing the rape, he killed the deceased

child.

(C)In the facts of the present case, the accused came to be arrested

on the basis of transfer warrant, as at relevant time, he was in police

custody of Kuvadava Police Station at Rajkot. He was arrested by the

Kuvadava Police in connection with the murder and robbery. The

Kuvadava Police, after his arrest seized and recovered his clothes and

the same clothes being seized by the Thorala Police Station. Thus, the

prosecution has not discharged his burden to prove that, whether the

bloodstained found on the clothes had any correlation with the offence

of murder and robbery allegedly registered against the accused with

Kuvadava Police Station. Therefore, the recovery of clothes are

doubtful and prosecution miserably failed to prove that the clothes

were being wore by the accused on 09.02.2018, when the alleged

incident of rape and murder being occurred.

(D)The DNA evidence, in the facts and circumstances of the case, is

unreliable and cannot be a sole basis to record the conviction. The

evidence of DNA report has not been proved by examining the

scientific officer and merely a production of the report cannot be

admitted in evidence by virtue of Section 293 of the Cr.P.C. Relying

Page 15 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

on the case of Rahul Vs. State of Delhi [2023 (1) SCC 83], it was

submitted that, it is necessary for the prosecution to prove that the

techniques of DNA profiling were reliably applied by the experts and

therefore, merely given an exhibit to the report, could not prove its

contents. In the facts of the present case, the samples relating to the

accused and deceased were sent to FSL after long time and they were

remained in the police station and therefore, the tempering with the

samples collected could not be ruled out.

12.In such circumstances, as referred to above, Ms. Urvashi Metha,

learned counsel prayed that the complete chain of events leading to

involvement of the appellant has not been established by the

prosecution and the findings of the conviction are being recorded on

the basis of conjucture and surmises and it is settled law that the

suspicion however strong, cannot basis for punishment. Thus, it was

prayed that, there being merits in this appeal and the same may be

allowed and further requested that the order of conviction and death

penalty be set aside and the appellant may be acquitted of the charges

of murder and rape.

13.Alternatively, it was submitted that in any event, if this Court

after appreciation of the evidence would convince that the appellant

accused is the author of the crime, then the death sentence as awarded

by taking into account the grave nature of the crime without

considering the possibility of the reformation is not sustainable in eye

of law as no special reasons being assigned by the Trial Court and

therefore, case is not one of the rarest of rare case and the capital

Page 16 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

punishment in that view of the matter, is not sustainable in eye of law.

14.Mr.Bharvav Pandya, learned Additional Public Prosecutor for

the respondent – State, vehemently opposed the appeal and contended

that the Trial Court has not committed any error in holding the accused

appellant guilty of the offence. That the identity of the accused is

established, as on the date of incident i.e. 09.02.2018, the accused was

seen by the pan owner PW-13 and the witness had noticed the blood

stain on the clothes of the accused and as per the FSL report, the blood

was matched with the blood group of the deceased. Against this, the

accused has not offered any explanation and in that view of the matter,

the evidence of PW-13 with respect to presence of the accused at the

scene of offence is proved and established. The involvement of the

accused is proved by medical and forensic evidence and there is no

reason to doubt the DNA report. There is no reason for the police

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

murder. The appellant - accused prior to the incident, had committed

murder of one lady for the purpose of robbery and he was arrested in

the said crime and his arrest was effected after the incident i.e.

10.02.2018. In such circumstances, the seizure of clothes of the

accused in the murder case cannot be doubted.

In such circumstances, learned Additional Public Prosecutor would

urge that the prosecution has proved beyond reasonable doubt the

charge of the appellant and circumstances as referred above, have been

conclusively proved and established and all the circumstances are

sufficient to establish the guilt of the accused, as they are forming the

Page 17 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

complete chain pointing towards the appellant accused and none else.

Thus, therefore, it was urged that there being no merits in the appeal

and same may be dismissed.

15.On the alternative submission, the learned Additional Public

Prosecutor argued that this is a fit case imposing of capital punishment

and the child was defenceless and the manner in which the crime was

committed, the imposition of any other punishment would be

completely inadequate and would not meet end of justice and therefore,

no interference warranted by this Court in the capital punishment.

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

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

(i)On 09.02.2018, at about 11-45 to 12-00 noon, the parents of the

child aged about 3 years, were employed as a labourer and their work

was going on on Bhavnagar road, Chunara Wada Chawk, Rajkot.

While deceased child was playing nearby the place of work, she was

secretly kidnapped and abducted and complaint to this effect after

exhaustive search of her being registered with Thorala Police Station,

Rajkot as being CR. No. I-15 of 2018 for the offence of kidnapping

against unknown person.

(ii) The appellant accused after this offence i.e. 09.02.2018, on the

next day i.e. on 10.02.2018, came to be arrested, in the offence of

murder and robbery by Kuvadava Police Station, Rajkot (I.CR No. 19

of 2018), and was remanded to police custody and his clothes were

being recovered and seized in the offence of murder and robbery and

Page 18 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

same clothes being shown in the present offence by producing the

seizure panchnama of the clothes.

(iii)The prosecution has not examined the scientific officer to prove

the DNA analysis report and directly it has been exhibited in the

testimony of IO.

(iv)The death of the deceased child aged about 3 years was

homicidal and as per the medical evidence, she was subjected to sexual

abuse and her dead body found after 2 days of the incident i.e. on

11.02.2018.

17.In the facts of the present case, in order to prove the charge, the

prosecution has relied the following circumstances:

(i)On 09.02.2018, in noon hours, the appellant accused after the

execution of the offence of rape and murder, took exit from the main

gate of dilapidated building and came to the pan shop situated opposite

the gate, where, he had purchased cigarette and at that time, PW-13

Ashraf Dal noticed the bloodstain on his pant;

(ii)The appellant accused was roaming nearby the place of incident

and his movement was being captured in the CC TV camera installed

at the two to three different shops;

(iii)The Forensic Examination Report (DNA analysis), which shows

that, the vaginal swabs and other samples matches with the blood

group of appellant accused and the bloodstained found on the pant of

the appellant accused, matches with the blood group of the deceased

Page 19 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

18.Having regard to the evidence on record, the only question that

arises for our consideration is as to whether the circumstances as

referred forms a chain of events pointing only to the guilt of the

accused and none else?

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

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 closely associated with the

facts in issue that taken together, they formed 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 the part of

chain must be proved. The circumstances from which, the conclusion of

guilt is to be drawn should be in the first instance fully established and

thereafter, circumstances taken cumulatively should form 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 Birdhichand Sarda Vs. State of

Maharashtra , AIR 1984 SC 1622).”

20.The aforesaid principles have been restated in the case of State

of U.P. Vs. Ashokkumar Shrivastava (1992 (2) SCC 86). It has been

observed in Para-9 that:

“9.This Court has, time out of number, observed that while

appreciating circumstantial evidence the Court must adopt a very

Page 20 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

cautious approach and should record a conviction only if all the links

in the chain are complete pointing to the guilt of the accused and every

hypothesis of innocence is capable of being negatived on evidence.

Great care must be taken in evaluating circumstantial evidence and if

the evidence relied on is reasonably capable of two inferences, the one

in favour of the accused must be accepted. The circumstance relied

upon must be found to have been fully established and the cumulative

effect of all the facts so established must be consistent only with a

hypothesis of guilt. But this is not say that the prosecution must meet

any and every hypothesis put forward by the accused however far-

fetched and fanciful it might be. Nor does it mean that prosecution

evidence must be rejected on the slightest doubt because the law

permits rejection if the doubt is reasonable and not otherwise.”

21.Applying the said principles to the facts of the present case, we

may now proceed to examine the circumstances, as relied by the

prosecution, would form complete chain pointing only the guilt of the

accused and the proved incriminating circumstances are capable of

giving rise to inference to the guilt of the appellant accused ?

22.The first circumstances relied upon by the prosecution is that on

09.02.2018, in noon hours, the appellant accused after the execution of

the offence of rape and murder, took exit from the main gate of

dilapidated building and came to the pan shop situated opposite the

gate, where, he had purchased cigarette and at that time, PW-13 Ashraf

Dal noticed the blood stain on his pant;

We have carefully examined the evidence of PW:13 – the pan-shop

Page 21 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

owner Mr.Ashraf Dal. The witness in his deposition did not have stated

that on which date and time, the appellant accused had existed from the

gate of IIT Hostel Building, situated in the PTC Ground, Rajkot. The

accused after his arrest, was brought to the shop of the witness and

police informed him that he is the person, who had come to your shop

for purchasing cigarette after the incident. In such circumstances, the

witness PW:13 is not witness of truth and his testimony without any

corroboration from the independent sources of evidence cannot be

relied upon. The I.O. has committed the blunder by showing the

accused to the witness PW:13. In such serious offence, it is the duty of

the I.O. to hold the identification parade of the witness but reason best

known to the I.O., the T.I. parade for the purpose of identification of

the appellant was not made during the investigation. Thus, in our

opinion, the witness PW:13 before his evidence is recorded in the Trial

Court, the factum of the presence of the accused at his panshop being

put into mouth of the witness by the police and on that basis, the

witness PW:13 is identified the accused in the Court. In such

circumstances, the evidence of PW:13 is not sufficient to prove the

presence of the accused at his pan-shop and the said circumstances

having not been conclusively proved and established that the accused

after the incident was found at the shop of PW:13.

23.The second circumstances relied by the prosecution is the CCTV

footages, of the three business places to prove the presence of the

accused in the vicinity of the area of place of the incident. According

to the prosecution case, the appellant accused was roaming nearby the

place of incident and his movement was being captured in the CCTV

Page 22 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

camera installed at the three different business entity. The I.O. of the

case obtained CCTV footages from the three business entity viz.

Shivdhara Time Factory, Shivam Furniture and Patel Pan-shop and the

CD of CCTV footages being seized by way of panchnama at Exh.70

and the same are being part of seized articles. However, the

prosecution is silent on three CDs. The CDs were not sent for forensic

examination. The CDs were not run before the Trial Court to establish

the presence of the accused in the vicinity of the place of the incident.

The Trial Court ought to have asked the prosecution to prove the

CCTV footages allegedly stored in the three CDs with the certificate as

provided under Section 65B of the Indian Evidence Act. In such a

serious case, the electronic evidence though available has been ignored

by the prosecution. In such circumstances, the reasonable inference

would arise that the CCTV footages would not show the presence of

the accused in the vicinity of the place of the incident. In that view of

the matter, we have no option, but to conclude that the available

evidence does not prove and establish that on 09.02.2018, in the noon

hours i.e. from 11:30 to 05:00 o’clock, the appellant accused was in the

area of place of occurrence and after the incident, he existed the main

gate of the building where the incident occurred and took visit to the

shop of PW:13 and had purchased the cigarette.

24.The third circumstances connecting the appellant accused in the

crime is the forensic science evidence. It is on record that during the

postmortem, the doctor took the vaginal swabs and anal swabs along

with the blood samples of the deceased for DNA profiling. The P.M.

was done on 11.02.2018, as the dead body found after three days of the

Page 23 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

incident. On 14.02.2018, the samples were deposited before the

Gandhinagar FSL. The appellant accused came to be arrested on

15.02.2018 and on 16.02.2018, he was referred to the Government

Hospital at Rajkot for medical examination and for necessary other

samples for forensic chemical analyses. It is relevant to note that the

prosecution has not examined the doctor of the government hospital to

prove the factum of examination of the accused and taking samples

from his body like pubic hair, saliva, blood samples, semen and nails.

Exh.71 is the carbon copy of the certificate and in the footnote of the

certificate, the three samples like pubic hair, saliva and nails being

noted by making tickmark whereas the samples of blood and semen

there is no tickmark being endorsed by the doctor. In such

circumstances, the examination of the medical doctor, who had

examined the accused appellant and taking all necessary samples for

DNA profiling is necessary with the production of original case

records. The DNA report has been given exhibit as Exh.75 in the

deposition of the I.O. and to prove the applied methodology for

preparation of DNA result, the scientific officer Smt. M.N. Patel, who

is the expert of the subject is required to be examined but somehow the

prosecution failed to examine the scientific officer and the doctor who

had taken the samples for DNA analysis. The DNA report Ex.75 shows

that the bloodstain found on the D1 and D2 article which are shirt and

pant of the accused matched with the blood group of the deceased.

Recently, the Supreme Court, in the casa of Putai Vs. State of Uttar

Pradesh (2025 INSC 1042), while allowing the conviction appeal for

the rape and murder of 12 years old , set aside the conviction on the

Page 24 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

ground that where the forensic science, especially DNA profiling is

relied upon in a case built solely on circumstantial evidence, the

prosecution must establish an unimpeachable chain of custody and call

the proper expert witness; failure to do so the scientific result

inadmissible and insufficient for conviction. It is further observed by

the Supreme Court that modern forensic science is a double edge

sword; it can clinch cases but only if every procedure safeguard is

honoured and by setting aside the capital conviction for want of a

proven chain of custody and proper expert testimony, the clear

message being given to investigators, prosecutors and trial courts. On

the identical issue for necessary examination of scientific officer to

prove the methodology of DNA analysis, the Supreme Court, in the

case of Rahul Vs. State of Delhi (2023 (1) SCC 83), has held that the

DNA profiling report cannot be admitted in evidence ipso facto by

virtue of Section 293 of Cr.P.C. and it is necessary for the prosecution

to prove that the techniques of DNA profiling were reliably applied by

the expert. Thus, therefore, DNA profiling report in the facts of the

present case, cannot be admitted in evidence. We have another reason

to discard the report as the accused herein after the said incident, came

to be arrested on 10.02.2018, by Kuvadva Road Police Station, Rajkot

in connection with murder of one lady. This shows that after the

present incident, on the next day, he was arrested by another police

station in murder case and during the remand period, his clothes i.e.

shirt and pant were seized and recovered by the Kuvadva Police

Station for the offence of murder and the panchnama thereof is

produced at Exh.63. In the present case, by way of transfer warrant, the

Page 25 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

appellant accused came to be arrested on 15.02.2018. the I.O. of the

present case, obtained the copy of the panchnama of seizure of clothes

allegedly drawn by Kuvadva Police Station. In such circumstances,

how the seized clothes came in the hands of Thorada Police Station,

Rajkot and how the clothes had been sent to the FSL, that facts have

not been proved and established. Thus, we find a serious legal lacuna

on the aspect of admissibility of the evidence of forensic science as the

clothes on which the bloodstained found were not seized in the present

case and if it is so, then, how the clothes being seized and collected by

the I.O. in the present case, that required to be explained by the

prosecution. In absence of such clarification and admissibnle evidence

on the part of the seizure of the clothes, the sole evidence of DNA

report Exh.75 cannot be a ground to convict the accused appellant.

25.On the basis of the above discussions, we are of the opinion that

the nature of circumstantial evidence as relied by the prosecution are

not so conclusive that the accused appellant can be convicted for the

alleged crime. It is settled legal position of law that, the suspicions

howsoever strong, cannot substitute the proof and conviction is not

permissible only on the basis of suspicion. On this aspect, we may

profitably refer the case of Sujit Biswas Vs State of Assam (AIR

2013 SC 3817). In Para-6 of the judgment, it was observed as under:

“6.Suspicion, however grave it may be, cannot take the place of

proof, and there is a large difference between something that `may be’

proved, and something that `will be proved’. In a criminal trial,

suspicion no matter how strong, cannot and must not be permitted to

take place of proof. This is for the reason that the mental distance

Page 26 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

between `may be’ and `must be’ is quite large, and divides vague

conjectures from sure conclusions. In a criminal case, the court has a

duty to ensure that mere conjectures or suspicion do not take the place

of legal proof. The large distance between `may be’ true and `must be’

true, must be covered by way of clear, cogent and unimpeachable

evidence produced by the prosecution, before an accused is

condemned as a convict, and the basic and golden rule must be

applied. In such cases, while keeping in mind the distance between

`may be’ true and `must be’ true, the court must maintain the vital

distance between mere conjectures and sure conclusions to be arrived

at, on the touchstone of dispassionate judicial scrutiny, based upon a

complete and comprehensive appreciation of all features of the case,

as well as the quality and credibility of the evidence brought on

record. The court must ensure, that miscarriage of justice is avoided,

and if the facts and circumstances of a case so demand, then the

benefit of doubt must be given to the accused, keeping in mind that a

reasonable doubt is not an imaginary, trivial or a merely probable

doubt, but a fair doubt that is based upon reason and common sense.

(Vide: Hanumant Govind Nargundkar v. State of M.P.,(1952) 2 SCC

71, State v. Mahender Singh Dahiya (2011) 3 SCC 109 and Ramesh

Harijan v. State of U.P. (2012) 5 SCC 777.”

26.Mr.Bhargav Pandya, learned Additional Public Prosecutor has

emphasized on the evidence of reconstruction panchnama of the

incident. The I.O. has not deposed about the voluntary statement made

by the accused pointing out the sequence of incident as incorporated in

the reconstruction of panchnama Exh.45. The panchas have also not

clearly stated the contents of the panchnama. It is settled position of

law that the evidence of reconstruction of the incident only relevant so

Page 27 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

as to prove the conduct of the accused under Section 8 of the Evidence

Act. In the present case, the I.O. did not have stated the contents of the

panchnama in his testimony. In such circumstances, the confession of

the offence before the police by way of reconstruction panchnama

certainly is hit by Sections 25 and 26 of the Evidence Act. In such

circumstances, the contention advanced by Mr.Pandya, learned APP

has no merits and cannot be accepted.

27.It is the contention raised by learned Additional Public

Prosecutor that the accused appellant brutally killed the deceased and

committed rape upon her, and therefore, he would not be required to be

extended any benefit of doubt and lacuna on the part of the

Investigating Officer. We are conscious about the nature of offence and

the manner in which, child was killed and abused sexually. However, it

is one of the fundamental jurisprudence that the accused is presumed to

be innocent till his prove to be guilty. In the facts of the present case,

as discussed hereinabove, the chain of circumstances, is not complete

and circumstances relied upon by the prosecution have not been

conclusive in nature pointing towards the guilt of the accused and non-

else. In such serious offence, the investigating agency of the case had

not diligently undertaken the investigation. This is not the case of

defective investigation, but the core evidence collected by the I.O. is

not credible and consistent and the lapses are not minor or peripheral,

but it goes to the root of the prosecution case and create a doubt about

the truthfulness of the prosecution case. It is also settled legal position

of law that the conviction must be based on reliable, legally admissible

evidence. Recently, in the case of Surendra Koli Vs. State of U.P.

Page 28 of 29

R/CR.A/695/2020 JUDGMENT DATED: 06/02/2026

(2025 LawSuit 1479), while acquitting the accused, the Supreme

Court has observed that criminal law does not permit conviction on

conjectures or on a hunch and when the prosecution failed to prove the

charge through admissible and reliable evidence, the only lawful

outcome is to set aside the conviction even in a case of involving

horrific crimes.

28.In view of the above discussions, we are of the considered

opinion that the prosecution failed to prove all necessary circumstances

by reliable and clinch evidence which would constitute a complete

chain of events without any gap, pointing to the guilt of the accused.

The prosecution failed to prove the charge against the appellant

accused by adducing reliable and truthful evidence beyond reasonable

doubt. As a result, the appellant accused is acquitted of all the charges.

29.Accordingly, the criminal appeal i.e. Criminal Appeal No.695 of

2020 filed by the appellant accused is allowed. The judgment of

conviction dated 17.03.2020 and order of death sentence passed by the

Additional Session Judge, at Rajkot in POCSO (Atrocity) Case No.28

of 2018 is set aside. In view of the setting aside of the conviction and

death sentence, the Confirmation Case No.2 of 2020 stands disposed

of. The appellant is in jail. He should be released forthwith unless his

custody is necessary in any other case. Registry shall send the R & P to

the concerned Court henceforth.

(ILESH J. VORA,J)

(R. T. VACHHANI, J)

Rakesh

Page 29 of 29