R/CR.A/545/2018 JUDGMENT DATED: 29/01/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 545 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MR. JUSTICE R. T. VACHHANI

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Approved for Reporting Yes No

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SIDDIK ISMAILE KUMBHAR

Versus

STATE OF GUJARAT

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Appearance:

DARSHAN M VARANDANI(7357) for the Appellant(s) No. 1

MR RONAK B RAVAL, APP for the Opponent(s)/Respondent(s) No. 1

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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MR. JUSTICE R. T. VACHHANI

Date : 29/01/2026

ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)

1.Feeling aggrieved and dissatisfied with the judgment and order of

conviction and sentence dated 01.12.2018 passed by the learned 7

th

(Ad-hoc) Additional Sessions Judge, Bhuj-Kutchh in Sessions

Case No.61 of 2015 for the offences punishable under Section 302

and 201 of the Indian Penal Code, whereby the appellant – accused

has been sentenced for the offence punishable under Section 302 of

the IPC to undergo imprisonment for life with fine of Rs.2,000/-, in

default, to undergo two months SI and for the offence punishable

under Section 201 of the IPC to undergo three years imprisonment

with fine of Rs.200/-; in default to undergo ten days’ SI, the

appellant has preferred the present appeal under Section 374 of the

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Code of Criminal Procedure, 1973 (“the Code” for short).

2.The brief facts leading to the filing of the present appeal are as

under:

2.1.The complainant – Aamad Abdul Rehman Kureshi gave a

complaint on 16/07/2015 inter alia stating that marriage of his

sister – Halima was solemnized with one Gafur Aadam Lakha

Sama prior to twenty years and they were doing some labour work.

It is further the case of prosecution that on 13/07/2015 complainant

went to Mumbai to attend some function and on 14/07/2015 his

brother-in-law informed him over the phone that his sister Halima

did not return to home after leaving in the noon for begging and he

had made inquiry at his relatives; but did not find her. It is the case

of prosecution that on 15/07/2015 the complainant came from

Mumbai and met his brother-in-law and started for search of

deceased. That thereafter in the noon at about 1:30 p.m. some

smell was oozing out where they had gone and found the dead

body of her sister and therefore, immediately the village people

including the husband of the deceased were called and found that

dead body of the deceased was lying covered in blood with injuries

on the face, and neck. Since in regards to the incident, they had

doubt over the appellant accused and his family members, as the

appellant and deceased had some illicit relationship since last

seven to eight years and time and again some quarrel was taken

place and deceased was also asked not to keep any such

relationship which had resulted into the offence in question.

2.2.Accordingly, FIR being CR No.50/2015 came to be registered with

Mandavi Police Station. The Police after investigation charge-

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sheeted the accused for the aforesaid offences before the learned

JMFC, Court. However, as the said Court lacks jurisdiction to try

offence under Section 302 IPC, the case was committed to the

Sessions Court. On conclusion of evidence on the part of the

prosecution, the learned Sessions Court put various incriminating

circumstances appearing in the evidence to the respondent-accused

so as to obtain explanation/answer as provided under Section 313

of the Code. In the further statement, the respondent-accused

denied all incriminating circumstances appearing against him as

false and further stated that he is innocent and a false case has been

filed against him. After examining the evidence, witness

testimonies and submissions from both sides, the learned Sessions

Court recorded the finding convicting the respondent-accused.

3.We have heard learned Advocate for the appellant – convict and

learned APP for the respondent-State and minutely examined oral

and documentary evidence adduced and produced before the

learned Sessions Court concerned.

4.Learned advocate appearing for the appellant – accused has

submitted that since the entire case of the prosecution rests on the

circumstantial evidence, the prosecution has failed to prove its case

beyond the reasonable doubt and does not prove the entire chain

and therefore, learned Sessions Court has erred in convicting the

appellant – accused. It is further submitted that if the FIR in

question is seen at the first instance, the complainant gave the

name of the accused on the basis of the presumption of doubt and

as such no specific role or description of the accused having seen

at the place of offence pointing out the role of the accused in

commission of the crime. It is therefore submitted that when the

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conduct of the prosecution witnesses are highly unnatural and

improbable and inconsistent and therefore, learned Sessions Court

ought to have awarded the benefit of doubt to the appellant –

accused.

4.1.It is further submitted that the learned Sessions Court has awarded

the conviction on the appellant – accused on the basis of the

scientific evidence and on the basis of the confessional statement

made by the accused before the Police which has no evidentiary

value in the eye of law. It is further submitted that as such no such

witness who has last seen the accused together before the

commission of crime has come forward and therefore, the theory

on the basis of which the conviction has been recorded is erroneous

and therefore the appellant – accused ought to have been acquitted.

4.2.It is further submitted that the learned Sessions Court has heavily

relied upon the contents of the Panchnama drawn post the incident

in question and the evidence of the Investigating Officer to hold

the appellant – accused guilty for the offence of murder. Whereas,

the case of the prosecution rests on the last seen together theory

where no such independent witness is examined before the Court

who have seen the deceased and the accused together prior to

commission of the offence in question and therefore, it is submitted

that present appeal may be allowed and the conviction and

sentence recorded by the learned Sessions Court may be set aside.

4.3.In support of his submissions, learned advocate for the appellant –

accused has relied upon the decision in case of Laxman Prasad

Alias Laxman vs. State of Madhya Pradesh [(2023) 6 SCC 399]

and Munikrishna alias Krishna etc. vs. State by Ulsoor PS [2022

SCC OnLine SC 1449] and has submitted that as per the ratio laid

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down by the Hon’ble Apex Court if one link in chain of

circumstances to be missing and not proved, the conviction based

on circumstantial evidence is required to be set aside.

4.4.By making the above submissions, learned advocate for the

appellant – accused would submit to allow this appeal and to quash

and set aside the judgment and order of conviction and sentence.

5.Mr.Ronak Raval, learned APP appearing for the respondent – State

submits that the impugned order of conviction and sentence does

not require to be interfered with as the learned Sessions Court has

after thorough appreciation of evidence has come to the conclusion

and recorded the conviction of the appellant – accused on the basis

of the evidence adduced before the Court. It is further submitted

that the evidence produced on record proves the involvement of the

accused in the commission of crime in question. He has further

submitted that evidence of the witnesses examined before the

Court has supported the case of prosecution and narrated the

incident as it was happened. It was submitted that no such

omission or contradiction in the evidence of the said witnesses

have come on record to discard their evidence. He has further

submitted that the prosecution witnesses have deposed before the

Court narrating the entire chain of sequence whereby the

involvement of the accused is proved which corroborates with the

scientific evidence produced and proved by the prosecution and

therefore, the judgment and order of conviction and sentence may

not be interfered with.

6.Heard the learned Advocate for the appellant – accused

Mr.Darshan Varandani and learned APP Mr.Ronak Raval for the

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respondent – State and perused the deposition of witnesses as also

documentary evidence placed on record as well as the order passed

by the learned Sessions Court.

7.At the outset, if the case on hand is required to be seen, it is a case

of a circumstantial evidence and while leading the case, the

prosecution is required to establish mainly three links of chain (i)

motive; (ii) last seen; and (iii) recovery of weapon of assault,

showing involvement of the accused. Thus, while dealing with the

evidence on record, the Court concerned is required to appreciate

as to whether the aforesaid three aspect is completed to prove the

case of prosecution or not and if no then the benefit of that would

go to the accused as the prosecution has failed to prove its case

beyond reasonable doubt while missing to complete the entire of

circumstance.

8.Now, reverting to the facts of the case on hand is concerned, it

appears from the record that PW 11 – Abdulgaffur A Sama

(Exh.61) who was husband of the deceased made a phone call to

PW 4 – Aamad Kureshi – brother of the deceased (Exh.34) who

was at Mumbai at that time and informed him that Halima

(deceased) had gone for begging; but did not return back.

Thereafter, brother of the deceased returned from Mumbai and met

husband of the deceased and they alongwith PW 15–Jayantilal

Maheshwari friend of the complainant started to search the

deceased, whereupon the dead body of the deceased was found and

thereafter, the complaint was filed on the basis of suspicion against

the appellant-accused and his family members. It also appears from

the record that upon filing of the complaint, the appellant was

arrested and the remand was sought and accused was sent for

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medical examination; wherein a short history was recorded about

committing sexual intercourse with Halimabai on 14/07/2015

(Exh.22), as also while on remand period the appellant had given

confessional statement before the Police of having committed an

offence and thereby the learned Sessions Court has come to the

conclusion that deceased was last seen together with the accused

and considered the statement before the Police as confessional

statement and thereby recorded the conviction of the appellant.

9.Now, the evidence of the complainant PW 4 - Aamad Kureshi who

is examined at Exh.34 is seen, he has deposed in his testimony that

he went to Mumbai on 13/07/2015 and at that time his brother-in-

law called him that his sister went for begging; but did not return

and therefore, he came from Mumbai on 15/07/2015 and met him

and thereafter started to search her and while doing so at the sim of

Aasambiya Village, some smell was oozing out there-from and

having gone there, they found the dead body of the deceased –

Halima and thereafter called the Sarpanch of the Village and other

persons and found that dead body of the deceased was covered in

blood having injuries on the face and neck and found that she was

murdered. Witness has further deposed that Police was called and

complaint was given at Exh.35 against the Siddik Ismail Kumbhar,

Salim Mamad Kumbhar and Anvar Pathan and Umar Pathan on the

basis of suspicion since they were adducing threat to his sister

(deceased) and often quarrel was taken place between them and

therefore, doubt went upon them. Witness has further deposed

about the procedure undertaken by the Police of drawal of the

Panchnama and identified the accused – Siddhik Ismail Kumbhar

before the Court. Witness has been cross-examined by the other

side wherein he has admitted that complaint at Exh.35 was given

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on the basis of suspicion of his sister having been murdered and he

has stated in the complaint that there was a doubt.

10.Thus, as can be seen from the evidence of this witness, there is no

direct evidence to link the accused with the crime in question and

merely on the basis of suspicion, the complaint came to be lodged

naming the accused-appellant. No doubt, this witness has also

stated about the earlier incident of quarrel having taken place

between the wife and children of the accused with the deceased –

Halima as there was an allegation of there being illicit relationship

between the accused and deceased since last seven to eight years

and therefore doubt cast on the accused; but it would not be

sufficient to link the accused with the crime. This witness has

neither seen the accused with the deceased prior to commission of

offence nor has any personal experience wherein in his presence

some altercation was taken place between both the sides and

therefore, the learned Sessions Court has materially erred in

relying upon the evidence of this witness by holding that since five

names were mentioned in the FIR on the basis of suspicion

wherein the first name appears is of the present appellant which

can be said to be the possible reason of suspicion. As there could

not be any selective piece of evidence as to drag someone. Thus,

the learned Sessions Court has materially erred in relying upon the

evidence of this witness as the involvement of the appellant –

accused is not proved in commission of the crime in question from

the evidence of this witness.

11.Next important aspect upon which the learned Sessions Court has

placed reliance is the statement made before the Police by the

accused – appellant wherein the accused had made confession of

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having committed a crime, however the said statement does not

have any evidentiary value in the eye of law unless otherwise the

same has been further recorded before the learned Magistrate under

Section 164 of the Code of Criminal Procedure; which in the

present case has not been done and therefore, the conviction

recorded by the learned Sessions Court believing such confessional

statement of the accused cannot have the leg to stand in the eye of

law.

12.It also appears from the record that as is reflected from the

evidence of the PW No.2 – Dr. M R Zola (Exh.20) who conducted

the physical examination of the accused on 17/07/2015 after being

arrested and the accused gave history before the said witness that

he committed sexual intercourse with the deceased Halimabai w/o

Adam Lakha Sama on 14/07/2015 (prior to her murder); however

no such marks of injury or any other spot were noticed or found

from his private part and samples were obtained and sent for FSL

Examination. It also appears from the record that the doctor who

examined the accused after being arrested does not indicate in the

certificate that any injury on the body of the accused was noticed.

However, the arrest Panchnama (Exh.49) records that bruises are

seen on the nose of the accused which was as a result of his being

running after committing the crime as admitted by him; however

the said fact has no evidentiary value in the eye of law but, the

learned Sessions Court has failed to consider such aspect in its

spirit and recorded the conviction on the basis of the statement

made by the accused before the police, which has no value in the

eye of law.

13.Thus, considering the aforesaid two aspects, the learned Sessions

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Court has believed the theory of last seen together to link the

accused with the crime in question and hold the accused guilty

considering the confessional statement recorded before the Police

which is not admissible in the eye of law and gave history of

committing sexual intercourse with the deceased before the Doctor

who performed his physical examination; which in the considered

opinion of this Court cannot be made basis for recording

conviction of the appellant on the theory of last seen together.

14.It is required to be noted that theory of last seen together cannot be

believed rather proved on the basis of confessional statement of the

accused in absence of any eyewitness who has seen the accused

with the deceased prior to incident in question. At this juncture, a

beneficial reference can be made to the decision of the Hon’ble

Apex Court in the case of Allarakha Habib Memon Etc. vs. State

of Gujarat [2024 INSC 590] on the aspect of confessional

statement and relevant observations made in paragraph No.40 and

41 reads thus:

“40. The trial Court as well as the High Court, placed extensive the

confessions of the accused appellants Mohmedfaruk @ 39 Palak Safibhai

Memon and Amin @ Lalo recorded by the Medical Officer, Dr.

Arvindbhai(PW-2) while preparing the injury reports of the accused.

41. We find that these so-called confessions are ex-facie inadmissible in

evidence for the simple reason that the accused persons were presented at

the hospital by the police officers after having been arrested in the present

case. As such, the notings made by the Medical Officer, Dr.

Arvindbhai(PW-2) in the injury reports of Mohmedfaruk @ Palak and

Amin @Lalo would be clearly hit by Section 26 of the Indian Evidence Act,

1872(hereinafter being referred to as 'Evidence Act'). As a consequence,

we are not inclined to accept the said admissions of the accused as

incriminating pieces of evidence relevant under Section 21 of the Evidence

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Act. The circumstance regarding identification of place of incident at the

instance of the accused is also inadmissible because the crime scene was

already known to the police and no new fact was discovered in pursuance

of the disclosure statements".

15.It further appears from the record that the mobile phone of the

accused was recovered from the husband of the deceased. As per

the evidence of PW-9 Bhimji Gabhabhai Jogi (Exh.56) & PW – 10

– Bhupendra Valji Jogi (Exh.59), who are the Panch Witness of

recovery of mobile of the appellant have admitted in the cross-

examination that the husband of the deceased informed the police

in their presence that he got the mobile on 15.07.2015 in the

morning at around 7 a.m. when he was walking on the said road

and he had removed the SIM card from the said mobile and put his

own SIM card. He put the said SIM card in his pocket, but

thereafter lost the same. He used the said phone for one day only

on 15.07.2015 and thereafter kept it at home. The call details from

the mobile of the accused are from 14.07.2015 to 23.07.2015 and

this Panchnama was drawn on 11.09.2015 so till the said date he

was in possession of the said phone. Thus, the entire recovery

seems to be doubtful and does not inspire any confidence.

16.It further transpires from the record that the learned Sessions Court

had heavily relied upon evidence of PW - 8- Sulemansa Kadarsa

Saiyed (Exh.50) - Panch witness of discovery Panchnama of

clothes of the accused worn at the time of incident and the

recovery of the weapon used in the commission of crime and

produced Panch Slip at Exh-54 and the Panchnama of the place of

incident at Exh-55. The learned Sessions Court believed the

evidence of PW-8 that the accused made a confession to the police

in his presence and also agreed to show the place where he had

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kept the weapon used in commission of crime and the clothes he

had worn at that time and thereafter they had gone to the said

place, and the accused took out the said articles No.8, 9 & 10 from

the said place, the clothes and the weapon.

17.At this juncture, a useful reference can be made to the decision of

the Hon’ble Apex Court in the case of Shaik Shabuddin Vs State

of Telangana [2025 INSC 1449] wherein similar such

circumstances in paragraph 7 and 8 has held as under:

“7.Further, the High Court relied upon the confession made by the

accused to one PW15 who was called to the police station as a witness. It

was the prosecution version that PW25, the DSP Asifabad, the

Investigating Officer, secured the presence of PW15 and one Md. Yunus as

panch witnesses and the confession was made to them. There can be no

reliance placed on such a confession at the behest of the police and the

finding of the High Court that it could be relied on cannot at all be

countenanced for the reason also that it was made while in police custody.

The next aspect on which we have serious reservation is with respect to the

recovery made of MO1/mobile, MO11/knife and MO21/cash as purportedly

admissible under Section 27 of the Evidence Act. Even as per the

prosecution story, the same were handed over along with the confession, to

PW15, which material objects were said to be in the possession of the

accused at the time of arrest. MOs 12 to 20/clothes were projected as

seized under Section 27 which were worn by the accused at the time of

arrest.

8. There was no concealment as such and in any event, on an arrest,

when the material objects could have been seized from the body of the

accused on a mere search by the police, the attempt to convert it as a

recovery under Section 27 cannot at all accepted. It goes against the very

principle of Section 27, insofar as the disclosure relied upon can only

relate to the concealment and the recovery of material objects on such

disclosure made, which recovery has to be made in the persons of

witnesses. We find absolutely no reason to accept the circumstances as

hereinabove stated, relied on by the High Court, to convict the accused.”

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The learned Sessions Court ought to have considered the fact that

there was animosity between the PW-8 (discovery panch) and the

appellant-accused, as the quarrel had occurred between the two in

the past, and the discovery Panch was telephonically called by the

police. Thus, the entire recovery of the weapon used in

commission of the crime and the clothes of the accused comes

under the shadow of doubt and the learned Sessions Court while

believing the said aspect held the accused guilty which in the

opinion of this Court warrants interference.

18.It further appears from the record that the learned Sessions Court

has relied upon the evidence of PW-29-Krishnasinh Harialsinh

Suryavamsi (Exh.98) - Investigating officer who has deposed

before the Court that the accused has confessed the commission of

crime and had shown the place where he had kept the clothes and

weapon, mobile phone fall down while he was running after killing

the deceased and the said mobile was recovered from the husband

of the accused, drew the panchnama of the place shown by the

accused. In spite of the fact that the mobile phone of the accused

was recovered from the husband of the deceased, he was not

questioned by the police; nor was any investigation was made by

the Police which also smacks doubt on the evidence of this

evidence.

19.Thus, in light of the appreciation of the aforesaid evidence, it

appears that this is not a case where the entire chain of

circumstantial evidence is completed as required under the law so

as to indicate the guilt of the accused and also exclude any other

theory of crime. In the present case, the conduct of PW-11

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(husband of deceased) is required to be appreciated as for the two

days he did not do anything for searching his wife nor did he

approach the Police. The husband has deposed that during the time

of the incident, he had gone to work on the tractor of Damji

Maheshwari and along with him, there was one labourer and Rajak

Hassan, however no such investigation that direction was done by

the police; nor was cited as witnesses which creates a serious doubt

on the version of the husband of deceased, as also the evidence of

the Investigating Officer.

20.In a case of circumstantial evidence, the chain is required to be

completed as mandated under the law so as to indicate the guilt of

the accused while discarding any other theory of the crime. If one

of the link goes missing and not proved, in view of the settled law

on the point, the conviction is required to be interfered with. At

this stage, with profit, we may refer to the decision in case of

Laxman Prasad Alias Laxman (supra) where the Hon’ble Apex

Court after referring to Sharad Birdhichand Sarda vs. State of

Maharashtra [(1984) 4 SCC 116] and Shailendra Rajdev Pasvan

vs. State of Gujarat [(2020) 14 SCC 750] has quashed the

conviction by making observations in paragraph 2 to 4 as under:

“2. The present one is a case of circumstantial evidence. The

prosecution led evidence to establish three links of the chain: (i) motive,

(ii) last seen, and (iii) recovery of weapon of assault, at the pointing out of

the appellant. The High Court, while dealing with the evidence on record,

agreed with the finding of motive and the last seen, however, insofar as the

recovery of the weapon of assault and bloodstained clothes were

concerned, the High Court in para 18 of the judgment held the same to be

invalid and also goes to the extent to say that the recovery which has been

made does not indicate that the appellant has committed the offence. Still,

it observed that looking to the entire gamut and other clinching evidence

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against the appellant of last seen and motive, affirmed the conviction.

3. We do not find such conclusion of the High Court to be strictly in

accordance with law. In a case of circumstantial evidence, the chain has to

be complete in all respects so as to indicate the guilt of the accused and

also exclude any other theory of the crime. The law is well settled on the

above point. Reference may be had to the following cases:

(1) Sharad Birdhichand Sarda v. State of Maharashtra,

(ii) Shailendra Rajdev Pasvan v. State of Gujarat.

4. Thus, if the High Court found one of the links to be missing and not

proved in view of the settled law on the point, the conviction ought to have

been interfered with.”

21.Thus, in view of the settled law that one must look for a complete

chain of circumstances and not on snapped and scattered links

which do not make a complete sequence. The circumstances from

which the conclusion of guilt is drawn should be fully proved, and

such circumstances must be conclusive in nature. Moreover, all the

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

in the chain of evidence; in the present case, the chain is not

completed.

22.Furthermore, there is no eyewitness to the incident. Based on

suspicion, the complainant lodged an FIR against the present

appellant and his five family members, and the arrest was made

based on suspicion; there was no concrete material against the

appellant to prove his involvement in the commission of crime and

merely on the suspicion his involvement was tried to be shown

which cannot take the place of evidence. From the evidence so

produced by the prosecution and the way examined and analyzed

by the learned Sessions Court, the prosecution has failed to prove

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that as alleged, there was an illicit relationship between the accused

and the deceased. Though the prosecution has heavily relied upon

the phone calls between the deceased and the accused; but mobile

of the accused was found from the husband of the deceased which

also smacks a doubt on the aspect of recovery of mobile phone of

the accused. The conduct of the husband of the deceased also

comes under the cloud of doubt as after missing his wife neither he

approached the Police nor made any efforts to search her and

waited for his brother-in-law to come from Mumbai who after

having arrived at started search and lodged the complaint.

23.In light of the above legal position and for the reasons recorded in

the foregoing paragraphs, coupled with the fact that the case of the

prosecution does not get support from the evidence recorded by the

learned Sessions Court, the present appeal deserves to be allowed

and is accordingly allowed. The judgment and order recording

conviction and sentence dated 01.12.2018 passed by the learned 7

th

(Ad-hoc) Additional Sessions Judge, Bhuj-Kutchh in Sessions

Case No.61 of 2015 for the offences punishable under Section 302

and 201 of the Indian Penal Code is quashed and set aside. The

appellant is ordered to be set at liberty, forthwith, if not required in

any other case. Bail Bond shall stand discharged. Records and

Proceedings, if any, be remitted to the Court concerned forthwith.

(ILESH J. VORA,J)

(R. T. VACHHANI, J)

sompura/MVP

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