R/CR.A/511/2016 JUDGMENT DATED: 29/01/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 511 of 2016

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

--- No

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VIHABHAI PANCHABHAI PATEL

Versus

STATE OF GUJARAT

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Appearance:

HCLS COMMITTEE(4998) for the Appellant(s) No. 1

MR PRASHANT MANKAD(2189) for the Appellant(s) No. 1

MR RONAK 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.This conviction appeal is filed by the appellant sole

accused-Vihabhai Panchabhai Patel, against the judgment of

conviction and order of sentence dated 14.10.2015, passed by

learned Additional Sessions Judge, Diyodar, in Sessions Case

No.80 of 2015, whereby the appellant came to be convicted for

the offences, as mentioned below:-

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Conviction

under

Section

Punishment Fine In default

of fine

302 of IPCLife Imprisonment Rs.10,000/-3 month SI

392 of IPC3 years RI Rs.1,000/-1 month SI

397 of IPC3 years RI Rs.1,000/-1 month SI

449 of IPC3 years RI Rs.1,000/-1 month SI

2. Brief facts which are necessary to dispose of the present

appeal are in nutshell as under:-

3.On 11.1.2012, with an intention to commit robbery, the

appellant-accused entered the house of the deceased. It is

alleged that the appellant was armed with sharp weapon and

with an intention to commit loot, he had killed Devsibhai

Bhavabhai Patel and Demaben Devsibhai Patel and looted gold

and silver ornaments of Demaben worth Rs.50,000/-. With such

allegations, FIR came to be lodged with Tharad Police Station.

After completion of inquiry, the police filed charge-sheet

against the appellant before the Court of learned Judicial

Magistrate, First Class, Tharad. Since the case was triable by

the sessions Court, it was committed to the Sessions Court,

Banaskantha.

4.After framing of the charge and upon the accused

pleaded not guilty, the trial commenced before the Additional

Sessions Judge, Diyodar.

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5.In order to prove the charge, the prosecution has

examined as many as seven witnesses and relied upon the

following exhibited documents.

Oral evidence:-

PW 1 – Exh.9 Complainant Hemrajbhai Bhavabhai Patel

PW 2 – Exh.18 Dr.Mahadevbhai Khemrajbhai, Medical Officer

PW 3 – Exh.29 Karsanbhai Ramsinhbhai, Panch witness

PW 4 – Exh.32 Rupabhai Jesangbhai.

PW 5 – Exh.36 Amratlal Maghjibhai.

PW 6 – Exh.38 Lagdhirbhai Rupsibhai, Panch witness.

PW 7 – Exh.42 Harsangbhai Raymalbhai, Panch witness.

PW-8 – Exh.61 Sursangji Hemtaji, PSO.

PW-9 – Exh.67 Andabhai Narsangbhai, Panch witness.

PW-10 – Exh.74PI-Narsinhbhai Devjibhai, IO.

Documentary evidence:-

Exh.10 Compalint

Exh.19 Yadi for postmortem.

Exh.20 P.M.Note of Devabhai.

Exh.22 P.M.Note of deceased Demaben.

Exh.23 Medical Certificate of Demaben.

Exh.30 Panchnama of clothes of the deceased.

Exh.34 Report of FSL officer.

Exh.39 Panchnama of physical condition of the accused.

Exh.43 Panchnama of place of offence.

Exh.62 Yadi to register the offence.

Exh.63 Suchipatra.

Exh.64 Yadi of FSL.

Exh.65 Special report of serious offence.

Exh.66 Yadi of inquest panchnama.

Exh.68 Discovery panchnama.

Exh.76, 77Receipt of handing over dead body.

Exh.78 Report of dog squad.

Exh.79 Yadi to add Section.

Exh.80 Medical Yadi of the accused.

Exh.81 Yadi to prepare the map.

Exh.82 Muddamal dispatch note.

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Exh.83 Map of the place of offence.

Exh.84 FSL Receipt of muddamal.

Exh.85 FSL Report

Exh.86 Serological report.

6.After closure of the prosecution evidence, the appellant

accused was questioned under Section 313 of Criminal

Procedure Code, in which he stated that he was innocent and

being falsely implicated in the offence.

7.Though opportunity was extended, no evidence was

tendered from the side of the appellant-accused.

8.The learned Sessions Judge, after hearing the parties and

upon appreciation of evidence held that on 11.1.20212, with

an intention to commit robbery, the appellant-accused armed

with sharp weapon and with an intention to commit loot,

entered the house of the deceased, and he had killed

Devsibhai Bhavabhai Patel and Demaben Devsibhai Patel and

looted gold and silver ornaments of Demaben worth

Rs.50,000/-.

9.Being dissatisfied with the judgment of conviction and

order of sentence, the appellant-accused has come up before

this Court with the present appeal.

10.We have heard Mr.Prashant Mankad, learned counsel

appearing for and on behalf of the appellant-accused and

Mr.Ronak Raval, learned Additional Public Prosecutor for the

State.

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11.Mr.Prashant Mankad, learned counsel, took us through

the record of the case, including the evidence of the

prosecution witnesses and contended that the impugned

judgment of conviction and order of sentence cannot be

sustained. He submitted that the case of the prosecution is

based on circumstantial evidence, and there is no eye witness

to the incident. He submitted that even the complainant has

not seen the incident in question. He further submitted that

though this is a case based on circumstantial evidence, the

prosecution has failed to prove the chain of events to prove its

case. He further submitted that witness Rupabhai Jesungbhai,

Exh.32 has stated that he saw the accused and the deceased

sitting together on the day of the incident, however, there is no

other circumstance to prove that it is the accused and only the

accused, who has committed the offence in question,

therefore, the chain of circumstance is not complete and the

prosecution has miserably failed to prove its case against the

appellant. He further submitted that no independent witness

have been examined in support of the case of the prosecution

and, because of previous enmity, the appellant has been

wrongly framed in the present case. He also submitted that

only because the ornaments are recovered at the instance of

the accused does not prove that the accused has committed

the loot and killed the deceased persons. In view of these

submissions, he submitted that conviction and sentence

imposed by the learned Sessions Court cannot be sustained

and by allowing this appeal, the same may be set aside.

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12.Opposing the contention, learned Additional Public

Prosecutor, Mr.Ronak Raval, contended that the appellant was

seen lastly with the deceased as per the say of the

complainant. He further submitted that the ornaments of the

deceased were also recovered at the instance of the accused-

appellant. He further submitted that not only that there were

blood stains of the deceased, found on the clothes of the

accused, therefore, the prosecution has successfully

established the chain of circumstances. In view of all these, he

submitted that the prosecution has successfully proved its

case before the learned Sessions Court and the learned

Sessions Court has rightly convicted the accused-appellant.

13.In such circumstances, referred to above, learned APP

prays that there being no merits in the appeal, same may be

dismissed.

14.In the instant case, the key circumstances on basis

whereof the prosecution seeks to bring home the charge

against the accused are that the offence was committed within

the four corners of the house and there is no eye witness to

the incident, however, the complainant has stated in his

evidence that when he reached the house of the deceased,

deceased Devsibhai and Demaben were lying in dead condition

and there were no ornaments on the body of Demaben. When

the complainant was shown the ornaments of the deceased, he

has identified the same. It has come in evidence of panch

witness that these ornaments were recovered at the instance

of the present accused, from a field in presence of the panchas

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and the police has recovered the ornaments. It has also come

in the evidence of witness-Rupabhai Jesangbhai, Exh.32, that

on the day of the incident, when he was returning from the

temple, he met the accused and deceased and thereafter, he

went away. At that time, the accused was with the deceased.

Thereafter, when police came this witness came to know that

Devsibhai and Demaben have been killed. Therefore, the

learned Sessions Court has believed that the accused was

lastly seen with the deceased and since the ornaments are

recovered at the instance of the accused, he is found guilty of

murder of the deceased. As per the FSL report also, there were

blood stains of the deceased on the clothes of the accused and

the accused has failed to prove as to how his clothes got blood

stains. Considering all these circumstances, the learned

Sessions Court has convicted the accused.

15.Before adverting to appreciate the contention, we would

like to have a cursory look at the evidence adduced by the

prosecution through its witnesses.

(i)Hemrajbhai Bhavabhai Patel, Complainant, PW-1:-

This witness is the brother of the deceased. He has

stated in his evidence that he was in his field, when this

incident happened. Upon receiving information, when he

reached the place of incident, his brother Devsibhai was

attacked with sharp weapon on his throat and throat of

Demaben, wife of Devsibhai, was also slit. He informed

the police. He stated that there were no ornaments on

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the dead body of Demaben. When he was shown

muddamal ornaments, he has identified the same to be

of Demaben.

In the cross-examination, this witness has admitted that

he does not have any personal knowledge about the

incident in question and he was in his field at the time of

commission of the offence. This admission directly

contradicts his earlier version and shows that his

testimony is based on hearsay. It is also clear from his

evidence that he does not know who informed the police,

and who committed the offence, and he did not see the

assailant.

In the examination-in-chief, the witness identifies certain

ornaments and states that the deceased was wearing

them at the time of the incident. However, in cross-

examination he clearly admits that there is no mention of

any ornaments in the original complaint. It clearly shows

that there is material omission in the FIR and it indicates

that there is an improvement in his version.

(ii)Karshanbhai Ramsibhai Patel, PW-3:-

In his examination-in-chief, the witness states that the

clothes removed from the dead bodies were handed over

by the doctor, packed in plastic bags in his presence,

sealed by the police and that his signatures were taken

on the slips. However, in cross-examination, he clearly

admits that the police merely told him that these were

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the clothes and asked him to sign, and accordingly he

signed. This admission directly contradicts his earlier

version and shows that he did not independently verify

the muddamal articles, thereby destroying his status as

an independent panch witness.

There is also inconsistency in the witness’s version

regarding the sealing of the clothes. While the defence

suggested that no clothes were sealed or signed in his

presence, the witness gives a vague explanation that the

doctor handed over the clothes, they gave them to the

police and the police sealed them in their presence. This

explanation lacks clarity and consistency and appears to

be an afterthought to support the prosecution case.

(iii)Rupabhai Jesungbhai Patel, PW-4:-

This witness has stated in his evidence that the deceased

was his nephew. He stated that he regularly goes to the

temple for darshan and on the day of the incident also,

he went to the temple and when he came back, he had

seen the accused and the deceased sitting together.

Thereafter, he came to know that Devsibhai and

Demaben have been killed. In his cross-examination, he

has stated that on the previous day to the incident also,

he went to the house of Devshibhai and stayed there for

half an hour.

The deposition of this witness seems to be eye-

catching, which otherwise touches the root of the case.

This witness has stated that while sitting beside the

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temple, he found the accused-Viha Pancha, who is the

nephew of this witness, approached there and after

sitting for sometime, he left. However, suddenly and

promptly he changed the version stating that the

deceased and Viha Pancha stayed there and this witness

left from the place. This aspect do not seem to have been

duly appreciated.

Though this witness claims that he visits the Kuldevi

temple daily, he admits in cross-examination that he

does not even know the name of the Kuldevi.

(iv)Kanubhai Virjibhai Damor, PW-5:-

The testimony of this witness, who was examined as

a Scientific Officer of the Mobile FSL, suffers from certain

inconsistencies and weaknesses which affect its

evidentiary value. In his examination-in-chief, the witness

states that upon receiving information from the police

control room, he visited the scene of offence on

12.01.2012 between 12:30 and 15:00 hours, carried out

the scene-of-offence inspection, prepared a primary

report on his own, and gave necessary instructions to the

investigating officer. He projects his report as an

independent scientific assessment prepared on the basis

of his personal inspection.

However, in cross-examination, the witness admits

that when he carried out the scene inspection, PSI N.D.

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Chaudhary was present at the spot. This admission raises

doubt about the independence of his inspection,

especially in view of his categorical denial that he

prepared the report at the instance of the said PSI. The

simultaneous presence of the investigating officer at the

scene, coupled with the witness’s defensive denial,

creates a contradiction between the claim of independent

scientific analysis and the practical circumstances under

which the report was prepared.

Although the witness asserts that he has been

serving in Banaskantha since 29.11.2010 and implies

familiarity with procedures, he does not explain why no

independent scientific samples or corroborative material

are specifically referred to in his deposition. His bare

denial that the report was prepared at the instance of PSI

N.D. Chaudhary, without supporting explanation, appears

to be inconsistent with the circumstances admitted by

him.

In view of the above contradictions and omissions,

the evidence of PW-5 does not conclusively establish that

the scene-of-offence inspection and primary report were

conducted in a completely independent and unbiased

manner.

(v)Amratlal Mathaji Darji, PW-6:-

In his examination-in-chief, the witness stated that

at about 5 a.m. he heard screams of “don’t beat and

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save”, came out of his house, raised shouts, and

thereafter called Pravinbhai Jaydevbhai Darji as well as

Amrabhai and Mehbhai, after which all four of them went

together to the place of incident.

However, in his cross-examination, he categorically

denied that he raised any shouts and called Pravinbhai.

He has also denied that he went near the gate to call

Amrabhai. This is a direct contradiction on the core issue

of how the witness became involved and how other

persons gathered at the spot, striking at the root of his

credibility.

There is also inconsistency regarding the presence

of neighbours and surrounding houses. In chief-

examination, this witness suggested that people were

called and came to the spot soon after the incident.

However, in cross-examination, he stated that between

his house and Devshibhai’s house nobody resides and

that except him and Pravinbhai, no one lives nearby.

These contradictions go to the root of the prosecution

case.

(vi)Lagdhirbhai Rupshibhai, PW-7:-

In his examination-in-chief, the witness states that when

he was called to the police station, the accused Vihabhai

was present and that the accused himself produced a

blood-stained white shirt, which was then seized, packed,

sealed and signed in his presence. This version gives an

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impression that the recovery was voluntary, transparent

and properly witnessed. However, in cross-examination,

the witness admits that when he reached the police

station, the clothes were already lying on the table. This

admission contradicts his chief examination, where he

stated that the accused produced the clothes in their

presence. If the clothes were already kept on the table

before the panchas arrived, the alleged recovery at the

instance of the accused becomes doubtful and loses its

evidentiary value.

(vii)Harsangbhai Shivmalbhai, PW-8:-

In his examination-in-chief, the witness gives an

extremely detailed and elaborate description of the scene

of offence, including the structure of the house, number

of rooms, flooring materials, numerous seized articles,

bloodstains at several places, samples collected from

different locations, and even bloodstains allegedly

extending up to the petrol pump at Malupur Patiya.

However, in the same breath, he states that “except this,

I do not remember anything else,” which is inherently

contradictory. A witness who claims to remember minute

details of more than fifteen seized articles and their

sealing cannot simultaneously claim lack of memory

about other aspects of the incident.

Further, the witness states in chief that the police called

him to the place of offence and that he merely acted as a

panch. However, he later claims that “this place was

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shown by me,” which contradicts his role as an

independent panch witness. A panch witness is expected

to observe and verify the actions of the police, not to

identify or show the place of offence himself. This

statement creates serious doubt about whether the

witness was acting independently or was actively

assisting the police investigation.

(viii)Narsinhbhai Devjibhai Chaudhary, PSI, PW-11:-

In his cross-examination this witness states that he

himself recorded the FIR as well as carried out the entire

investigation. This dual role of complainant and

investigating officer creates a clear apprehension of bias

and lack of impartiality, thereby vitiating the fairness of

the investigation. An investigation conducted by the

same person who initiated the prosecution cannot be said

to be independent or free from prejudice. He also claims

to have examined several witnesses and prepared

multiple panchnamas, there is a clear contradiction

regarding independent witnesses. The witness merely

denies the suggestion that independent or neutral

witnesses were not examined, but fails to explain why no

nearby residents or independent persons from the

locality were cited as prosecution witnesses, despite the

alleged incident having occurred in an inhabited area.

There is also inconsistency in the application of

penal sections. PW-11 admits that initially certain

sections were applied and later additional sections such

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as 392, 397 and 449 of IPC were added, while some

sections were altered or reduced. Such frequent changes

in the sections of law indicate uncertainty and lack of

clarity in the prosecution case, suggesting that the

investigation proceeded in a mechanical manner rather

than on the basis of concrete evidence.

Regarding the alleged recovery under Section 27 of

the Evidence Act, PW-11 claims that recoveries were

made in the presence of panch witnesses. However, the

panch witnesses appear to be police-oriented and not

independent or neutral persons. Recoveries effected only

in the presence of interested panchas and police

personnel raise serious doubt about the authenticity and

voluntariness of such recoveries.

Although PW-11 produced various medical

documents such as post-mortem notes, cause of death

certificates and injury certificates, he fails to correlate the

medical evidence with the prosecution version. He does

not explain how the injuries found on the deceased

correspond with the alleged weapons recovered, thereby

creating a gap between medical evidence and

investigative findings. PW-11 also refers to injuries found

on suspect Vihabhai Panchabhai, but does not clarify how

these injuries are connected with the alleged incident,

the time of occurrence, or the role attributed to the

accused. This omission creates uncertainty and leaves

material aspects of the investigation unexplained.

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16.Before we proceed further, it would be apposite to remind

ourselves that this is a case where there is no eyewitness

account of the murder. Prosecution seeks to bring home the

charge levelled on the accused by relying on certain

circumstances. The law is well settled as to when on strength

of evidence circumstantial in nature conviction can be lawfully

sustained-the circumstances from which the conclusion of guilt

is to be drawn should, in the first instance, be fully established;

these circumstances should be of a definite tendency

unerringly pointing towards the guilt of the accused; the

circumstances taken cumulatively should form a chain so far

complete that there is no escape from the conclusion that

within all human probability the crime was committed by the

accused; the circumstances should be consistent only with the

hypothesis regarding the guilt of the accused; and they must

exclude every possible hypothesis except the one to be

proved. Further, the circumstances from which the conclusion

of guilt is to be drawn should be fully established meaning

thereby that they ‘must’ or ‘should’ and not ‘may be’

established (See: Sharad Birdhichand Sarda v. State of

Maharashtra (1984) 4 SCC 116) .

17.In addition to the above, while dealing with a criminal

trial, a Court must not be oblivious of the most fundamental

principle of criminal jurisprudence, which is, that the accused

‘must be’ and not merely ‘may be’ guilty before the Court

proceeds to convict him. In Shivaji Sahabrao Bobade &

Another v. State of Maharashtra (1973) 2 SCC 793 ,

Supreme Court, elaborating upon the above principle,

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observed that the mental distance between ‘may be’ and

‘must be’ is long and divides vague conjectures from sure

conclusions.

18.Adding on to the aforesaid legal principles, in Devi Lal v.

State of Rajasthan (2019) 19 SCC 447 , a three-judge

Bench of Supreme Court held that in a case based on

circumstantial evidence where two views are possible, one

pointing to the guilt and the other to his innocence, the

accused is entitled to the benefit of one which is favourable to

him. The relevant portion of the judgment is extracted below:-

“18. … Though the materials on record hold some

suspicion towards them, but the prosecution has failed to

elevate its case from the realm of "may be true" to the

plane of "must be true" as is indispensably required in

law for conviction on a criminal charge. It is trite to state

that in a criminal trial, suspicion, howsoever grave,

cannot substitute proof.

19. … in the case of circumstantial evidence, two views

are possible on the case of record, one pointing to the

guilt of the accused and the other his innocence. The

accused is indeed entitled to have the benefit of one

which is favourable to him.”

19.Bearing in mind the aforesaid legal principles, we would

have to examine-(i) whether the circumstances relied by the

prosecution have been proved beyond reasonable doubt; (ii)

whether those circumstances are of a definite tendency

unerringly pointing towards the guilt of the accused; (iii)

whether those circumstances taken cumulatively form a chain

so far complete that there is no escape from the conclusion

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that within all human probability the crime was committed by

the accused; (iv) whether they are consistent only with the

hypothesis of the accused being guilty; and (v) whether they

exclude every possible hypothesis except the one to be

proved.

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

against the appellant of last seen and motive, affirmed the

conviction.

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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:

(i) 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 the 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.In the present case, there is no eye witness to the

incident in question. The complainant has stated in his

evidence that he had seen the accused along with the

deceased lastly, however, he had seen them when he was

returning from a temple and at that time they were sitting

together, therefore, the theory of last seen together do not

lead to a definite conclusion that it is the accused only, who

has committed the offence in question. The prosecution has

also failed to prove as to what was the motive behind the

murder of the deceased. The prosecution has only linked the

recovery of the ornaments with the murder of the deceased,

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however, it is not sufficient to prove that it is the accused and

only the accused, who has committed the offence in question.

Not only that the learned Sessions Court has also recorded in

its judgment that there are contradictions in the evidence of

prosecution witness, inspite of that the learned Sessions Court

proceeded to believe the case of the prosecution and convict

the accused. In the present case, there is no direct or

substantial evidence connecting the accused with the offence

and the evidence relied upon by the learned Sessions Court

can be said to be corroborative evidence and on such

evidence, conviction cannot be recorded. Not only that in view

of decision of the Supreme Court in Devi Lal (supra), wherein

held that in a case based on circumstantial evidence where

two views are possible, one pointing to the guilt and the other

to his innocence, the accused is entitled to the benefit of one

which is favourable to him.

23.In the case of Govind v. State of Haryana, 2025 SCC

OnLine SC 2456, the apex Court, while determining the scope

of Section 27 of the Evidence Act, 1872 that deals with how

much of the information as received from the accused, in

Police custody may be proved, interpreted the phrase ‘fact

thereby discovered’ and held that only that much information

as is clearly connected with the fact discovered can be treated

as relevant under the phrase ‘facts discovered’. While deciding

the aforesaid case, the Apex Court has observed as under:-

“15.As per Section 25 of the Evidence Act, the confession

given in the Police custody, cannot be proved against a person

accused of an offence unless it is given in the immediate

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presence of the Magistrate. However, Section 27 deals with

how much of the information as received from the accused, in

Police custody may be proved. The said Section is relevant,

therefore, reproduced below:

“27. How much of information received from accused may be

proved. - Provided that, when any fact is deposed to as

discovered in consequence of information received from a

person accused of any offence, in the custody of a police-

officer, so much of such information, whether it amounts to a

confession or not, as relates distinctly to the fact thereby

discovered, may be proved.”

On a glance of the language of the said section, which starts

with the expression “provided that”, it is apparent that this

Section is an exception to the preceding Sections 25 and 26.

The language further indicates that when any fact is deposed

to as discovered in consequence of information received from

a person who is in custody of the Police in connection of an

offence, it must relate distinctly to the fact so discovered. For

relevancy, the “facts thereby discovered” is preceded with the

words “so much of such information, whether it amounts to

confession or not as relates distinctly”. Special emphasis must

be given to the word ‘distinctly’. The word “distinctly” has its

own importance which is a derivative of the word ‘distinct’. As

per Concise Oxford English Dictionary it means recognizable,

different in nature, individual or separate, readily

distinguishable by the senses. As per Advance Law Lexicon,

“distinctly” means clearly, explicitly, definitely, precisely,

unmistakably, in a distinct manner. Therefore, “distinctly”, as

used in Section 27, is meant to exclude certain language and

to limit and confine the information which may be proved

within definite limits and not necessarily to include everything

which may relate to that information. The said word

“distinctly” indicates directly, indubitably, strictly and

unmistakably, apparently, used in Section 27 to limit and

define the scope of probable information. Therefore, only that

much information as is clearly connected with the fact

discovered can be treated as relevant under the phrase ‘facts

discovered’.

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23.1In nutshell, all the statements made with regard to the

confession of committing the crime would not be admissible in

evidence. Only such information, which distinctly relates to the

discovery of facts will be admissible under Section 27 of the

Evidence Act, 1872.

24.In view of the decision, mere discovery of ornaments at

the instance of the accused cannot be the sole ground to link

the accused with the alleged incident. As per the case of the

prosecution, discovery of the ornaments is at the instance of

the accused, however, only discovery at the instance of the

accused is not sufficient as the prosecution has to prove the

same by leading the evidence to show that necessary

prescribed procedure has been followed, while carrying out

panchnama. In the present case, it is an admitted fact that the

accused was in custody at the relevant time and the panchas

have not supported the version of the prosecution, as

discussed herein above. Simply because there is recovery, said

fact cannot be said to have been proved beyond reasonable

doubt so as to convict of the accused on the basis of such

recovery. Not only that in the present case, the alleged

recovery was made from a place accessible to all, hence, the

extent to which such recovery can be relied upon to establish

the appellant’s guilt requires careful scrutiny and as per the

decision, referred to herein above, when such recovery was

from a place accessible to others and also from place of public

use, no reliance could be placed on such recovery as such

recovery alone is not sufficient and it becomes suspicious.

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25.So far as blood stains on the clothes of the accused are

concerned, PW-7 has stated in his evidence that when he was

called to the police station, the accused Vihabhai was present

and that the accused himself produced a blood-stained white

shirt, which was then seized, packed, sealed and signed in his

presence. However, in cross-examination, the witness admits

that when he reached the police station, the clothes were

already lying on the table. This admission contradicts his chief

examination, where he stated that the accused produced the

clothes in their presence. If the clothes were already kept on

the table before the panchas arrived, the alleged recovery at

the instance of the accused becomes doubtful and loses its

evidentiary value. Therefore, when the panchas have not

supported the case of the prosecution, it cannot be believed

there were blood stains on the clothes of the accused. Not only

that from the evidence of PW-5, it is clear that upon receiving

information from the police control room, he visited the scene

of offence on 12.01.2012 between 12:30 and 15:00 hours,

carried out the scene-of-offence inspection, prepared a primary

report on his own, and gave necessary instructions to the

investigating officer. He projects his report as an independent

scientific assessment prepared on the basis of his personal

inspection, however, in cross-examination, the witness admits

that when he carried out the scene inspection, PSI N.D.

Chaudhary was present at the spot. This admission raises

doubt about the independence of his inspection, especially in

view of his categorical denial that he prepared the report at

the instance of the said PSI. In view of the detailed discussion

pertaining to Section 27 of the Evidence Act, mere recovery

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and discovery is not sufficient, which otherwise required to be

proved by substantial evidence, which in the case on hand

seems to be lacking.

26.PW-3, Karshanbhai Ramsibhai Patel, has stated that the

clothes removed from the dead bodies were handed over by

the doctor, packed in plastic bags in his presence, sealed by

the police and that his signatures were taken on the slips.

However, in cross-examination, he clearly admits that the

police merely told him that these were the clothes and asked

him to sign, and accordingly he signed. This admission directly

contradicts his earlier version and shows that he did not

independently verify the muddamal articles, thereby

destroying his status as an independent panch witness. There

is also inconsistency in the witness’s version regarding the

sealing of the clothes. While the defence suggested that no

clothes were sealed or signed in his presence, the witness

gives a vague explanation that the doctor handed over the

clothes, they gave them to the police and the police sealed

them in their presence. The witness admits that the deceased

Devshibhai Bhavabhai was his relative and that they belong to

the same family. Thus, the witness is an interested witness and

not an independent panch. Evidence of such a witness cannot

be relied upon without strong corroboration, which is absent in

the present case.

27.In view of above contradictions in the evidence laid by

the prosecution and considering the ratio of the decision of the

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Apex Court, we find that the prosecution has failed to prove its

case beyond reasonable doubt against the accused and

learned Sessions Court has committed an error in convicting

the accused person for the offences alleged against him.

Hence, we are of the opinion that this Criminal Appeal is

required to be allowed.

28. For the foregoing reasons, this appeal is allowed. The

impugned judgment and order dated 14.10.2015, passed by

learned Additional Sessions Judge, Diyodar, in Sessions Case

No.80 of 2015 is quashed and set aside. The accused is

acquitted of all the charges levelled against him. Bail bond, if

any, stands cancelled. The appellant-accused is ordered to be

released forthwith, if not required in any other case. Record

and Proceedings, if lying here, be sent back to the concerned

Sessions Court forthwith.

Sd/-

(ILESH J. VORA,J)

Sd/-

(R. T. VACHHANI, J)

R.S. MALEK

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