Holding

The appeal is dismissed; the trial court's acquittal is affirmed.

Summary

The State of Gujarat appealed the acquittal of Ismailbhai Hasanbhai Malek and co‑accused in a murder case involving the death of Jagdishbhai. The trial court had found that the alleged extra‑judicial confession of the accused Ramilaben and the recovery of the alleged murder weapon were not proved beyond reasonable doubt, leading to an acquittal on charges under Sections 302, 201, 118, 34 and 120B IPC. On appeal, the State argued that the confession and the recovered muddamal articles were credible evidence of guilt. The High Court examined the testimonies of the prosecution witnesses and found material contradictions regarding the timing of the confession and doubts about the authenticity of the recovery panchnamas. Applying the principles laid down in Chandrappa v. State of Karnataka, the Court held that the prosecution failed to discharge the burden of proof and that the trial court had not erred. Consequently, the appeal was dismissed and the acquittal upheld.

Issues considered

Whether the extra‑judicial confession of the accused was proved beyond reasonable doubt.
Whether the recovery of the alleged murder weapon and related articles was duly proved.
Whether the trial court erred in acquitting the accused on the basis of insufficient evidence.
Whether the appellate court can disturb an acquittal in the absence of a manifest error.

Legislation cited

Code of Criminal Procedure, 1973s. 209, s. 313, s. 378
Indian Penal Code, 1860s. 118, s. 120B, s. 201, s. 302, s. 34

Subjects

murderextra‑judicial confessionacquittalburden of proofcriminal appealevidence appraisalIPCCrPC

Judgment

R/CR.A/345/2000 JUDGMENT DATED: 27/03/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 345 of 2000

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE SANJEEV J.THAKER

and
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI

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

Approved for Reporting Yes No

==========================================================
STATE OF GUJARAT
Versus
ISMILEBHAI HASANBHAI MALEK & ORS.
==========================================================
Appearance:
PUBLIC PROSECUTOR for the Appellant(s) No. 1
MS KD PARMAR(589) for the Opponent(s)/Respondent(s) No. 1,2,3
==========================================================

CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
and
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI

Date : 27/03/2026

JUDGMENT
(PER : HONOURABLE MR.JUSTICE MOOL CHAND TYAGI)

1. The present Appeal is led by the Appellant – State of
Gujarat under the provisions of sub-sections (1) & (3) of
Section 378 of the Code of Criminal Procedure, 1973 (
hereinafter be referred to as Cr.P.C. ) challenging the Judgment
dated 05.02.2000 passed by the learned 3 rd Additional

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Sessions Judge, Vadodara ( hereinafter be referred to as the
Ld. Trial Court / Ld.ASJ) in Sessions Case No.147 of 1999,
whereby the Respondents herein were ordered to have been
acquitted of the charges for the o8ences punishable under
Sections 302, 201,118 r/w Section 34 and 120(B) of the Indian
Penal Code,1860 ( hereinafter be referred to as IPC ) .

2. The facts and circumstances giving rise to the ling of the
present appeal are as follows: Accused No.1 – Ismailbhai
Hashanbhai Malek was allegedly having illicit relations with
Accused No.3 – Ramilaben - widow of the deceased Jagdishbhai
Prabhatbhai Patanvadiya. The deceased strongly disapproved
of this illicit relationship. On one occasion, the deceased
Jagdishbhai saw Accused No.1-Ismailbhai and Accused No.3-
Ramilaben sleeping together. In view of this, both the accused
persons are stated to have borne a grudge against the
deceased. Consequently, on 19.03.1999 at about 12:00 in the
night, accused No.1 allegedly took Jagdishbhai to a eld,
in?icted a blow on his head with an iron pipe and caused his
death. Thereafter, Accused No.2, with the assistance of
Accused No.3, allegedly disposed of the dead body by throwing
it into a well.

3. Accordingly, FIR being I.C.R.No.97 of 1999 was lodged at
Padra Police Station, District –Vadodara, and investigation was
carried out and ultimately, charge-sheet came to be led
against the accused under Sections 302, 201,118 r/w Section
34 and 120(B) of the IPC before the Judicial Magistrate. As the
case was exclusively triable by the Court of Sessions, learned

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Magistrate under Section 209 of the Cr.P.C. committed the said
case to the Court of Sessions Court, Vadodara, which came to
be numbered as Sessions Case No.147/1999.

4. On 04.08.1999, the learned Trial Court framed the
charges at Exh. 3 under Sections 302, 201,118, 34 and 120(B).
Since, the accused did not plead guilty and claimed to be tried,
they were tried for the said o8ences.

5. In order to bring the home the guilty of the accused, the
prosecution has led following oral and documentary
evidences:-

ORAL EVIDENCES
Sr.No. P.W.NO. WITNESS Exh.
1. 1. Deposition of Complainant - Sureshbhai Prabhatbhai 14
2. 2. Deposition of witness Rajubhai Haribhai 16

3. 3. Deposition of witness - Lilaben Haribhai 18

4. 4. Deposition of witness – Bhikhabhai Ramsinhbhai 19

5. 5. Deposition of witness – Dr.Ajaybhai Jayantilal 25

6. 6. Deposition of witness-Satishbhai Ranchodbhai Panchal 27

7. 7. Deposition of witness-Ismailbhai Mahammadbhai Pathan 29
8. 8. Deposition of witness-Nizamkha Ibrahimkha Pathan 32
9. 9. Deposition of witness-Mirza Mahmmad Pathan 34
10. 10. Deposition of witness-Ayubhai Ahmedbhai Pathan 37
11. 11. Deposition of witness-Ibrahim Jibava Pathan 38
12. 12. Deposition of witness-Basirkha Najarkha Pathan 40
13. 13. Deposition of witness-Rajendrasinh Natwarsinh Rana – P.I. 41

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DOCUMENTARY EVIDENCES
Sr.No. EXH Description
1. 15 Complaint of Sureshbhai Prabhatbhai
2. 20 Inquest panchnama
3. 21 Scene of o8ence panchnama
4. 22 & 23Yadi forwarded to Muddamal Chemical Analyzer
5. 26 Post-mortem Note
6. 28 Recovery panchnama of weapon
7. 30 Scene of o8ence panchnama
8. 31 Recovery panchnama of cycle
9. 32 Arrest panchnama of accused
10. 35 Recovery panchanama of clothes from the dead-body
11. 39 Panchnama of pent of the deceased produced by accused-Ramilaben
12. 42 Complaint
13. 43 Report of Laboratory

6. After recording all the evidence, statements of the
accused under Section 313 of Cr.P.C., were recorded and all
the incriminatory evidence were put to them. They denied all
the incriminatory evidences and took the plea that they have
been falsely implicated in the crime. Thereafter, the case was
xed for the evidence of Accused persons but they had not led
any oral and/ or documentary evidence. Thereafter, hearing
the arguments on behalf of the prosecution and the defence
and having considered the arguments and evaluating the oral
as well as documentary evidences, the Ld. ASJ acquitted all the
accused of all the charges levelled against them by the
Judgment dated 05.02.2020.

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7. Being aggrieved by and dissatis ed with the
judgment dated 05.02.2000 passed by the learned 3 rd
Additional Sessions Judge, Vadodara, the appellant-State
has preferred the present Criminal Appeal.

8. We have heard learned advocates for the parties.

9. Mr. Yuvraj Brahmbhatt, learned Additional Public
Prosecutor for the appellant–State, vehemently submitted that
the prosecution witnesses viz. Sureshbhai Prabhatbhai,
Rajubhai Haribhai, Lilaben Haribhai, and Bhikhabhai
Ramsinhbhai, have categorically deposed before the learned
Trial Court that accused No.3 – Ramilaben made an extra-
judicial confession before them. It is submitted that she
admitted to having an illicit relationship with accused No.1,
and that the deceased – Jagdishbhai had caught them while
they were sleeping together. It is further submitted that, in
order to eliminate Jagdishbhai, accused No.1 came during the
night and took the deceased to the eld, where accused Nos.1
and 2 in?icted blows with a pipe on his head, thereby
committing his murder. It is further submitted that the dead
body of Jagdishbhai was thrown into a well, and that the pant
of the deceased was handed over to accused No.3 –
Ramilaben.

10. The learned Additional Public Prosecutor further
submitted that the muddamal articles i.e. pipe, bicycle, and
motorcycle used in the commission of the o8ence, were
recovered at the instance of the accused. It is submitted that

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such recovery has been duly proved on record. It is, therefore,
contended that the learned Trial Court has failed to appreciate
the extra-judicial confession as well as the recovery of the
muddamal articles at the instance of the accused persons in
their proper perspective, and has thereby committed a
manifest error in acquitting the accused persons of all the
charges levelled against them. He, therefore, submitted that
the impugned judgment and order deserve to be set aside.

11. Per contra, Mr.K.D.Parmar, learned advocate appearing
on behalf of the respondents herein – original accused
vehemently submitted that the prosecution could not prove
the case beyond reasonable doubt. It is submitted that the
extra judicial confession was not proved by the prosecution
beyond reasonable doubt. It is submitted that the recovery of
muddamal has not been proved on record. Therefore, the
learned Trial Court has rightly acquitted the accused persons
from all the charges leveled against them. He, therefore,
submitted that the captioned appeal is liable to be dismissed.

12. Having considered the submissions of learned advocates
for the parties and having gone through the record, it is to be
noted that in order to bring home the guilt of the accused
persons, the prosecution has examined as many as 13
witnesses. In light of arguments canvassed by learned APP,
the case of prosecution based on extra judicial confession and
recovery of muddamal articles at the instance of the accused
persons. Now, in light of ocular evidence, it has to be seen that
as to whether the extra judicial confession has been proved on

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record beyond reasonable doubt. In order to prove the extra
judicial confession, the prosecution has examined Sureshbhai
Pratapbhai as PW.1 at Exh.14, Rajubhai Haribhai as PW.2 at
Exh.16, Lilaben Haribhai was examined as PW.3 at Exh.18 and
Bhikabhai Ramsinhbhai was examined as P.W.4 at Exh.19.

13. P.W.1 Sureshbhai Prabhatbhai, the younger brother of the
deceased – Jagdishbhai, is the complainant in the present case.
He deposed before the learned Trial Court that, after the
cremation of his brother, his sister-in-law (bhabhi) i.e. accused
No.3 made a confessional statement before the family
members. She stated that on 19.03.1996, at about 12.00 hours
in the mid-night, accused No.1 – Ismailbhai came to her house
and took her husband-Jagdishbhai to the eld. It is further
deposed that accused No.1 was waiting on the way, and
thereafter, the accused persons returned with the pant of the
deceased, which they handed over to her, informing her that
they had eliminated her husband. He further deposed that
accused No.3 also confessed that about two months prior to
the incident, while she and accused No.1 – Ismailbhai
Hasanbhai Malek were sleeping together on a cot, the
deceased – Jagdishbhai saw them, and thereafter, he beaten
accused No.1. In his cross-examination, he admitted that the
cremation took place in the evening of 03.04.1996. He further
admitted that the police had handed over the dead body of the
deceased between 03:00 p.m. and 04:00 p.m., following which
the last rites of the deceased – Jagdishbhai were performed. He
also admitted that accused No.3 – Ramilaben was present at
the said last rites. He further deposed that, thereafter, on the

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night of 03.04.1996, he went to Padra Police Station; however,
he did not make any statement to the police during the said
night. His additional statement came to be recorded on
04.04.1996. It has, therefore, emerged from his cross-
examination that a doubt is created as to the time and
circumstances under which accused No.3 – Ramilaben
allegedly made the confession after the cremation, particularly
when he himself was not present at the relevant time.

14. The prosecution has examined Rajubhai Haribhai as
P.W.2 at Exh.16. He deposed that he had found the dead body
of the deceased in a well and had informed Suresh (P.W.1)
about the same. He has also deposed on similar lines
regarding the alleged extra-judicial confession. However, in his
cross-examination, he admitted that after the cremation, he
returned home and went to sleep. He further admitted that on
the next day, i.e., 04.04.1996, he woke up at about 07:00 a.m.,
went to school, returned at about 05:00 p.m., and thereafter,
after completing his homework, went to sleep. He also
admitted that after 2–3 days, his uncle Suresh informed him
that he had been made a witness in the case. In view of the
aforesaid admissions, it becomes doubtful as to when accused
No.3 made the confessional statement before him, particularly
when his own version indicates that he had no occasion to
meet or interact with her during the relevant period. Therefore,
the version of the alleged confessional statement cannot be
said to be proved beyond reasonable doubt.

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15. P.W.3 Lilaben Haribhai, who is sister-in-law of the
deceased-Jagdishbia also deposed on the same line of
confessing the guilt by Ramilaben before the family members.
She deposed that the police has inquired her at night after the
cremation of the deceased-Jagdishbhai. The cremation of the
deceased-Jagdishbhai took place on 03.04.1996, however,
Sureshbhai (P.W.1) deposed that the accused no.3-Ramilaben
made her confessional statement on 04.04.1996.

16. P.W.4 Bhikhabhai Ramsinhbhai also deposed that his
aunty Ramilaben made the confessional statement on
04.04.1996 before Sureshbhai (P.W.1), Lilaben (P.W.3) & ors.,
but in the cross-examination, admitted that he has not told the
police that Ramilaben has made any confessional statement
before him.

17. Thus, in light of oral testimony of P.W.1 to P.W.4, it is
evident that there is a material contradiction in the deposition
regarding the time of making confessional statement and
availability of these witnesses at the time of making
confessional statement by accused no.3-Ramilaben.

18. It is a settled proposition of law that a conviction can be
based on the confessional statement of an accused, provided
that such statement is voluntary and trustworthy. However, in
the present case, in light of the depositions of the alleged eye-
witnesses, it has not been proved beyond reasonable doubt
that accused No.3-Ramilaben made any such confessional
statement before them.

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19. So far as the recovery of muddamal articles is concerned,
P.W.6 – Satishbhai Ranchhodbhai Panchal, who is the panch
witness to the alleged recovery of the iron-rod, has deposed
that the accused – Ismailbhai – went inside the room and
produced the iron pipe alleged to have been used in the
commission of the o8ence. However, a close scrutiny of his
testimony reveals that the preliminary panchnama of recovery
has not been duly proved. Further, in his cross-examination,
the witness has admitted that he was called to the police
station by Sureshbhai (P.W.1) to act as a panch witness, which
casts doubt on the credibility of the alleged recovery.

20. P.W.7, Ismailbhai Mahammadbhai Pathan, is a panch
witness to the recovery panchnama of the bicycle. In his cross-
examination, he admitted that he was not called to the police
station by the police, but was instead called by Sureshbhai
(P.W.1). P.W.8, Nizamkha Ibrahimkha Pathan, a panch witness
to the recovery of the Rajdoot motorcycle, turned hostile and
did not support the case of the prosecution. Similarly, P.W.11,
Ibrahim Jibava Pathan, and P.W.12, Basirkha Nazarkha Pathan,
who are panch witnesses to the recovery panchnama of the
deceased’s pant, have also turned hostile and failed to support
the prosecution’s case. Thus, in light of the oral testimonies of
the panch witnesses, it is evident that the alleged recovery of
muddamal articles at the instance of the accused persons has
not been duly proved on record.

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21. So far as the other witnesses are concerned, P.W.5-Dr.
Ajaybhai Jentibhai Joshi is the medical oLcer who conducted
the post-mortem of the deceased-Jagdishbhai. P.W.13,
Rajendrasinh Natvarsinh Rana, is the Investigating OLcer, who
conducted the investigation and led the charge-sheet. Thus,
upon a careful scrutiny of the oral as well as documentary
evidence on record, it is evident that the prosecution has
miserably failed to prove its case against the accused persons
beyond reasonable doubt.

22. Thus, in the light of evidence, the prosecution has
miserably failed to prove the extra judicial confession as well
as recovery of muddamal articles at the instance of accused
persons, beyond reasonable doubt. It is settled proposition of
law that the proseuction has to prove the guilt of the accused
persons beyond reasonable doubt.

23. It is well settled by catena of decisions that the an
Appellate Court has full power to review, re-appreciate and
reconsider the evidence upon which the order of acquittal is
founded. However, Appellate Court must bear in mind that in
case of acquittal there is double presumption in favour of the
accused. Firstly, the presumption of innocence is available to
him under the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent unless he
is proved guilty by a competent Court of law. Secondly, the
accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaLrmed and strengthened
by the trial Court.

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24. Further, if two reasonable conclusions are possible on the
basis of the evidence on record, the Appellate Court should not
disturb the nding of acquittal recorded by the trial Court.
Further, while exercising the powers in appeal against the
order of acquittal, the Court of appeal would not ordinarily
interfere with the order of acquittal unless the approach of the
lower Court is vitiated by some manifest illegality and the
conclusion arrived at would not be arrived at by any
reasonable person and, therefore, the decision is to be
characterized as perverse. Merely because two views are
possible, the Court of appeal would not take the view which
would upset the judgment delivered by the Court below.
However, the Appellate Court has a power to review the
evidence if it is of the view that the conclusion arrived at by
the Court below is perverse and the Court has committed a
manifest error of law and ignored the material evidence on
record. A duty is cast upon the Appellate Court, in such
circumstances, to re-appreciate the evidence to arrive to a just
decision on the basis of material placed on record to nd out
whether the accused are connected with the commission of the
crime with which he is charged.

25. In the instance case, learned APP failed to point out any
cogent and incriminating evidence against the accused
persons, which may connect the accused persons with the
commission of the o8ence beyond reasonable doubt. At this
stage, it would be pro table to refer to the judgment of Apex
Court in the case of Chandrappa & Ors. Vs. State of
Karnataka reported in 2007 (4) SCC 415. The relevant

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observations made in the said judgment are as under:-

“….. (1) An appellate Court has full power to review,
reappreciate and reconsider the evidence upon which the order
of acquittal is founded; (2) The Code of Criminal Procedure , 1973
puts no limitation, restriction or condition on exercise of such
power and an appellate Court on the evidence before it may
reach its own conclusion, both on questions of fact and of law;

(3) Various expressions, such as, 'substantial and compelling
reasons', 'good and suLcient grounds', 'very strong
circumstances', 'distorted conclusions', 'glaring mistakes', etc.
are not intended to curtail extensive powers of an appellate
Court in an appeal against acquittal. Such phraseologies are
more in the nature of '?ourishes of language' to emphasize the
reluctance of an appellate Court to interfere with acquittal than
to curtail the power of the Court to review the evidence and to
come to its own conclusion.

(4) An appellate Court, however, must bear in mind that in case
of acquittal, there is double presumption in favour of the
accused. Firstly, the presumption of innocence available to him
under the fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless he is
proved guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaLrmed and strengthened by
the trial court.

(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the
nding of acquittal recorded by the trial court.”

26. Applying the aforesaid principle as laid down by the Apex
Court in the case of Chandrappa (supra), it is apparent on

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record that no credible evidence had been produced by the
prosecution, which may connect the accused persons in the
alleged crime. The prosecution has miserably failed to prove
the guilt of the accused persons beyond reasonable doubt.
Thus, the Trial Court has not committed any error in
appreciating the evidence on record and in acquitting the
accused persons from the challenges levelled against them.

27. In these facts and circumstances, we are of the
considered opinion that the learned Trial Judge committed no
error in passing the impugned judgment and order. Hence, the
present appeal deserves to be dismissed.

28. In the result, the appeal fails and is dismissed. The
judgment and order of the Trial Court dated 05.02.2020
stands con rmed. Bail and bail bonds of the accused, if any,
stands discharged. R & P be sent back to the concerned Trial
Court, forthwith. No order as to costs.

(SANJEEV J.THAKER,J)

(MOOL CHAND TYAGI, J)
GIRISH

Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: PARMAR GIRISH KANTILAL(HC00954), Principal Pvt Secretary, at High Court of Gujarat on 01/04/2026 13:16:00

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