Holding

The appellate court held that the prosecution failed to prove the case beyond reasonable doubt and quashed the conviction.

Summary

Vihabhai Panchabhai Patel appealed against his conviction for murder, robbery, and related offences under Sections 302, 392, 397 and 449 of the IPC. The trial court relied on circumstantial evidence, including the appellant’s alleged presence with the victims, recovery of stolen ornaments at his instance, and blood‑stained clothing. The defence argued that there were no eye‑witnesses, the chain of circumstances was incomplete, and the recovery evidence was unreliable under Section 27 of the Evidence Act. The High Court examined the legal standards for circumstantial evidence, emphasizing that guilt must be proved beyond reasonable doubt and that each link in the chain must be firmly established. Finding contradictions in the prosecution’s witnesses and noting the lack of a complete, unbroken chain, the Court held that the prosecution failed to meet the required standard. Consequently, the conviction was set aside, the appellant was acquitted of all charges and ordered to be released.

Issues considered

The prosecution’s circumstantial evidence forms a complete chain sufficient to convict beyond reasonable doubt.
Whether the recovery of ornaments and blood‑stained clothing under Section 27 of the Evidence Act can be relied upon to establish guilt.
Whether the motive, last‑seen, and recovery links proved by the prosecution satisfy the legal test for conviction.
Whether the conviction under IPC Sections 302, 392, 397 and 449 is sustainable in view of the evidentiary deficiencies.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Evidence Act, 1872s. 25, s. 26, s. 27
Indian Penal Code, 1860s. 302, s. 392, s. 397, s. 449

Subjects

murderrobberycircumstantial evidenceconvictionacquittalEvidence ActSection 27IPCGujarat High Court

Judgment

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/-
==========================================================

Approved for Reporting Yes No
--- No
==========================================================
VIHABHAI PANCHABHAI PATEL
Versus
STATE OF GUJARAT
==========================================================
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
==========================================================

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 Punishment Fine In default
under of fine
Section
302 of IPC Life Imprisonment Rs.10,000/- 3 month SI

392 of IPC 3 years RI Rs.1,000/- 1 month SI

397 of IPC 3 years RI Rs.1,000/- 1 month SI

449 of IPC 3 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.74 PI-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, 77 Receipt 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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23.1 In 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

Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: RIYAZMIYA SABIRMIYA MALEK(HC00180), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 29/01/2026 15:43:33

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