SIDDIK ISMAILE KUMBHARversusSTATE OF GUJARAT

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




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
      R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 545 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
==========================================================
            Approved for Reporting               Yes          No

==========================================================
                        SIDDIK ISMAILE KUMBHAR
                                  Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
DARSHAN M VARANDANI(7357) for the Appellant(s) No. 1
MR RONAK B 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.      Feeling aggrieved and dissatisfied with the judgment and order of
        conviction and sentence dated 01.12.2018 passed by the learned 7 th
        (Ad-hoc) Additional Sessions Judge, Bhuj-Kutchh in Sessions
        Case No.61 of 2015 for the offences punishable under Section 302
        and 201 of the Indian Penal Code, whereby the appellant – accused
        has been sentenced for the offence punishable under Section 302 of
        the IPC to undergo imprisonment for life with fine of Rs.2,000/-, in
        default, to undergo two months SI and for the offence punishable
        under Section 201 of the IPC to undergo three years imprisonment
        with fine of Rs.200/-; in default to undergo ten days’ SI, the
        appellant has preferred the present appeal under Section 374 of the


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


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


2.1.      The complainant – Aamad Abdul Rehman Kureshi gave a
          complaint on 16/07/2015 inter alia stating that marriage of his
          sister – Halima was solemnized with one Gafur Aadam Lakha
          Sama prior to twenty years and they were doing some labour work.
          It is further the case of prosecution that on 13/07/2015 complainant
          went to Mumbai to attend some function and on 14/07/2015 his
          brother-in-law informed him over the phone that his sister Halima
          did not return to home after leaving in the noon for begging and he
          had made inquiry at his relatives; but did not find her. It is the case
          of prosecution that on 15/07/2015 the complainant came from
          Mumbai and met his brother-in-law and started for search of
          deceased. That thereafter in the noon at about 1:30 p.m. some
          smell was oozing out where they had gone and found the dead
          body of her sister and therefore, immediately the village people
          including the husband of the deceased were called and found that
          dead body of the deceased was lying covered in blood with injuries
          on the face, and neck. Since in regards to the incident, they had
          doubt over the appellant accused and his family members, as the
          appellant and deceased had some illicit relationship since last
          seven to eight years and time and again some quarrel was taken
          place and deceased was also asked not to keep any such
          relationship which had resulted into the offence in question.


2.2.      Accordingly, FIR being CR No.50/2015 came to be registered with
          Mandavi Police Station. The Police after investigation charge-

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        sheeted the accused for the aforesaid offences before the learned
        JMFC, Court. However, as the said Court lacks jurisdiction to try
        offence under Section 302 IPC, the case was committed to the
        Sessions Court. On conclusion of evidence on the part of the
        prosecution, the learned Sessions Court put various incriminating
        circumstances appearing in the evidence to the respondent-accused
        so as to obtain explanation/answer as provided under Section 313
        of the Code. In the further statement, the respondent-accused
        denied all incriminating circumstances appearing against him as
        false and further stated that he is innocent and a false case has been
        filed against him. After examining the evidence, witness
        testimonies and submissions from both sides, the learned Sessions
        Court recorded the finding convicting the respondent-accused.


3.      We have heard learned Advocate for the appellant – convict and
        learned APP for the respondent-State and minutely examined oral
        and documentary evidence adduced and produced before the
        learned Sessions Court concerned.


4.      Learned advocate appearing for the appellant – accused has
        submitted that since the entire case of the prosecution rests on the
        circumstantial evidence, the prosecution has failed to prove its case
        beyond the reasonable doubt and does not prove the entire chain
        and therefore, learned Sessions Court has erred in convicting the
        appellant – accused. It is further submitted that if the FIR in
        question is seen at the first instance, the complainant gave the
        name of the accused on the basis of the presumption of doubt and
        as such no specific role or description of the accused having seen
        at the place of offence pointing out the role of the accused in
        commission of the crime. It is therefore submitted that when the

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          conduct of the prosecution witnesses are highly unnatural and
          improbable and inconsistent and therefore, learned Sessions Court
          ought to have awarded the benefit of doubt to the appellant –
          accused.


4.1.      It is further submitted that the learned Sessions Court has awarded
          the conviction on the appellant – accused on the basis of the
          scientific evidence and on the basis of the confessional statement
          made by the accused before the Police which has no evidentiary
          value in the eye of law. It is further submitted that as such no such
          witness who has last seen the accused together before the
          commission of crime has come forward and therefore, the theory
          on the basis of which the conviction has been recorded is erroneous
          and therefore the appellant – accused ought to have been acquitted.


4.2.      It is further submitted that the learned Sessions Court has heavily
          relied upon the contents of the Panchnama drawn post the incident
          in question and the evidence of the Investigating Officer to hold
          the appellant – accused guilty for the offence of murder. Whereas,
          the case of the prosecution rests on the last seen together theory
          where no such independent witness is examined before the Court
          who have seen the deceased and the accused together prior to
          commission of the offence in question and therefore, it is submitted
          that present appeal may be allowed and the conviction and
          sentence recorded by the learned Sessions Court may be set aside.
4.3.      In support of his submissions, learned advocate for the appellant –
          accused has relied upon the decision in case of Laxman Prasad
          Alias Laxman vs. State of Madhya Pradesh [(2023) 6 SCC 399]
          and Munikrishna alias Krishna etc. vs. State by Ulsoor PS [2022
          SCC OnLine SC 1449] and has submitted that as per the ratio laid

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          down by the Hon’ble Apex Court if one link in chain of
          circumstances to be missing and not proved, the conviction based
          on circumstantial evidence is required to be set aside.


4.4.      By making the above submissions, learned advocate for the
          appellant – accused would submit to allow this appeal and to quash
          and set aside the judgment and order of conviction and sentence.


5.        Mr.Ronak Raval, learned APP appearing for the respondent – State
          submits that the impugned order of conviction and sentence does
          not require to be interfered with as the learned Sessions Court has
          after thorough appreciation of evidence has come to the conclusion
          and recorded the conviction of the appellant – accused on the basis
          of the evidence adduced before the Court. It is further submitted
          that the evidence produced on record proves the involvement of the
          accused in the commission of crime in question. He has further
          submitted that evidence of the witnesses examined before the
          Court has supported the case of prosecution and narrated the
          incident as it was happened.        It was submitted that no such
          omission or contradiction in the evidence of the said witnesses
          have come on record to discard their evidence. He has further
          submitted that the prosecution witnesses have deposed before the
          Court narrating the entire chain of sequence whereby the
          involvement of the accused is proved which corroborates with the
          scientific evidence produced and proved by the prosecution and
          therefore, the judgment and order of conviction and sentence may
          not be interfered with.


6.        Heard the learned Advocate for the appellant – accused
          Mr.Darshan Varandani and learned APP Mr.Ronak Raval for the

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        respondent – State and perused the deposition of witnesses as also
        documentary evidence placed on record as well as the order passed
        by the learned Sessions Court.


7.      At the outset, if the case on hand is required to be seen, it is a case
        of a circumstantial evidence and while leading the case, the
        prosecution is required to establish mainly three links of chain (i)
        motive; (ii) last seen; and (iii) recovery of weapon of assault,
        showing involvement of the accused. Thus, while dealing with the
        evidence on record, the Court concerned is required to appreciate
        as to whether the aforesaid three aspect is completed to prove the
        case of prosecution or not and if no then the benefit of that would
        go to the accused as the prosecution has failed to prove its case
        beyond reasonable doubt while missing to complete the entire of
        circumstance.


8.      Now, reverting to the facts of the case on hand is concerned, it
        appears from the record that PW 11 – Abdulgaffur A Sama
        (Exh.61) who was husband of the deceased made a phone call to
        PW 4 – Aamad Kureshi – brother of the deceased (Exh.34) who
        was at Mumbai at that time and informed him that Halima
        (deceased) had gone for begging; but did not return back.
        Thereafter, brother of the deceased returned from Mumbai and met
        husband of the deceased and they alongwith PW 15–Jayantilal
        Maheshwari friend of the complainant started to search the
        deceased, whereupon the dead body of the deceased was found and
        thereafter, the complaint was filed on the basis of suspicion against
        the appellant-accused and his family members. It also appears from
        the record that upon filing of the complaint, the appellant was
        arrested and the remand was sought and accused was sent for

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        medical examination; wherein a short history was recorded about
        committing sexual intercourse with Halimabai on 14/07/2015
        (Exh.22), as also while on remand period the appellant had given
        confessional statement before the Police of having committed an
        offence and thereby the learned Sessions Court has come to the
        conclusion that deceased was last seen together with the accused
        and considered the statement before the Police as confessional
        statement and thereby recorded the conviction of the appellant.


9.      Now, the evidence of the complainant PW 4 - Aamad Kureshi who
        is examined at Exh.34 is seen, he has deposed in his testimony that
        he went to Mumbai on 13/07/2015 and at that time his brother-in-
        law called him that his sister went for begging; but did not return
        and therefore, he came from Mumbai on 15/07/2015 and met him
        and thereafter started to search her and while doing so at the sim of
        Aasambiya Village, some smell was oozing out there-from and
        having gone there, they found the dead body of the deceased –
        Halima and thereafter called the Sarpanch of the Village and other
        persons and found that dead body of the deceased was covered in
        blood having injuries on the face and neck and found that she was
        murdered. Witness has further deposed that Police was called and
        complaint was given at Exh.35 against the Siddik Ismail Kumbhar,
        Salim Mamad Kumbhar and Anvar Pathan and Umar Pathan on the
        basis of suspicion since they were adducing threat to his sister
        (deceased) and often quarrel was taken place between them and
        therefore, doubt went upon them. Witness has further deposed
        about the procedure undertaken by the Police of drawal of the
        Panchnama and identified the accused – Siddhik Ismail Kumbhar
        before the Court. Witness has been cross-examined by the other
        side wherein he has admitted that complaint at Exh.35 was given

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         on the basis of suspicion of his sister having been murdered and he
         has stated in the complaint that there was a doubt.


10.      Thus, as can be seen from the evidence of this witness, there is no
         direct evidence to link the accused with the crime in question and
         merely on the basis of suspicion, the complaint came to be lodged
         naming the accused-appellant. No doubt, this witness has also
         stated about the earlier incident of quarrel having taken place
         between the wife and children of the accused with the deceased –
         Halima as there was an allegation of there being illicit relationship
         between the accused and deceased since last seven to eight years
         and therefore doubt cast on the accused; but it would not be
         sufficient to link the accused with the crime. This witness has
         neither seen the accused with the deceased prior to commission of
         offence nor has any personal experience wherein in his presence
         some altercation was taken place between both the sides and
         therefore, the learned Sessions Court has materially erred in
         relying upon the evidence of this witness by holding that since five
         names were mentioned in the FIR on the basis of suspicion
         wherein the first name appears is of the present appellant which
         can be said to be the possible reason of suspicion. As there could
         not be any selective piece of evidence as to drag someone. Thus,
         the learned Sessions Court has materially erred in relying upon the
         evidence of this witness as the involvement of the appellant –
         accused is not proved in commission of the crime in question from
         the evidence of this witness.


11.      Next important aspect upon which the learned Sessions Court has
         placed reliance is the statement made before the Police by the
         accused – appellant wherein the accused had made confession of

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         having committed a crime, however the said statement does not
         have any evidentiary value in the eye of law unless otherwise the
         same has been further recorded before the learned Magistrate under
         Section 164 of the Code of Criminal Procedure; which in the
         present case has not been done and therefore, the conviction
         recorded by the learned Sessions Court believing such confessional
         statement of the accused cannot have the leg to stand in the eye of
         law.


12.      It also appears from the record that as is reflected from the
         evidence of the PW No.2 – Dr. M R Zola (Exh.20) who conducted
         the physical examination of the accused on 17/07/2015 after being
         arrested and the accused gave history before the said witness that
         he committed sexual intercourse with the deceased Halimabai w/o
         Adam Lakha Sama on 14/07/2015 (prior to her murder); however
         no such marks of injury or any other spot were noticed or found
         from his private part and samples were obtained and sent for FSL
         Examination. It also appears from the record that the doctor who
         examined the accused after being arrested does not indicate in the
         certificate that any injury on the body of the accused was noticed.
         However, the arrest Panchnama (Exh.49) records that bruises are
         seen on the nose of the accused which was as a result of his being
         running after committing the crime as admitted by him; however
         the said fact has no evidentiary value in the eye of law but, the
         learned Sessions Court has failed to consider such aspect in its
         spirit and recorded the conviction on the basis of the statement
         made by the accused before the police, which has no value in the
         eye of law.


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

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         Court has believed the theory of last seen together to link the
         accused with the crime in question and hold the accused guilty
         considering the confessional statement recorded before the Police
         which is not admissible in the eye of law and gave history of
         committing sexual intercourse with the deceased before the Doctor
         who performed his physical examination; which in the considered
         opinion of this Court cannot be made basis for recording
         conviction of the appellant on the theory of last seen together.


14.      It is required to be noted that theory of last seen together cannot be
         believed rather proved on the basis of confessional statement of the
         accused in absence of any eyewitness who has seen the accused
         with the deceased prior to incident in question. At this juncture, a
         beneficial reference can be made to the decision of the Hon’ble
         Apex Court in the case of Allarakha Habib Memon Etc. vs. State
         of Gujarat [2024 INSC 590] on the aspect of confessional
         statement and relevant observations made in paragraph No.40 and
         41 reads thus:

         “40. The trial Court as well as the High Court, placed extensive the
         confessions of the accused appellants Mohmedfaruk @ 39 Palak Safibhai
         Memon and Amin @ Lalo recorded by the Medical Officer, Dr.
         Arvindbhai(PW-2) while preparing the injury reports of the accused.

         41. We find that these so-called confessions are ex-facie inadmissible in
         evidence for the simple reason that the accused persons were presented at
         the hospital by the police officers after having been arrested in the present
         case. As such, the notings made by the Medical Officer, Dr.
         Arvindbhai(PW-2) in the injury reports of Mohmedfaruk @ Palak and
         Amin @Lalo would be clearly hit by Section 26 of the Indian Evidence Act,
         1872(hereinafter being referred to as 'Evidence Act'). As a consequence,
         we are not inclined to accept the said admissions of the accused as
         incriminating pieces of evidence relevant under Section 21 of the Evidence



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         Act. The circumstance regarding identification of place of incident at the
         instance of the accused is also inadmissible because the crime scene was
         already known to the police and no new fact was discovered in pursuance
         of the disclosure statements".


15.      It further appears from the record that the mobile phone of the
         accused was recovered from the husband of the deceased. As per
         the evidence of PW-9 Bhimji Gabhabhai Jogi (Exh.56) & PW – 10
         – Bhupendra Valji Jogi (Exh.59), who are the Panch Witness of
         recovery of mobile of the appellant have admitted in the cross-
         examination that the husband of the deceased informed the police
         in their presence that he got the mobile on 15.07.2015 in the
         morning at around 7 a.m. when he was walking on the said road
         and he had removed the SIM card from the said mobile and put his
         own SIM card. He put the said SIM card in his pocket, but
         thereafter lost the same. He used the said phone for one day only
         on 15.07.2015 and thereafter kept it at home. The call details from
         the mobile of the accused are from 14.07.2015 to 23.07.2015 and
         this Panchnama was drawn on 11.09.2015 so till the said date he
         was in possession of the said phone. Thus, the entire recovery
         seems to be doubtful and does not inspire any confidence.


16.      It further transpires from the record that the learned Sessions Court
         had heavily relied upon evidence of PW - 8- Sulemansa Kadarsa
         Saiyed (Exh.50) - Panch witness of discovery Panchnama of
         clothes of the accused worn at the time of incident and the
         recovery of the weapon used in the commission of crime and
         produced Panch Slip at Exh-54 and the Panchnama of the place of
         incident at Exh-55. The learned Sessions Court believed the
         evidence of PW-8 that the accused made a confession to the police
         in his presence and also agreed to show the place where he had

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         kept the weapon used in commission of crime and the clothes he
         had worn at that time and thereafter they had gone to the said
         place, and the accused took out the said articles No.8, 9 & 10 from
         the said place, the clothes and the weapon.


17.      At this juncture, a useful reference can be made to the decision of
         the Hon’ble Apex Court in the case of Shaik Shabuddin Vs State
         of Telangana [2025 INSC 1449]                  wherein similar such
         circumstances in paragraph 7 and 8 has held as under:

         “7.     Further, the High Court relied upon the confession made by the
         accused to one PW15 who was called to the police station as a witness. It
         was the prosecution version that PW25, the DSP Asifabad, the
         Investigating Officer, secured the presence of PW15 and one Md. Yunus as
         panch witnesses and the confession was made to them. There can be no
         reliance placed on such a confession at the behest of the police and the
         finding of the High Court that it could be relied on cannot at all be
         countenanced for the reason also that it was made while in police custody.
         The next aspect on which we have serious reservation is with respect to the
         recovery made of MO1/mobile, MO11/knife and MO21/cash as purportedly
         admissible under Section 27 of the Evidence Act. Even as per the
         prosecution story, the same were handed over along with the confession, to
         PW15, which material objects were said to be in the possession of the
         accused at the time of arrest. MOs 12 to 20/clothes were projected as
         seized under Section 27 which were worn by the accused at the time of
         arrest.

         8.     There was no concealment as such and in any event, on an arrest,
         when the material objects could have been seized from the body of the
         accused on a mere search by the police, the attempt to convert it as a
         recovery under Section 27 cannot at all accepted. It goes against the very
         principle of Section 27, insofar as the disclosure relied upon can only
         relate to the concealment and the recovery of material objects on such
         disclosure made, which recovery has to be made in the persons of
         witnesses. We find absolutely no reason to accept the circumstances as
         hereinabove stated, relied on by the High Court, to convict the accused.”



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         The learned Sessions Court ought to have considered the fact that
         there was animosity between the PW-8 (discovery panch) and the
         appellant-accused, as the quarrel had occurred between the two in
         the past, and the discovery Panch was telephonically called by the
         police. Thus, the entire recovery of the weapon used in
         commission of the crime and the clothes of the accused comes
         under the shadow of doubt and the learned Sessions Court while
         believing the said aspect held the accused guilty which in the
         opinion of this Court warrants interference.


18.      It further appears from the record that the learned Sessions Court
         has relied upon the evidence of PW-29-Krishnasinh Harialsinh
         Suryavamsi (Exh.98) - Investigating officer who has deposed
         before the Court that the accused has confessed the commission of
         crime and had shown the place where he had kept the clothes and
         weapon, mobile phone fall down while he was running after killing
         the deceased and the said mobile was recovered from the husband
         of the accused, drew the panchnama of the place shown by the
         accused. In spite of the fact that the mobile phone of the accused
         was recovered from the husband of the deceased, he was not
         questioned by the police; nor was any investigation was made by
         the Police which also smacks doubt on the evidence of this
         evidence.


19.      Thus, in light of the appreciation of the aforesaid evidence, it
         appears that this is not a case where the entire chain of
         circumstantial evidence is completed as required under the law so
         as to indicate the guilt of the accused and also exclude any other
         theory of crime. In the present case, the conduct of PW-11

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         (husband of deceased) is required to be appreciated as for the two
         days he did not do anything for searching his wife nor did he
         approach the Police. The husband has deposed that during the time
         of the incident, he had gone to work on the tractor of Damji
         Maheshwari and along with him, there was one labourer and Rajak
         Hassan, however no such investigation that direction was done by
         the police; nor was cited as witnesses which creates a serious doubt
         on the version of the husband of deceased, as also the evidence of
         the Investigating Officer.


20.      In a case of circumstantial evidence, the chain is required to be
         completed as mandated under the law so as to indicate the guilt of
         the accused while discarding any other theory of the crime. If one
         of the link goes missing and not proved, in view of the settled law
         on the point, the conviction is required to be interfered with. At
         this stage, with profit, we may refer to the decision in case of
         Laxman Prasad Alias Laxman (supra) where the Hon’ble Apex
         Court after referring to Sharad Birdhichand Sarda vs. State of
         Maharashtra [(1984) 4 SCC 116] and Shailendra Rajdev Pasvan
         vs. State of Gujarat [(2020) 14 SCC 750] has quashed the
         conviction by making observations in paragraph 2 to 4 as under:

         “2.      The present one is a case of circumstantial evidence. The
         prosecution led evidence to establish three links of the chain: (i) motive,
         (ii) last seen, and (iii) recovery of weapon of assault, at the pointing out of
         the appellant. The High Court, while dealing with the evidence on record,
         agreed with the finding of motive and the last seen, however, insofar as the
         recovery of the weapon of assault and bloodstained clothes were
         concerned, the High Court in para 18 of the judgment held the same to be
         invalid and also goes to the extent to say that the recovery which has been
         made does not indicate that the appellant has committed the offence. Still,
         it observed that looking to the entire gamut and other clinching evidence



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

         3.     We do not find such conclusion of the High Court to be strictly in
         accordance with law. In a case of circumstantial evidence, the chain has to
         be complete in all respects so as to indicate the guilt of the accused and
         also exclude any other theory of the crime. The law is well settled on the
         above point. Reference may be had to the following cases:

         (1) Sharad Birdhichand Sarda v. State of Maharashtra,
         (ii) Shailendra Rajdev Pasvan v. State of Gujarat.

         4.     Thus, if the High Court found one of the links to be missing and not
         proved in view of the settled law on the point, the conviction ought to have
         been interfered with.”


21.      Thus, in view of the settled law that one must look for a complete
         chain of circumstances and not on snapped and scattered links
         which do not make a complete sequence. The circumstances from
         which the conclusion of guilt is drawn should be fully proved, and
         such circumstances must be conclusive in nature. Moreover, all the
         circumstances should be complete, and there should be no gap left
         in the chain of evidence; in the present case, the chain is not
         completed.


22.      Furthermore, there is no eyewitness to the incident. Based on
         suspicion, the complainant lodged an FIR against the present
         appellant and his five family members, and the arrest was made
         based on suspicion; there was no concrete material against the
         appellant to prove his involvement in the commission of crime and
         merely on the suspicion his involvement was tried to be shown
         which cannot take the place of evidence. From the evidence so
         produced by the prosecution and the way examined and analyzed
         by the learned Sessions Court, the prosecution has failed to prove


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           that as alleged, there was an illicit relationship between the accused
           and the deceased. Though the prosecution has heavily relied upon
           the phone calls between the deceased and the accused; but mobile
           of the accused was found from the husband of the deceased which
           also smacks a doubt on the aspect of recovery of mobile phone of
           the accused. The conduct of the husband of the deceased also
           comes under the cloud of doubt as after missing his wife neither he
           approached the Police nor made any efforts to search her and
           waited for his brother-in-law to come from Mumbai who after
           having arrived at started search and lodged the complaint.


23.        In light of the above legal position and for the reasons recorded in
           the foregoing paragraphs, coupled with the fact that the case of the
           prosecution does not get support from the evidence recorded by the
           learned Sessions Court, the present appeal deserves to be allowed
           and is accordingly allowed. The judgment and order recording
           conviction and sentence dated 01.12.2018 passed by the learned 7 th
           (Ad-hoc) Additional Sessions Judge, Bhuj-Kutchh in Sessions
           Case No.61 of 2015 for the offences punishable under Section 302
           and 201 of the Indian Penal Code is quashed and set aside. The
           appellant is ordered to be set at liberty, forthwith, if not required in
           any other case. Bail Bond shall stand discharged. Records and
           Proceedings, if any, be remitted to the Court concerned forthwith.



                                                                                                    (ILESH J. VORA,J)




                                                                                                 (R. T. VACHHANI, J)
sompura/MVP

Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: MITESH VIJAYBHAI PANCHAL(HCD0065), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 29/01/2026 15:34:10



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