High Court of Gujarat
STATE OF GUJARATversusGOPI @ BHALABHAI GIRISHBHAI DEVIPUJAK
- Disposal
- 47-DISPOSAL IN ANY OTHER MODE FH
Holding
The conviction and death sentence were set aside because the prosecution failed to establish a complete, unbroken chain of circumstantial evidence, and the DNA and confession evidence were deemed inadmissible or unreliable.
Summary
The Gujarat High Court heard appeals challenging the conviction and death sentence of three accused for gang rape and murder of a married woman. The trial court had sentenced them to death, imprisonment and fines under IPC sections 302, 201, 366 and 376(d). The appellants argued that the prosecution’s case rested on weak circumstantial evidence, unreliable DNA analysis, extrajudicial confessions made before police, and the "last seen together" theory, none of which satisfied the requirement of a complete chain of circumstances. The Court examined the admissibility of medical history, the credibility of confessions under Sections 25 and 26 of the Evidence Act, and the chain‑of‑custody requirements for DNA evidence, finding serious gaps and contradictions. Concluding that the prosecution failed to prove guilt beyond reasonable doubt, the Court set aside the conviction and death sentence, acquitting the accused. The appeals were allowed and the death sentence confirmed was vacated.
Issues considered
- The adequacy of circumstantial evidence to sustain a conviction for rape and murder.
- The admissibility and reliability of DNA evidence and the required chain of custody.
- The evidentiary value of extrajudicial confessions made before police officers.
- The relevance of the "last seen together" theory in establishing guilt.
- The applicability of Sections 25, 26 and 45 of the Evidence Act to the medical history and confessions.
- The propriety of imposing the death penalty in the present case.
Legislation cited
- Code of Criminal Procedure, 1973s. 164, s. 27, s. 313
- Indian Evidence Act, 1872s. 24, s. 25, s. 26, s. 45
- Indian Penal Code, 1860s. 201, s. 302, s. 366, s. 376(d)
Subjects
death penaltycircumstantial evidenceDNA evidenceextra‑judicial confessionlast seen togetherchain of custodyrapemurderacquittalconviction set aside
Judgment
R/CC/6/2022 JUDGMENT DATED: 13/01/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL CONFIRMATION CASE NO. 6 of 2022
With
R/CRIMINAL APPEAL NO. 1139 of 2022
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2022
In R/CRIMINAL APPEAL NO. 1139 of 2022
With
R/CRIMINAL APPEAL NO. 1813 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
and
HONOURABLE MR. JUSTICE R. T. VACHHANI Sd/-
==========================================================
Approved for Reporting Yes No
✔
==========================================================
STATE OF GUJARAT
Versus
GOPI @ BHALABHAI GIRISHBHAI DEVIPUJAK & ORS.
==========================================================
Appearance:
MR J K SHAH, APP for the Appellant(s) No. 1
MR RAMNANDAN SINGH(1126) for the Respondent(s) No. 2,3
MR BHAVIK R SAMANI for the Appellant in CRA No.1813 of 2022
RULE SERVED for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 13/01/2026
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)
1. Since the facts of the case and issue involved in the captioned
appeals, are identical and arise out of the same judgment, the
appeals are taken up together and are being disposed of by this
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common judgment.
2. The accused namely A-1 Gopi @ Bhalabhai Devipujak, A2 –
Jayantibhai Vadi, A-3 Lalabhai Vadi were tried and prosecuted
for the offence of gang rape and murder of married woman ‘X’.
The trial court vide its judgment and order dated 29.04.2022,
passed in Sessions Case No.12 of 2021 (Old Case No.43 of
2019) convicted and awarded capital punishment for the offences
punishable under Sections 302, 201, 366, 376(d) of the Indian
Penal Code. The break-up of the sentence and fine amount is as
follows:
Conviction Punishment Fine In default of fine
under Section
302 r/w 114 of Death Rs.10,000/- SI for 6 months
IPC Sentence
201 r/w 114 of RI for 3 years Rs.5,000/- SI for 3 months
IPC
366 r/w 114 of RI for 5 years Rs.5,000/- SI for 3 months
IPC
376(D) of IPC Life Rs.10,000/- SI for 6 months
Imprisonment
3. The death reference has come up before this Court for
confirmation of a death sentence.
4. The appellants-accused herein also questioned the legality and
correctness of the judgment of conviction and order of death
sentence by preferring captioned appeals.
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The Criminal Appeal No.1139 of 2022 is being filed by
original accused no.A2 and A3 (Jayantibhai Vadi and Lalabhai
Vadi).
The Criminal Appeal No.1813 of 2022 is being filed by
original accused no.A1 – Gopi @ Bhalabhai Devipujak.
5. Factual background:
5.1 The accused were charged and convicted for the offence of
gang rape and murder of married woman and after the
murder, a dead body was dragged and thrown into another
farm of village: Nirmali. The deceased lady sustained
internal and external bodily injuries and she was
strangulated to death by accused A2 – Jayanti Vadi.
5.2 That, on 28.10.2018, at about 6:00 p.m., the accused
Jayantibhai Vadi (A2) and Lalabhai Vadi (A3) kidnapped
the deceased lady, resident of Village: Moti Jer,
Kapadvanj, Kheda and taken to farm of Ambalal Patel
situated at Nirmali Village. The accused A1 – Gopi,
resident of Village: Moti Jer was happened to be nephew
of deceased ‘X’. In other words, the deceased was aunt of
the A1.
5.3 The accused A1 at the time of incident of kidnapping, was
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standing at the crossroad of Village: Moti Jer and after
seeing the accused and deceased who were on the bike,
tried to stop them, but, they did not stop there.
5.4 The accused A2 and A3 taken the deceased ‘X’ at the farm
of Ambalal Patel, situated on Nirmali Road, where she
was raped and while resisting the act, she was beaten up,
which had caused serious injuries on her body. After the
rape, she became unconscious, lying in a naked position in
the farm.
5.5 The accused A3 Lalabhai came on the road from the field
and was standing near the bike allegedly used in the crime.
The accused A1 Gopi was in search of his aunt and after
seeing the deceased in the company of the accused, he
came at the shop of witness Ganpatsinh Zala (PW.14) who
was running an egg shop on the roadside. The witness
refused to give his bike. The accused A1, took the lift in
the tractor of witness Narendra Rathod – PW-16 and he
came down on the Nirmali Road near the office of
Umiyanagar Milk Cooperative Society, where he saw the
bike of accused no.2 Jayantibhai Vadi and the accused
Lalabhai, who was standing near the bike.
5.6 The accused A1 Gopi, asked the accused Lalabhai A3 for
the whereabouts of his aunt deceased ‘X’. The accused
Lalabhai in the response said that, please keep quiet, your
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aunty is coming. In the meantime, the accused no.2
Jayantibhai had come on the road, where the accused A1
was standing in the company of A3. The accused A2 took
the accused no.1 Gopi into the field, where the deceased
‘X’ was lying on the field. After seeing the deceased by
the accused Gopi, the accused Jayantibhai told him that
they already committed rape upon the deceased, and now
it is your turn to commit a rape upon the deceased and
further threatened that if he will not commit rape, they will
kill him. In such circumstances, the accused Gopi had also
committed rape upon the deceased ‘X’.
5.7 It is further case of prosecution that, the accused A2
Jayantibhai asked the A1 and A3 caught hold the hands
and legs of the deceased and thereafter, the deceased was
strangulated to death by (Jayantibhai -A2). After the
death, her dead body was dragged by using the “sari”
which the deceased had worn and dead body was thrown
into nearby farm of Hasmukh Joitaram and thereafter, the
accused ran away on the bike which allegedly used in the
crime.
6. The Kapadvanj Rural Police on the next day i.e. 29.10.2018, was
informed about the dead body of the deceased ‘X’ found in the
farm of Hasmukhbhai Joitaram. The Kapadvanj Police called the
Officials of FSL and in their presence, drew the panchnama of
scene of occurrence and collected necessary samples like Miraj
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tobacco pouch, the currency notes of rupees ten and twenty, one
empty bottled of liquor “Bagpiper” and also seized and collected
the clothes of the deceased like blouse, petticoat and other
things. The dead body was sent form post-mortem to the
concerned Government Hospital. The cause of death was due to
asphyxia on account of manual strangulation (throttling). The
P.M. Doctor (PW.2) found injuries on the body of the deceased
and in the opinion of the doctor, the possibility of rape cannot be
ruled out. The P.M. Doctor collected the vaginal swab, cervical,
anal and oral swabs along with the blood samples for the purpose
of DNA profiling and chemical analysis.
The brother of the deceased lodged a complaint against
unknown persons for committing the offence of rape and murder
of his sister. The I.O. during the course of investigation, recorded
the statements of the witnesses. He recorded the statement of
Ganpatsinh Zala (PW.14), owner of Egg Shop and his helper
Vijay Zala (PW.13) and during their interrogation, the I.O. learnt
that the accused A1 – Gopi on the next day of the incident, went
to the house of Vijay Zala (PW.13) and before him, the accused
confessed that, he has killed his aunt. The I.O. arrested the
accused Gopi on 01.11.2018 and based on the input, the accused
no.2 and 3 were also being arrested on 01.11.2018. The I.O. sent
the accused to the concerned hospital for medical examination
and during their examination, the blood samples, the samples of
their semen, nails, hair were being collected by the concerned
doctor for DNA Profiling. The I.O. during the course of
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investigation, the accused Gopi voluntarily show the place of
occurrence and during reconstruction panchnama of the crime
scene, he narrated the entire sequence of the offence.
In the aforesaid facts and circumstances, after obtaining
the report from the FSL, the IO filed the chargesheet against the
accused before the jurisdictional Magistrate.
As the case was exclusively triable by the Court of
Sessions, it was committed to the Court of Sessions as
Kapadwanj, Kheda. The Sessions Court framed the charges
against the appellants – accused, they did not admit the charge
and claimed to be tried.
7. The prosecution, in order to prove the charge, adduce the
following oral and documentary evidence in support of its case:
Oral evidence
PW 1–Exh.9 Arjunbhai Nanjibhai Rathva, Scientific officer
PW 2-Exh.15 Dr. Manubhai Halubhai Gadhvi, Medical officer
PW 3–Exh.25 Kiran Naginbhai Vaghri, Complainant
PW 4– Exh.27 Chinubhai Pratapbhai Rathod, Panch witness
PW 5– Exh.31 Hasmukhbhai Hargovindbhai Patel, Panch witness
PW 6– Exh.39 Jagdishbhai Halsukhbhai Vaghri, Panch witness
PW 7– Exh.42 Firozali Kamarali Saiyyed, Panch witness
PW 8– Exh.43 Sirajkhan Habibkhan Pathan, Panch witness
PW 9– Exh.52 Ilayas Allarkha Shiekh, Panch witness
PW 10– Exh.53 Mehboobbeg Sultanbeg Mirza, Panch witness
PW 11 –Exh.55 Mominali Akbarali Saiyyed, Panch witness
PW 12 –Exh.56 Bhawansinh Prabhatsinh Parmar, Panch witness
PW 13 –Exh.58 Vijaybhai Praveenbhai Zala
PW 14 –Exh.60 Ganpatsinh Chattrasinh Zala
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PW 15 –Exh.61 Mohanbhai Somabhai Rathod
PW 16 –Exh.64 Narendrakumar Somabhai Rathod
PW 17 –Exh.65 Kulabhai Zala
PW 18 –Exh.67 Manubhai Heerabhai Parmar
PW 19 –Exh.76 Mafatbhai Mohanbhai Parmar
PW 20 –Exh.78 Ushaben Laleshbhai Choudhari
PW 21 –Exh.79 Bhuriben Naginbhai Devipujak
PW 22 –Exh.80 Ashwinbhai Ambalal Barot, Panch witness
PW 23 –Exh.85 Sureshkumar Arjanbhai Vaghela, Scientific officer
PW 24 –Exh.88 Mrudul Upendrabhai Bhatt
PW 25 –Exh.94 Savjibhai Merubhai Makwana
PW 26 –Exh.96 Rakeshkumar Ambalal Patel
Documentary evidence
Exh.17 PM Note
Exh.18 Cause of Death Certificate
Exh.26 Complaint
Exh.28 Inquest Panchnama
Exh.35 Panchnama of place of offence
Exh.41 Panchnama of clothes recovered from body of deceased
Exh.50 Arrest Panchnama
Exh.54 Panchnama of Motorcycle used in the offence
Exh.57 Panchnama of showing of place of offence to accused
Exh.69 Yadi of map
Exh.70 Yadi of map
Exh.71 Yadi of map
Exh.72 Map of place of offence
Exh.81 Panchnama of video cassette made showing the place of
offence to accused
Exh.86 Directorate Forensic Science report
Exh.89 Letter to Vodafone
Exh.90 Mobile phone detail
Exh.91 Idea Certificate
Exh.95 Call form
Exh.97 Death form
Exh.98 FSL Mobile report
Exh.99 FSL receipt
Exh.100 FSL Letter
Exh.101 Forwarding notes
Exh.102 FSL report
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Exh.103 Letter regarding articles to FSL
Exh.104 Forwarding notes
Exh.105 FSL Receipt
Exh.106 FSL Letter
Exh.107 FSL report
Exh.108 FSl receipt
Exh.109 Forwarding notes
Exh.110 FSL Letter
Exh.111 Biological report
Exh.112 Serological report
Exh.113 FSL Letter
Exh.114 Forwarding notes
Exh.115 Letter to FSL regarding articles
Exh.116 Forwarding notes
Exh.117 DNA division form of accused Jayantibhai
Exh.118 DNA division form of accused Lalabhai
Exh.119 DNA division form of accused Gopi
Exh.120 DNA division form of Mukeshbhai
8. After closure of the prosecution evidence, statement of the
accused under Section 313 of the Cr.P.C., were recorded, to
which, they stated that they have been falsely implicated in the
offence and they are innocent and have not committed any
offence.
9. Though opportunity was extended, no oral evidence being
adduced by the appellants – accused.
Trial Court findings :
10. After hearing the parties and upon appreciation of material
evidence, the accused held guilty for the offence of rape and
murder and awarded death sentence and while recording the
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sentence, the trial Court observed that, the crime committed by
the accused is heinous crime and the manner in which the
deceased was sexually abused and killed, the case would fall in
the category of rarest of rate case. The trial Court relied upon
the following circumstances as proved:
(i) On 28.10.2018, the deceased was kidnapped by the
accused A2 and A3 and was taken to private farm situated
at Nirmali Road at Kheda and she was subjected to sexual
assault by the accused in the farm;
(ii) On 28.10.2018, the accused A1 Gopi Devipujak, contacted
the accused Nos. 2 and 3 and after the meeting, he
committed rape upon the deceased and on the next date i.e.
on 29.10.2018, he confessed his guilt before the witness
Vijay Pravin Zala – PW-13 and said extra judicial
confession was being found voluntarily and true as
testimony of the witness in this regard does inspire
confidence and corroborated by his statement recorded by
the Executive Magistrate under Section 164 of the Cr.P.C.
(iii) On 28.10.2018, after committing rape upon the deceased,
the accused A1 and A3, caught hold the deceased and A2
Jayantibhai strangulated the deceased and killed her;
(iv) On 28.10.2018, the dead body of the deceased for the
purpose of disappearance of the evidence, dragged and
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thrown into nearby the farm.
11. Evidence adduced by the prosecution:
(1) Dr. Manubhai Gadhvi (PW-2) : This doctor being a Medical
Officer, Kapadwanj Referral Hospital, had conducted
postmortem on 29.10.2018 on the body of the deceased. The
doctor in his chief examination has stated that the face of the
deceased was congested and he noticed the mud over her face
and there was an injury on her right eye and he also noticed the
crush injury on both the hip and there was contuse wound on the
left side of the lip of the deceased and so far as injuries over the
internal part of the body is concerned, the abrasions were found
on the left labia majora and there was a blood found in the anal.
According to opinion of the doctor, he noticed the following :
“The body was that of a woman of about 35 years. The body was
wearing a blue, green and yellow printed saree which was tied around
the neck and face. The saree was soiled with mud. The body was
identified. Rigor mortis was found on every part of the body. P.M. Levitt
was fixed on the dependent parts of the body and except for the pressure
points.
The face of the body was congested and smeared with mud. The eyes of
the body were present with a petuncle hemorrhage on the right eye lid
and were half open. The left eye was swollen and blackened and closed.
The tongue was inside and there was a horizontal puncture wound on
the lower part of the hip. Looking at the condition of the mouth, there
was a puncture wound of 1 cm in size on the left side of the lower lip
with a blood clot.
There was a 0.5 x 0.3 cm. skin-peeling wound on the left labia majora
on the external genitalia. It was dark red. There were dirt and blood
stains on the inside of her vagina and perineum and both thighs. Her
anus was dilated and there was bleeding around it. Both upper and
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lower limbs were straight.
The following injuries were found on external examination of the body.
(i) There was a 2.5 x 0.3 cm * horizontal puncture wound * on the
outer side of his left supra orbital. The margin of this wound was
abraded and the blood was congealed. The injury was of dark red
color. There was a subconjunctival hemorrhage above the left eye.
(ii) There was a 1-inch bruise in the middle of his lower lip, 2 cm
below it. * 0.5 cm of blood clot
(iii) There were 11 skin abrasions on the right side of his neck,
front and outside. The size ranged from 0.1 to 0.5 cm. to 0.5 * 1 cm.
and were crescent-shaped. The space between each abrasion was 1
to 1.5 cm. The soft tissue under the incision was filled with blood.
The skin abrasions and their surrounding areas were more visible.
The color of these abrasions was dark red.
(iv) There was a linear skin-peeling wound measuring 9 * 0.3
cm in size in the middle 1/3 part of the neck, 7 cm below the master
process of his neck. The direction of which was posterior and
incised. The color of which was dark red.
(v) There was a 1.5 cm. skin lesion on the left side of his thyroid
chrominance, extending outwards. The color was dark red. * 1 cm.
Size of skin lesion
(vi) There was a 1 * 0.1 cm skin-peeling wound 1 cm above
injury no. 5. It was dark red in color.
(vii) There was a 0.5 cm deep, dark red, skin-peeling wound on
the left side of his chest from the left sternal border and above the
second.
(viii) Skin peeling measuring 0.2 to 0.2 * 0.1 cm on the 1 cm
medial side of injury no. 7
(ix) There was a 0.1 to 0.1 cm skin-peeling wound on the lower
aspect of his right chest, which was dark red in color.
(x) On the left side of his neck, there were multiple linear, 6 x 3 cm.
sized, skin-peeling wounds on the outside. They were dark red in
color.
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(xi) There were 8 horizontal skin-peeling wounds on the front
and outer side of his left hip. Which were of dark red color.
(xii) On the front and inner side of his left thigh, 4 cm below
the groin fold, there was a 1 x 0.2 cm skin-peeling wound, which was
dark red in color.
(xiii) Injury No. 12 had a 2.5 cm. outer skin wound measuring
0.5*0.2 cm. which was dark red in color.
(xiv) There was a 3 x 2 cm skin-peeling wound on the upper
part of the lateral mesentery of the right leg.
(xv) There were many skin abrasions on the back of the chest,
more than 25 in number and the direction of which was vertical.
Some of which were antemortem in nature and some of which were
postmortem in nature. The size of which was 1 * 0.1 cm. to 7 * 0.2
cm.
The above injuries were antemortem and fresh injuries before
death.
Looking at the head during internal examination
(i) The right temporal parietal lobe was filled with blood in
an area of 6 * 5 cm. It was of dark red color.
(ii) There was a 7 * 4 cm area of blood on his left frontal part.
Which was of dark red color. This injury was adjacent to injury
no. 1 of column no. 17.
(iii) There was a 8-filled lesion on the left parietal and occipital
part of the head. It was of dark red color. Blood in an area of 6
cm.
No palpable or visible fracture was observed in the skull.
The brain and meninges were congested in the interior of the
skull and hemorrhage spots were observed in the brain substance
and meninges.
On examination of the chest, the lungs were congested, the
larynx, esophagus, and trachea were congested. The soft tissues
were filled with blood and hemorrhagic spots were visible on the
inner layer of the trachea. Both lungs were congested and
hemorrhagic spots were visible. The pericardium was congested.
Fetal hemorrhage was visible inside the heart.
On internal examination of the abdomen, the inner wall
and peritoneum were congested. The soft tissue around the
esophagus was filled with blood and the esophagus was full. On
looking inside the stomach, a brown paste-like material of 150 ml
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was present and no specific odor was emanating from it. There
was gas and mucus in the small intestine. There was fecal matter
and gas in the large intestine. The organs like liver, spleen,
kidneys etc. were congested. The urinary bladder was empty. The
internal genital organs were congested.
The following samples were collected from the body of the
deceased, sealed and sent to FSL for chemical analysis.
(a) Bottle No. 1 contains the stomach and part of the intestine
with its contents.
(b) Bottle No. 2 contains pieces of lungs, liver, spleen, and
both kidneys.
(c) A sample of the preservative that was put in bottles no. 1
and 2 in bottle no. 3.
(d) Plaque blood in bottle no. 4.
The injuries on the neck of the deceased were sufficient
to cause death in the ordinary course of nature. The
injuries on and around the private parts of the deceased
indicate that the deceased was raped by more than one
person before death.”
In the opinion of the doctor, the cause of death was due the
asphyxia on account of manual strangulation (throttling). The
witness has further opined that, the injuries found on the body of
the deceased were sufficient in the ordinary course of nature to
cause death and considering the nature of injuries, the possibility
of commission of gang rape cannot be ruled out.
During the PM, the doctor took the blood samples of the
deceased and vaginal, deep vaginal, cervical, anal, and oral
swabs for DNA profiling and samples on the same day, handover
to the concerned police officials.
The witness Dr. PW-2, when he was on duty, he had
examined medically the appellants accused namely Gopi @
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Bhalabhai, Jayantibhai Vadi and Lalabhai Vadi, after their arrest
when they were brought before him on 02.11.2018 with police
yadi. The Doctor in his chief-examination, while examining the
A1-Gopi, has stated that, before examination, the accused gave a
history of the incident which he had noted down in the case
papers and as per the history, it was stated that,
“On 28.10.2018, when he was passing through cross-road
of Motijer bus stand, he saw two persons on bike, carrying his
sister-in-law and by taking lift in the tractor, when he reached
near Nirmali Road, both the persons were standing beside the
road and taken him to the field to show her sister in law and in
the field, he was forced to commit intercourse upon her sister-in-
law. “
The Doctor (PW.2) on the same day i.e. 02.11.2018, had
examined accused Jayantibhai Vadi and before he could
examine, the accused gave a history of the incident which he has
noted in the case papers and in the history, it was stated that, “on
28.10.2018 at about 6:00 p.m., he and accused Lalabhai were
riding on the bike and while reaching near bus stand of Village:
Motijer, they gave lift to the deceased and dropped her near
Nirmali Village.”
The Doctor (PW.2) had also examined the accused
Lalabhai and as per the history given by Lalabhai, the deceased
was given a lift by him when he along with accused Jayantibhai,
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riding the bike passing near the bus stand of Motijer and dropped
her near Nirmali.
The Doctor in the chief-examination has further stated
that, he had taken the blood samples and other samples like
saliva, hair, nails and sperm for the purpose of forensic analysis
and DNA Profiling. The doctor has produced the necessary case
papers at Exh.17 to 23.
In the cross-examination, the Doctor (PW.2) has denied
that, as per the police yadi and command by the police, the
history being noted by him in the case papers and as such, no
such history being given by the accused. The doctor has denied
to the suggestion asked by the defense that, the injuries whatever
sustained by the deceased, could be possible by accident or
someone jumped from the moving tractor.
(2) Kiranbhai Naginbhai Vaghri (PW.3):This witness is the brother
of the deceased and after receiving the message, he went to the
place of incident where he saw the dead body of his sister. The
witness had lodged an FIR against the unknown person on the
next date i.e. 29.10.2018 which has been produced at Exh.26.
(3) Vijay Pravinbhai Zala (PW.13): This witness was the friend of
the accused A1 – Gopi Devipujak. The witness and the accused
Gopi, at relevant time, were residents of Village: Motijer and
since long, they were friends and knowing each other. The
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witness was working as a helper with the Egg Shop of one
Ganpatsinh Zala (PW.14) and his working hours was 5:00 p.m.
to 11:00 p.m. The witness in his chief-examination has stated
that, the accused Gopi had asked Ganpatsinh to give his
motorbike, but, it was not given by him and therefore, he
travelled in the tractor. The witness has further stated that, on
that day, after the closure of the shop, he went to the house of
Ganpatsinh and sleep over there. The witness has further stated
that on the next day at about 8:00 a.m. in the morning, and at
that time, the accused Gopi had come to the house for fishing
purpose in the Vatrak River of the village. The witness has stated
that, he along with the accused Gopi, had gone to the Vatrak
River for fishing and while process of fishing, Gopi told him
that, “I have killed my aunt.” The witness has further stated that,
after fishing, he went to his house and whatever confession being
made by the accused, he conveyed the said confession to his
father, Pravinbhai. The witness has further stated that, he does
not know that why the accused Gopi intends to proceed towards
Nirmali. The statement of witness recorded under Section 164 is
produced at Exh.74.
In the cross-examination, the witness has admitted that, so
as to record his statement, his name and age was being given to
the police by his father. The witness has also denied to the
suggestion that, the accused had never confessed his guilt before
him and was never in his company for fishing. The witness has
admitted his thumb impression allegedly made under his
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statement recorded under Section 164 of the Cr.P.C.
(4) Ganpatsinh Zala (PW.14): This witness was running his Egg
Shop at Motijer – Nirmali Road and the business hours for
running the shop was evening 5 to 10:00 p.m. and at relevant
time, the witness Vijay Zala was working with him as a helper in
the business. The witness in his chief-examination, has stated
that, the accused Gopi at about 7:00 p.m. came to his shop and
asked for the bike which he had denied to it. The witness has
further stated that, at that time, one tractor driver along with his
tractor, came to his shop and after completion of his snacks,
when he is about to proceed towards Nirmali, the accused Gopi
took a lift in the tractor. The witness has further stated that, on
the next day in the evening, he learnt that the dead body of the
deceased being found at the private farm near Nirmali. The
witness has further stated that, after two-three days, the accused
Gopi came to his shop and told him that, “he did a wrong thing
and he has murdered his aunt and requested not to share the said
things to anyone.” The witness has further stated that, after
informing the said aspects by the accused to him, the accused
Gopi left his shop.
In the cross-examination, the witness (PW.14) has stated
that, he does not know of the intention of the accused Gopi that
why has asked for the bike. The witness has admitted that, the
police came to his shop and asked his name and address. The
witness has denied that, the accused Gopi after denying him for
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bike, thereafter he never came to his shop.
(5) Mohanbhai Somabhai Rathod (PW.15): This witness is the
owner of Grocery shop doing his business in the name and style
of “Nageshwari Kirana Store” and running his shop near bus
stand of Village: Lalpur. The prosecution has examined this
witness to prove the fact that the deceased was lastly seen in the
company of the accused no.2 and 3. According to prosecution
case, on 28.10.2018 at about 7:00 p.m., the accused no.2 and 3
along with the deceased lady, came to the shop of the witness.
The accused Jayantibhai went into the shop to purchase tobacco
and beetal, whereas, the accused Lalabhai and the deceased were
standing outside the shop. The witness in his chief-examination
on this aspect, has stated that, in the evening hours, the accused
Jayantibhai Vadi and Lalabhai along with one woman, came on
the motorcycle from the side of Village: Motijer. The accused
Jayantibhai came into the shop for purchase to Miraj tobacco and
beetel, whereas, the accused Lalabhai and woman were standing
outside his shop. The witness has further stated that, after
purchasing, they proceeded towards Nirmali Village. The
witness has identified the accused Jayantibhai in the court, but,
could not identify the accused Lalabhai. In the cross-
examination, the witness has admitted that, in his police
statement dated 03.11.2018, he has stated that, in the evening
hours, there was a rush in his shop and therefore, it is not in his
knowledge that who came to his shop. In the cross-examination,
the witness has specifically stated that, the accused were brought
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to his shop by the police and at relevant time, he was told by the
police that, these two accused had come to his shop and
purchased a tobacco and beetel from him. In the cross-
examination, the witness has admitted that, he was not knowing
the accused Jayantibhai and Lalabhai and before the incident, he
had no occasion to meet the accused and he also does not know
about the residence and village of the accused.
(6) Narendra Somabhai Rathod (PW.16): The witness is the
resident of Village: Talpoda and at relevant time, he had bought
a new tractor for farming purpose. On the day of incident i.e.
28.10.2018, by driving the tractor, he went to the house of his
maternal uncle for unloading of the grass for animals. The
witness has stated in his chief-examination that, while coming
return back from his maternal uncle’s house, one person at the
cross-road of the village, asked to give lift to him, but, he did not
heed the request and thereafter, he came to shop of Ganpatsinh
Zala for snacks and at that time, he saw the person who had
asked for the lift. The witness has further stated that, the person
who was there at the shop, intends to go towards Nirmali Village
and therefore, he take a seat in the tractor. The witness has
further stated that, after proceeding from the shop of Ganpatsinh,
he drew his tractor towards Nirmali Road and when the tractor
reached near Nirmali, the person who was sitting in the tractor,
asked to drop him there. The witness has further stated that, the
person was dropped on the roadside and while dropping him, he
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saw three persons along with one bike and out of three persons,
one was woman and thereafter, he proceeded towards his village.
In the cross-examination, the witness has admitted that, the name
of the person who was sitting in the tractor was given to him by
the police and at that time, there was dark and due to darkness,
he could not be in a position to identify the person.
(7) Pravinbhai Zala (PW.17): This witness is the father of
witness PW.13 – Vijay Zala. The witness has stated in chief-
examination that, before 2 years, in the morning, his son Vijay
and the accused Gopi went for fishing and returned back at about
10 o’clock. The witness has further stated that, he was informed
by his son that, the accused Gopi has killed his aunt.
(8) Sureshbhai Arjanbhai Vaghela (PW.23): This witness had
conducted the DNA Profiling and submitted its report dated
01.05.2019 and same is produced at Exh.86. The witness being a
Scientific Officer serving with Directorate of Forensic Science
University, has stated on the line of the report Exh.86. Instead of
referring his oral evidence, we deemed it fit to refer the entire
report which reads as under:
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(9) Rakeshkumar Ambalal Patel (PW:26): This witness being a PSI
of Kapadvanj Police Station, was entrusted the investigation of the
crime and after receiving the requisition, he took visit at the place
where the dead body of the lady found in a naked position. The witness
called the scientific officer of the FSL and in the presence of the
panchas drew the panchnama of the place of the incident and seized
and collected the clothes of the deceased as well as the things lying on
the sport i.e. currency notes, pouch of the tobacco and empty wine
bottle. The witness before whom brother of the deceased viz.
Kiranbhai Devipujak lodged an FIR and after registration of the
offence, he came into charge of the case. The witness during the
investigation, prepared the enquest and sent the dead body for post-
morterm, recorded the statements of the witnesses, arrested the accused
on 02.11.2018, sent the accused for medical examination, obtained the
necessary samples of the accused for DNA profiling, the accused Lala
voluntarily pointed out the place of the incident and during the
reconstruction panchnama, he had confessed the guilt and described
the manner of incident and how the deceased was killed. The I.O.
during the investigation, received the report of the DNA analysis and
other reports of the FSL, and obtained the statements of the witnesses
allegedly recorded under Section 164 of Cr.P.C. and after due
investigation, the chargesheet against the accused for the offences of
kidnapping, rape and murder being submitted before the Court.
In the cross examination, the I.O. had denied to the suggestion
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that the accused have been falsely implicated in the offence and as
such, there is no sufficient evidence linking him to the crime in
question.
Submissions:
12. Mr. Ramnandan Singh, learned counsel appearing for and on
behalf of accused nos. 2 and 3, has made the following submissions :
(i) While assailing the impugned judgment, it was vehemently
contended that, the judgment of conviction being based on
circumstantial evidence and there being no eye-witness, the
complete chain of events leading to involvement of the
appellants have not been established by the prosecution.
(ii) The prosecution has failed to prove its case beyond
reasonable doubt and the findings of conviction being
recorded on the basis of conjucture and surmises as it is
settled position of law that, the suspicion however strong,
cannot basis for punishment.
(iii) So far as, role attributed to accused nos. 2 and 3 namely
Jayantibhai Vadi and Lalabhai Vadi is concerned, it is the
case of the prosecution that, on 28.10.2018, the deceased lady
was taken on motor-bike and after abducting her she was
taken to the private farm of village: Nirmali. The prosecution
failed to prove the necessary ingredients of offence
kidnapping and abduction. The victim was major at relevant
time. Before she could taken to the farm, the bike was
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stopped near the grocery shop of PW-15 Mohan Rathod and
from his shop, the accused Jayantibhai Vadi purchased a
pouch of Miraj Tobacco and bittle and the accused Lalabhai
and victim were standing outside his shop. The trial Court
while convicting the accused, taken into account the last
scene evidence of grocery shop owner PW-15. The grocery
shop owner was not known to the accused nor he met prior to
the incident and admittedly, the accused were not resident of
village: Moti Jer. The shop was situated in the bus stand area
of the village and other shops also situated in this area. The
victim had an opportunity either to run away or to make hue
and cry about her kidnapping. The shop owner in the cross-
examination, has admitted that, the police after the incident,
brought the accused before him and told that, this accused had
purchased Miraj Tobacco from your shop. The shop owner
has also admitted that, due to rush in his shop, at relevant
time, it is not possible him to remember the face of the
accused and who had purchased the Miraj Tobacco and
therefore, in absence of any evidence of TI parade of the
witness, the evidence of shop keeper PW-15 with regard to
the accused and deceased were last scene together and the
accused forcefully compelled the deceased or induced her to
remain in their company and therefore, the findings of
conviction for the offence of kidnapping are not sustaining in
law.
(iv) It is the prosecution case that, the accused nos. 2 and 3 have
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committed offence of rape and murder. In order to prove the
charge, the prosecution has mainly relied upon the
circumstances of last scene together, DNA Analysis report
and history allegedly made by the accused before the Doctor
PW-2. The accused were arrested on 02.11.2018. The theory
of last scene together so far, evidence of grocery shop keeper
PW-15 is concerned, his evidence is not at all worthy to
accept as the accused were shown to him and on the basis of
input given by the police, he identified the accused in the
Court, however, it is admitted facts that the shop keeper and
accused are not belonged to same village, nor they known to
each other or met prior to the incident at any place. Thus, the
shop keeper’s evidence (PW-15), cannot be relied to prove
that on 28.10.2018 at about 6-00 pm, the deceased was in
company of the accused. The another evidence of last scheme
together relied by the trial Court is of PW-16 – Narendra
Rathod. This witness had dropped the accused Gopi on
Nirmali Road and while dropping the accused Gopi – A1, the
witness had noticed the presence of accused nos. 2 and 3 and
the deceased and according to version of the witness, they
were standing beside the road and the bike was parked there.
It is argued that, the tractor driver PW-16, is got up witness
because, as per the prosecution case, after the kidnapping the
deceased was taken to private farm where rape was
committed by accused Lalabhai and Jayantibhai and after
that, the accused Gopi met Lalabhai on the road and after
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asking the whereabouts of the deceased, the accused nos. 2
and 3 taken the accused no. 1 in the field, where the deceased
was lying. Thus, there is a material contradiction and
improvement in the evidence of tractor driver with respect to
presence of the accused at the place and therefore, the
testimony of Narendra Rathod – tractor driver, to prove the
circumstance of last scene theory without further
corroboration to his testimony, cannot be accepted and relied
upon. Thus, the presence of the accused at the field, where the
offence committed, is not established and prove and as such
there is no admissible evidence that the accused after
kidnapping the deceased, committed rape and killed her by
manual strangulation (throttling).
(v) It is the case of the prosecution that after the arrest, the
accused were referred to medical examination before PW-2
and before the doctor, the case history being given by the
accused. The statement of accused no. 1 before the doctor in
the form of case history, cannot be acted upon as substantial
and admissible evidence, because in the history, the accused
Gopi did not have referred the names of the accused. So far,
accused nos. 2 and 3 are concerned, they denied to the facts
that no such history being given by them to the doctor.
(vi) In the facts of the present case, after the arrest of the accused,
their blood samples and samples of sperms etc. being taken
by the PW-2 and samples were handed over to the concerned
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police official and same were deposited before the office of
FSL at Ahmedabad. The samples of the deceased like vaginal
swabs etc and cloths were seized and collected on 29.10.2018
and the sample of the accused for DNA profiling taken and
collected on 02.11.2018 and all the samples deposited on
15.11.2018 and after receiving the same, the Scientific officer
Mr. Suresh Vaghela PW-23, prepared a report of DNA
Analysis – Exh. 86 and other reports. It is in these
background facts, it was argued that the prosecution failed to
prove the chain of custody requirement for DNA samples and
in order to prove the integrity of the seal, the carrier of the
samples has not been examined. The samples were lying in
the police station for about 13 days and what kind of safety
measure being followed by the police has not been proved
with respect to the preservation, packaging and therefore, it
creates a serious doubt regarding the integrity of the samples
and accuracy and reliability of the DNA examination and
therefore, the conviction stand alone on the basis of DNA
analysis is not sustainable in law. In support this, reliance has
been placed on the case of Rahul Vs. State of Delhi(2023) 1
SCC 883), to contend that if DNA evidence is not properly
documented, collected, packaged, and preserved, it will not
meet the legal and scientific requirement for admissibility in a
court of law.
13. Mr. Bhavik Samani, learned counsel appearing for and on behalf
of accused – Gopi @ Bhalabhai Devipujak, made the following
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submissions:
(i) Circumstantial evidence brought on record by the prosecution
were not sufficient to bring home the charge of rape and
murder against the accused Gopi, as the prosecution failed to
prove and established a chain of unbroken events, unerringly
pointing to the guilt of the accused and none else.
(ii) In order to link the accused in the alleged crime, the
prosecution has mainly relied upon the testimony of PW-13
Vijay Zala and Ganpatsinh Zala– PW-14. The witness
Ganpatsinh Zala was having egg shop at the outskirts of
village Moti Jer and the witness Vijay Zala was employed by
him as his helper. As per the prosecution case, on 28.10.2018,
at about 6-30, the accused Gopi came to the shop of
Ganpatsinh Zala, and asked the witness to give his bike but he
did not do it and after sometime, witness PW-16 Narendra
Rathod, came with his tractor at his shop and took break-fast
there and after that, when he was about to proceed towards
Nirmali road, the accused Gopi got lift in the tractor and get
down on the Nirmali Road. It is in this context, it was
submitted that, the witness PW-16 was got up witness, as
according to his evidence, the deceased was found in the
company of the accused Nos. 2 and 3, when the accused no. 1
got down from the tractor. However, as per the prosecution
case, before accused no.1 could reach at the Nirmali Road,
the deceased was raped in the farm by accused nos. 2 and 3
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and she was lying in the farm. So the version of PW-16
creates a doubt about his presence at the spot and giving lift
to A1. Referring to the statement of PW-13 Vijay Zala,
recorded under Section 164 Cr.P.C, (Exh. 74), it was
submitted that, the witness Zala before the Magistrate had
stated that the accused Gopi was came at the shop at about
11-00 pm and after taking snacks, he proceeded towards
Nirmali. Thus, the version of tractor driver taking snacks at
the shop of Ganpat Zala and giving lift to accused Gopi and
dropped him at Nirmali Road, is falsified by the statement of
the witness Vijay Zala and therefore, the presence of the
accused at the shop of Ganpat Zala – PW-14 is not proved
and established and further case of the prosecution about
meeting with the co-accused on Nirmali Road, is also not
established and proved.
(iii) In order to prove the charge, the prosecution has mainly relied
upon the extra judicial confession of accused Gopi before
witness Vijay Zala – PW-13. The alleged confession is
neither voluntary nor is true and in absence of any details
with regard to how and at what time, the accused killed his
aunt i.e. deceased, the evidence of the witness with regard to
extra judicial confession admitting the guilt of the accused
cannot be relied upon and cannot be formed the basis of
conviction because, the evidence of extra judicial confession
is weak piece of evidence and when it does not inspire
confidence, and is not corroborated by any other evidence, the
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same cannot be relied upon and conviction cannot be based
thereon.
(iv) The accused Gopi while he was referred for medical
examination, the Doctor noted the history of the case and in
the history, the accused admitted that, he along with 2
accused committed rape upon the deceased. It was argued
that, the accused was brought before the doctor with police
yadi and the police officials of Kapadwanj Police Station
were present, when the history was noted by the doctor in the
Government Hospital and therefore, the said history in the
form of confession, is hit by Sections 25 and 26 of the
Evidence Act, because, confession made to a police officer is
prohibited and cannot be admitted in the evidence and no
confession made by the accused while he is in police custody
shall be proved against him, unless it is made in the
immediate presence of Magistrate. Thus, the evidence of PW-
2, who had noted the history of the case, cannot be read
against the accused.
(v) It is the case of the prosecution that after the arrest of accused
Gopi, he voluntarily made a disclosure statement which led to
discovery of place of offence and other places where the
accused had an opportunity to meet the accused. It is argued
that, the IO before the arrest of the accused, drew the
panchnama of scene of occurrence and after the arrest, at the
disclosure statement of the accused, drew the panchnama of
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places as pointed out by the accused. The panchas of the
panchnama has not deposed exactly the wordings of
panchnama and therefore the contents of panchnama having
not been proved by the panch witnesses and the IO in his
deposition has also not proved the exact words uttered by the
accused and the contents of panchnama. Heavy reliance has
been placed on the case of Ramanand @ Nandlal Bharti Vs
State of Uttar Pradesh, 2022 SCC on-line 1396, wherein,
the Supreme Court, did not have accepted the evidence of
discovery on the ground that the investigating officer in his
oral evidence, has not said about the exact words uttered by
the police at the police station and failed to prove the contents
of the discovery panchnama. The Supreme Court in para-56
of the judgment said that, the requirement of law needs to be
fulfilled before accepting the discovery by proving the
contents of the panchname and the IO in his deposition
obliged in law to prove the contents of the panchnama and it
is only if the investigation officer has successfully proved the
contents of discovery panchnama in accordance with law,
then, in that case, the prosecution may be justified in relying
upon such evidence and trial Court may also accept the
evidence.
(vi) So far as DNA analysis report is concerned, Mr. Samani,
learned advocate adopted the arguments of Mr. R.N. Singh
and also relied upon the judgment of Supreme Court, as
referred above.
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14. In such circumstances as referred above, the counsel Mr. R.N.
Singh and Mr. Bhavik Samani, appearing for the accused have
submitted that the prosecution has failed to prove its case beyond
reasonable doubt by adducing cogent, acceptable and trustworthy
evidence and as such, the judgment of conviction and sentence is liable
to be set aside. The prosecution failed to prove its case by leading
clinching and convincing circumstantial evidence and in absence of
any legal and admissible evidence, the trial Court convicted the
accused on the basis of surmises, conjectures and suspicion. So far as
sentence of death penalty is concerned, the present case does not fall in
the category of rarest of rare cases and the trial court failed to assign
special reasons for awarding death sentence. Thus, it was prayed that
there being merits in the appeal and the same may be allowed by
setting aside the judgment of conviction and order of sentence.
15. On the other hand, Mr. J. K. Shah, learned Additional Public
Prosecutor for the respondent-State vehemently opposed the appeals
and contended that, the Trial Court has not committed any error while
holding the appellants accused guilty for the offence of rape and
murder. He further submitted that there is no reason for the police
authority to implicate the accused in a serious charge of rape and
murder and therefore, the allegation of false implication has no any
basis. The accused Gopi was resident of Motijer Village and on
28.10.2018, he saw accused nos.2 and 3 taking away the deceased on
their motorbike and said facts being proved and established by the
evidence of PW:15 Mohan Rathod, who being an owner of grocery
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shop, had identified in the Court as the accused and the deceased on
the day of the incident, came to his shop for purchase of tobacco. The
presence of the accused at the field is also established by the evidence
of PW:16 Narendra Rathod as while dropping the accused Gopi at
Nirmali Road he saw the accused and deceased standing beside the
road. The accused had given a history before the doctor PW:2 who has
deposed the factum of history in his case papers Exhs.20, 21 and 22
which proves that on 28.10.2018, the deceased lady was kidnapped by
accused nos.2 and 3 and later on, accused no.1 joined with the co-
accused for committing the offence of rape and murder. The medical
evidence also proves that the possibility of gang rape cannot be ruled
out as the deceased sustained injuries over her private parts and the
manner in which the dead body was found in the private farm, the
deceased died due to manual strangulation. The accused Gopi
confessed his guilt before PW:13 and PW:14. In such circumstances,
after the offence of kidnapping, the deceased was subjected to sexual
assault and then, she was brutally killed by strangulation. The DNA
analysis report Exh.86 further confirms the complicity of the accused
Gopi. The accused Gopi voluntarily made disclosure statement before
the police and in the presence of the panchas, he saw the place of
incident where the deceased allegedly raped and killed. In such
circumstances, Mr.J.K. Shah, would urge that the prosecution has
proved beyond reasonable doubt the charge against the accused
appellants and circumstances as referred above, have been proved
beyond reasonable doubt and all the circumstances are sufficient to
establish guilt of the accused as various circumstances forms a chain
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pointing towards the accused appellants and none else. Thus, therefore,
the State Counsel has prayed that there being no merits in the appeal
and the same may be dismissed.
16. We have heard learned counsels for both the parties and perused
the case records. In our opinion, the following facts are not in dispute:
(1) The accused Gopi (A1) is resident of Village Motijer,
Kapadvanj, Dist.: Kheda and deceased being his aunt also living in the
same village with her husband.
(2) Accused nos.2 and 3 are resident of Village Shihora and they
along with the accused Gopi arrested on 01.10.2018, whereas alleged
incident occurred on 28.10.2018.
(3) The dead body of the deceased found in a naked position and her
cloths, two Indian currency notes of Rs.50 and Rs.100 found from the
place of occurrence. The I.O. while drawing the panchnama of the
place of the incident also found the tobacco pouch and empty bottle of
bagpiper whisk.
(4) The deceased had sustained bodily injuries and injuries over her
private part and as per the medical evidence, the cause of death was
asphyxia on account throttling and the neck injuries as noted in the
P.M. Report were sufficient in ordinary course of nature to cause
death.
(5) Death of the deceased was homicidal.
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17. The prosecution case admittedly based on the circumstantial
evidence. The prosecution relied upon the following circumstances:
(1) the deceased was lastly seen in the company of the accused nos.2
and 3 (PW:15 – Mohan Rathod),
(2) the accused were lastly seen by witness PW:16 Narendra Rathod,
(3) extrajudicial confession of the accused A1 before the witness
PW:13 Vijay Zala,
(4) the statement of the accused in the form of medical history before
the doctor PW:2 – Manubhai Gadhvi,
(5) the DNA analysis report at Exh.86 proving the complicity of the
accused in the crime.
18. Having regard to the evidence on record, the only question that
arises for our consideration is as to whether the circumstances as
referred above forms a chain of events pointing only to the guilt of the
appellants accused and none-else.
19. Before we proceed with the analysis of evidence and the
contentions of the parties, it is necessary to briefly examine the law
relating to circumstantial evidence. It is settled position of law that the
circumstantial evidence is not direct to the point in issue but consists of
evidence of other facts which are so closely associated with the facts in
issue that taken together, they formed a chain of circumstances from
which the existence of the principle facts can be legally inferred or
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presumed. The chain must be complete and each fact forming part of
the chain must be proved. The circumstances from which the
conclusion of guilt is to be drawn should be in the first instance be
fully established and thereafter, the circumstances taken cumulatively
should formed a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of
the accused and must further show that in all probabilities the offence
must have been committed by the accused (Sharad Birdhi Chand
Sarda Vs. State of Mahahrashtra – AIR 1984 SC 1622).
20. In the present case, on 28.10.2018, the alleged incident of rape
and murder was being occurred and the dead body of the deceased in a
naked position found in the private farm situated at Village: Nirmali,
Kapadvanj, Kheda. We have gone through the medical evidence. There
is no dispute that, the death of the deceased was homicidal in nature
and having regard to the injuries suffered, the possibility of gangrape
as opined by the doctor, cannot be ruled out. In that context, the issue
is whether the prosecution able to prove the charge of rape and murder
against the accused – appellants.
21. Analysis and findings:
We have heard at length learned counsel for the parties and perused the
case records and findings of conviction and sentence recorded by the
trial court.
22. According to the case of the prosecution, the accused were seen
with the deceased on 28.10.2018 in the evening hours at the shop of
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Mohan Rathod (PW.15) and thereafter, on Nirmali Road, seen by
PW.16 – Narendra Rathod. It is in this context, before dealing with the
issue of last seen theory, let us examine and refer the settled law in this
regard.
Theory of last seen together:
(1) In the case of Kanhaiya Lal Vs. State of Rajasthan (2004 (4)
SCC 715), the Apex Court has held that evidence on “last seen
together” is a weak piece of evidence and conviction only on the basis
of last seen together without there being any corroborative evidence
against the accused, is not sufficient to convict the accused for an
offence under Section 302 Indian Penal Code. Paras-12 and 15 of the
judgment read as under:
“12. The circumstance of last seen together does not by itself and
necessarily lead to the inference that it was the accused who
committed the crime. There must be something more establishing
connectivity between the accused and the crime. Mere non-
explanation on the part of the appellant, in our considered opinion,
by itself cannot lead to proof of guilt against the appellant.
15. The theory of last seen – the appellant having gone with the
deceased in the manner noticed hereinbefore, is the singular piece of
circumstantial evidence available against him. The conviction of the
appellant cannot be maintained merely on suspicion, however strong
it may be, or on his conduct. These facts assume further importance
on account of absence of proof of motive particularly when it is
proved that there was cordial relationship between the accused and
the deceased for a long time. The fact situation bears great similarity
to that in Madho Singh vs. State of Rajasthan, (2010) 15 SCC 588.”
(2) Similarly the Apex Court in Rambrakash @ Jalim Vs.
State of Chhattisgarh (2016 (12) SCC 251), has reiterated the legal
position in the case of last seen together. Paras-12 and 13 which are
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required to be referred and the same are reproduced herein:
“12. It is trite law that a conviction cannot be recorded against the
accused merely on the ground that the accused was last seen with the
deceased. In other words, a conviction cannot be based on the only
circumstance of last seen together. Normally, last seen theory comes
into play where the time gap, between the point of time when the
accused and the deceased were seen last alive and when the deceased
is found dead, is so small that possibility of any person other than the
accused being the perpetrator of the crime becomes impossible. To
record a conviction, the last seen together itself would not be sufficient
and the prosecution has to complete the chain of circumstances to
bring home the guilt of the accused.
13. In a similar fact situation this Court in Krishnan v.State of T.N.
(2014) 12 SCC 279, held as follows: (SCC pp.284-85, paras 21-24)
“21. The conviction cannot be based only on circumstance of last
seen together with the deceased. In Arjun Marik v. State of Bihar
(1994) Supp (2) SCC 372), this Court held as follows: (SCC
p.385, para 31)
“31. Thus the evidence that the appellant had gone to Sitaram in
the evening of 19-7-1985 and had stayed in the night at the house
of deceased Sitaram is very shaky and inconclusive. Even if it is
accepted that they were there it would at best amount to be the
evidence of the appellants having been seen last together with the
deceased. But it is settled law that the only circumstance of last
seen will not complete the chain of circumstances to record the
finding that it is consistent only with the hypothesis of the guilt of
the accused and, therefore, no conviction on that basis alone can
be founded.”
22. This Court in Bodhraj v. State of J&K (2002) 8 SCC 45) held
that: (SCC p.63, para 31)
“31. The last seen theory comes into play where the time gap
between the point of time when the accused and the deceased
were last seen alive and when the deceased is found dead is so
small that possibility of any person other than the accused being
the author of the crime becomes impossible.”
It will be hazardous to come to a conclusion of guilt in cases
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where there is no other positive evidence to conclude that the
accused and the deceased were last seen together.
23. There is unexplained delay of six days in lodging the FIR. As
per prosecution story the deceased Manikandan was last seen on
4-4-2004 at Vadakkumelur Village during Panguni Uthiram
Festival at Mariyamman Temple. The body of the deceased was
taken from the borewell by the fire service personnel after more
than seven days. There is no other positive material on record to
show that the deceased was last seen together with the accused
and in the intervening period of seven days there was nobody in
contact with the deceased.
24. In Jaswant Gir v. State of Punjab (2005) 12 SCC 438),
this Court held that in the absence of any other links in the chain
of circumstantial evidence, the appellant cannot be convicted
solely on the basis of “last seen together” even if version of the
prosecution witness in this regard is believed.”
23. The circumstance of last seen together in the facts of the present
case and upon careful examination of the evidence, the witnesses either
deposed at the behest of the police, or they were really not knowing the
entire factual aspect of the crime. If we examine the evidence of
PW.15 – Mohan Rathod, who had seen the deceased in the company of
the accused no.2 and 3, does not inspire confidence because in the
evening hours, according to his version, there were many customers
standing at his shop. The accused no.2 was not personally knowing
him, nor before the incident, he came into contact with the accused in
any manner. Admittedly, police brought both the accused to the shop
of the witness and informed that, these accused had come to his shop
for purchasing tobacco and at that time, deceased and other accused
were standing outside the shop. The I.O. failed to conduct TIP of the
witness as this circumstance of last seen together was most important
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link to connect the accused in the crime. There are glaring
discrepancies in the evidence of PW.15 who allegedly seen the
deceased last alive in the company of the accused no.2 and 3. In such
circumstances, it was prudently not possible for the grocery shop
owner to remember each customer and what kind of things he had
purchased. Thus, in absence of any corroboration to the evidence of
PW.15, his evidence on the aspect of last seen together theory, cannot
be a ground to infer that the accused A2 and A3 were lastly in seen
with the deceased on 28.10.2018 at about 6:45 p.m. by the witness. The
another piece of evidence i.e. circumstance of last seen together is the
evidence of PW.16 – Narendra Rathod who had seen the deceased
lastly in the company of all accused. We have carefully examined his
evidence. It is relevant to note that, the witness being a tractor driver,
had come to roadside eatery shop of PW.14, where the PW.13 – Vijay
Zala was employed as an Assistant. The witness Vijay Zala (PW.13) in
his 164 statement (Exh.74) has categorically stated that on 28.10.2018,
the accused Gopi (A1) came to the eatery shop at about 11:00 p.m. for
snacks and after taking snacks, he left towards Nirmali Road. It is the
case of prosecution that, on the same day, at about 6:30, the accused
Gopi got a lift in the tractor of PW.16 and he was dropped at Nirmali
Road and at that time, the tractor driver saw the accused no.2 and 3
along with deceased, standing on the roadside. The evidence of tractor
driver is in contradiction with the statement of PW.13 recorded by the
Magistrate under Section 164 of the Cr.P.C. and as per the statement,
the A1 came at about 11 o’ clock at the eatery shop. The second
contradiction in the evidence of PW.16 is that, when the witness had
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dropped the accused Gopi at Nirmali Road, the deceased was already
taken in the private farm where the accused no.2 allegedly committed
rape upon her. In such circumstances, the presence of the deceased and
accused no.2 – Jayantibhai as per the prosecution case, was not at the
roadside when the accused Gopi had been dropped by the witness
(PW.16). Thus, after examination of the evidence of the aforesaid two
witnesses, the circumstance of deceased found in the company of the
accused on 28.10.2018 at the grocery shop of PW.15 and thereafter, at
the Nirmali Road are not at all proved and established and on such
evidence, the circumstances of last seen together does not by itself lead
the inference that the deceased was lastly seen in the company of the
accused.
24. The net result of the aforesaid discussion would be that the
presence of the accused no.2 and 3 at the place where the incident
occurred, has not been proved and established, nor it is established
that, the deceased was lastly in their company and was kidnapped
forcefully for sexual intercourse. It is relevant to note that the accused
no.1 Gopi did not have disclosed the names of accused no.2 and 3
before the Doctor (PW.2) that, they had kidnapped the deceased from
the bus stand of the Village: Motijer and after chasing him, he had saw
the accused on Nirmali Road. Thus, the history before the doctor does
not point out the names of accused no.2 and 3 and therefore, the
presence of the accused on 28.10.2018 either at the crossroad of
Village: Motijer, or at Nirmali Road where the incident occurred. We
may profitably refer the evidentiary value of medical history always
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recorded by the treating doctor. The Supreme Court in the case of
Pattipati Venkaih vs. State of A.P. (1985 (4) SCC 80), while observing
the duty of the doctor, held that, the doctor is a prosecution witness for
the limited purpose of the injury report and not a prosecution witness
with regard to the occurrence. The observations made in para-17 are
relevant to reproduce:
Para-17:
“Another argument advanced before us was that, although PWs
1 and 2 were supposed to be eye witnesses, they never cared to disclose
of the names of the assailants to the doctor when body of the deceased
was taken to the hospital. This argument is only stated to be rejected.
The doctor is not at all concerned as to who committed the o"ence or
whether the person brought to him is a criminal or an ordinary person,
his primary e"ort is to save life of a person brought to him and inform
the police in medico legal cases. In this state of confusion, PWs 1 and 2
may not have chosen to give details of the murder to doctor. It is well
settled that, the doctors before whom dead bodies are produced or
injured persons are brought either themselves, take the dying
declaration or hold the P.M. immediately and if they started examining
the informants, they are likely to become the witness of the occurrence
which is not permissible.”
In light of the settled principle of law and applying the same to
the facts of the present case, it is not in dispute that, the accused after
their arrest, were brought before the PW.2 with Police Yadi for
medical examination on 02.11.2018 and police personnel had
throughout accompanied the accused at the hospital and in his
presence, the doctor did examination of the accused and noted the
history. Thus, the history before the doctor as relied by the prosecution
are not substantial and admissible evidence on two counts i.e. (i) it is
none of the business of the doctor to record the history which has no
relevance with the treatment or for the purpose for which the accused
sent for obtaining necessary samples etc. and (ii) the so-called history
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when noted by the doctor, the presence of the police constable as
referred in the case papers, was throughout with the accused persons
and therefore, any statement in the form of confession though before
the doctor, but, in the presence of the police officials, cannot be
admitted in evidence as the said confession is prohibited in law and hit
by Sections 25 and 26 of The Evidence Act. Thus, the circumstance of
medical history connecting the accused in the alleged crime, cannot be
admitted in evidence and on that basis, no inference can be drawn that,
the accused on 28.10.2018, in the evening hours, took the deceased on
their bike and taken her in the private field.
25. The next circumstance, involving the accused no.1 Gopi
Devipujak relied by the prosecution is the extra judicial confession
made before the two witnesses namely PW.13 – Vijay Zala and PW.14
– Ganpatsinh Zala. It is the case of prosecution that, the accused Gopi
on 28.10.2018, came to the roadside eatery shop of PW.14 and asked
to lent his bike so that he could catch the deceased and accused no.2
and 3. The witness refused to give his bike and accused chosen to sit in
the eatery shop and at that time, PW.16 by driving his tractor, came at
the shop for snacks and after completion of snacks, he gave a lift to the
accused Gopi and dropped him at Nirmali Road. The said circumstance
as discussed in the presiding paragraph of this judgment, the
prosecution failed to prove the said aspect of presence of the accused
in the eatery shop because the Assistant Vijay Zala being a friend of
Gopi, in his 164 statement (Exh.74), categorically stated that the
accused Gopi came to the eatery shop at about 11 o’ clock and after
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taking snacks, he proceeded towards Nirmali Road. The theory of
taking lift in the tractor by the accused and the factum of snacks being
taken by the tractor driver (PW.16) is falsified by the 164 statement of
the witness (PW.13). Thus, the presence of accused Gopi in the eatery
shop at about 7 o’ clock on 28.10.2018 and taking lift in the tractor and
went to Nirmali Road, are not proved and established. It is further case
of prosecution that, PW.13 and accused Gopi resident of Village:
Motijer, were friends and they used to go for fishing together. It is in
this context the piece of circumstance relied by the prosecution is that,
on the next day of the incident i.e. 29.10.2018 at about 8:00 a.m. the
accused Gopi went to the house of PW.13 and when they were in the
Vatrak river for fishing purpose, the accused Gopi made a confession
in one line that, “he had killed his aunt.”
In other words, according to prosecution case, the accused Gopi
confessed his guilt before the witness (PW.13) and the said confession
was made voluntarily by him and it reflects true facts of the incident
and the evidence of PW.13 on this aspect is credible. Before dealing
with the issue of extra judicial confession it is necessary to refer the
settled position of law.
Extrajudicial confession:
The Supreme Court in the case of Ramu Appa Mahapatar Vs.
State of Maharashtra (2025 (2) SCR 388), while acquitting the
accused emphasizing that the extrajudicial confession are inherently
weak evidence and requires strong, credible corroboration, not just
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suspicion, to sustain a conviction, especially with contradictory
testimonies and missing evidence. Paras-16 to 19, referring the earlier
judgment of the Supreme Court on the subject of extrajudicial
confession, reads as under:
“16. Extra-judicial confession of an o"ence made by the Accused before a
witness is one of the several instances of circumstantial evidence; there
are other circumstances, such as, the theory of last seen together;
conduct of the Accused before or immediately after the incident; human
blood being found on the clothes or person of the Accused which matches
with that of the Accused; leading to discovery, recovery of weapon etc. As
we know, circumstantial evidence is not direct to the point in issue but
consists of evidence of various other facts which are so closely associated
with the fact in issue that taken together, they form a chain of
circumstances from which the existence of the principal fact can be
legally inferred or presumed. The chain must be complete and each fact
forming part of the chain must be proved. It has been consistently laid
down by this Court that where a case rests squarely on circumstantial
evidence, inference of guilt can be justi-ed only when all the
incriminating facts and circumstances are found to be incompatible with
the innocence of the Accused or the guilt of any other person. The
circumstances would not only have to be proved beyond reasonable
doubt, those would also have to be shown to be closely connected with
the principal fact sought to be inferred from those circumstances. All
these circumstances should be complete and there should be no gap left
in the chain of evidence. The proved circumstances must be consistent
only with the hypothesis of the guilt of the Accused and totally
inconsistent with his innocence. The circumstances taken cumulatively
must be so complete that there is no escape from the conclusion that
within all human probability the crime was committed by the Accused and
none else. While there is no doubt that conviction can be based solely on
circumstantial evidence but great care must be taken in evaluating
circumstantial evidence. If the evidence relied upon is reasonably capable
of two inferences, the one in favour of the Accused must be accepted.
17. In State of Rajasthan v. Raja Ram MANU/SC/0595/2003 :
2003:INSC:388 : (2003) 8 SCC 180, this Court explained the concept of
extra-judicial confession. Confession may be divided into two classes i.e.
judicial and extra-judicial. Judicial confessions are those which are made
before a magistrate or a court in the course of judicial proceedings. Extra-
judicial confessions are those which are made by the party elsewhere than
before a magistrate or a court. Extra-judicial confessions are generally
those that are made by a party before a private individual who may be a
judicial o=cer also in his private capacity. As to extra-judicial confessions,
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two questions arise: -rstly, whether they are made voluntarily and
secondly, are they true? If the court is of the opinion that the confession
was not made voluntarily but was a result of an inducement, threat or
promise, it would not be acted upon. It follows that a confession would be
voluntary if it is made by the Accused in a -t state of mind and if it is not
caused by any inducement, threat or promise having reference to the
charge against him proceeding from a person in authority. Whether or not
the confession was voluntary would depend upon the facts and
circumstances of each case judged in the light of Section 24 of the Indian
Evidence Act, 1872 (brie@y 'the Evidence Act' hereinafter). The law is
clear that a confession cannot be used against an Accused person unless
the court is satis-ed that it was voluntary. At that stage, the question
whether it is true or false does not arise. If the facts and circumstances
surrounding the making of a confession appear to cast a doubt on the
veracity and voluntariness of the confession, the court may refuse to act
upon the confession even if it is admissible in evidence. The question
whether a confession is voluntary or not is always a question of fact. A
free and voluntary confession is deserving of the highest credit because it
is presumed to @ow from the highest sense of guilt.
17.1. An extra-judicial confession, if voluntary and true and made in a -t
state of mind, can be relied upon by the court. The confession will have to
be proved like any other fact. The value of the evidence as to confession
like any other evidence depends upon the reliability of the witness to
whom it is made and who gives the evidence. Extra- judicial confession
can be relied upon and conviction can be based thereon if the evidence
about the confession comes from a witness who appear to be unbiased,
not even remotely inimical to the Accused, and in respect of whom
nothing is brought out which may tend to indicate that he may have a
motive of attributing an untruthful statement to the Accused. The words
spoken by the witness should be clear, unambiguous and unmistakenly
convey that the Accused is the perpetrator of the crime and that nothing
is omitted by the witness which may militate against it. After subjecting
the evidence of the witness to a rigorous test on the touchstone of
credibility, the extra-judicial confession can be accepted and can be the
basis of a conviction if it passes the test of credibility.
17.2. If the evidence relating to extra-judicial confession is found credible
after being tested on the touchstone of credibility and acceptability, it
can solely form the basis of conviction. The requirement of corroboration
is a matter of prudence and not an invariable Rule of law.
18. In Sansar Chand v. State of Rajasthan MANU/SC/0869/2010 :
2010:INSC:712 : (2010) 10 SCC 604, this Court accepted the admissibility
of extra-judicial confession and held that there is no absolute Rule that an
extra-judicial confession can never be the basis of a conviction although
ordinarily an extra- judicial confession should be corroborated by some
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other material.
19. Evidentiary value of an extra-judicial confession was again examined
in detail by this Court in Sahadevan v. State of Tamil Nadu
MANU/SC/0499/2012 : (2012) 6 SCC 403. That was also a case where
conviction was based on extra-judicial confession. This Court held that in
a case based on circumstantial evidence, the onus lies upon the
prosecution to prove the complete chain of events which shall
undoubtedly point towards the guilt of the Accused. That apart, in a case
of circumstantial evidence where the prosecution relies upon an extra-
judicial confession, the court has to examine the same with a greater
degree of care and caution. An extra-judicial confession, if voluntary and
true and made in a -t state of mind can be relied upon by the court.
However, the confession will have to be proved like any other fact. The
value of the evidence as to confession like any other evidence depends
upon the veracity of the witness to whom it has been made.
19.1. This Court acknowledged that extra-judicial confession is a weak
piece of evidence. Wherever the court intends to base a conviction on an
extra-judicial confession, it must ensure that the same inspires con-dence
and is corroborated by other prosecution evidence. If the extra-judicial
confession su"ers from material discrepancies or inherent improbabilities
and does not appear to be cogent, such evidence should not be
considered. This Court held as follows:
14 . It is a settled principle of criminal jurisprudence that extra-
judicial confession is a weak piece of evidence. Wherever the court,
upon due appreciation of the entire prosecution evidence, intends
to base a conviction on an extra-judicial confession, it must ensure
that the same inspires con-dence and is corroborated by other
prosecution evidence. If, however, the extra-judicial confession
su"ers from material discrepancies or inherent improbabilities and
does not appear to be cogent as per the prosecution version, it may
be di=cult for the court to base a conviction on such a confession.
In such circumstances, the court would be fully justi-ed in ruling
such evidence out of consideration.
19.2. Upon an indepth analysis of judicial precedents, this Court in
Sahadevan (supra) summed up the principles which would make an extra-
judicial confession an admissible piece of evidence capable of forming the
basis of conviction of an Accused:
(i) The extra-judicial confession is a weak evidence by itself. It has to be
examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
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(iii) It should inspire con-dence.
(iv) An extra-judicial confession attains greater credibility and evidentiary
value if it is supported by a chain of cogent circumstances and is further
corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should
not su"er from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in
accordance with law.”
In light of the settled position of law, the issue arise for out
consideration as to whether the extra judicial confession of the accused
confessing his guilt of killing his aunt is voluntary, true and credible to
infer the involvement of the accused in commission of crime. The
answer is no because the PW.13 – Vijay Zala according to prosecution
case, was working as a helper at the roadside eatery owned by PW.14
and the working hours was 5 p.m. to 11:30 p.m. The witness was used
to sleep in the house of PW.14 after completion of his daily work. The
prosecution case is that, on the next date i.e. 29.10.2018, the witness
(PW.13) was at his father’s home and in the morning, the accused Gopi
came to the house and both together went for fishing nearby the river
and while fishing, the accused Gopi made a confession about killing of
his aunt. The one line confession does not inspire confidence because
how and where, the deceased was killed, has not been stated by the
accused, nor asked by the witness. The father of PW.13 who later on
came to know about the confession made by the accused Gopi, in his
deposition, stated that, when Gopi came to his house, he was not there
at the home and his son later on, informed him about the confession. In
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such circumstances, in absence of any corroboration to the evidence of
extra judicial confession, the reliance on the sole evidence of PW.13 to
prove the guilt of the accused on the basis of extra judicial confession
is prudently not acceptable and permissible as the one line confession
does not inspire confidence about the truthfulness of the confession
because in absence of any further particulars on this aspect like time,
date and motive of killing, it cannot be acted upon.
26. The another circumstances pointing towards the guilt of the
accused relied by the prosecution is DNA Analysis. The Scientific
Officer (PW.23) Suresh Vaghela had conducted DNA Profiling and
issued a report at Exh.86 dated 01.05.2019. Admittedly, the alleged
incident occurred on 28.10.2018. The P.M. of the deceased conducted
on 29.10.2018 and the doctor (PW.2) has taken necessary samples
from the body of the deceased for DNA Profiling and after sealing the
samples, they were handed over to the concerned police officials for
depositing in the FSL. All three accused were arrested on 01.11.2018
and on 02.11.2018, they were brought before PW.2 for medical
examination and for taking necessary samples of DNA Profiling and
after taking the samples of blood etc., the sealed samples handed over
to the concerned police for FSL. The samples of deceased and accused
received by Ahmedabad FSL on 15.11.2018 i.e. after delay of 14 days.
No reason is forthcoming as to why the samples were lying in the
police station for a period of 14 days and during the said period, what
kind of measures for preserving the samples being taken. It is in these
background facts, the contention raised is that, there are several
discrepancies like delay in forwarding the samples, breached in
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protocols for preserving the samples, gapes in the chain of custody
which create doubts regarding the accuracy, integrity of the samples
and test reports and therefore, the DNA Profiling Report (Exh.86)
cannot be relied upon to prove the complicity of the accused.
DNA profiling:
(1) DNA evidence may be more useful for purposes of investigation
and so far its evidentiary value is concerned, the Apex Court in its
various judgments held that the DNA evidence is in the nature of
opinion evidence as envisaged under Section 45 of the Evidence Act
and like any other opinion evidence, and its probative value varies
from case to case and it depends on the quality control and quality
assurance procedure in the laboratory (Rahul Vs. State of Delhi -
2023 (1) SCC 83).
In the facts of the present case, admittedly, after delay of 14
days, the samples were forwarded to the FSL, Ahmedabad and the
delay is unexplained and during the said period, under what condition,
samples were preserved, that is also not come on record. Recently, in
the case of Karandeep Sharma @ Razia @ Raju vs. State of Gujarat
(2025 INSC 444), the Supreme Court on the issue of reliability and
admissibility of the evidence of DNA Profiling, held and observed that,
the prosecution would first be required to prove the sanctity and chain
of custody of samples/articles right from the time of their preparation,
collection till the time they reached the FSL and for this purpose, the
link evidence would have to be establish by examining the concerned
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witnesses. In another case, the Supreme Court (Putai vs. State of Uttar
Pradesh (2025) INSC 1042), while allowing the criminal appeals of
two villagers, Putai and Dilip, who had been sentenced – one of them
to death – for the rape and murder of 12 years old girl. The conviction
has been set aside on the ground that, the prosecution’s circumstantial
case was fatally tainted by an unproven and incomplete chain of
custody for crucial DNA samples and other forensic exhibits. In the
case of Prakash Nishad vs. State of Maharashtra (2023 16 SCC 357),
on the aspect of delay in forwarding the samples to the laboratory, the
Apex Court has observed that, when there is unexplained delay in
sending the samples to the FSL, the concomitant prospect of
contamination could not be ruled out and the need for expediency in
sending the samples to the laboratories was underscored. Recently,
the Supreme Court in the case of Kattavellai @ Devakar Vs. State of
Tamil Nadu (2025 INSC 845), while discarding the DNA evidence,
observed that, despite the presence of DNA evidence, it has to be
discarded to the reason that, proper methods and procedures were not
followed in the collection, sealing, storage and employment of the
evidence in the course of appellant – convict’s conviction. DNA, as we
have observed has to be largely dependable, even though these
evidence is only of probative value, subject to the condition that it is
properly dealt with. Over the past decades, many cases have come to
their logical conclusion with the aid of DNA evidence in many regions
across the world. It is also equally true that, many persons wrongly
convicted, have finally have justice served, with them being declared
innocence because of advancement in this technology. It is unfortunate
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that, alongside such advancement, we still have cases where despite the
evidence being present, it has to be rejected for the reason that, the
concerned persons, either doctors or investigators have been careless in
handling of such sensitive evidence. The Supreme Court in para-44 of
the judgment, issued the following directions, which shall be followed
henceforth in all cases, where DNA evidence is involved.
“1. The collection of DNA samples once made after due care and
compliance of all necessary procedure including swift and
appropriate packaging including a) FIR number and date; b) Section
and the statute involved therein; c) details of I.O., Police station;
and d) requisite serial number shall be duly documented. The
document recording the collection shall have the signatures and
designations of the medical professional present, the investigating
o=cer and independent witnesses. Here only we may clarify that
the absence of independent witnesses shall not be taken to be
compromising to the collection of such evidence, but the e"orts
made to join such witnesses and the eventual inability to do so
shall be duly put down in record.
2. The Investigating O=cer shall be responsible for the
transportation of the DNA evidence to the concerned police station
or the hospital concerned, as the case may be. He shall also be
responsible for ensuring that the samples so taken reach the
concerned forensic science laboratory with dispatch and in any
case not later than 48-hours from the time of collection. Should
any extraneous circumstance present itself and the 48-hours
timeline cannot be complied with, the reason for the delay shall be
duly recorded in the case diary. Throughout, the requisite e"orts
be made to preserve the samples as per the requirement
corresponding to the nature of the sample taken.
3. In the time that the DNA samples are stored pending trial appeal
etc., no package shall be opened, altered or resealed without
express authorisation of the Trial Court acting upon a statement of
a duly quali-ed and experienced medical professional to the e"ect
that the same shall not have a negative impact on the sanctity of
the evidence and with the Court being assured that such a step is
necessary for proper and just outcome of the Investigation/Trial.
4. Right from the point of collection to the logical end, i.e.,
conviction or acquittal of the accused, a Chain of Custody Register
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shall be maintained wherein each and every movement of the
evidence shall be recorded with counter sign at each end thereof
stating also the reason therefor. This Chain of Custody Register
shall necessarily be appended as part of the Trial Court record.
Failure to maintain the same shall render the I.O. responsible for
explaining such lapse.”
In light of the above and evidence on record, the DNA Profiling
Report (Exh.86) says that, the bloodstains marks on the sari and
petticoat of the deceased showed concomitance with autosomal DNA
Profile of Gopi @ Bhalabhai Devipujak. So far as accused no.3 –
Lalabhai is concerned, the bloodstains found on his T-shirt and blood
of the deceased shows concordance with each other. There is no
incriminating findings against the accused no.2 – Jayantibhai Vadi. In
these background facts, in order to prove the probative value of the
DNA Report, the prosecution failed to forward it within a reasonable
time (48 hours) and in absence of any explanation about the sanctity
and chain of custody of the samples, no reliance can be placed on the
report to connect the accused in the crime. It is the prosecution to
prove that, after samples were drawn, then, for about 14 days, how
they stored, transported and received by the FSL. The prosecution
should have examine the police official who was in custody of samples
and the person who had deposited the samples with the FSL. In such
circumstances, the DNA Profiling Report cannot be read against the
accused A1 and A3 so as to infer their involvement in the alleged
offence.
27. The another circumstances relied by the prosecution is the
admission of the accused A1 – Gopi Devipujak as during the
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investigation, he made a disclosure statement while pointing out the place
of offence. It is relevant to note that, neither the panchas, nor the I.O. has
stated the exact words spoken by the accused about his willingness to
show the place. Recently, the Supreme Court in the case of Ramanand @
Nandlal Bharti vs. State of Uttar Pradesh (2022 SCC OnLine 1396), has
emphasized the necessity of proving the exact words uttered by the
accused and proving the contents of discovery panchnama. In para-54 to
56, the Supreme Court held that, the investigating officer in his
deposition is obliged in law to prove the contents of panchnama and it is
only if the investigating officer has successfully proved the contents of
the discovery panchnama in accordance with law, then, in that case, the
prosecution may be justified in relying upon such evidence.
In the present case, the panchnama as relied by the prosecution is
reconstruction of the offence and accused jointly being referred in the
panchnama and it cannot be said to be a discovery panchnama under
Section 27 of The Evidence Act because on 29.10.2018, the police in the
presence of panchas, had drawn the panchnama of place of offence and
subsequently after the arrest of the accused, the another panchnama of
pointing out the place, being drawn. Thus, the information whatever
disclosed cannot relates distinctly to the fact discovered because the fact
already been discovered before the alleged panchnama of reconstruction.
In such circumstances, the so called confession of the accused Gopi – A1
which was before the police officials and is hit by Sections 25 and 26 of
the Evidence Act and considering the nature of panchnama, which do not
fall under Section 27 of the Evidence Act and on this circumstance,
inference cannot be drawn against the accused for their involvement in
the crime.
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28. We are conscious about the seriousness of the offence as the
deceased was raped and killed in a brutal manner. However, it is one of
the fundamental principle of criminal jurisprudence that the accused is
presumed to be innocent till he is proved to be guilty. It is equally well
settled that, suspicion however be strong, can never take place of the
proof. There is indeed a long distance between accused may have
committed the offence and must have committed the offence, which must
be traversed by the prosecution by adducing reliance and cogent
evidence. The Supreme Court in the case of Jaharlaldas vs. State of
Orissa (1991 3 SCC 27) has held that, even if the offence is shocking one,
the gravity of offence cannot by itself overweight as far as legal proof is
concerned. Recently, the Supreme Court in the case of Surendra Koli vs.
State of U.P. (2025 LawSuit SC 1479), while acquitting the accused in the
case known as “Nitharikand”, held that, the offences in Nithari were
heinous and the suffering of the family is beyond measure. It is a matter
of deep regret that despite of prolonged investigation, the identity of the
accused perpetrator has not been established in the manner that meets the
legal standards. Criminal law does not permit conviction on conjectures
or on a hunch. Suspicion however grave, cannot proof beyond reasonable
doubt. Courts cannot prefer expediency over legality. The presumption of
innocence endures until guilt is proved through admissible and reliable
evidence and when the proof fails, the only lawful outcome is to set aside
the conviction even in a case involving horrific crimes.
29. For the reasons aforementioned, we are of the considered opinion
that, the prosecution failed to prove all necessary circumstances by
reliable and clinching evidence which would constitute a complete chain
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without a snap as would permit no confusion other than the one of the
guilt of the accused. Resultantly, the prosecution has not been able to
prove its case beyond reasonable doubt against the accused as complete
chain of incriminating circumstances pointing towards guilt of the
accused has not been established and proved. The accused no.1 to 3 are
acquitted of all charges.
30. Accordingly, the Criminal Appeal No.1139 of 2022 and Criminal
Appeal No.1813 of 2022 are allowed. The judgment of conviction dated
29.04.2022 and order of death sentence passed by the Additional Sessions
Judge, Kapadvanj at Kheda in Sessions Case No.12 of 2021 (Old Case
No.43 of 2019) is set aside. In view of disposal of Criminal Appeal
No.1139 of 2022, Criminal Misc. Application (For Direction) No.1 of
2022 in Criminal Appeal No.1139 of 2022 stands disposed of
accordingly. The appellants-accused are in jail. They shall be released
forthwith unless their custody is necessary in any other case. In view of
setting aside of the judgment of conviction, the Criminal Confirmation
Case No.6 of 2022 is disposed of accordingly. Registry shall send the R
& P to the concerned court, henceforth.
Sd/-
(ILESH J. VORA,J)
Sd/-
(R. T. VACHHANI, J)
TAUSIF SAIYED
Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: TAUSIFAHMED SAIYED(HC01401), PRIVATE SECRETARY, at High Court of Gujarat on 13/01/2026 16:47:10
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