Holding

The conviction was unsustainable and the appellant was acquitted of the murder charge.

Summary

The appellant Khorban was convicted by the Additional Sessions Judge for murder under Section 302 IPC based largely on the testimony of hostile witnesses and statements recorded by the investigating officer under Sections 161 and 162 CrPC. The High Court examined the post‑mortem report confirming homicidal death but found no direct evidence linking the appellant to the killing, as all eye‑witnesses either denied his involvement or turned hostile. The Court held that the trial court erred by relying on inadmissible police statements and by drawing adverse inference under Section 106 of the Evidence Act without sufficient proof. It emphasized that hostile witness testimony is admissible only if its credibility is established, which was not the case here. Consequently, the prosecution failed to discharge its burden of proof beyond reasonable doubt, and the conviction was set aside, resulting in the appellant's acquittal and release.

Issues considered

The prosecution proved the appellant's guilt beyond reasonable doubt?
Whether hostile witness testimony and statements under Sections 161/162 CrPC can form the basis of conviction?
Whether adverse inference under Section 106 Evidence Act is permissible in the absence of substantive evidence?

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 162, s. 313
Gujarat Police Acts. 37(1)
Indian Evidence Act, 1872s. 106
Indian Penal Code, 1860s. 302

Subjects

murderSection 302 IPChostile witnessSection 161 CrPCSection 162 CrPCSection 106 Evidence Actburden of proofacquittalconviction appeallife imprisonment

Judgment

R/CR.A/823/2017 JUDGMENT DATED: 09/03/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL (AGAINST CONVICTION) NO. 823 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ILESH J. VORA

and

HONOURABLE MR. JUSTICE R. T. VACHHANI
==========================================================

Approved for Reporting Yes No

==========================================================
KHORBAN @ KURBAL @ DINESH @ SARDAR LALUBHAI NAYAK
Versus
STATE OF GUJARAT
==========================================================
Appearance:
HCLS COMMITTEE(4998) for the Appellant(s) No. 1
MR PRATIK B BAROT(3711) for the Appellant
MR RONAK RAVAL APP for the Respondent
==========================================================

CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI

Date : 09/03/2026

ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ILESH J. VORA)

1. This conviction appeal is directed against the judgment and order
of conviction dated 25.01.2017, passed by the Additional Sessions
Judge, at Jamnagar, in connection with Sessions Case No.13 of
2014, by which, the sole accused Khorban @ Kurbal @ Dinesh @
Sardar Lalubhai Nayak was convicted under Section 302 of Indian
Penal Code and sentenced to suffer life imprisonment and fine
amount of Rs.1000/- and in default in payment of fine, to suffer

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simple imprisonment of 30 days.

2. The case of the prosecution, leading to conviction of the appellant
accused is as follows:

2.1 On 25.09.2013, FIR came to be registered with Kalavad Police
Station on the statement made by Manjaliben – wife of Vestabhai
for the murder of her daughter Kinjaliben. It was stated in the
complaint that, the marriage of the appellant-accused and her
daughter was solemnized before 20 years of the incident and after
the marriage, the entire family used to work as farm labourers in the
different districts of State of Gujarat. It was further stated that, due
to illness of the appellant-accused, the deceased wife had tried her
level best by administering necessary medicines, however, the
appellant-accused was having suspicion that, due to attempt of his
wife-deceased, his health is further deteriorated. It was further
stated by the complainant that, on the day of incident, the entire
family including the appellant and deceased came to Village:
Pithadiya at Kalavad for doing farming activities and their stay was
at the farm of one Prafulbhai Vashrambhai. The appellant-accused
took the deceased wife in the field under the pretext to cutting
woods and taking care of cotton crops and while they were in the
field, the appellant-accused inflicted axe blows on the head of the
deceased and killed her. It was stated in the FIR that, after hearing
the screaming, the family members came to rescue, but, before they
could reach, the deceased was done to death. The weapon axe was
taken family members from the appellant. The deceased was taken
to nearby hospital and Ambulance where on arrival, she was

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declared dead.

2.2 On the basis of aforesaid FIR, the offence being C.R. No.I-88 of
2013 for the offence punishable under Section 302 came to be
registered against the appellant. The I.O. (PW.18) was entrusted
with the investigation and during the investigation, he sent the dead
body of the deceased for post-mortem, recorded the statements of
material witnesses, drew the panchnama of scene of offence, seized
and recovered the weapon axe, arrested the accused-appellant, sent
the seized articles to the FSL and on receiving the report of Forensic
Science Analysis, the chargesheet came to be filed before the
Jurisdictional Magistrate and the same was committed to the court
of sessions for the trial.

3. The Trial Court framed the charges which the appellant accused
denied the charges and claimed to be tried.

4. The prosecution, in order to examine the case against the accused,
examined as many as 20 witnesses and exhibited 28 documents, as
per the below mentioned tabular:

Oral evidence – 20

PW 1 – Exh.10 Mnsukhbhai Vallabhbhai Dangariya, panch witness
PW 2 – Exh.12 Chandubhai Gokalbhai Dangariya, panch witness
PW 3 – Exh.14 Kishorbhai MOhanbhai Kapuriya, panch witness
PW 4 – Exh.15 Girirajsinh Ashoksinh Jadeja, panch witness
PW 5 – Exh.17 Kripalsinh Naredrasinh Jadeja, panch witness
PW 6 – Exh.18 Prafulbhai Vashrambhai
PW 7 – Exh.20 Vikram Haradiya Nayak
PW 8 – Exh.24 Revliben Vikrmbhai Nayak
PW 9 – Exh.25 Lakhiyo Khorban Nayak
PW 10 – Exh.26 Vasan Vesta Bamniya

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PW 11 – Exh.27 Manjliben Vestabhai Bamniya, complainant
PW 12 – Exh.29 Juvan Mathur Nayak
PW 13 – Exh.30 Dr. Navin B. Dubey
PW 14 – Exh.34 Shardaben Juvan Nayak
PW 15 – Exh.36 Parsottam Chanabhai Makwana
PW 16 – Exh.39 Devubha Lakhubha Jadeja
PW 17 – Exh.42 Habib Mohammad Malek, ASI
PW 18 – Exh.43 Jayprakash Balmukund Kadel, IO
PW 19 – Exh.60 Dhirajlal Laxmanbhai Dangriya, panch witness
PW 20 – Exh.62 Vallabhbhai Jivabhai Kapuriya, panch witness

Documentary evidence – 28

Exh.11 Inquest Panchnama
Exh.13 Panchnama of place of incident
Exh.16 Panchnama of clothes seized and blood
Exh.28 Complaint
Exh.31 PM report
Exh.32 Copy of yadi regarding blood sample
Exh.33 Certificate regarding taking blood sample
Exh.37 yadi to Executive magistrate regarding preparing of rough sketch
of place of incident
Exh.38 Rough sketch of place of incident
Exh.40 True copy of station diary
Exh.41 Yadi to pso regarding offence
Exh.44 Yadi to FSL Rajkot regarding Mddamal
Exh.45 Yadi to Mobile FSL
Exh.46 Yadi regarding Muddamal analysis
Exh.47 Receipt regarding the receiving the Muddamal
Exh.48 FSL report
Exh.49 Yadi regarding Muddamal
Exh.50 Yadi regarding PM
Exh.51 Yadi regarding inquest panchnama
Exh.52 Inquest form
Exh.53 Blood sample collection form
Exh.54 Yadi regarding PM Note
Exh.55 Yadi regarding handover of dead body
Exh.56 Copy of notification under the provision of Section 37(1) of the GP
Act
Exh.57 Yadi from FSL regarding the muddamal analysis
Exh.58 FSL report of Blood

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Exh.59 Serology report
Exh.61 Arrest panchnama

5. After closure of the prosecution evidence, the appellant accused
was questioned under Section 313 Cr.P.C., to which, he stated that
he is innocent and is falsely implicated in the charge of murder.

6. Though opportunity was extended, no evidence was tendered from
the side of the appellant accused.

Trial Court’s finding:
7. The learned Trial Court, after considering the oral and
documentary evidence, as well as the submissions made on behalf
of the parties, found the appellant guilty under Section 302 of the
Indian Penal Code and sentenced his to undergo life imprisonment.
The learned Trial Court while recording the conviction mainly
relied upon the evidence of hostile witnesses and police officers.

8. Being aggrieved by, and dissatisfied with the judgment of
conviction and sentence, the appellant has come up with present
appeal.

9. Evidence adduced by the prosecution:

We would like to have a cursory look at the evidence adduced by
the prosecution through its witnesses:

9.1 Dr. Navin Bardriprasad Dube (PW.13): This witness being a
medical officer, associated with the Kalavad CHC, Jamnagar, had
conducted post-mortem on the body of the deceased and prepared a

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post-mortem report (Exh.31). During the post-mortem, the
following external and internal injuries were noticed by the P.M.
Doctor:

External Injuries:
 A clean cut wound on overhead left temporal occipital 6 c.m. long.
 A clean cut wound on overhead temporal 3 c.m.
 Fracture on left hand.
 Fracture on Atlanto Occipital joint of neck.
 A cut injury on right ear.

Internal injuries as per Para-19 of the Post Mortem Note are as under:
▪ Fracture on left hand.
▪ Fracture of Albuto Occipital joint.
As per Post Mortem Note (Ex.31), all injuries were ante-mortem
and in Para-23 of the Post Mortem Note, PW-13- Dr.Dubay
opined as under about the cause of death;

“Cause of death due to Neuroganic sock due Assaulter head
injury and fracture of Atlanto Occipital joint.”

9.2 Prafulbhai Vashrambhai (PW.6): This witness had employed
the appellant-accused and his family for farming purpose and being
a farm owner, the prosecution has tried to establish the necessary
facts of the incident. However, the fact remains that, at relevant
time, he was not present in the farm where the incident occurred.
The only fact proved is that, the deceased and the appellant-accused
were employed by him to undertake agricultural process in the farm
and the said facts are undisputed.

9.3 Vikram Haradiya (Nayak) (PW.7): This witness being a relative
of the appellant and deceased, was examined to prove that, after the
incident of murder, he was called upon at the place of occurrence

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where he came to know that, the deceased was killed by the
appellant-accused. Admittedly, he had not witnessed the incident
and on the aspect of involvement of the accused, even on the
hearsay evidence, he did not have supported to the case of
prosecution.

9.4 Revliben Vikrambhai Nayak (PW.8): This witness is the hearsay
witness and at relevant time, she along with her husband, were
working at the different farm and on the aspect of who had killed
the deceased and what was the motive for killing, the witness has
not stated in the chief-examination, nor admitted the case of the
prosecution in the cross-examination after declaring her as a hostile
witness by the prosecution.

9.5 Lakhiyo Khorban Nayak (PW.9): This witness is the son of
deceased and as per his version, he had seen the dead body of the
deceased allegedly lying in the farm where he was also working. In
the chief-examination, he has not supported to the case of
prosecution and denied that, his father has killed his mother. The
witness has been declared as hostile witness. In the cross-
examination, the witness has not supported to the case of
prosecution and has denied the contents of his police statement
recorded under Section 161 of the Cr.P.C.

9.6 Vasan Vestabhai Bamaniya (PW.10): This witness is the brother in
law of the accused and according to prosecution case, he had
witnessed the incident. In the chief-examination, the witness has

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denied the factum of incident and involvement of the accused, as a
result, he has been declared hostile and during cross-examination as
a hostile witness, he has not supported to the case of the
prosecution.

9.7 Manjaliben Vestabhai Bamaniya (PW.11): This witness is the
mother-in-law of the appellant and mother of the deceased. After
the incident, she had lodged an FIR with Kalavad Police Station,
alleging that, the appellant had killed her daughter, by using
weapon axe and when the alleged incident was being occurred in
the farm of PW-6 Praful Vasrambhai. However, in the chief-
examination, the witness complainant did not have supported to the
case of the prosecution, nor admitted the contents of the complaint
Exh. 28. The only thing she admits is, the presence of the accused
in the field but so far as causing injury to the deceased is
concerned, the witness has denied that, her daughter was killed by
the appellant herein. Even after declaring her hostile, she has not
supported to the case of the prosecution.

9.8 Juvan Mathurbhai Nayak (PW.12): This witness is the son-in-
law of the appellant. The witness has denied the motive behind
killing of the deceased and has denied that the appellant being a
father-in-law, has killed the deceased. The witness has been
declared hostile and in cross-examination, he has not supported on
the aspect of involvement of the appellant as well as his presence at
the place.

9.9 Shardaben Juvansing Nayak (PW.14): This witness is the daughter
of the deceased as well as appellant herein. The witness has stated

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in her chief-examination that, after hearing the screaming of
witness Varsang, she went to the farm of Prafulbhai, where she had
saw the dead body of the deceased lying in the cotton field and saw
her father standing at some distance. The witness has denied the
involvement of the appellant in the crime and she plead ignorance
about the incident. The witness has been declared hostile and
during the cross-examination, she has not admitted the factum of
incident as well as the contents of her police statement.

9.10 Jayprakash Balmukund Kadel (PW.18): This witness being a
Police Inspector, posted with Kalavad Police Station, Jamnagar,
was entrusted with the investigation of the case. The witness in his
chief-examination has stated that after registration of the offence,
he was entrusted with the investigation of the case and during the
investigation, he visited the place of incident and in the presence of
mobile FSL, drew the panchnama of scene of occurrence, sent the
dead body of postmortem, recorded the statement of the witnesses,
arrested the accused, seized and recovered the axe and after
receiving the necessary reports from the FSL, the chargesheet
against the accused for the offence of murder came to be filed. In
the cross-examination, the witness has denied that he has arrested
the accused without any material and filed a false chagesheet.

Submissions:

10. Mr. Pratik Barot, learned counsel appearing for and on behalf of the
appellant-accused while assailing the impugned judgment and order
of sentence, made the following submissions:

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(i) That the learned trial court grossly erred while convicting the
accused, without appreciating the evidence in the right prospective.

(ii) That there is no direct evidence pointing towards the guilt of the
accused. All the material witnesses had not supported the case of the
prosecution. Despite of this, the trial Court placing reliance of the
evidence of hostile witnesses namely PW-11 Manjaliben and PW-14
Shardaben, held guilty the accused. These two witnesses, on the
aspect of causing injury to the deceased by the appellant, have not
supported to the case of the prosecution. The only admission on their
part, is the presence of the accused. However, merely presence of
the accused, without there being any further evidence, proving his
active role in the alleged incident, the conviction based on solely on
such testimonies is not sustainable in eye of law.

(iii) That the trial Court based on the FIR and statement of witnesses
recorded during the course of investigation, held guilty the appellant.
It is settled position of law that, it is the statement made on oath in
the court, which has to be foundation of conviction. The conviction
of an accused cannot be based of statement of witnesses recorded
under Section 161 Cr.P.C., or even under Section 154 Cr.P.C.,
especially, when the witnesses resile from their statements while
appearing in the court and make a completely different statement in
the court. In support of said contention, heavy reliance has been
placed on the case of Renuka Prasad Vs. State (2025 SCC OnLine
1074).

11. In such circumstances as referred above, Mr. Barot, learned counsel
has submitted that, the burden of proving the case beyond reasonable

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doubt by adducing cogent and reliable evidence has not been
discharged by the prosecution and the judgment of conviction and
order of sentence is not sustainable in eye of law and he further
prayed that, there being merits in this appeal and same may be
allowed and the appellant-accused may be acquitted of charges of
murder.

12. Mr. Ronak Raval, learned Additional Public Prosecutor vehemently
opposed the appeal and contended that, the accused and the deceased
were found alone in the farm where the incident occurred and
presence of the accused was also established when the incident
occurred and therefore, the evidence of hostile witness on this aspect
has been rightly believed by the trial court and in absence of any
explanation on the part of the accused that in what manner and in
what circumstances, deceased had died, the reasonable inference can
be drawn regarding guilt of the accused. The circumstances
constituting a complete chain without a gap, pointing towards the
guilt of the accused and the accused none else, has committed the
murder. In such circumstances, Mr. Raval, prays that, there being no
merits in the appeal and the same may be dismissed.

13. We have perused the case records and proceedings and considered
the submissions made at the bar and the findings of conviction
recorded by the trial court.

14. In the present case, post-mortem report (Exh.31) being proved by
Dr. Navin Dube (PW.13) which established the homicidal death and
to this extent, prosecution version is unchallenged. There is no
dispute about the date of occurrence and place where the dead body

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of the deceased found. The appellant-accused is the husband of the
deceased. On the day of incident, the husband wife and other family
members came at the Village: Kalavad-Pithadiya for farming work
in the farm of Praful Vashrambhai (PW.6).

15. In the facts and circumstances of the present case, the issue falls for
our consideration as to whether the appellant-accused is the author
of crime or not. The eye witnesses who are near relatives and family
members of the appellant-accused have not supported to the case of
prosecution. Even, after declaring them hostile, they have not
admitted the facts of the police statement recorded under Section
161 of the Cr.P.C., nor, the involvement of the accused in the
alleged crime. There was no dispute that, the appellant-accused was
not present when the incident occurred. On careful examination of
the evidence and findings of the trial court, it appears that, the trial
court, on relying on the testimony of the hostile witnesses, held that,
the accused was in the field and standing nearby the deceased. The
trial court in the judgment, has referred the settled law on the aspect
of evidence of hostile witnesses. The Supreme Court in its various
judgments, time and again, held and observed that, “credible
evidence even of a hostile witness can form the basis for conviction
in a criminal trial and evidence of such witness cannot be treated as
effaced or washed off the record altogether, but, the same can be
accepted to the extent their version is found to be dependable on a
careful scrutiny thereof. It is for the Judge of fact to consider in case
whether as a result of such cross-examination and contradiction, the
witness thoroughly discredited or can still be believed with regard
to a part of its testimony. If the Judge finds that, in the process, the

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credit of witness has not been completely shaken, he may after
reading and considering the evidence of a witness as a whole with
due caution and care accept in the light of other evidence on record,
that part of testimony which he finds to be creditworthy and act
upon it. (Syad Akbar vs. State of Karnataka AIR 1979 SC 1848).

16. In light of the law propounded by the Supreme Court, the only facts
established from the evidence of hostile witnesses is the presence of
the accused at the field. The incident allegedly occurred in the open
field. In the field, the other persons were also there. In such
circumstances, when the presence of the accused is not in dispute,
then, the evidence of hostile witnesses on this aspect does not throw
light on the issue about his involvement in the crime. The learned
trial court has observed that, the accused-appellant has not offered
any explanation that how and in what manner the deceased received
the injuries. In our opinion, the invocation of Section 106 of
Evidence Act for drawing adverse inference against the accused is
against the settled principle of law. The Supreme Court has time and
again on the applicability of Section 106, has observed and held that,
“ Section 106 is designed to meet certain exceptional cases in which
it would be impossible for the prosecution to establish certain facts
which are particularly within the knowledge of the accused. Section
106 would apply to cases where the prosecution could be said to
have succeeded in proving facts from which a reasonable inference
can be drawn regarding guilt of the accused and the section is not
intended to relieve the prosecution of its burden to prove the charge
beyond reasonable doubt against the accused and is not in anyway
modified by provisions contained in Section 106. The section 106

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cannot be used to support conviction, unless the prosecution has
discharged its burden.”(Nagendra Sah Vs. State of Bihar (2021)
10 SCC 725).

17. In the aforesaid discussions, in our opinion, when the witnesses have
not deposed against the appellant and merely presence of the accused
in the open field could not be a ground to infer the guilt of the
accused as the prosecution failed to prove the charge of killing his
wife by acceptable and cogent evidence. Thus, therefore, the
evidence of hostile witnesses does not in any manner, prove the
involvement of the accused in the crime and therefore, the question
does not arise to draw an adverse inference with the aid of Section
106 of the Evidence Act.

18. We have also examined the findings of the trial court. The oral
version of the I.O. (PW.18) is being considered while recording the
findings of conviction. It is observed by the trial court that, the
prosecution story as disclosed in the statement of the witnesses
recorded under Section 161 being narrated by the I.O. and there is no
motive for the I.O. to falsely implicate the accused and considering
the contents of the statement as stated by the I.O., the trial court held
that, the accused was the author of the crime. In our opinion, the
statements under Section 161 and 162 Cr.P.C. are not admissible in
evidence except for the limited purpose as provided in Section 157 of
the Evidence Act and same may be used for contradicting the witness
in the manner provided under Section 145 of the Evidence Act and
the courts cannot use such statements as a corroboration of the

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statement made in the court. (Kali Ram vs. State of H.P. (1973) 2
SCC 808) and R. Shaji vs. State of Kerala ((2013) 14 SCC 266).

“In Rajendra Singh Vs. State of U.P. ((2007) 7 SCC 378), it
was held that, a statement under Section 161 is not substantial
piece of evidence. In the case before the Supreme Court, the
Allahabad High Court relied upon the statement of six witnesses
recorded by the I.O. under Section 161 Cr.P.C. to enter a finding
that, the respondent could not have been present at the scene of
crime as he was present in the meeting of Nagar Nigam at
Allahabad. It was unequivocally held that, a statement under
Section 161 is not substantial piece of evidence and it can be used
only for limited purpose of contradicting the maker thereof in the
manner laid down in the proviso of Section 162 Cr.P.C. Recently,
the Supreme Court in the decision of Renuka Prasad vs. State
represented by Assistant Superintendent of Police ((2025) 7
S.C.R. 160), on the evidentiary value of police statement recorded
under Sections 161 and 162 Cr.P.C., in para-26 of the judgment,
clearly laid down thus:

“26. The statements made by the IOs regarding the motive,
conspiracy and preparation comes out as the prosecution story,
as
discernible from the Section 161 statements of various witnesses
who were questioned by the police during investigation; which
statements are wholly inadmissible under Section 162 of the
Cr.P.C. Merely because the IOs spoke of such statements having
been made by the witnesses during investigation, does not give
them any credibility, enabling acceptance, unless the witnesses
themselves spoke of such motive or acts of commission or

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omission or instances from which conspiracy could be inferred as
also the preparation, established beyond reasonable doubt. We
are unable to 6nd either the motive, the conspiracy or the
preparation or even the crime itself to have been established in
Court, at the trial through the witnesses examined before Court.
The witnesses had turned hostile, for reasons best known to
themselves. The only inference possible, on the witnesses turning
hostile is that either they have been persuaded for reasons
unknown or coerced into resiling from the statements made
under Section 161 or that they had not made such statements
before police o7cers. Merely because the story came out of the
mouth of the IO, it cannot be believed and a legal sanctity given
to it, higher than that provided to Section 161 statements under
Section 162 of the Cr.P.C.”

19. Reverting back to the facts of the present case, the trial court
mainly relied on the contents of the police statements, spoken by the
I.O. in his deposition. The trial court has adopted a wrong path while
considering the deposition of the I.O., more particularly to prove the
factum of incident as he was not witness of the incident. The eye
witnesses have resile from their police statements and did not support
to the case of prosecution. Thus, therefore, the findings of conviction
on the basis of inadmissible evidence are not sustainable in law as
conviction can never be based on FIR or statements of witnesses
recorded during the course of investigation and the Investigating
Officer cannot indirectly prove what the witnesses have failed to
prove.

20. Looking at the overall facts and circumstances of the present case
and the discussions made hereinabove, we are of the view that, the

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prosecution has failed to prove its case with sufficient oral and
documentary evidence, beyond all reasonable doubts and the reasons
assigned by the trial court to hold accused guilty for the offence are
not plausible, convincing and acceptable and seems to be settled
principles of criminal jurisprudence. Accordingly, the accused-
appellant is acquitted from all charges.

21. Resultantly, this conviction appeal is allowed. The judgment of
conviction and order of sentence dated 25.01.2017 passed by the
Additional Sessions Judge, Jamnagar, in Sessions Case No.13 of
2014, is set aside. The fine amount, if any paid, be refunded to the
appellant-accused. The appellant-accused is in jail. The jail authority
is directed to set him free henceforth, if he is not required in any
other case. The Registry shall send back the R & P to the concerned
court. Direct service permitted.

(ILESH J. VORA,J)

(R. T. VACHHANI, J)
P.S. JOSHI

Original copy of this order has been signed by the Hon'ble Judges.
Digitally signed by: PALLAV SUBHASHCHANDRA JOSHI(HC00177), Principal Pvt. Secretary, at High Court of Gujarat on 09/03/2026 15:26:04

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