Gujarat High Court
State Of Gujarat vs Jagdish Hirabhai Malam on 3 July, 2026
NEUTRAL CITATION
R/CR.A/143/2000 JUDGMENT DATED: 03/07/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 143 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO: Sd/-
and
HONOURABLE MR.JUSTICE P. M. RAVAL: Sd/-
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Approved for Reporting No
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STATE OF GUJARAT
Versus
JAGDISH HIRABHAI MALAM
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Appearance:
MR. ROHAN SHAH, APP for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
and
HONOURABLE MR.JUSTICE P. M. RAVAL
Date : 03/07/2026
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE S.V. PINTO)
1. The appeal is filed by the appellant State under
Section 378(1)(3) of the Code of Criminal Procedure, 1973
against the judgement and order of acquittal passed by the
learned Additional Sessions Judge, Veraval (hereinafter
referred to as “the learned Trial Court”) in Sessions Case No.
241/1999 on 01.01.2000, whereby, the learned Trial Court
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has acquitted the respondent for the offence punishable
under Sections 302 of Indian Penal Code, 1860.
1.1 The respondent is hereinafter referred to as “the
accused” as he stood in the original case for the sake of
convenience, clarity and brevity.
2. The brief facts that emerge from the record of the case
are as under:
2.1 Govabhai Bhurabhai – the grandfather of the accused
had sold 21 vighas of land but did not give the father of the
accused his monetary share in the property. He also refused
to affix his signature to mutate the name of the father of the
accused in the remaining property and as the accused was
unhappy about the same, on 21.03.1996, when the
grandfather of the accused had gone to the temple at any
time between 07:00 to 13:00 hours, the accused
strangulated his grandfather and dashed his head with a
stone and caused his death. The complaint was registered
by the complainant – Laxmanbhai Govabhai Koli on
23.11.1996 at Maliya Hatina Police Station which came to
be registered as I – C.R. No. 67 of 1996.
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2.2 The Investigating Officer recorded the statements of
the connected witnesses and seized the necessary
documents and after completion of investigation, a charge-
sheet came to be filed before the Court of the Judicial
Magistrate First Class, Maliya Hatina and as the said
offences against the accused were exclusively triable by the
Court of Sessions, the case was committed to the Sessions
Court, Veraval as per the provisions of Section 209 of Code
of Criminal Procedure and the case was registered as
Sessions Case No. 241/1999.
2.3 The accused was duly served with the summons and
the accused appeared before the learned Trial Court and it
was verified whether the copies of all the police papers were
provided to the accused as per the provisions of Section 207
of the Code. A charge at Exh. 1 was framed against the
accused and the statement of the accused was recorded at
Exh. 2, wherein, the accused denied the contents of the
charge and the entire evidence of the prosecution was taken
on record.
2.4 The prosecution examined 7 witnesses and produced
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15 documentary evidences on record in support of their
case. After the learned APP filed the closing pursis, the
further statement of the accused under Section 313 of the
Code of Criminal Procedure, 1973 was recorded, wherein,
the accused denied all the evidence of the prosecution on
record. The accused refused to step into the witness box or
examine witnesses on his behalf and stated that a false case
has been filed against him. After the arguments of the
learned APP and the learned advocate for the accused were
heard, the learned Trial Court by the impugned judgement
and order was pleased to acquit the accused from the
charges levelled against him.
3. Being aggrieved and dissatisfied with the said
judgment and order of acquittal, the appellant – State has
filed the present appeal mainly stating that the impugned
judgment is contrary to the weight of evidence on record,
the settled provisions of law and the evidence adduced
during the trial. It is contended that the learned Trial Court
has failed to appreciate the oral as well as documentary
evidence in its true and proper perspective and that the
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learned Trial Court has failed to properly appreciate the
deposition of the complainant, who has categorically stated
that the dead body of his father was found near the Shiv
Mandir. He has further deposed that about three years prior
to the present incident, when the family members were
returning after attending the funeral ceremony of his
brother’s son, witnesses namely Hakubhai Joshi,
Bavkubhai Sisodia, Ramjibhai Jivabhai and Bavkubhai
Kamejaliya informed him that the accused had confessed
before them that he had committed the murder of the
complainant’s father as he had not been given his share in
the ancestral property. The learned Trial Court has failed to
appreciate that the extra-judicial confession was made by
the accused in the presence of the aforesaid witnesses and
that the Medical Officer, who performed the post-mortem
examination on the dead body of the deceased, has
categorically deposed that the cause of death was excessive
bleeding resulting from the injuries sustained on the head of
the deceased. The learned Trial Court has failed to
appreciate that there was no eye-witness to the incident and
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that the entire prosecution case rests upon circumstantial
evidence. According to the appellant, the prosecution
witnesses have consistently supported the case of the
prosecution and established the chain of circumstances and
the learned Trial Court has committed a serious error in
discarding the prosecution case by placing undue emphasis
on minor omissions and contradictions in the evidence of
the witnesses. According to the appellant, the alleged
omissions and contradictions are neither material nor
sufficient to discredit the otherwise reliable prosecution
evidence. It is, therefore, contended that the learned Trial
Court has failed to appreciate the evidence in its proper
perspective. The impugned judgment and order of acquittal
is illegal, improper and contrary to law and, therefore,
deserves to be quashed and set aside by allowing the
present appeal.
4. Heard learned APP Mr. Rohan Shah for the appellant
State. Though served, the respondent has not remained
present either in person or through an advocate. Perused
the impugned judgement and order of acquittal and have
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reappreciated the entire evidence of the prosecution on
record of the case.
5. Learned APP Mr. Rohan Shah has taken this Court
through the entire evidence of the prosecution on record of
the case and has submitted that the case of the prosecution
is based on circumstantial evidence and the extra judicial
confession of the respondent which was a voluntary
confession before the witnesses. On the basis of this extra
judicial confession, the complaint was filed and it is proved
that the respondent was responsible for the offence and he
had committed the murder of deceased Govabhai. The
prosecution has also proved that there was a family dispute
regarding the immovable property as the deceased who was
the grandfather of the respondent had had not given the
monetary share in the property to the father of the
respondent and the respondent had a grudge about the
same and hence, he had committed the murder of deceased
Govabhai who was his grandfather. The learned Trial Court
has not appreciated the evidence in proper perspective and
the impugned judgement and order of acquittal is required
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to be quashed and set aside and the respondent must be
found guilty for the offence with which he is charged.
6. At the outset, before discussing the facts of the
present case, it would be appropriate to refer to the
observations of the Apex Court with regard to the powers of
the Appellate Court in acquittal appeals as observed in the
case of Rajesh Prasad Vs. State of Bihar & Anr. reported
in 2022 LawSuit (SC) 26, in paras 20 to 28 which are
reproduced as under:
20. Before proceeding further, it would be useful to review the
approach to be adopted while deciding an appeal against acquittal by
the trial court as well as by the High Court. Section 378 of the Cr.P.C
deals with appeals in case of acquittal. In one of the earliest cases on
the powers of the High Court in dealing with an appeal against an
order of acquittal the Judicial Committee of the Privy Council in Sheo
Swarup Vs. R. Emperor, AIR 1934 PC 227(2) considered the
provisions relating to the power of an appellate court in dealing with
an appeal against an order of acquittal and observed as under:
“16. It cannot, however, be forgotten that in case of acquittal, there
is a double presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every person
should be presumed to be innocent unless he is proved to be guilty
by a competent court of law. Secondly, the accused having secured
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weakened but reinforced, reaffirmed and strengthened by the trial
court.
But in exercising the power conferred by the Code and before
reaching its conclusions upon fact, the High Court should and will
always give proper weight and consideration to such matters as (1)
the views of the trial Judge as to the credibility of the witnesses; (2)
the presumption of innocence in favour of the accused, a
presumption certainly not weakened by the fact that he has been
acquitted at his trial; (3) the right of the accused to the benefit of
any doubt; and (4) the slowness of an appellate court in disturbing
a finding of fact arrived at by a judge who had the advantage of
seeing the witnesses. To state this, however, is only to say that the
High Court in its conduct of the appeal should and will act in
accordance with rules and principles well known and recognised in
the administration of justice.” It was stated that the appellate court
has full powers to review and to reverse the acquittal.
21. In Atley Vs. State of U.P., AIR 1955 SC 807, the approach of the
appellate court while considering a judgment of acquittal was discussed
and it was observed that unless the appellate court comes to the
conclusion that the judgment of the acquittal was perverse, it could not
set aside the same. To a similar effect are the following observations of
this Court speaking through Subba Rao J., (as His Lordship then was)
in Sanwat Singh Vs. State of Rajasthan, AIR 1961 SC 715:
“9. The foregoing discussion yields the following results: (1) an
appellate court has full power to review the evidence upon which
the order of acquittal is founded; (2) the principles laid down in
Sheo Swarup case afford a correct guide for the appellate court’s
approach to a case disposing of such an appeal; and (3) the
different phraseology used in the judgments of this Court, such as,
(i) ‘substantial and compelling reasons’, (ii) ‘good and sufficiently
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cogent reasons’, and (iii) ‘strong reasons’ are not intended to curtail
the undoubted power of an appellate court in an appeal against
acquittal to review the entire evidence and to come to its own
conclusion; but in doing so it should not only consider every matter
on record having a bearing on the questions of fact and the reasons
given by the court below in support of its order of acquittal in its
arriving at a conclusion on those facts, but should also express
those reasons in its judgment, which lead it to hold that the
acquittal was not justified.” The need for the aforesaid
observations arose on account of observations of the majority in
Aher Raja Khimavs. State of Saurashtra, AIR 1956 SC 217 which
stated that for the High Court to take a different view on the
evidence “there must also be substantial and compelling reasons
for holding that the trial court was wrong.”
22. M.G. Agarwal Vs. State of Maharashtra, AIR 1963 SC 200 is the
judgment of the Constitution Bench of this Court, speaking through
Gajendragadkar, J. (as His Lordship then was). This Court observed
that the approach of the High Court (appellate court) in dealing with an
appeal against acquittal ought to be cautious because the presumption
of innocence in favour of the accused “is not certainly weakened by the
fact that he has been acquitted at his trial.”
23. In Shivaji Sahabrao Bobade Vs. State of Maharashtra, (1973) 2 SCC
793, Krishna Iyer, J., observed as follows:
“In short, our jurisprudential enthusiasm for presumed innocence
must be moderated by the pragmatic need to make criminal justice
potent and realistic. A balance has to be struck between chasing
chance possibilities as good enough to set the delinquent free and
chopping the logic of preponderant probability to punish marginal
innocents.”
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24. This Court in Ramesh Babular Doshi Vs. State of Gujarat, (1996) 9
SCC 225, spoke about the approach of the appellate court while
considering an appeal against an order acquitting the accused and
stated as follows:
“While sitting in judgment over an acquittal the appellate court is
first required to seek an answer to the question whether the
findings of the trial court are palpably wrong, manifestly erroneous
or demonstrably unsustainable. If the appellate court answers the
above question in the negative the order of acquittal is not to be
disturbed. Conversely, if the appellate court holds, for reasons to
be recorded, that the order of acquittal cannot at all be sustained in
view of any of the above infirmities it can thenand then only
reappraise the evidence to arrive at its own conclusions.” The
object and the purpose of the aforesaid approach is to ensure that
there is no miscarriage of justice. In another words, there should
not be an acquittal of the guilty or a conviction of an innocent
person.
25. In Ajit Savant Majagvai Vs. State of Karnatak, (1997) 7 SCC 110,
this Court set out the following principles that would regulate and
govern the hearing of an appeal by the High Court against an order of
acquittal passed by the Trial Court:
“16. This Court has thus explicitly and clearly laid down the
principles which would govern and regulate the hearing of appeal
by the High Court against an order of acquittal passed by the trial
court. These principles have been set out in innumerable cases and
may be reiterated as under:
(1) In an appeal against an order of acquittal, the High Court
possesses all the powers, and nothing less than the powers it
possesses while hearing an appeal against an order of conviction.
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(2) The High Court has the power to reconsider the whole issue,
reappraise the evidence and come to its own conclusion and
findings in place of the findings recorded by the trial court, if the
said findings are against the weight of the evidence on record, or in
other words, perverse.
(3) Before reversing the finding of acquittal, the High Court has to
consider each ground on which the order of acquittal was based
and to record its own reasons for not accepting those grounds and
not subscribing to the view expressed by the trial court that the
accused is entitled to acquittal.
(4) In reversing the finding of acquittal, the High Court has to keep
in view the fact that the presumption of innocence is still available
in favour of the accused and the same stands fortified and
strengthened by the order of acquittal passed in his favour by the
trial court.
(5) If the High Court, on a fresh scrutiny and reappraisal of the
evidence and other material on record, is of the opinion that there
is another view which can be reasonably taken, then the view
which favours the accused should be adopted.
(6) The High Court has also to keep in mind that the trial court had
the advantage of looking at the demeanour of witnesses and
observing their conduct in the Court especially in the witness box.
(7) The High Court has also to keep in mind that even at that stage,
the accused was entitled to benefit of doubt. The doubt should be
such as a reasonable person would honestly and conscientiously
entertain as to the guilt of the accused.”
26. This Court in Ramesh Babulal Doshi Vs. State of Gujarat, (1996) 9
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SCC 225 observed visà vis the powers of an appellate court while
dealing with a judgment of acquittal, as under:
“7. … While sitting in judgment over an acquittal the appellate
court is first required to seek an answer to the question whether
the findings of the trial court are palpably wrong, manifestly
erroneous or demonstrably unsustainable. If the appellate court
answers the above question in the negative the order of acquittal is
not to be disturbed. Conversely, if the appellate court holds, for
reasons to be recorded, that the order of acquittal cannot at all be
sustained in view of any of the above infirmities it can then–and
then only–reappraise the evidence to arrive at its own
conclusions.”
27. This Court in Chandrappa & Ors. Vs. State of Karnataka, (2007) 4
SCC 415, highlighted that there is one significant difference in
exercising power while hearing an appeal against acquittal by the
appellate court. The appellate court would not interfere where the
judgment impugned is based on evidence and the view taken was
reasonable and plausible. This is because the appellate court will
determine the fact that there is presumption in favour of the accused
and the accused is entitled to get the benefit of doubt but if it decides to
interfere it should assign reasons for differing with the decision of
acquittal.
28. After referring to a catena of judgments, this Court culled out the
following general principles regarding the powers of the appellate court
while dealing with an appeal against an order of acquittal in the
following words:
“42. From the above decisions, in our considered view, the
following general principles regarding powers of the appellate court
while dealing with an appeal against an order of acquittal emerge:
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(1) An appellate court has full power to review, reappreciate and
reconsider the evidence upon which the order of acquittal is
founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an appellate
court on the evidence before it may reach its own conclusion, both
on questions of fact and of law.
(3) Various expressions, such as, “substantial and compelling
reasons”, “good and sufficient grounds”, “very strong
circumstances”, “distorted conclusions”, “glaring mistakes”, etc.
are not intended to curtail extensive powers of an appellate court in
an appeal against acquittal. Such phraseologies are more in the
nature of “flourishes of language” to emphasise the reluctance of
an appellate court to interfere with acquittal than to curtail the
power of the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the trial court.”
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7. It is a settled principle of law that in an appeal against
acquittal, the Appellate Court is circumscribed by limitation
that no interference has to be made in the order of acquittal
unless after appreciation of the evidence produced before
the learned Trial Court, it appears that there are some
manifest illegality or perversity which could not have been
possibly arrived at by the Court. It is also a settled principle
that there is no embargo on the Appellate Court to review
the evidence but, generally the order of acquittal shall not
be interfered with as the presumption of innocence of the
accused is further strengthened by the order of acquittal.
The golden thread which runs through the web of
administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case of
the prosecution i.e. (i) guilt of the accused and (ii) his
innocence, the view, which is in favour of the accused,
should be adopted, and if the trial Court has taken the view
in favour of the accused, the Appellate Court should not
disturb the findings of the acquittal. The Appellate Court
can interfere with the judgment and order of acquittal only
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when there are compelling and substantial reasons and the
order is clearly unreasonable and where the Appellate
Court comes to conclusion that based on the evidence, the
conviction is a must.
8. In light of the above the settled principles law the
evidence of the prosecution is dissected and the
prosecution has examined PW1 – Dr. Kamuben Dahyalal
Sagathiya at Exh. 7 who is the Medical Officer who
performed the post-mortem examination on the dead body
of deceased Govabhai Bhurabhai on 21.03.1996 between
04:00 p.m. and 05:30 p.m. She has deposed that the dead
body of the deceased was received by her at about 04:00
p.m. On external examination, she noticed an ante-mortem
injury over the right parietal region of the scalp measuring
2 cm × 2 cm × 7 mm. Except for the said injury, no other
external injury was found on the body of the deceased. On
internal examination, the witness found a subdural black
blood clot over the right parietal region measuring 2 cm × 2
cm and petechial haemorrhage over the cranial region of
the brain. According to the witness, the cause of death was
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shock due to intracranial haemorrhage caused by a blunt
object. The witness has produced the post-mortem report
which is exhibited at Exh. 8.
In her cross-examination, the witness stated that the
haemorrhage was of a general nature and that the cause of
death could also be due to some other reason. She further
deposed that, apart from the haemorrhage, there was no
congestion in the lungs, the voice box and the neck bones
were intact, and no congestion was found in the eyes. She
further stated that if a person had been strangulated,
congestion would ordinarily be present in the lungs and the
eyes.
8.1 PW2 – Lakhmanbhai Govabhai examined at Exh. 9 is
the complainant and the uncle of the accused. The witness
has deposed that his father had gone to the Shiv Temple
where he fell down and expired. The dead body of his father
was thereafter taken to the Medical Officer at Maliya Hatina
for post-mortem examination and subsequently, the last
rites were performed. The witness has further stated that
after some time, the dead body of his nephew Bharat was
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also found near the temple. He has specifically deposed
that he had not seen either the dead body of his nephew
Bharat or that of his father. According to him, on the day
following the cremation of his nephew, he had gone for
labour work. At about 03:00 p.m., while he was in the
market, Hakubhai, Bavkubhai Sisodia, Rambhai and
Bavkubhai Kamejaliya met him and informed him that the
accused had committed the murder of his father as well as
his nephew and had confessed before them to having
committed the said murders. On receiving the said
information, he lodged the complaint, which is produced at
Exh. 10. The witness has further deposed that his father
had sold 21 vighas of land and had given 2½ vighas of land
each to the father of the accused and Ukabhai for
cultivation. According to the witness, the father of the
accused wanted his name to be mutated in the revenue
record; however, they did not give their consent for such
mutation, whereupon the father of the accused stopped
speaking to them.
In his cross-examination, the witness stated that after
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receiving the information in the market, he first returned
home and had tea. He further stated that none of the
persons who had informed him about the incident came to
his house. At about 04:00 p.m., he went to the house of
Arjanbhai, where he remained till 06:00 p.m. Thereafter, he
returned to his house, had dinner and went to the Police
Station after 07:00 p.m. He further admitted that the place
where he had received the information regarding the
incident was at a distance of only about ten minutes from
the Police Station.
8.2 PW3 – Rambhai Jivabhai examined at Exh. 11 has
deposed that after the death of Bharat, on the following
day, he went to the house of Arjanbhai. There, he called the
accused aside and enquired from him as to what had
transpired when Bharat was with him on the previous day.
According to the witness, the accused asked him to come
outside the house. Thereafter, he and Bavkubhai Sisodia
accompanied the accused to a nearby temple, where the
accused allegedly confessed before them that he had
murdered Bharat. The accused further confessed that he
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had also committed the murder of his grandmother,
Raniba. Upon being asked as to why he had committed
such acts, the accused stated that his father had not been
given his share in the family property and, therefore, he
had committed the murders. The witness has further stated
that thereafter they took the accused to the shop of
Hakubhai Joshi, where the accused again confessed to the
crime. Subsequently, they all proceeded towards the bus
stand, where they met Bavkubhai Kamejaliya. Thereafter,
all four of them sat beneath an Indian Cherry Tree, where
the accused further confessed to having murdered his
grandfather, Govabapa.
In his cross-examination, the witness admitted that he
had not stated before the police in his statement that he
had gone to the house of Arjanbhai after the death of
Bharat or that he had questioned the accused regarding the
events that had taken place when Bharat was with him on
the previous day. He further stated that the accused had
not made any confession in the presence of the villagers.
The witness also admitted that he had no relationship
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whatsoever with the accused. He belongs to the Darbar
community, whereas the accused belongs to the Koli
community.
8.3 PW4 – Vrajlal @ Hakubhai Parmanandbhai Joshi
examined at Exh. 12 has deposed that he was acquainted
with the accused as well as the family members of the
deceased – Govabhai. According to him, on 23.11.1996,
while he was present at his shop in the afternoon, Rambhai
Jivabhai and Bavkubhai Sisodia came there along with the
accused. Rambhai requested him to listen to what the
accused had to say. Thereupon, the accused allegedly
confessed before him that he had committed the murder of
Bharat and requested them to come outside. Thereafter,
they all proceeded towards the bus stand, where they met
Bakubhai Kamejaliya on the way. All of them then sat
beneath an Indian Cherry Tree, where the accused further
confessed that he had murdered his grandfather –
Govabhai, and his grandmother – Raniba. The accused also
stated that he had committed the murders because his
grandfather had not given his father the monetary share
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arising from the sale of the family property. The witness has
further stated that thereafter they took the accused towards
the house of Arjanbhai and, on the way, they met
Laxmanbhai, the son of Govabhai, to whom they disclosed
the confession made by the accused.
In his cross-examination, the witness stated that the
police had recorded his statement only once in connection
with all the three cases. He further admitted that he had no
relationship with the accused and had never had any
conversation with him regarding the present case prior to
the incident. He also stated that he belongs to the Brahmin
Community, whereas the accused belongs to the Koli
community.
8.4 PW5 – Bavkubhai Thakarbhai Sisodiya examined at
Exh. 13 has deposed that on 23.11.1996, he had gone to
the house of Arjanbhai, where Rambhai called the accused
and questioned him as to what had happened when Bharat
was with him on 21.11.1996. According to the witness, the
accused requested them to come outside, and they
thereafter went to the temple. At the temple, the accused
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allegedly confessed that he had taken Bharat on his bicycle
towards the temple of Kanaka Goddess, where he
strangulated him and thereafter struck his head with a
stone, causing his death. The witness has further stated
that they thereafter took the accused to the shop of
Hakubhai Joshi, where the accused repeated the confession
in the presence of Hakubhai Joshi. Thereafter, the accused
stated that he wished to make a further confession,
whereupon they proceeded towards the bus stand. On the
way, they met Bavkubhai Kamejaliya, who also
accompanied them. All four of them then sat beneath an
Indian Cherry Tree, where the accused confessed that he
had murdered his grandfather – Govabapa. The accused
also stated that he had committed the murders because his
grandfather had not given his father the monetary share in
the family property.
In his cross-examination, the witness admitted that he
had no relationship or friendship with the accused. He
further stated that Govabapa had expired about three
months prior to the incident and that, although he had seen
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the accused in the village thereafter, the accused had never
spoken to him regarding the incident. The witness also
admitted that he belongs to the Darbar Community and had
never extended any assistance to the accused. He further
stated that prior to the incident, he had no occasion to
converse with the accused at any point of time.
8.5 PW6 – Somabhai Tejabhai examined at Exh. 14 is the
panch witness to the panchnama of the place of offence,
which has been produced on record at Exh. 15.
8.6 PW7 – Kalekhan Aalamkhan Kureshi examined at Exh.
18 was serving as the Police Sub-Inspector at Maliya Hatina
Police Station at the relevant time. He has deposed that on
23.11.1996, the complainant came to the Police Station and
lodged the complaint, which was recorded by him. The
witness has further stated that after registration of the
offence, he took over the investigation from Head Constable
– Bhanvarlal Chauhan, who was then investigating Accident
Death No. 6 of 1996. Upon completion of the investigation,
he filed the charge-sheet before the competent Court.
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9. The case of the prosecution solely rests on the extra-
judicial confession of the accused and it would be
appropriate to reproduce the observations of the Apex
Court in the case of Sahadevan & Anr. Vs. State of Tamil
Nadu reported in AIR 2012 SC 2435 in para 14 to 22
which are reproduced as under:
14. In Balwinder Singh Vs. State of Punjab [1995 Supp. (4) SCC
259], this Court stated the principle that an extra-judicial
confession, by its very nature is rather a weak type of evidence
and requires appreciation with a great deal of care and caution.
Where an extrajudicial confession is surrounded by suspicious
circumstances, its credibility becomes doubtful and it loses its
importance.
15. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], the Court
held that it is well settled that it is a rule of caution where the
court would generally look for an independent reliable
corroboration before placing any reliance upon such extra-judicial
confession.
16. Again in Kavita v. State of T.N. [(1998) 6 SCC 108], the Court
stated the dictum that there is no doubt that conviction can be
based on extrajudicial confession, but it is well settled that in the
very nature of things, it is a weak piece of evidence. It is to be
proved just like any other fact and the value thereof depends
upon veracity of the witnesses to whom it is made.
17. While explaining the dimensions of the principles governing
the admissibility and evidentiary value of an extra-judicial
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confession, this Court in the case of State of Rajasthan v. Raja
Ram [(2003) 8 SCC 180] stated the principle that an extra-judicial
confession, if voluntary and true and made in a fit state of mind,
can be relied upon by the court. The confession will have to be
proved like any other fact. The value of evidence as to confession,
like any other evidence, depends upon the veracity of the witness
to whom it has been made. The Court, further expressed the view
that such a confession can be relied upon and conviction can be
founded thereon if the evidence about the confession comes from
the mouth of witnesses 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.
18. In the case of Aloke Nath Dutta v. State of W.B. [(2007) 12
SCC 230], the Court, while holding the placing of reliance on
extra-judicial confession by the lower courts in absence of other
corroborating material, as unjustified, observed:
“87. Confession ordinarily is admissible in evidence. It
is a relevant fact. It can be acted upon. Confession may
under certain circumstances and subject to law laid
down by the superior judiciary from time to time form
the basis for conviction. It is, however, trite that for the
said purpose the court has to satisfy itself in regard to:
(i) voluntariness of the confession; (ii) truthfulness of the
confession; (iii) corroboration.
XXX XXX XXX
89. A detailed confession which would otherwise be
within the special knowledge of the accused may itself
be not sufficient to raise a presumption that confession
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is a truthful one. Main features of a confession are
required to be verified. If it is not done, no conviction
can be based only on the sole basis thereof.”
19. Accepting the admissibility of the extra-judicial confession,
the Court in the case of Sansar Chand v. State of Rajasthan
[(2010) 10 SCC 604] held that :-
“29. 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 other material. [ Vide Thimma
and Thimma Raju v. State of Mysore, Mulk Raj v. State
of U.P., Sivakumar v. State (SCC paras 40 and 41 : AIR
paras 41 & 42, Shiva Karam Payaswami Tewari v.
State of Maharashtra and Mohd. Azad v. State of W.B.
30. In the present case, the extra-judicial confession by
Balwan has been referred to in the judgments of the
learned Magistrate and the Special Judge, and it has
been corroborated by the other material on record. We
are satisfied that the confession was voluntary and
was not the result of inducement, threat or promise as
contemplated by Section 24 of the Evidence Act, 1872.”
20. Dealing with the situation of retraction from the extra-judicial
confession made by an accused, the Court in the case of
Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5
SCC 740], held as under :
“It appears therefore, that the appellant has retracted
his confession. When an extra-judicial confession is
retracted by an accused, there is no inflexible rule that
the court must invariably accept the retraction. But atPage 27 of 32
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the same time it is unsafe for the court to rely on the
retracted confession, unless, the court on a
consideration of the entire evidence comes to a definite
conclusion that the retracted confession is true.”
21. Extra-judicial confession must be established to be true and
made voluntarily and in a fit state of mind. The words of the
witnesses must be clear, unambiguous and should clearly convey
that the accused is the perpetrator of the crime. The extra-judicial
confession can be accepted and can be the basis of conviction, if
it passes the test of credibility. The extra-judicial confession
should inspire confidence and the court should find out whether
there are other cogent circumstances on record to support it. [Ref.
Sk. Yusuf v. State of W.B. [(2011) 11 SCC 754] and Pancho v.
State of Haryana [(2011) 10 SCC 165].
22. Upon a proper analysis of the above-referred judgments of
this Court, it will be appropriate to state the principles which
would make an extra- judicial confession an admissible piece of
evidence capable of forming the basis of conviction of an accused.
These precepts would guide the judicial mind while dealing with
the veracity of cases where the prosecution heavily relies upon an
extra-judicial confession alleged to have been made by the
accused.
The Principles
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.
iii) It should inspire confidence.
iv) An extra-judicial confession attains greater credibility and
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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 suffer from any material
discrepancies and inherent improbabilities.
vi) Such statement essentially has to be proved like any other
fact and in accordance with law.
10. Upon a careful re-appreciation of the entire evidence
on record, this Court finds that the prosecution has
primarily relied upon the alleged extra-judicial confession
said to have been made by the accused before PW3 –
Rambhai Jivabhai, PW4 – Vrajlal @ Hakubhai Parmanand
Joshi and PW5 – Babubhai Thakarbhai Sisodia. It is well
settled that an extra-judicial confession is a weak piece of
evidence and though it is not inadmissible in law, it must
be received with great caution. Before such a confession
can be made the sole basis for recording a conviction, the
Court must be satisfied that it is voluntary, truthful,
inspires full confidence and is free from any material
discrepancies or inherent improbabilities. The
circumstances in which the confession is alleged to have
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been made must also be natural and convincing. The
principles governing appreciation of extra-judicial
confession have been succinctly laid down by the Supreme
Court in Sahadevan & Anr. (Supra) wherein it has been held
that an extra-judicial confession, by itself, can form the
basis of conviction only if it passes the test of credibility
and inspires implicit confidence. In the present case, the
evidence of PW3, PW4 and PW5 does not satisfy the
aforesaid parameters. Admittedly, none of these witnesses
had any relationship of confidence, intimacy or fiduciary
association with the accused. On the contrary, they have
categorically admitted in their cross-examination that they
had no friendship or close acquaintance with the accused
and belonged to different communities. It is, therefore,
inherently improbable that the accused would voluntarily
repose confidence in such persons and confess not only the
murder of Bharat but also the murders of his grandfather
and grandmother before them without any apparent
reason. The prosecution has failed to establish any
circumstance explaining why the accused would choose
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these witnesses as the recipients of such a grave
confession. The evidence further reveals material omissions
in the police statements of PW3 regarding the
circumstances in which the confession was allegedly made.
The sequence narrated by the witnesses, namely, the
accused successively confessing before different persons at
different places on the same day, also appears unnatural
and does not inspire confidence. In the absence of any
independent corroboration lending assurance to the alleged
confession, this Court is unable to place implicit reliance
upon such evidence. The learned Trial Court has
meticulously appreciated the evidence in its proper
perspective and has rightly concluded that the alleged
extra-judicial confession is neither wholly reliable nor of
such sterling quality as to constitute the sole foundation for
conviction. The view taken by the Trial Court is a plausible
and well-reasoned view based upon the evidence on record
and does not suffer from any perversity, illegality or
misappreciation of evidence warranting interference in an
appeal against acquittal. Accordingly, we are of the
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considered opinion that the prosecution has failed to prove
the guilt of the accused beyond reasonable doubt, and the
order of acquittal passed by the learned Trial Court
deserves to be affirmed.
11. The impugned judgement and order of acquittal
passed by the learned Additional Sessions Judge, Veraval
in Sessions Case No. 241/1999 on 01.01.2000, is hereby
confirmed.
12. Bail bond stands cancelled. Record and proceedings
be sent back to the concerned Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
Sd/-
(P. M. RAVAL, J)
VASIM S. SAIYED
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